APNIC Articles of Association
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APNIC Document identity
Title: Articles of Association of APNIC Pty Ltd
Short title: articles-association
Document ref: APNIC-096
Version: 001
Date of original publication: 26 February 1999
Date of this version: 26 February 1999
Review scheduled: n/a
Obsoletes: n/a
Status: Active
Comments: Previously unnumbered.
Document number added November
2002
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ARTICLES OF ASSOCIATION
OF
APNIC Pty Ltd
Table of contents
Section Clause
1 Interpretation
2 Registered Shares
3 Shares, Authorized Capital and Capital
4 Transfer of Shares
5 Transmission of Shares
6 Reduction or Increase in Authorized Capital
or Capital
7 Meetings and Consents of Members
8 Directors
9 Powers of Directors
10 Proceedings of Directors
11 Officers
12 Conflict of Interest
13 Indemnification
14 Seal
15 Dividends
16 Accounts
17 Notices
18 Pension and Superannuation Funds
19 Arbitration
20 Voluntary Winding Up and Dissolution
21 Continuation
------------------------------------------------------------------------
1. Interpretation
In these Articles, if not inconsistent with the subject or context,
the words and expressions standing in the first column of the
following table shall bear the meanings set opposite them respectively
in the second column thereof.
Expressions Meanings
1.1 ASC: The Australian Securities Commission.
1.2 capital: The sum of the aggregate par value of all
outstanding shares with par value of the Company
and shares with par value held by the Company as
treasury shares plus
(a) the aggregate of the amounts
designated as capital of all
outstanding shares without par value
of the Company and shares without par
value held by the Company as treasury
shares, and
(b) the amounts as are from time to
time transferred from surplus to
capital by a resolution of directors.
1.3 member: A person who holds shares in the Company.
1.4 person: An individual, a corporation, a trust, the
estate of a deceased individual, a partnership
or an unincorporated association of persons.
1.5 resolution of (a) a resolution approved at a duly
directors: constituted meeting of directors of
the Company or of a committee of
directors of the Company by the
affirmative vote of a simple majority
of the directors present who voted and
did not abstain where the meeting was
called on proper notice or, if on
short notice, if those directors not
present have waived notice; or
(b) a resolution consented to in
writing by all directors or of all
members of the committee, as the case
may be.
1.6 resolution of (a) A resolution approved at a duly
members: constituted meeting of the members of
the Company by the affirmative vote
of:
(1) a simple majority of the
votes which were present at
the meeting and entitled to
vote thereon and which voted
and did not abstain; or
(2) a simple majority of the
votes of each class or
series of shares which were
present at the meeting and
entitled to vote thereon as
a class or series and which
voted and did not abstain
and of a simple majority of
the votes of the remaining
shares which were present at
the meeting and entitled to
vote thereon which voted and
did not abstain; or
(b) A resolution consented to in writing by:
(1) an absolute majority of
the votes of all shares
entitled to vote thereon;
or
(2) an absolute majority of
the votes of each class or
series of shares entitled to
vote thereon as a class or
series and of an absolute
majority of the votes of the
remaining shares entitled to
vote thereon.
1.7 securities: Shares and debt obligations of every kind, and
options, warrants and rights to acquire shares
or debt obligations.
1.8 surplus: The excess, if any, at the time of the
determination of the total assets of the Company
over the aggregate of its total liabilities as
shown in its books of accounts, plus the
Company's capital.
1.9 the Law: The Corporations Law.
1.10 the Memorandum: The Memorandum and Articles of Association of
the Company as originally framed or as from time
to time amended.
1.11 the Seal The Common Seal of the Company.
1.12 these Articles These Articles of Association as originally
framed or as from time to time amended.
1.13 "written" or any term of like import includes words typewritten,
printed, painted, engraved, lithographed, photographed or represented
or reproduced by any mode or representing or re-producing words in a
visible form, including telex, telegram, cable, fax, e-mail or other
form of writing produced by electronic communication.
