Constitution of Naked Brand Group Limited

 

 

 

 
  

 

 

 

Table of contents

 

 

1 Preliminary 1
       
  1.1 Definitions 1
       
  1.2 Interpretation 2
       
  1.3 Application of the Relevant Law 3
       
  1.4 Exercising powers 3
     
2 Capital 4
       
  2.1 Shares 4
       
  2.2 Preference share rights 5
       
  2.3 Alteration of share capital 6
       
  2.4 Variation of class rights 6
       
  2.5 Restricted securities 6
     
3 Certificates 7
       
  3.1 Issue of certificates 7
       
  3.2 Cancellation of certificates 7
     
4 Register 7
       
  4.1 Joint holders 7
       
  4.2 Equitable and other claims 8
     
5 Calls on shares 8
       
  5.1 Power to make calls 8
       
  5.2 Time of calls 8
       
  5.3 Notice of calls 8
       
  5.4 Payment of calls 8
       
  5.5 Fixed instalments 8
       
  5.6 Failure to pay 8
       
  5.7 Proof of call 9
       
  5.8 Payments in advance of calls 9
       
  5.9 Waiver 9
       
6 Forfeiture of shares 9
       
  6.1 Forfeiture procedure 9
       
  6.2 Notice of forfeiture 10
       
  6.3 Effect of forfeiture 10

 

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7 Lien on shares 10
       
  7.1 Existence of lien 10
       
  7.2 Lien on distributions 11
       
  7.3 Sale under lien 11
       
  7.4 Extinguishment of lien 11
       
  7.5 Company’s right to recover payments 11
       
  7.6 Exemption from lien 11
     
8 Surrender of shares 12
     
9 Sale, reissue or other disposal of shares by the company 12
     
10 Interest and costs payable 13
     
11 Share plans 13
       
  11.1 Implementing share plans 13
       
  11.2 Directors’ powers and varying, suspending or terminating share plans 14
     
12 Transfer of shares 14
       
  12.1 Computerised trading 14
       
  12.2 Transferring shares 14
       
  12.3 Power to decline to register transfers 15
       
  12.4 Power to suspend registration of transfers 15
     
13 Unmarketable parcels 16
       
  13.1 Power of sale 16
       
  13.2 Notice of proposed sale 16
       
  13.3 No sale where member gives notice 16
       
  13.4 Terms of sale 16
       
  13.5 Share transfers 16
       
  13.6 Application of proceeds 17
       
  13.7 Protections for transferee 17
     
14 Transmission of shares 17
       
  14.1 Death of joint holder 17
       
  14.2 Death of sole holder 17
       
  14.3 Other transmission events 18
       
  14.4 Other rules 18
     
15 Proportional takeover bids 18
       
  15.1 Definitions 18
       
  15.2 Transfers not to be registered 19
       
  15.3 Approving Resolution 19
       
  15.4 Sunset 19

 

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16 General meetings 20
       
  16.1 Calling general meetings 20
       
  16.2 Postponing or cancelling a meeting 20
       
  16.3 Notice of general meetings 20
       
  16.4 Non-receipt of notice 21
       
  16.5 Admission to general meetings 21
       
  16.6 Multiple venues 21
       
  16.7 Quorum at general meetings 22
       
  16.8 Chairman of general meetings 22
       
  16.9 Acting chairman 23
       
  16.10 Conduct at general meetings 23
       
  16.11 Adjournment and postponement by the chairman 24
       
  16.12 Decisions at general meetings 24
       
  16.13 When poll may be demanded 25
       
  16.14 Voting rights 25
       
  16.15 Representation at general meetings 27
       
  16.16 Class meetings 27
     
17 Proxies, attorneys and representatives 27
       
  17.1 Appointment instruments 27
       
  17.2 More than two current proxies 29
       
  17.3 Revocation and postponement of the appointment 29
       
  17.4 Chairman may make a determination 30
     
18 Direct voting 30
       
  18.1 Directors may decide direct voting to apply 30
       
  18.2 Direct votes only counted on a poll 30
       
  18.3 Withdrawal of direct vote 31
       
  18.4 Vote not affected by death, etc. of a member 31
     
19 Directors 31
       
  19.1 Number of directors 31
       
  19.2 Power to appoint directors 31
       
  19.3 Retirement of directors 32
       
  19.4 Vacating office 33
       
  19.5 Remuneration 33
       
  19.6 Director need not be a member 34
       
  19.7 Directors interests 34
     
20 Powers and duties of directors 35
       
  20.1 General powers 35
       
  20.2 Power to borrow and give security 36
       
  20.3 Powers of appointment 36

 

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21 Proceedings of directors meetings 36
       
  21.1 Meetings of directors 36
       
  21.2 Calling meetings of directors 37
       
  21.3 Notice of meetings of directors 37
       
  21.4 Quorum at meetings of directors 37
       
  21.5 Chairman and deputy chairman of directors 38
       
  21.6 Decisions of directors 38
       
  21.7 Written resolutions 39
     
22 Alternate directors 39
       
  22.1 Director may appoint alternate director 39
       
  22.2 Conditions of office of alternate director 39
       
  22.3 Committees of directors 40
       
  22.4 Delegation to a director 40
       
  22.5 Validity of acts 40
     
23 Executive officers 41
       
  23.1 Managing directors and executive directors 41
       
  23.2 Secretary 41
       
  23.3 Provisions applicable to all executive officers 41
     
24 Indemnity and insurance 42
       
  24.1 Officer’s right of indemnity 42
       
  24.2 Indemnity 42
       
  24.3 Scope of indemnity 42
       
  24.4 Insurance 42
       
  24.5 Savings 43
       
  24.6 Contract 43
     
25 Dividends 43
       
  25.1 Payment of dividends 43
       
  25.2 Reserves and profits carried forward 43
       
  25.3 Apportionment of dividends 43
       
  25.4 Record date 44
       
  25.5 No interest 44
       
  25.6 Method of payment 44
       
  25.7 Retention of dividends 45
       
  25.8 Distribution of specific assets 45
       
  25.9 Source of dividends 45
       
  25.10 Reinvestment of dividends 46
       
  25.11 Unclaimed dividends 46

 

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26 Capitalising profits 46
       
  26.1 Capitalisation of reserves and profits 46
       
  26.2 Applying a sum for the benefit of members 46
       
  26.3 Implementing the resolution 46
     
27 Winding up 47
       
  27.1 Distributing surplus 47
       
  27.2 Dividing property 47
     
28 Inspection of records 48
       
  28.1 Inspection by member 48
       
  28.2 Access by director 48
     
29 Seals 48
       
  29.1 Safe custody of seal 48
       
  29.2 Use of seal 48

 

30 Notices 49
       
  30.1 Method of service 49
       
  30.2 Time of service 49
       
  30.3 Evidence of service 49
       
  30.4 Joint holders 50
       
  30.5 Other communications and documents 50

 

31 General 50
       
  31.1 Submission to jurisdiction 50
       
  31.2 Prohibition and enforceability 50

 

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Constitution

 

Naked Brand Group Limited | ACN 619 054 938

 

 

1 Preliminary

 

1.1 Definitions

 

In this constitution:

 

Term   Definition
     
AGM   means an annual general meeting of the company that the Corporations Act requires to be held.
     
Business Day   has the meaning given to that term in the Listing Rules.
     
Board   means the board of directors of the Company.
     
Corporations Act   means Corporations Act 2001 (Cth).
     
Exchange   means NASDAQ Stock Market or another body corporate declared by the directors to be the company’s primary stock exchange for the purposes of this definition.
     
IPO   means an initial public offering of Shares (or the shares in the capital of any special purpose holding company formed for the purpose of an initial public offer) made under a prospectus lodged with the relevant regulatory body stating that the Company (or the relevant holding company) has applied or will apply, in conjunction with the offering, for quotation of the Shares (or shares in the capital of the relevant holding company) on an Exchange.
     
Listing Rules   means the listing rules of the Exchange.
     
Record Time  

means:

 

  (a) in the case of a meeting for which the caller of the meeting has decided, under the Corporations Act, that shares are to be taken to be held by the persons who held them at a specified time before the meeting, that time; and
     
  (b) in any other case, the time of the relevant meeting.

 

Relevant Law   means the Corporations Act, the Listing Rules and the Settlement Operating Rules.
     
Representative   means, for a member which is a body corporate and for a meeting, a person authorised under the Corporations Act (or a corresponding previous law) by the body corporate to act as its representative at the meeting.
     
Settlement Operating Rules   means the operating rules of the relevant Exchange.
     
Shares   means issued shares irrespective of their class in the capital of the Company, as the context requires, and Share means one issued share in the capital of the Company.

 

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1.2 Interpretation

 

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 at one or more fixed times;
     
  (d) a reference to a member for the purposes of a meeting of members for which the caller of the meeting has determined a Record Time is a reference to a registered holder of shares at the relevant Record Time;
     
  (e) a reference to a member present at a general meeting is a reference to a member present in person or by proxy, attorney or Representative;
     
  (f) 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;

 

  (g) unless the contrary intention appears:

 

  (i) a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity;
     
  (ii) a reference to a person includes that person’s successors, legal personal representatives, permitted substitutes and permitted assigns;
     
  (iii) a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
     
  (iv) a reference to the Listing Rules or the 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;
     
  (v) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;
     
  (vi) a reference to a rule is a reference to a rule of this constitution;
     
  (vii) a reference to a document or agreement (including a reference to this document) is to that document or agreement as amended, supplemented, varied or replaced; and
     
  (viii) if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day; and

 

  (h) headings are for convenience only and do not affect interpretation.

 

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1.3 Application of the Relevant Law

 

  (a) The replaceable rules in the Corporations Act do not apply to the company.
     
  (b) A reference to the Exchange, the Listing Rules or the Settlement Operating Rules only applies while the company is included in the official list of the Exchange.
     
  (c) Where an expression is used in a manner consistent with a provision of the Relevant Law, the expression has the same meaning as in that provision.
     
  (d) While the company is included in the official list of the Exchange, the following rules apply:

 

  (i) despite anything contained in these rules, if the Listing Rules prohibit an act being done, the act must not be done;
     
  (ii) nothing contained in these rules prevents an act being done that the Listing Rules require to be done;
     
  (iii) 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);
     
  (iv) if the Listing Rules require these rules to contain a provision and they do not contain that provision, these rules are taken to contain that provision;
     
  (v) if the Listing Rules require these rules not to contain a provision and they contain that provision, these rules are taken not to contain that provision; and
     
  (vi) if any provision of these rules is or becomes inconsistent with the Listing Rules, these rules are taken not to contain that provision to the extent of the inconsistency.

 

1.4 Exercising powers

 

  (a) The company may exercise any power, take any action or engage in any conduct which the Corporations Act permits a company limited by shares to exercise, take or engage in.
     
  (b) A power conferred on a person to do a particular act or thing under this constitution includes, unless the contrary intention appears, a power (exercisable in the same way and subject to the same conditions) to repeal, rescind, revoke, amend or vary that act or thing.
     
  (c) A power conferred under this constitution to do a particular act or thing:

 

  (i) may be exercised from time to time and subject to conditions; and
     
  (ii) may, where the power concerns particular matters, be exercised for only some of those matters or as to a particular class of those matters, and to make different provision concerning different matters or different classes of matters.

 

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  (d) Where a power to appoint a person to an office or position is conferred under this constitution (except the power to appoint a director under rule 19.2(a)) the power includes, unless the contrary intention appears, a power to:

 

  (i) appoint a person to act in the office or position until a person is appointed to the office or position;
     
  (ii) remove or suspend any person appointed (without prejudice to any rights or obligations under any contract between the person and the company); and
     
  (iii) appoint another person temporarily in the place of any person removed or suspended or in the place of any sick or absent holder of the office or position.

 

  (e) Where this constitution gives power to a person to delegate a function or power:

 

  (i) the delegation may be concurrent with, or (except in the case of a delegation by the directors) to the exclusion of, the performance or exercise of that function or power by the person;
     
  (ii) the delegation may be either general or limited in any way provided in the terms of delegation;
     
  (iii) the delegation need not be to a specified person but may be to any person holding, occupying or performing the duties of a specified office or position;
     
  (iv) the delegation may include the power to delegate; and
     
  (v) where performing or exercising that function or power depends on that person’s opinion, belief or state of mind about a matter, that function or power may be performed or exercised by the delegate on the delegate’s opinion, belief or state of mind about that matter.

 

2 Capital
   
2.1 Shares

 

Subject to this constitution and the Relevant Law, the directors may:

 

  (a) issue and cancel shares;
     
  (b) grant options over unissued shares;
     
  (c) settle the manner in which fractions of a share are to be dealt with; and
     
  (d) decide:

 

  (i) the persons to whom shares are issued or options are granted;
     
  (ii) the terms on which shares are issued or options are granted; and
     
  (iii) the rights and restrictions attached to those shares or options.

 

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2.2 Preference share rights

 

  (a) The company may issue preference shares including preference shares which are, at the option of the company or holder, liable to be redeemed or converted to ordinary shares.
     
  (b) Each preference share confers on the holder the right to:

 

  (i) receive a preferential dividend, in priority to the payment of any dividend on the ordinary shares, at a rate (which may be fixed or variable) and on the basis (including whether cumulative or not) decided by the directors at the time of issue;
     
  (ii) participate with the ordinary shares in profits and assets of the company, including on a winding up, if and to the extent the directors decide at the time of issue;
     
  (iii) in a winding up and on redemption, payment in priority to the ordinary shares of:

 

  (A) the amount of any dividend accrued but unpaid on the share at the date of winding up or the date of redemption; and
     
  (B) any additional amount specified in the terms of issue;

 

  (iv) (to the extent directors may decide at the time of issue), a bonus issue or capitalisation of profits in favour of holders of those shares only; and
     
  (v) vote at any general meeting of the company, but only in the following circumstances:

 

  (A) on a proposal to reduce the share capital of the company, affect the rights attached to the share, to wind up the company or for the disposal of the whole of the property, business and undertaking of the company;
     
  (B) on a resolution to approve the terms of a buy-back agreement;
     
  (C) during a period in which a dividend or part of a dividend on the share is in arrears;
     
  (D) during the winding up of the company; or
     
  (E) in any other circumstances in which the Listing Rules require holders of preference shares to be entitled to vote.

 

  (c) On a poll on a matter listed in rule 2.2(b)(v), the holder of a preference share is entitled to one vote per share or the number of votes specified in, or determined under, the terms of issue for the share.
     
  (d) If the preference share is redeemable, the company must redeem the share and pay to, or to a person directed by the holder, the amount payable on redemption of the share, as and when required by the terms of issue.

 

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2.3 Alteration of share capital

 

Subject to the Corporations Act, the company may resolve to convert or reclassify shares from one class to another and the directors may do anything required to give effect to that resolution.

 

2.4 Variation of class rights

 

  (a) The rights attached to any class of shares may, unless their terms of issue state otherwise, be varied:

 

  (i) with the written consent of the holders of 75% of the shares of the class; or
     
  (ii) by a special resolution passed at a separate meeting of the holders of shares of the class.

 

  (b) The rights conferred on the holders of any class of shares are to be taken as not having been varied by the creation or issue of further shares ranking equally with them.

 

2.5 Restricted securities

 

  (a) If the Exchange classifies any of the company’s share capital as ‘restricted securities’, then, despite anything in this constitution:

 

  (i) the restricted securities must not be disposed of during the escrow period except as permitted by the Listing Rules or the Exchange;
     
  (ii) the company must, except as permitted by the Listing Rules or the Exchange, refuse to acknowledge a disposal of the restricted securities during the escrow period; and
     
  (iii) the member holding the restricted securities ceases to be entitled to any dividend or distribution and to any voting rights for those restricted securities for so long as a breach of the Listing Rules relating to restricted securities or a breach of the restriction agreement for the restricted securities subsists.

 

  (b) If at any time the Board resolves by the unanimous approval of all the Directors in favour of an IPO, each shareholder must:

 

  (i) accept any lock-up or escrow requirements imposed, under which the shareholders’ rights to dispose of their Shares (or shares in any special purpose holding company formed for the purpose of the IPO) are limited for a period of time regardless of the lock-up or escrow period imposed by the relevant Exchange or requested by any financial adviser or underwriter to the IPO; and
     
  (ii) sign any lock-up or escrow agreements at the request of the Company.

 

  (c) Each shareholder:

 

  (i) severally and irrevocably appoints any two Directors jointly as its agent and attorney with power to do anything on behalf of the shareholder that it is required to do, but has failed to do, under rule 2.5(b), including the power for any two Directors together on behalf of that shareholder to sign any lock-up or escrow agreement;
     
  (ii) declares that it is bound by, and will ratify and confirm, anything done by any Director under this power of attorney; and
     
  (iii) declares that this power of attorney is given for valuable consideration and is irrevocable.

 

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3 Certificates
   
3.1 Issue of certificates

 

  (a) Subject to the Relevant Law, the company:

 

  (i) need not issue certificates for shares if the directors decide; and
     
  (ii) may issue certificates for shares, cancel any certificates for shares, and replace lost or destroyed or defaced certificates for shares, on the basis and in the form which the directors decide.

 

  (b) The company must issue to a shareholder any statements of the holding of shares registered in the shareholder’s name as required by the Relevant Law.

 

3.2 Cancellation of certificates

 

Where the directors have, under rule 3.1(a), decided not to issue certificates for securities or to cancel existing certificates, a shareholder has the right to receive statements of the holdings of the shareholder as are required to be distributed to a shareholder under the Relevant Law.

 

4 Register
   
4.1 Joint holders

 

Where two or more persons are registered as the holders of a share, they are taken to hold the shares as joint tenants with benefits of survivorship subject to the following provisions:

 

  (a) the company is not bound to register more than three persons as the holders of the shares (except in the case of trustees, executors or administrators of a deceased shareholder);
     
  (b) the joint holders are jointly and severally liable for all payments which ought to be made in respect of the shares;
     
  (c) only the person whose name appears first in the register as one of the joint holders of the shares is entitled, if the company is required by the Relevant Law or this constitution to issue certificates for shares, to delivery of a certificate for the shares; and
     
  (d) any one of the joint holders may vote at any meeting of the company either personally or by duly authorised representative, proxy or attorney, in respect of the shares as if that joint holder was solely entitled to the shares, and if more than one of the joint holders are present at any meeting personally or by duly authorised representative, proxy or attorney, the joint holder who is present whose name appears first in the register for the shares is entitled alone to vote in respect of the shares.