1.14 Save as aforesaid any words or expressions defined in the Law shall
bear the same meaning in these Articles.
1.15 Whenever the singular or plural number, or the masculine, feminine or
neuter gender is used in these Articles, it shall equally, where the
context admits, include the others.
1.16 A reference in these Articles to voting in relation to shares shall
be construed as a reference to voting by members holding the shares
except that it is the votes allocated to shares that shall be counted
and not the number of members who actually voted and a reference to
shares being present at a meeting shall be given a corresponding
construction.
1.17 A reference to money in these Articles is a reference to the currency
of Australia unless otherwise stated.
------------------------------------------------------------------------
2. Registered Shares
2.1 The Company shall issue to every member holding
registered shares in the Company a certificate signed
by a director or officer of the Company under the Seal
specifying:
a. the number and class of the shares;
b. the nominal value of the shares; and
c. the extent to which the shares are paid
up.
2.2 Any member receiving a share certificate for
registered shares shall indemnify and hold the Company
and its directors and officers harmless from any loss
or liability which it or they may incur by reason of
the wrongful or fraudulent use or representation made
by any person by virtue of the possession thereof. If a
share certificate for registered shares is worn out or
lost it may be renewed by a member upon lodgement with
the Company of an application for a new certificate.
Such application must be accompanied by a statement in
writing that the certificate has been lost or destroyed
or worn out, as the case may be. In the case of a lost
certificate, an undertaking in writing that if the lost
certificate is found it will be returned to the
company, must also accompany the application for a new
certificate.
------------------------------------------------------------------------
3. Shares, Authorised Capital and Capital
3.1 Subject to the provisions of these Articles and any
resolution of members the unissued shares of the
Company shall be at the disposal of the directors who
may without prejudice to any rights previously
conferred on the holders of any existing shares or
class or series of shares, offer, allot, grant options
over or otherwise dispose of the shares to such persons
at such times and upon such terms and conditions as the
Company may by resolution of directors determine.
3.2 Shares in the Company may be issued for such amount
of consideration as the directors may from time to time
by resolution of directors determine, except that in
the case of shares with par value, the amount shall not
be less than the par value, and in the absence of fraud
the decision of the directors as to the value of the
consideration received by the Company in respect of the
issue is conclusive unless a question of law is
involved. The consideration in respect of the shares
constitutes capital to the extent of the par value and
the excess constitutes surplus.
3.3 A share issued by the Company upon conversion of,
or in exchange for, another share or a debt obligation
or other security in the Company shall be treated for
all purposes as having been issued for money equal to
the consideration received or deemed to have been
received by the Company in respect of the other share,
debt obligation or security.
3.4 Upon the issue by the Company of a share without
par value, the consideration in respect of the share
constitutes capital to the extent designated by the
directors, and the excess constitutes surplus, except
that the directors must designate as capital an amount
of the consideration that is at least equal to the
amount that the share is entitled to as a preference,
if any, in the assets of the Company upon liquidation
of the Company.
3.5 The Company may buy back its shares in accordance
with the Law. No notice of a trust, whether expressed,
implied or constructive, shall be entered in the share
register.
3.6 The directors of the Company shall cause to be kept
a share register containing:
a. the names and addresses of the persons who
hold shares in the Company;
b. the number of each class and series of
shares held by each person;
c. the date on which the name of each person
was entered in the share register;
d. the date of each allotment of shares;
e. the number of shares in each allotment;
f. the share numbers or certificate numbers
of all shares allotted;
g. the amount paid per share allotted;
but the Company may delete from the register
information relating to persons who are no longer
members.
3.7 The share register may be in any form approved by
the directors, including magnetic, electronic or other
data storage form, so long as legible evidence of its
contents may be produced.
3.8 A copy of the share register, commencing from the
date of the registration of the Company, shall be kept
at the registered office of the Company.