 

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4.2 Equitable and other claims

 

The registered holder of a share may be treated as the absolute owner of that share by the company. The company is under no obligation to:

 

  (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.

 

5 Calls on shares
   
5.1 Power to make calls

 

The directors may:

 

  (a) make a call on a member for any money unpaid on the shares of that member which is not, by the terms of issue of those shares, made payable at fixed times;
     
  (b) require a call to be paid by instalments; and
     
  (c) revoke or postpone a call.

 

5.2Time of calls

 

A call is taken to have been made when the directors’ resolution authorising the call is passed or on a later date fixed by the directors.

 

5.3Notice of calls

 

The company must give notice of a call at least 30 Business Days (or any longer period required by the Listing Rules) before the amount called is due, specifying the time and place of payment.

 

5.4Payment of calls

 

Each member must pay to the company, by the time and at the place specified, the amount called on the member’s shares.

 

5.5Fixed instalments

 

Subject to the notice requirements under the Listing Rules, any amount unpaid on a share that, by the terms of issue of the share, becomes payable on issue or at a fixed date is taken to be subject to a call duly made and is payable under the terms of issue of the share.

 

5.6Failure to pay

 

  (a) If a member does not pay the amount due under a call in rule 5, by the time specified, the member must pay:

 

  (i) interest on the unpaid amount from the date payment is due to the date payment is made, at a rate calculated under rule 10; and
     
  (ii) any costs, expenses or damages the company incurs due to the failure to pay.

 

  (b) The directors may waive payment under this rule wholly or in part.

 

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5.7Proof of call

 

In a proceeding to recover a call, or an amount payable due to the failure to pay or late payment of a call, proof that:

 

  (a) the name of the defendant is entered in the register of members as the holder or one of the holders of the share on which the call is claimed;
     
  (b) the resolution making the call is recorded in the minute book; and
     
  (c) notice of the call was given to the defendant complying with this constitution, is conclusive evidence of the debt.

 

5.8Payments in advance of calls

 

The directors may:

 

  (a) accept from a member the whole or a part of the amount unpaid on a share even though no part of that amount has been called;
     
  (b) authorise payment by the company of interest on that amount, until the amount becomes payable, at a rate fixed by the directors; and
     
  (c) repay to a member any amount accepted under rule 5.8.

 

5.9Waiver

 

The directors may, to the extent the law permits, waive or compromise all or part of any payment due to the company under the terms of issue of a share or under rule 5.

 

6 Forfeiture of shares
   
6.1 Forfeiture procedure

 

Subject to the Relevant Law, the company may by directors’ resolution forfeit a member’s share if:

 

  (a) that member does not pay a call or other amount payable for that share on or before the date for its payment;
     
  (b) the company gives the member written notice:

 

  (i) requiring the shareholder to pay that call or other amount; and
     
  (ii) stating that the share is liable to be forfeited if the member does not pay to the company, at the place specified in the notice, the amount specified in the notice, within 14 days (or any longer period specified) after the date of the notice; and

 

  (c) that shareholder does not pay that amount under that notice.

 

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6.2Notice of forfeiture

 

  (a) The company must:

 

  (i) notify a person who held the forfeited share immediately before the forfeiture, of a resolution under rule 6.1 relating to the forfeited share; and
     
  (ii) enter the forfeiture and its date in the register of members.

 

  (b) Any failure to do so does not invalidate the forfeiture.

 

6.3Effect of forfeiture

 

  (a) A forfeiture under rule 6.1 includes all dividends, interest and other amounts payable by the company on the forfeited share and not actually paid before the forfeiture.
     
  (b) A forfeited share becomes the property of the company and the directors may:

 

  (i) sell, reissue or otherwise dispose of the share as they think fit; and
     
  (ii) in the case of reissue, or other disposal, with or without crediting as paid up any amount paid on the share by any former holder.

 

(c)A person whose shares have been forfeited ceases to be a member as to the forfeited shares, but must, if the directors decide, pay to the company:

 

  (i) all calls and other amounts owing on the shares at the time of the forfeiture; and
     
  (ii) interest on the unpaid part of the amount payable under rule 6.3(c)(i), from the date of the forfeiture to the date of payment, at a rate calculated under rule 10.

 

(d)A forfeiture under rule 6.1 extinguishes all interest in, and all claims against the company relating to, the forfeited share and, subject to rule 9(j), all other rights attached to the share.

 

(e)The directors may:

 

(i)exempt a share from all or part of this rule;

 

(ii)waive or compromise all or part of any payment due to the company under this rule; and

 

(iii)before a forfeited share has been sold, reissued or otherwise disposed of, cancel the forfeiture on the conditions they decide.

 

7 Lien on shares
   
7.1 Existence of lien

 

Subject to the Relevant Law, the company has a first and paramount lien on each share for:

 

  (a) all due and unpaid calls and instalments for that share;
     
  (b) all money payable to the company by the member under an employee incentive scheme;
     
  (c) all money which the company is required by law to pay, and has paid, for that share;
     
  (d) reasonable interest on the amount due from the date it becomes due until payment; and
     
  (e) reasonable expenses of the company relating to the default on payment.

 

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7.2Lien on distributions

 

A lien under rule 7.1 extends to all distributions for that share, including dividends.

 

7.3Sale under lien

 

(a)The directors may sell a share on which the company has a lien as they think fit where:

 

(i)an amount for which a lien exists under this rule is presently payable; and

 

(ii)the company has given the registered holder a written notice, at least 14 days before the date of the sale, stating and demanding payment of that amount.

 

(b)The directors may do anything necessary or desirable under the Settlement Operating Rules to protect any lien, charge or other right to which the company is entitled under this constitution or a law.

 

7.4Extinguishment of lien

 

The company’s lien over a member’s shares is released (so far as it relates to amounts owing by the transferor or any predecessor in title) when the company registers a transfer of the shares without giving the transferee notice of its claim.

 

7.5Company’s right to recover payments

 

If any law of any place imposes on the company the liability to make a payment for a member or a share held by that member, the member or, if the member is dead, the member’s legal personal representative must:

 

  (a) indemnify the company against that liability;
     
  (b) on demand reimburse the company for any payment made; and
     
  (c) pay interest on the unpaid part of the amount payable to the company under rule 7.5(b), from the date of demand until the date the company is reimbursed in full for that payment, at a rate calculated under rule 10.

 

7.6Exemption from lien

 

The directors may:

 

  (a) exempt a share from all or part of this rule; and
     
  (b) waive or compromise all or part of any payment due to the company under this rule.

 

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8 Surrender of shares
   
  The directors may accept a surrender of shares by way of compromise of a claim. Any shares surrendered may be sold or re-issued in the same manner as a forfeited share.

 

9 Sale, reissue or other disposal of shares by the company

 

  (a) A reference in this rule to a sale of a share by the company is a reference to any sale, reissue or other disposal of a share under rule 6.3(b), rule 7.3 or rule 13.
     
  (b) When the company sells a share, the directors may:

 

    (i) receive the purchase money or consideration given for the share;
       
    (ii) effect a transfer of the share or sign or appoint a person to sign, on behalf of the former holder, a transfer of the share; and
       
    (iii) register as the holder of the share the person to whom the share is sold.

  

  (c) A person who the company sells shares to under this rule takes their title to the shares unaffected by any irregularity or invalidity about the sale. There is no need for the buyer to take any steps to investigate the regularity or validity of the sale, or to see how the purchase money or consideration on the sale is applied.
     
  (d) A sale of the share by the company is valid even if an event described in rule 14 occurs to the member before the sale.
     
  (e) The only remedy of a person who suffers a loss because of a sale of a share by the company is a claim for damages against the company.
     
  (f) The proceeds received on the sale of a share by the company are applied:

 

    (i) first, to the expenses of the sale;
       
    (ii) secondly, to all amounts payable (whether presently or not) by the former holder to the company; and
       
    (iii) finally, the balance is paid to the former holder on the former holder delivering to the company proof of title to the shares acceptable to the directors.

 

  (g) Rule 9(f)(i) does not apply to the proceeds of sale arising from a notice under rule 13 (the sale of an unmarketable parcel).
     
  (h) Any proceeds of a sale of a share by the company which have not been claimed or otherwise disposed of according to law may be invested by the directors or otherwise applied to the benefit of the company.
     
  (i) The company is not required to pay interest on money payable to a former holder under this rule.
     
  (j) On completion of a sale, reissue or other disposal of a share under rule 6.3(b), the rights which attach to the share which were extinguished under rule 6.3(d) revive.
     