------------------------------------------------------------------------
4. Transfer of Shares
4.1 Subject to any limitations in the Memorandum,
registered shares in the Company may be transferred by
a written instrument of transfer signed by the
transferor and containing the name and address of the
transferee, but in the absence of such written
instrument of transfer the directors may accept such
evidence of a transfer of shares as they consider
appropriate.
4.2 The Company shall not be required to treat a
transferee of a registered share in the Company as a
member until the transferee's name has been entered in
the share register.
4.3 Subject to any limitations in the Memorandum, the
Company must on the application of the transferor or
transferee of a registered share in the Company enter
in the share register the name of the transferee of the
share save that the registration of transfers may be
suspended and the share register closed at such times
and for such periods as the Company may from time to
time by resolution of directors determine provided
always that such registration shall not be suspended
and the share register closed for more than 60 days in
any period of 12 months.
------------------------------------------------------------------------
5. Transmission of Shares
5.1 The executor or administrator of a deceased member,
the guardian of an incompetent member or the trustee of
a bankrupt member shall be the only person recognised
by the Company as having any title to his share but
they shall not be entitled to exercise any rights as a
member of the Company until they have proceeded as set
forth in the next two regulations.
5.2 Any person becoming entitled by operation of law or
otherwise to a share or shares in consequence of the
death, incompetence or bankruptcy of any member may be
registered as a member upon such evidence being
produced as may reasonably be required by the
directors. An application by any such person to be
registered as a member shall be deemed to be a transfer
of shares of the deceased, incompetent or bankrupt
member and the directors shall treat it as such.
5.3 Any person who has become entitled to a share or
shares in consequence of the death, incompetence or
bankruptcy of any member may, instead of being
registered himself, request in writing that some person
to be named by him be registered as the transferee of
such share or shares and such request shall likewise be
treated as if it were a transfer.
5.4 What amounts to incompetence on the part of a
person is a matter to be determined by the court having
regard to all the relevant evidence and the
circumstances of the case.
------------------------------------------------------------------------
6. Reduction or increase in Authorised Capital or Capital
6.1 The Company may by a resolution of members amend
the Memorandum to increase its authorised capital and
by a special resolution of members amend the Memorandum
to reduce its authorised capital. In connection
therewith, the Company may in respect of any unissued
shares increase or reduce the number of shares,
increase or reduce the par value of any shares or
effect any combination of the foregoing.
6.2 The Company may amend the Memorandum to:
a. divide the shares, including issued
shares, of a class and series into a larger
number of shares of the same class or series;
or
b. combine the shares, including issued
shares, of a class or series into a smaller
number of shares of the same class or series;
provided, however, that where shares are
divided or combined under 7.2(a) and 7.2(b)
of the Articles, the aggregate par value of
the new shares must be equal to the aggregate
par value of the original shares.
6.3 The capital of the Company may by a resolution of
the members be increased by transferring an amount of
the surplus of the Company to capital, and, subject to
the provisions of Articles 7.4 and 7.5 the capital of
the Company may by a special resolution of the members
be reduced by transferring an amount of the capital of
the Company to surplus.
6.4 No reduction of capital shall be effected that
reduces the capital of the Company to an amount that
immediately after the reduction is less than the
aggregate par value of all outstanding shares with par
value and the aggregate of the amounts designated as
capital of all outstanding shares without par value
that are entitled to a preference, if any, in the
assets of the Company upon liquidation of the Company.
6.5 No reduction of capital shall be effected unless
the members determine that immediately after the
reduction the Company will be able to satisfy its
liabilities as they become due in the ordinary course
of its activities and that the realisable assets of the
Company will not be less than its total liabilities,
other than deferred taxes, as shown in the books of the
Company, and its remaining capital, and, in the absence
of fraud, the decision of the members as to the
realisable value of the assets of the Company is
conclusive, unless a question of law is involved.