  (k) A written statement by a director or secretary of the company that a share in the company has been:

 

    (i) duly forfeited under rule 6.1;
       
    (ii) duly sold, reissued or otherwise disposed of under rule 6.3(b); or
       
    (iii) duly sold under rule 7.3 or rule 13,
       
    on a date stated in the statement is conclusive evidence of the facts stated as against all persons claiming to be entitled to the share, and of the right of the company to forfeit, sell, reissue or otherwise dispose of the share.

 

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10 Interest and costs payable

 

  (a) If an amount called or otherwise payable to the company for a share is not paid on or before the time for payment, the person who owes that money must pay:

 

    (i) interest on the unpaid amount:

 

      (A) at a rate fixed by the directors; or
         
      (B) if no rate is fixed, at a rate per annum 2% higher than the rate prescribed for unpaid judgments in the Supreme Court of the state or territory in which the company is registered; and

 

    (ii) all costs the company incurs due to the failure to pay or the late payment.

 

  (b) Interest accrues daily and interest and costs may be capitalised monthly or at any other intervals the directors decide.
     
  (c) The directors may waive payment of interest or costs wholly or in part.

 

11 Share plans

 

11.1 Implementing share plans

 

  The directors may adopt and implement one or more of the following plans on the terms they think appropriate:

 

  (a) a re-investment plan under which any dividend or other cash payment for a share or convertible security may, at the election of the person entitled to it, be:

 

    (i) retained by the company and applied in payment for fully paid shares issued under the plan: and
       
    (ii) treated as having been paid to the person entitled and simultaneously repaid by that person to the company to be held by it and applied under the plan;

 

  (b) any other plan under which members or security holders may elect that dividends or other cash payments for shares or other securities:

 

    (i) be satisfied by the issue of shares or other securities of the company or a related body corporate, or that issues of shares or other securities of the company or a related body corporate be made in place of dividends or other cash payments;
       
    (ii) be paid out of a particular reserve or out of profits derived from a particular source; or
       
    (iii) be forgone in consideration of another form of distribution from the company, another body corporate or a trust; or

 

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  (c) a plan under which shares or other securities of the company or related body corporate may be issued or otherwise given for the benefit of employees or directors of the company or any of its related bodies corporate.

 

11.2 Directors’ powers and varying, suspending or terminating share plans

 

  The directors:

 

  (a) have all powers necessary or desirable to implement and carry out a plan referred to in rule 11.1 (including a plan approved by members); and
     
  (b) may:

 

    (i) vary the rules governing; or
       
    (ii) suspend or terminate the operation of;

 

    a plan referred to in rule 11.1 (including a plan approved by members) as they think appropriate.

 

12 Transfer of shares
   
12.1 Computerised trading

 

  (a) The directors may do anything they consider necessary or desirable and which is permitted under the Relevant Law to facilitate the involvement by the company in any computerised or electronic system established or recognised by the Relevant Law for the purposes of facilitating dealings in securities.
     
  (b) The company must comply with and give effect to the Listing Rules and the Settlement Operating Rules applying to a transfer of shares.

 

12.2 Transferring shares

 

  (a) Subject to this constitution and to any restrictions attached to a member’s shares, a member may transfer any of the member’s shares by:

 

    (i) a written transfer in any usual form or in any other form approved by the directors; or
       
    (ii) any other method permitted by the Relevant Law and approved by the directors.

 

  (b) A transfer referred to in rule 12.2(a)(i) must be:

 

    (i) signed by or on behalf of both the transferor and the transferee unless the transfer relates only to fully paid shares and the directors have dispensed with a signature by the transferee or the transfer of the shares is effected by a document which is, or documents which together are, a sufficient transfer of those shares under the Corporations Act;
       
    (ii) duly stamped, if required by law; and
       
    (iii) left for registration at the company’s registered office, or at any other place the directors decide, with any evidence the directors require to prove the transferor’s title or right to the shares and the transferee’s right to be registered as the owner of the shares.

 

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  (c) Subject to the powers vested in the directors under rules 12.3(a) and 12.4, where the company receives a transfer complying with rule 12.1, the company must register the transferee named in the transfer as the holder of the shares to which it relates.
     
  (d) A transferor of shares remains the holder of the shares until the transferee’s name is entered in the register of members as the holder of the shares.
     
  (e) Subject to the Listing Rules, the company may charge a fee for registering a transfer of shares.
     
  (f) The company may retain a registered transfer for any period the directors decide.
     
  (g) The directors may, to the extent the law permits, waive any of the requirements of rule 12.1 and prescribe alternative requirements instead, to give effect to rule 12.1(a) or for another purpose.

 

12.3 Power to decline to register transfers

 

  (a) The directors may decline to register, or prevent registration of, a transfer of shares or apply a holding lock to prevent a transfer under the Corporations Act or the Listing Rules where:

 

    (i) the transfer is not in registrable form;
       
    (ii) the company has a lien on any of the shares transferred;
       
    (iii) registration of the transfer may breach a law of Australia or New Zealand;
       
    (iv) the transfer is paper-based and registration of the transfer creates a new holding which, at the time the transfer is lodged, is less than a marketable parcel;
       
    (v) the transfer is not permitted under the terms of an employee share plan; or
       
    (vi) the company is otherwise permitted or required to do so under the Listing Rules or, under the terms of issue of the shares.

 

  (b) If the directors decline to register a transfer, the company must give notice of the refusal as required by the Corporations Act and the Listing Rules. Failure to give that notice does not invalidate the decision of the directors to decline to register the transfer.
     
  (c) The directors may delegate their authority under rule 12.3 to any person.

 

12.4 Power to suspend registration of transfers

 

  The directors may suspend the registration of transfers at any time, and for any period, permitted by the Settlement Operating Rules that they decide.

 

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13 Unmarketable parcels

 

13.1 Power of sale

 

  (a) The company may sell a share that is part of an unmarketable parcel if it does so under this rule.  The company’s power to sell lapses if a takeover (as defined in the Listing Rules) is announced after the directors give notice under rule 13.2 and before the directors enter into an agreement to sell the share.
     
  (b) The directors may, before a sale is effected under this rule, revoke a notice given or suspend or terminate the operation of this rule either generally or in specific cases.
     
  (c) If a member is registered for more than one parcel of shares, the directors may treat the member as a separate member for each of those parcels so that this rule operates as if each parcel is held by different persons.

 

13.2 Notice of proposed sale

 

  (a) Once in any 12 month period, the directors may decide to give written notice to a member who holds an unmarketable parcel. If they do so, the notice must:

 

    (i) state that the company intends to sell the unmarketable parcel; and
       
    (ii) specify a date at least six weeks (or any lesser period permitted under the Corporations Act or the Listing Rules) after the notice is given by which the member may give the company written notice that the member wishes to retain the holding.

 

  (b) If the directors’ power to sell lapses under rule 13.1(a), any notice given by the directors under this rule is taken never to have been given and the directors may give a new notice after the close of the offers made under the takeover.

 

13.3 No sale where member gives notice
   
  The company must not sell an unmarketable parcel if, in response to a notice given by the company under this rule, the company receives written notice that the member wants to keep the unmarketable parcel.
   
13.4 Terms of sale
   
  A sale of shares under this rule includes all dividends payable on and other rights attaching to them. The company must pay the costs of the sale.  Otherwise, the directors may decide the manner, time and terms of sale.
   
13.5 Share transfers
   
  For the purpose of giving effect to this rule, each director and each secretary has the power to initiate, sign or otherwise effect a transfer of a share as agent for a member who holds an unmarketable parcel.

 

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13.6 Application of proceeds
   
  The company must:

 

  (a) deduct any called amount for the shares sold under this rule from the proceeds of sale and pay the balance into a separate bank account it opens and maintains for that purpose only;
     
  (b) hold that balance in trust for the previous holder of the shares;
     
  (c) as soon as practical give written notice to the previous holder of the shares stating:

 

    (i) what the balance is; and
       
    (ii) that it is holding the balance for the previous holder of the shares while awaiting the previous members’ instructions and return of the certificate (if any) for the shares sold or evidence of its loss or destruction;

 

  (d) if the shares sold were certificated, not pay the proceeds of sale out of the trust account until it has received the certificate for them or evidence of its loss or destruction; and
     
  (e) subject to paragraph 13.6(d), deal with the amount in the account as the previous holder of the shares instructs.

 

13.7 Protections for transferee
   
  The title of the new holder of a share sold under this rule is not affected by any irregularity in the sale. The sole remedy of any person previously interested in the share is damages which may be recovered only from the company.

 

14 Transmission of shares
   
14.1 Death of joint holder
   
  If a member who owns shares jointly dies, the company recognises only the surviving joint holders as being entitled to the deceased member’s interest in the shares.  The estate of the deceased member is not released from any liability for the shares.

 

14.2 Death of sole holder

 

  (a) If a member who does not own shares jointly dies, the company recognises only the personal representative of a deceased member as being entitled to the deceased member’s interest in the shares. If the personal representative gives the directors the information they reasonably require to establish the representative’s entitlement to be registered as holder of the shares:

 

    (i) the personal representative may:

 

      (A) by giving a written and signed notice to the company, elect to be registered as the holder of the shares; or
         
      (B) by giving a completed transfer form to the company, transfer the shares to another person; and

 

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    (ii) the personal representative is entitled, whether or not registered as the holder of shares, to the same rights as the deceased member.