6.6 Where the Company reduces its capital the Company
may:
a. transfer the excess by which the capital
has been so reduced into a reserve fund;
b. purchase, redeem or otherwise acquire its
shares out of capital; or
c. cancel any capital that is lost or not
represented by assets having a realisable
value.
------------------------------------------------------------------------
7. Meetings and consents of members
7.1 The directors of the Company may convene meetings
of the members of the Company at such times and in such
manner and places within or outside Australia as the
directors consider necessary or desirable.
7.2 Upon the written request of members holding 5 per
cent or more of the outstanding voting shares in the
Company the directors shall convene a meeting of
members.
7.3 The directors shall give not less than 14 days', or
such longer time as required by the Law, notice of
meetings of members to those persons whose names on the
date the notice is given appear as members in the share
register of the Company.
7.4 A meeting of members held in contravention of the
requirement in Article 8.3 is valid:
a. if a majority of members who together hold
at least 95 per cent in nominal value of the
shares giving a right to attend and vote,
agree to shorter notice; or
b. if all the members holding shares entitled
to vote on all or any matters to be
considered at the meeting have waived notice
of the meeting and for this purpose presence
at the meeting shall be deemed to constitute
waiver.
7.5 The inadvertent failure of the directors to give
notice of a meeting to a member, or the fact that a
member has not received notice, does not invalidate the
meeting.
7.6 A member may be represented at a meeting of members
by a proxy who may speak and vote on behalf of the
member.
7.7 The instrument appointing a proxy shall be produced
in person or by verifiable electronic means to the
directors at the place appointed for the meeting before
the time for holding the meeting at which the person
named in such instrument proposes to vote.
7.8 An instrument appointing a proxy shall be in
substantially the following form or such other form as
the chairman of the meeting shall accept as properly
evidencing the wishes of the member appointing a proxy.
Only members who are individuals may appoint proxies.
I/We __________________________________________________________
(person's name)
being a member of the above Company with _______________ shares
(number of shares)
HEREBY APPOINT
_______________________________________________________________
(person's name)
of
_______________________________________________________________
(company name)
or failing him
_______________________________________________________________
(person's name)
of
_______________________________________________________________
(company name)
to be my/our proxy to vote for me/us at the meeting of members
to be held on the ___________ day of _______________ 19__ and
(meeting day) (meeting month) (yr)
at any adjournment thereof.
_______________________________________________________________
(Any restrictions on voting to be inserted here)
Signed this _____________ day of ____________________ 19__
(day) (month) (yr)
_______________________________________________________________
(member's signature)
7.9 The following shall apply in respect of joint
ownership of shares:
a. if two or more persons hold shares jointly
each of them may be present in person or by
proxy at a meeting of members and may speak
as a member;
b. if only one of the joint owners is present
in person or by proxy he may vote on behalf
of all joint owners; and
c. if two or more of the joint owners are
present in person or by proxy they must vote
as one.
7.10 A member shall be deemed to be present at a
meeting of members if he participates by telephone or
other electronic means and all members participating in
the meeting are able to hear or otherwise acknowledge
each other.
7.11 A meeting of members is duly constituted and a
quorum is said to be present if, at the commencement of
the meeting, there are present in person or by proxy
not less than 50 per cent of the votes of the shares or
class or series of shares entitled to vote on
resolutions of members to be considered at the meeting.
If a quorum be present, notwithstanding the fact that
such quorum may be represented by only one person then
such person may resolve any matter and a certificate
signed by such person accompanied where such person be
a proxy by a copy of the proxy forms shall constitute a
valid resolution of members.
7.12 If within two hours from the time appointed for
the meeting a quorum is not present, the meeting, if
convened upon the requisition of members, shall be
dissolved; in any other case it shall stand adjourned
to the next business day at the same time and place or
to such other time and place as the directors may
determine, and if at the adjourned meeting there are
present within one hour from the time appointed for the
meeting in person or by proxy not less than one-third
of the votes of the shares or each class or series of
shares entitled to vote on the resolutions to be
considered by the meeting, those present shall
constitute a quorum but otherwise the meeting shall be
dissolved.