 

  (b) On receiving an election under rule 14.2(a)(i)(A), the company must register the personal representative as the holder of the shares. A transfer under rule 14.2(a)(i)(B) is subject to the rules that apply to transfers generally.

 

14.3 Other transmission events

 

  If a person entitled to shares because of:

 

  (a) the bankruptcy of a member;
     
  (b) the mental incapacity of a member; or
     
  (c) the insolvency of a member,
     
  gives the directors the information they reasonably require to establish the person’s entitlement to be registered as holder of the shares, the person may:

 

  (d) by giving a written and signed notice to the company, elect to be registered as the holder of the shares; or
     
  (e) by giving a completed transfer form to the company, transfer the shares to another person,
     
  subject to any law which regulates the relevant event.

 

14.4 Other rules

 

  (a) The directors may register a transfer of shares signed by a member before an event set out in this rule occurs even though the company has notice of the relevant event.
     
  (b) The provisions of this constitution about the right to transfer shares and the registration of share transfers apply, so far as they can and with any necessary changes, to a notice or transfer under this rule as if the relevant event had not occurred and the notice or transfer were signed or effected by the registered holder of the share.
     
  (c) Where two or more persons are jointly entitled to a share because of an event described in this rule they are, on being registered as the holders of the share, taken to hold the share as joint tenants and rule 4.1 applies to them.

 

15 Proportional takeover bids
   
15.1 Definitions

 

  In this rule:

 

  Term   Definition
       
  Approving Resolution   means a resolution to approve the Proportional Takeover Bid passed in accordance with rule 15.3.
       
  Approving Resolution Deadline   means the day that is 14 days before the last day of the bid period, during which the offers under the Proportional Takeover Bid remain open or a later day allowed by the Australian Securities and Investments Commission.
       
  Proportional Takeover Bid   means a takeover bid that is made or purports to be made under section 618(1)(b) Corporations Act for securities included in a class of securities in the company.
       
  Relevant Class   means the class of securities in the company in respect of which offers are made under the Proportional Takeover Bid.

 

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15.2 Transfers not to be registered

 

  Despite rules 12.2(c) and 12.3, a transfer giving effect to a contract resulting from the acceptance of an offer made under a Proportional Takeover Bid must not be registered unless an Approving Resolution has been passed or is taken to have been passed under rule 15.3.

 

15.3 Approvingc Resolution

 

  (a) Where offers have been made under a Proportional Takeover Bid, the directors must, before the Approving Resolution Deadline:

 

    (i) convene a meeting of the persons entitled to vote on the Approving Resolution for the purpose of approving the Proportional Takeover Bid; and
       
    (ii) ensure that the resolution is voted on under rule 15.3.

 

  (b) The provisions of this constitution about general meetings apply, modified as the circumstances require, to a meeting that is convened under rule 15.3(a), as if that meeting were a general meeting of the company.
     
  (c) The bidder under a Proportional Takeover Bid and any associates of the bidder are not entitled to vote on the Approving Resolution and if they do vote, their votes must not be counted.
     
  (d) Subject to rule 15.3(c), a person who, as at the end of the day on which the first offer under the Proportional Takeover Bid was made, held securities of the Relevant Class, is entitled to vote on the Approving Resolution for the Proportional Takeover Bid.
     
  (e) An Approving Resolution that has been voted on is taken to have been passed if the proportion that the number of votes in favour of the resolution bears to the total number of votes on the resolution is greater than 50%, and otherwise is taken to have been rejected.
     
  (f) If an Approving Resolution has not been voted on under rule 15.3 as at the end of the day before the Approving Resolution Deadline, an Approving Resolution is taken to have been passed under rule 15.3 on the Approving Resolution Deadline.

 

15.4 Sunset

 

  Rules 15.1, 15.2 and 15.3 cease to have effect on the third anniversary of the later of the date of adoption or last renewal of rule 15 under the Corporations Act.

 

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16 General meetings
   
16.1 Calling general meetings

 

  A general meeting may only be called:

 

  (a) by a directors’ resolution; or
     
  (b) as otherwise provided in the Corporations Act

 

16.2 Postponing or cancelling a meeting

 

  (a) The directors may, by notice to the Exchange:

 

    (i) postpone a meeting of members;
       
    (ii) cancel a meeting of members; or
       
    (iii) change the place for a general meeting,
       
    if they consider that the meeting has become unnecessary, or the venue would be unreasonable or impractical or a change is necessary in the interests of conducting the meeting efficiently.

 

  (b) A meeting which is not called by a directors’ resolution and is called under a members’ requisition under the Corporations Act may not be postponed or cancelled without the prior written consent of the persons who called or requisitioned the meeting.

 

16.3 Notice of general meetings

 

  (a) Notice of a general meeting must be given to each person who at the time of giving the notice:

 

    (i) is a member, director or auditor of the company; or
       
    (ii) is entitled to a share because of an event described in rule 14 and has satisfied the directors of his or her right to be registered as the holder of, or to transfer, the shares.

 

  (b) The directors may decide the content of a notice of a general meeting, but they must state the general nature of the business to be transacted at the meeting and any other matters required by the Corporations Act.
     
  (c) Unless the Corporations Act provides otherwise:

 

    (i) 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
       
    (ii) except with the approval of the directors or the chairman, no person may move any amendment to a proposed resolution the terms of which are set out in the notice calling the meeting or to a document which relates to that resolution and a copy of which has been made available to members to inspect or obtain.

 

  (d) A person may waive notice of any general meeting by written notice to the company.

 

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16.4 Non-receipt of notice

 

  (a) Subject to the Corporations Act, the:

 

    (i) non-receipt of a notice of any general meeting by; or
       
    (ii) accidental omission to give notice to,
       
    any person entitled to notice does not invalidate anything done (including the passing of a resolution) at that meeting.

 

  (b) A person’s attendance at a general meeting waives any objection that person may have to:

 

    (i) a failure to give notice, or the giving of a defective notice, of the meeting unless the person at the beginning of the meeting objects to the holding of the meeting; and
       
    (ii) the consideration of a particular matter at the meeting which is not within the business referred to in the notice of the meeting, unless the person objects to considering the matter when it is presented.

 

16.5 Admission to general meetings

 

  (a) The chairman of a general meeting may refuse admission to, or require to leave and remain out of, the meeting any person:

 

    (i) in possession of a pictorial-recording or sound-recording device;
       
    (ii) in possession of a placard or banner;
       
    (iii) in possession of an article considered by the chairman to be dangerous, offensive or liable to cause disruption;
       
    (iv) who refuses to produce or permit examination of any article, or the contents of any article, in the person’s possession;
       
    (v) who behaves or threatens to behave in a dangerous, offensive or disruptive way; or
       
    (vi) who is not entitled to receive notice of the meeting.

 

  (b) The chairman may delegate the powers conferred by this rule to any person.
     
  (c) A person, whether a member or not, requested by the directors or the chairman to attend a general meeting is entitled to be present and, at the request of the chairman, to speak at the meeting.

 

16.6 Multiple venues

 

  (a) If the chairman of a general meeting considers that there is not enough room for the members who wish to attend the meeting, they may arrange for any person whom they consider cannot be seated in the main meeting room to observe or attend the general meeting in a separate room.  Even if the members present in the separate room are not able to participate in the conduct of the meeting, the meeting is nevertheless treated as validly held in the main room.

 

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  (b) If a separate meeting place is linked to the main place of a general meeting by an instantaneous audio-visual communication device which, by itself or in conjunction with other arrangements:

 

    (i) gives the general body of members in the separate meeting place a reasonable opportunity to participate in proceedings in the main place;
       
    (ii) enables the chairman to be aware of proceedings in the other place; and
       
    (iii) enables the members in the separate meeting place to vote on a show of hands or on a poll,
       
    a member present at the separate meeting place is taken to be present at the general meeting and entitled to exercise all rights as if he or she was present at the main place.

 

  (c) If, before or during the meeting, any technical difficulty occurs where one or more of the matters set out in rule 16.6(b) is not satisfied, the chairman may:

 

    (i) adjourn the meeting until the difficulty is remedied; or
       
    (ii) continue to hold the meeting in the main place (and any other place which is linked under rule 16.6(b)) and transact business, and no member may object to the meeting being held or continuing.

 

  (d) Nothing in rule 16.6 or rule 16.10 is to be taken to limit the powers conferred on the chairman by law.

 

16.7 Quorum at general meetings

 

  (a) No business may be transacted at a general meeting, except the election of a chairman and the adjournment of the meeting, unless a quorum of members is present when the meeting proceeds to business.
     
  (b) A quorum is two or more members present at the meeting and entitled to vote on a resolution at the meeting.
     
  (c) If a quorum is not present within 30 minutes after the time appointed for the general meeting:

 

    (i) where the meeting was called at the request of members, the meeting must be dissolved; or
       
    (ii) in any other case:

 

      (A) the meeting stands adjourned to the day, and at the time and place, the directors present decide; or
         
      (B) if they do not make a decision, to the same day in the next week at the same time and place.

 

  (d) At an adjourned meeting, if a quorum is not present within 30 minutes after the time appointed for the meeting, the meeting must be dissolved.

 

16.8 Chairman of general meetings

 

  (a) The chairman of the board is entitled to take the chair at every general meeting.

 

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  (b) If at any general meeting:

 

    (i) the chairman of the board is not present at the specified time for holding the meeting; or
       
    (ii) the chairman of the board is present but is unwilling to act as chairman of the meeting,
       
    the deputy chairman of the board is entitled to take the chair at the meeting.

 

  (c) If at any general meeting:

 

    (i) there is no chairman of the board or deputy chairman of the board;
       
    (ii) the chairman of the board and deputy chairman of the board are not present at the specified time for holding the meeting; or
       
    (iii) the chairman of the board and the deputy chairman of the board are present but each is unwilling to act as chairman of the meeting,
       
    the directors present may choose another director as chairman of the meeting and if no director is present or if each of the directors present are unwilling to act as chairman of the meeting, a member chosen by the members present is entitled to take the chair at the meeting.

 

16.9 Acting chairman

 

  (a) A chairman of a general meeting may, for any item of business or discrete part of the meeting, vacate the chair in favour of another person nominated by him or her (Acting Chairman).
     
  (b) Where an instrument of proxy appoints the chairman as proxy for part of the proceedings for which an Acting Chairman has been nominated, the instrument of proxy is taken to be in favour of the Acting Chairman for the relevant part of the proceedings.

 

16.10 Conduct at general meetings

 

  The chairman of a general meeting:

 

  (a) has charge of the general conduct of the meeting and the procedures to be adopted at the meeting;
     
  (b) may require the adoption of any procedure which is in the chairman’s opinion necessary or desirable for proper and orderly debate or discussion and the proper and orderly casting or recording of votes at the general meeting; and
     
  (c) may, having regard where necessary to the Corporations Act, terminate discussion or debate on any matter whenever the chairman considers it necessary or desirable for the proper conduct of the meeting,

 

  and a decision by the chairman under this rule is final.

 

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16.11 Adjournment and postponement by the chairman

 

  (a) Despite rules 16.2(a) and 16.2(b), where the chairman considers that:

 

  (i) there is not enough room for the number of members who wish to attend the meeting; or
     
  (ii) a postponement is necessary in light of the behaviour of persons present or for any other reason so that the business of the meeting can be properly carried out,

 

  the chairman may postpone the meeting before it has started, whether or not a quorum is present.

 

  (b) A postponement under rule 16.11(a) is to another time, which may be on the same day as the meeting, and may be to another place (and the new time and place is taken to be the time and place for the meeting as if specified in the notice which called the meeting originally).
     
  (c) The chairman may at any time during the course of the meeting:

 

  (i) adjourn the meeting or any business, motion, question or resolution being considered or remaining to be considered by the meeting either to a later time at the same meeting or to an adjourned meeting; and
     
  (ii) for the purpose of allowing any poll to be taken or determined, suspend the proceedings of the meeting for any period or periods he or she decides without effecting an adjournment.  No business may be transacted and no discussion may take place during any suspension of proceedings unless the chairman otherwise allows.

 

  (d) The chairman’s rights under rules 16.11(a) and 16.11(c) are exclusive and, unless the chairman requires otherwise, no vote may be taken or demanded by the members present about any postponement, adjournment or suspension of proceedings.
     
  (e) Only unfinished business may be transacted at a meeting resumed after an adjournment.
     
  (f) Where a meeting is postponed or adjourned under rule 16.11, notice of the postponed or adjourned meeting must be given to the Exchange, but, except as provided by rule 16.11(h), need not be given to any other person.
     
  (g) Where a meeting is postponed or adjourned, the directors may, by notice to the Exchange, postpone, cancel or change the place of the postponed or adjourned meeting.
     
  (h) Where a meeting is postponed or adjourned for 30 days or more, notice of the postponed or adjourned meeting must be given as in the case of the original meeting.

 

16.12 Decisions at general meetings

 

  (a) Except where a resolution requires a special majority, questions arising at a general meeting must be decided by a majority of votes cast by the members present at the meeting. A decision made in this way is for all purposes, a decision of the members.
     
  (b) If the votes are equal on a proposed resolution, the chairman of the meeting has a casting vote, in addition to any deliberative vote.

 

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  (c) A resolution put to the vote of a general meeting must be decided on a show of hands unless a poll is demanded:

 

    (i) before the show of hands is taken;
       
    (ii) before the result of the show of hands is declared; or
       
    (iii) immediately after the result of the show of hands is declared.

 

16.13When poll may be demanded

 

  (a) No poll may be demanded on the election of a chairman of a meeting.  Otherwise, a poll may be demanded by:

 

    (i) the chairman;
       
    (ii) at least five members entitled to vote on the resolution; or
       
    (iii) by members with at least 5% of the votes that may be cast on the resolution on a poll.

 

  (b) A demand for a poll does not prevent a general meeting continuing to transact any business except the question on which the poll is demanded.
     
  (c) Unless a poll is duly demanded, a declaration by the chairman of a general meeting 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 company’s minute book is conclusive evidence of the fact without proof of the number or proportion of the votes recorded for or against the resolution.
     
  (d) If a poll is duly demanded at a general meeting, it must be taken in the way and either at once or after an interval or adjournment as the chairman of the meeting directs.  The result of the poll as declared by the chairman is the resolution of the meeting at which the poll was demanded.
  (e) The demand for a poll may be withdrawn with the chairman’s consent.
     
  (f) Despite anything to the contrary in this constitution, the directors may decide that, at any general meeting or class meeting, a member who is entitled to attend and vote on a resolution at that meeting is entitled to a direct vote for 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 for direct voting, including specifying the form, method and timing of giving a direct vote at a meeting for the vote to be valid.

 

16.14 Voting rights

 

  (a) Subject to this constitution and to any rights or restrictions attached to any shares or class of shares, at a general meeting:

 

    (i) on a show of hands, each member present has one vote;
       
    (ii) where a member has appointed two persons as proxies for that member, neither proxy may vote on a show of hands;

 

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    (iii) where a person is entitled to vote by virtue of rule 17.1 in more than one capacity, that person is entitled only to one vote on a show of hands;
       
    (iv) if the person appointed as proxy has two or more appointments that specify different ways to vote on a resolution, the proxy must not vote on a show of hands; and
       
    (v) on a poll, each member present:

 

      (A) has one vote for each fully paid share held; and
         
      (B) has for each share which is not fully paid a fraction of a vote equivalent to the proportion which the amount paid up, but not credited as paid up, on that share bears to the total of the amounts paid and payable (excluding amounts credited) on that share.

 

  (b) The parent or guardian of an infant member may vote at any general meeting upon providing any evidence of the relationship or of the appointment of the guardian as the directors may require and any vote so tendered by a parent or guardian of an infant member must be accepted to the exclusion of the vote of the infant member.
     
  (c) A person entitled to a share because of an event described in rule 14 may vote at a general meeting for that share in the same way as if that person were the registered holder of the share if, at least 48 hours before the meeting (or any shorter time as the directors determine), the directors:

 

    (i) admitted that person’s right to vote at that meeting for the share; or
       
    (ii) were satisfied of that person’s right to be registered as the holder of, or to transfer, the share.
       
    Any vote duly tendered by that person must be accepted and the vote of the registered holder of those shares must not be counted.

 

  (d) Where a member holds a share on which a call or other amount payable to the company has not been duly paid:

 

    (i) that member is only entitled to be present at a general meeting and vote if that member holds, as at the Record Time, other shares on which no money is then due and payable; and
       
    (ii) on a poll, that member is not entitled to vote for that share but may vote for any shares that member holds, as at the Record Time, on which no money is then due and payable.

 

  (e) A member is not entitled to vote on a resolution if, under the Corporations Act or the Listing Rules, the notice which called the meeting specified that:

 

    (i) the member must not vote or must abstain from voting on the resolution; or
       
    (ii) a vote on the resolution by the member must be disregarded for any purposes.

 

  (f) If the member referred to in rule 16.14(e) or a person acting as proxy, attorney or Representative of that member does tender a vote on that resolution, their vote must not be counted.

 

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  (g) An objection to the validity of a vote tendered at a general meeting must be:

 

    (i) raised before or immediately after the result of the vote is declared; and
       
    (ii) referred to the chairman of the meeting, whose decision is final.

 

  (h) A vote tendered, but not disallowed by the chairman of a meeting under rule 16.14(g), is valid for all purposes, even if it would not otherwise have been valid.
     
  (i) The chairman may decide any difficulty or dispute which arises as to the number of votes which may be cast by or on behalf of any member and the decision of the chairman is final.

 

16.15 Representation at general meetings

 

  (a) Subject to this constitution, each member entitled to vote at a general meeting may vote:

 

    (i) in person or, where a member is a body corporate, by its Representative;
       
    (ii) by not more than two proxies; or
       
    (iii) by not more than two attorneys.

 

  (b) A proxy, attorney or Representative may, but need not, be a member of the company.