7.13 At every meeting of members, the Chairman of the
Board of Directors shall preside as chairman of the
meeting. If there is no Chairman of the Board of
Directors or the Chairman of the Board of Directors is
not present at the meeting, the members present shall
choose someone of their number to be the chairman. If
the members are unable to choose a chairman for any
reason, then the person representing the greatest
number of voting shares present in person or by
prescribed form of proxy at the meeting shall preside
as chairman failing which the oldest individual member
or representative of a member present shall take the
chair.
7.14 The Chairman may, with the consent of the meeting,
adjourn any meeting from time to time, and from place
to place, but no business shall be transacted at any
adjourned meeting other than the business left
unfinished at the meeting from which the adjournment
took place.
7.15 At any meeting of the members the chairman shall
be responsible for deciding in such manner as he shall
consider appropriate whether any resolution has been
carried or not and the result of his decision shall be
announced to the meeting and recorded in the minutes
thereof. If the chairman shall have any doubt as to the
outcome of any resolution put to the vote, he shall
cause a poll to be taken of all votes cast upon such
resolution, but if the chairman shall fail to take a
poll then any member present in person or by proxy who
disputes the announcement by the chairman of the result
of any vote may immediately following such announcement
demand that a poll be taken and the chairman shall
thereupon cause a poll to be taken. If a poll is taken
at any meeting, the result thereof shall be duly
recorded in the minutes of the meeting by the chairman.
7.16 Any person other than an individual shall be
regarded as one member and subject to Article 8.17 the
right of any individual to speak for or represent such
member shall be determined by the law of the
jurisdiction where, and by the documents by which, the
person is constituted or derives its existence. In case
of doubt, the directors may in good faith seek legal
advice from any qualified person and unless and until a
court of competent jurisdiction shall otherwise rule,
the directors may rely and act upon such advice without
incurring any liability to any member.
7.17 Any person other than an individual which is a
member of the company may by resolution of its
directors or other governing body authorise such
persons as it thinks fit to act as its representative
at any meeting of the Company or of any class of
members of the Company, and the person so authorised
shall be entitled to exercise the same powers on behalf
of the person which he represents as that person could
exercise if it were an individual member of the
Company.
7.18 The chairman of any meeting at which a vote is
cast by proxy or on behalf of any person other than an
individual may call for a notarially certified copy of
such proxy or authority which shall be produced within
7 days of being so requested or the votes cast by such
proxy or on behalf of such person shall be disregarded.
7.19 Directors of the company may attend and speak at
any meeting of members of the Company and at any
separate meeting of the holders of any class or series
of shares in the Company.
------------------------------------------------------------------------
8. Directors
8.1. The first directors of the Company shall be
elected by the subscribers to the Memorandum; and
thereafter, the directors shall be elected by the
members or by the directors for such terms as the
members or the directors determine.
8.2 The minimum number of directors shall be one and
the maximum number shall be five.
8.3 Each director shall hold office for the term, if
any, fixed by resolution of members or until his
earlier death, resignation or removal. The first
director of the Company shall hold office until such
time as may be determined by a resolution of directors
or a resolution of members.
8.4 A director may be removed from office, with or
without cause, by a resolution of members.
8.5 A director may resign his office by giving written
notice of his resignation to the Company and the
resignation shall have effect from the date the notice
is received by the Company or from such later date as
may be specified in the notice.
8.6 A vacancy in the Board of Directors may be filled
by a resolution of members or by a resolution of the
majority of the remaining directors.
8.7 With the prior or subsequent approval by a
resolution of members, the directors may, by a
resolution of directors, fix the emoluments of
directors with respect to services to be rendered in
any capacity to the Company.
8.8 A director shall not require a share qualification,
and may be an individual or a company.