 

16.16 Class meetings

 

  The provisions of this constitution about general meetings apply, with necessary changes, to separate class meetings as if they were general meetings.

 

17 Proxies, attorneys and representatives
   
17.1 Appointment instruments

 

  (a) An instrument appointing a proxy is valid if it is under the Corporations Act or in any form approved by the directors.
     
  (b) For the purposes of rule 17.1, a proxy appointment received at an electronic address specified in the notice of general meeting for the receipt of proxy appointment or otherwise received by the company under the Corporations Act is taken to have been signed if the appointment:

 

    (i) includes or is accompanied by a personal identification code allocated by the company to the member making the appointment;
       
    (ii) has been authorised by the member in another manner approved by the directors and specified in or with the notice of meeting; or
       
    (iii) is otherwise authenticated under the Corporations Act.

 

  (c) A vote given under an instrument appointing a proxy or attorney is valid despite the transfer of the share for which the instrument was given if the transfer is not registered by the time at which the instrument appointing the proxy or attorney is required to be received under rule 17.1(h).

 

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  (d) Unless the instrument or resolution appointing a proxy, attorney or Representative provides otherwise, the proxy, attorney or Representative has the same rights to speak, demand a poll, join in demanding a poll or act generally at the meeting as the member would have had if the member was present.

 

(e) Unless otherwise provided in the appointment of a proxy, attorney or Representative, an appointment is taken to confer authority:

 

    (i) even though the instrument may refer to specific resolutions and may direct the proxy, attorney or Representative how to vote on those resolutions, to do any of the acts specified in rule 17.1(f); and
       
    (ii) even though the instrument may refer to a specific meeting to be held at a specified time or venue, where the meeting is rescheduled or adjourned to another time or changed to another venue, to attend and vote at the rescheduled or adjourned meeting or at the new venue.

 

  (f) The acts referred to in rule 17.1(e)(i) are:

 

    (i) to vote on any amendment moved to the proposed resolutions and on any motion that the proposed resolutions not be put or any similar motion;
       
    (ii) to vote on any procedural motion, including any motion to elect the chairman, to vacate the chair or to adjourn the meeting; and
       
    (iii) to act generally at the meeting.

 

  (g) A proxy form issued by the company must allow for the insertion of the name of the person to be primarily appointed as proxy and may provide that, in circumstances and on conditions specified in the form that are not inconsistent with this constitution, the chairman of the relevant meeting (or another person specified in the form) is appointed as proxy.
     
  (h) A proxy or attorney may not vote at a general meeting or adjourned or postponed meeting or on a poll unless the instrument appointing the proxy or attorney, and the authority under which the instrument is signed or a certified copy of the authority, are received by the company:

 

    (i) at least 48 hours (or, in the case of an adjournment or postponement of a meeting, including an adjourned meeting, any lesser time that the directors or the chairman of the meeting decides) before the time for holding the meeting or adjourned or postponed meeting or taking the poll, as applicable; or
       
    (ii) where rule 17.1(j) applies, any shorter period before the time for holding the meeting or adjourned or postponed meeting or taking the poll, as applicable, as the company determines in its discretion.

 

  A document is received by the company under rule 17.1(h) when it is received under the Corporations Act, and to the extent permitted by the Corporations Act, if the document is produced or the transmission of the document is otherwise verified to the company in the way specified in the notice of meeting.

 

  (i) The company is entitled to clarify with a member any instruction on an appointment of proxy or attorney which is received by the company within a period referred to in rule 17.1(h)(i) or 17.1(h)(ii) as applicable by written or verbal communication.  The company, at its discretion, is entitled to amend the contents of any appointment of proxy or attorney to reflect any clarification in instruction and the member at that time is taken to have appointed the company as its attorney for this purpose.

 

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  (j) Where an instrument appointing a proxy or attorney has been received by the company within the period specified in rule 17.1(h)(i) and the company considers that the instrument has not been duly signed, the company, in its discretion, may:

 

    (i) return the instrument appointing the proxy or attorney to the appointing member; and
       
    (ii) request that the member duly sign the appointment and return it to the company within the period determined by the company under rule 17.1(h)(ii) and notified to the member.

 

  (k) An instrument appointing a proxy or attorney which is received by the company under rule 17.1(j) is taken to have been validly received by the company.
     
  (l) The appointment of a proxy or attorney is not revoked by the appointer attending and taking part in the general meeting, but if the appointer votes on a resolution, the proxy or attorney is not entitled to vote, and must not vote, as the appointer’s proxy or attorney on the resolution.

 

17.2 More than two current proxies

 

  Where a member appoints two proxies or attorneys to vote at the same general meeting:

 

  (a) if the appointment does not specify the proportion or number of the member’s votes each proxy or attorney may exercise, each proxy or attorney may exercise half the member’s votes;
     
  (b) on a show of hands, neither proxy or attorney may vote if more than one proxy or attorney attends; and
     
  (c) on a poll, each proxy or attorney may only exercise votes for those shares or voting rights the proxy or attorney represents.

 

17.3 Revocation and postponement of the appointment

 

  (a) Unless written notice of the matter has been received at the company’s registered office (or at another place specified for lodging an appointment of a proxy or attorney for the meeting) at least 48 hours (or, in the case of an adjournment or postponement of a meeting, any lesser time that the directors or the chairman of the meeting decide) before the time for holding a meeting, adjourned meeting or poll, a vote cast by a proxy or attorney is valid even if, before the vote is cast:

 

    (i) an event described in rule 14 occurs to the member;
       
    (ii) the member revokes the appointment of the proxy or attorney or revokes the authority under which a third party appointed the proxy or attorney; or
       
    (iii) the member has issued a clarifying instruction under rule 17.1(i).

 

  (b) Where authority is given to a proxy, attorney or Representative for a meeting to be held on or before a specified date or at a specified place and that meeting is postponed to a later date or the meeting place is changed, the authority is taken to include authority to act at the rescheduled meeting unless the member granting the authority gives the company notice to the contrary under rule 17.1(h).

 

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17.4 Chairman may make a determination

 

  (a) The chairman of a meeting may:

 

    (i) permit a person claiming to be a Representative to exercise the powers of a Representative, even if the person is unable to establish to the chairman’s satisfaction that he or she has been validly appointed; or
       
    (ii) permit the person to exercise those powers on the condition that, if required by the company, he or she produce evidence of the appointment within the time set by the chairman.

 

  (b) The chairman of a meeting may require a person acting as a proxy, attorney or Representative to establish to the chairman’s satisfaction that the person is the person duly appointed to act.  If the person fails to satisfy the requirement, the chairman may exclude the person from attending or voting at the meeting.
     
  (c) The chairman may delegate his or her powers under rule 17.4 to any person.

 

18 Direct voting
   
18.1 Directors may decide direct voting to apply

 

  (a) The directors may determine that members may cast votes to which they are entitled on any or all of the resolutions (including special resolutions) proposed to be considered at, and specified in the notice convening, a meeting of members, by direct vote.
     
  (b) If the directors decide that votes may be cast by direct vote, the directors may make the regulations they consider appropriate for the casting of direct votes.

 

18.2 Direct votes only counted on a poll

 

  (a) Direct votes are not counted if a resolution is decided on a show of hands.
     
  (b) Subject to rules 18.3 and 18.4, if a poll is held on a resolution, votes cast by direct vote by a member entitled to vote on the resolution are taken to have been cast on the poll as if the member had cast the votes on the poll at the meeting, and the votes of the member are to be counted accordingly.
     
  (c) A direct vote received by the company on a resolution is taken to be a direct vote on that resolution as amended, if the chairman of the meeting decides this is appropriate.
     
  (d) Receipt of a direct vote from a member has the effect of revoking (or, in the case of a standing appointment, suspending) the appointment of a proxy, attorney or representative made by the member under an instrument received by the company before the direct vote was received.

 

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18.3 Withdrawal of direct vote

 

  (a) A direct vote received by the company:

 

  (i) may be withdrawn by the member by written notice received by the company before the time appointed for the commencement of the meeting (or in the case of any adjournment, the resumption of the meeting); and
     
  (ii) is automatically withdrawn if:

 

  (A) the member attends the meeting in person (including, in the case of a body corporate, by representative);
     
  (B) the company receives from the member a further direct vote or direct votes (in which case the most recent direct vote is, subject to this rule, counted in lieu of the prior direct vote); or
     
  (C) the company receives, after the member’s direct vote is received, an instrument under which a proxy, attorney or representative is appointed to act for the member at the meeting under rule 17.1(h).

 

  (b) A direct vote withdrawn under this rule is not counted.

 

18.4 Vote not affected by death, etc. of a member
   
  A direct vote received by the company is valid even if, before the meeting, the member:

 

  (a) dies or becomes mentally incapacitated;
     
  (b) become bankrupt or an insolvent under administration or is wound up; or
     
  (c) where the direct vote is cast on behalf of the member by an attorney, revokes the appointment of the attorney or the authority under which the appointment was made by a third party,
     
  unless the company has received written notice of the matter before the start or resumption of the meeting at which the vote is cast.

 

19 Directors

 

19.1 Number of directors
   
  The minimum number of directors is three. The maximum number of directors is 12 unless the company in general meeting resolves otherwise. The directors may set a maximum number of directors less than current maximum in accordance with the Relevant Law. The directors must not determine a maximum which is less than the number of directors in office at the time the determination takes effect.

 

19.2 Power to appoint directors

 

  (a) The directors may appoint any individual to be a director, either as an addition to the existing directors or to fill a casual vacancy, but so that the total number of directors does not exceed the maximum number fixed under this constitution.
     
  (b) A director appointed under rule 19.2, who is not a managing director, holds office until the conclusion of the next AGM following his or her appointment.

 

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19.3 Retirement of directors

 

  (a) Where required by the Corporations Act or Listing Rules to do so, the company must hold an election of directors each year. If there would otherwise not be a vacancy on the board, and no director is required to retire under rules 19.2(b) or 19.3(b), then the director who has been longest in office since last being elected must retire.
     
  (b) No director who is not a managing director may hold office without re-election beyond the third AGM following the meeting at which the director was last elected or re-elected.
     
  (c) If there is more than one managing director, only one of them, nominated by the directors, is entitled not to be subject to vacation of office under rule 19.2(b) or retirement under rule 19.3.
     
  (d) The directors to retire under rule 19.3 are those directors or director longest in office since last being elected. As between directors who were elected on the same day the directors to retire are (in default of agreement between them) determined by ballot. The length of time a director has been in office is calculated from the director’s last election or appointment.
     
  (e) The directors to retire under rule 19.3 (both as to number and identity) is decided having regard to the composition of the board of directors at the date of the notice calling the AGM. 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 but before the meeting closes.
     
  (f) The company may by resolution at an AGM fill an office vacated by a director under rules 19.2(b) or 19.3 by electing or re-electing an eligible person to that office.
     
  (g) The retirement of a director from office under this constitution and the re-election of a director or the election of another person to that office (as the case may be) takes effect at the conclusion of the meeting at which the retirement and re-election or election occurs.
     
  (h) A person is eligible for election to the office of a director at a general meeting only if:

 

  (i) the person is in office as a director immediately before that meeting;

 

  (ii) the person has been nominated by the directors for election at that meeting; or
     
  (iii) where a person, or some member intending to nominate the person, has given written notice signed by the nominee giving consent to the nomination and signifying either candidature for the office or the intention of the member to nominate the nominee.

 

  (i) To be a valid notice under rule 19.3(h)(iii), the notice is required to be left at the company’s registered office not less than the period permitted by the Relevant Law, before the meeting.
     
  (j) A partner, employer or employee of an auditor of the company may not be appointed or elected as a director.

 

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19.4 Vacating office
   
  In addition to the circumstances prescribed by the Corporations Act and this constitution, the office of a director becomes vacant if the director:

 

  (a) becomes an insolvent under administration, suspends payment generally to creditors or compounds with or assigns the director’s estate for the benefit of creditors;
     
  (b) becomes a person of unsound mind or a person who is a patient under laws relating to mental health or whose estate is administered under laws about mental health;
     
  (c) is absent from meetings of the directors during a period of three consecutive calendar months without leave of absence from the directors where the directors have not, within 14 days of having been served by the secretary with a notice giving particulars of the absence, resolved that leave of absence be granted;
     
  (d) resigns office by written notice to the company;
     
  (e) is removed from office under the Corporations Act;
     
  (f) is prohibited from being a director by reason of the operation of the Corporations Act; or
     
  (g) is convicted on indictment of an offence and the directors do not within one month after that conviction resolve to confirm the director’s appointment or election (as the case may be) to the office of director.

 

19.5 Remuneration

 

  (a) Each director is entitled to remuneration from the company for his or her services as a director as the directors decide but the total amount given to all directors for their services as directors must not exceed in aggregate in any financial year the amount fixed by the company in general meeting.
     
  (b) When calculating a director’s remuneration for the purposes of rule 19.5(a), any amount paid by the company or related body corporate:

 

  (i) to a superannuation, retirement or pension fund for a director so that the company is not liable to pay the superannuation guarantee charge or similar statutory charge is to be included; and
     
  (ii) for any insurance premium paid or agreed to be paid for a director under rule 24.4 is to be excluded.

 

  (c) Remuneration under rule 19.5(a) may be given in the manner that the directors decide, including by way of non cash benefit, such as a contribution to a superannuation fund.
     
  (d) The remuneration under rule 19.5(a) is taken to accrue from day to day.
     
  (e) The remuneration of an executive director must not include a commission on, or a percentage of, profits or operating revenue.
     
  (f) The directors are entitled to be paid all travelling and other expenses they incur in attending to the company’s affairs, including attending and returning from general meetings of the company or meetings of the directors or of committees of the directors.

 

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  (g) Any director who devotes special attention to the business of the company, or who otherwise performs services which in the opinion of the directors are outside the scope of the ordinary duties of a director, or who at the request of the directors engages in any journey on the business of the company, may be paid extra remuneration as determined by the directors. Any amount paid does not form part of the aggregate remuneration permitted under rule 19.5(a).
     
  (h) If a director is also an officer of the company or of a related body corporate in a capacity other than director, any remuneration that director may receive for acting as that officer may be either in addition to or instead of that director’s remuneration under rule 19.5(a).
     
  (i) The company may, subject to the Relevant Law, pay, provide or make any payment or other benefit to a director, a director of a related body corporate of the company or any other person in connection with that person’s or someone else’s retirement, resignation from or loss of office, or death while in office.
     
  (j) The directors may establish or support, or assist in the establishment or support, of funds and trusts to provide pension, retirement, superannuation or similar payments or benefits to or for the directors or former directors and grant pensions and allowances to those persons or their dependants either by periodic payment or a lump sum.

 

19.6 Director need not be a member

 

  (a) A director is not required to hold any shares in the company to qualify for appointment.
     
  (b) A director is entitled to attend and speak at general meetings and at meetings of the holders of a class of shares, even if he or she is not a member or a holder of shares in the relevant class.

 

19.7 Directors interests

 

  (a) A director is not disqualified by reason only of being a director (or the fiduciary obligations arising from that office) from:

 

  (i) holding an office (except auditor) or place of profit or employment in the company or a related body corporate of the company;
     
  (ii) holding an office or place of profit or employment in any other company, body corporate, trust or entity promoted by the company or in which it has interest;
     
  (iii) being a member, creditor or otherwise being interested in any body corporate (including the company), partnership or entity, except as auditor of the company;
     
  (iv) entering into any agreement or arrangement with the company; or
     
  (v) acting in a professional capacity (or being a member of a firm which acts in a professional capacity) for the company, except as auditor of the company.

 

  (b) Each director must comply with the Relevant Law on the disclosure of the director’s interests.
     
  (c) The directors may make regulations requiring the disclosure of interests that a director, and any person taken by the directors to be related to or associated with the director, may have in any matter concerning the company or a related body corporate. Any regulations made under this constitution bind all directors.

 

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  (d) No act, transaction, agreement, instrument, resolution or other thing is invalid or voidable only because a person fails to comply with any regulation made under rule 19.7(c).
     
  (e) A director who has a material personal interest in a matter that is being considered by the directors must not be present at a meeting while the matter is being considered nor vote on the matter, except where permitted by the Corporations Act.
     
  (f) If a director has an interest in a matter, then subject to rules 19.7(c), 19.7(g) and the constitution:

 

  (i) that director may be counted in a quorum at the board meeting that considers the matter that relates to the interest provided that director is entitled to vote on at least one of the resolutions to be proposed at the meeting;
     
  (ii) that director may participate in and vote on matters that relate to the interest;
     
  (iii) the company can proceed with any transaction that relates to the interest and the director may participate in the execution of any relevant document by or on behalf of the company;
     
  (iv) the director may retain the benefits under the transaction that relates to the interest even though the director has the interest; and
     
  (v) the company cannot avoid any transaction that relates to the interest merely because of the existence of the interest.

 

  (g) If an interest of a director is required to be disclosed under rule 19.7(b), rule 19.7(f)(iv) applies only if the interest is disclosed before the transaction is entered into.
     
  (h) A contract or arrangement entered into by or on behalf of the company in which a director is in any way interested is not invalid or voidable merely because the director holds office as a director or because of the fiduciary obligations arising from that office.
     
  (i) A director who is interested in any arrangement involving the company is not liable to account to the company for any profit realised under the arrangement merely because the director holds office as a director or because of the fiduciary obligations arising from that office, if the director complies with the disclosure requirements applicable to the director under rule 19.7(a) and under the Corporations Act about that interest.
     
  (j) A director who is interested in any contract or arrangement may, despite that interest, witness the fixing of the company seal to any document evidencing or otherwise connected with that contract or arrangement.

 

20 Powers and duties of directors

 

20.1 General powers
   
  The directors are responsible for managing the business of the company and may exercise all powers and do all things that are within the company’s power and are not expressly required by the Corporations Act or this constitution to be exercised by the company in a general meeting.

 

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20.2 Power to borrow and give security

 

  (a) The directors may exercise all the powers of the company:

 

  (i) to borrow or raise money in any other way;
     
  (ii) to charge any of the company’s property or business or any of its uncalled capital; and