------------------------------------------------------------------------
9. Powers of Directors
9.1 The activities, functions and affairs of the
Company shall be managed by the directors who will pay
all expenses incurred preliminary to and in conjunction
with the formation and registration of the Company and
may exercise all such powers of the Company as are not
by the Law or by the Memorandum or these Articles
required to be exercised by the members of the Company,
subject to any delegation of such powers as may be
authorised by these Articles and to such requirements
as may be prescribed by a resolution of members; but no
requirement made by a resolution of members shall
prevail if it be inconsistent with these Articles nor
shall such requirement invalidate any prior act of the
directors which would have been valid if such
requirement had not been made.
9.2 The directors may, by a resolution of directors,
appoint any person, including a person who is a
director, to be an officer or agent of the Company.
Agents of the Company may be individuals or
corporations. Every officer or agent of the Company
shall have such powers and authority of the directors,
including the power and authority to affix the Seal, as
are set forth in these Articles, or the by-laws of the
Company, or in the resolution of directors appointing
the officer or agent, except that no officer or agent
shall have any power or authority with respect to
fixing the emoluments of directors.
9.3 The directors may, by a resolution of directors,
appoint one or more Special Committees of the Company,
and may delegate to any Special Committee any of the
powers, authority and functions of the directors,
including the power and authority to affix the Seal,
except that no Special Committee shall have the power
or authority to fix the emoluments of directors.
9.4 Where any Special Committee is appointed by the
directors, the directors shall by a resolution of
directors, promulgate by-laws for the purpose of
establishing, governing, and prescribing the functions,
powers and authority of such Special Committee. Every
Special Committee so appointed by the directors shall
be governed by the same by-laws and shall comprise of
one or more persons (known as members of the Special
Committee) who may be directors, officers or agents of
the Company, or such other persons as the directors may
approve. A member of the Special Committee may be an
individual or a corporation, and a member which is a
body corporate may appoint any person its duly
authorised representative for the purpose of
representing it at meetings of the Special Committee.
9.5 The members of a Special Committee may be divided
into different classes, and the members of a Special
Committee may elect from among their number Council
members who may exercise any or all of the functions,
powers and authority of that Special Committee. A
Special Committee may, in accordance with its by-laws
and without derogating from the provisions of the
Memorandum, sub-delegate any of its functions, powers
and authority to sub-committees appointed by the
Special Committee.
9.6 The directors may, by a resolution of directors,
provide for the remuneration or compensation of any
member of a Special Committee.
9.7 The by-laws of a Special Committee may provide for
monetary contributions from the members of a Special
Committee, and the proceeds from such contributions may
be applied generally for the purposes and objects of
the Company as prescribed in the Memorandum and as may
be further provided in the by-laws of the Special
Committee. Upon dissolution or liquidation of the
company, any surplus funds of the Company which is
attributable to the contributions of members of a
Special Committee shall, after taking into
consideration the existing debts, obligations and
liabilities of the Company, be re-distributed among the
members of that Special Committee in proportion to the
amounts contributed by each member.
9.8 Without prejudice to the provisions of the
Memorandum and to the powers of the directors to amend,
annul, approve or ratify the by-laws of every Special
Committee, the members of a Special Committee may, in
general meeting of the Special Committee and in
accordance with the by-laws, amend the by-laws of the
Special Committee.
9.9 Any director which is a body corporate may appoint
any person its duly authorised representative for the
purpose of representing it at meetings of the Board of
Directors or with respect to unanimous written
consents.
9.10 The continuing directors may act notwithstanding
any vacancy in their body, save that if their number is
reduced below the number fixed by or pursuant to these
Articles as the necessary quorum for a meeting of
directors, the continuing directors or director may act
only for the purpose of appointing directors to fill
any vacancy that has arisen or summoning a meeting of
members.
9.11 All cheques, promissory notes, drafts, bills of
exchange and other negotiable instruments, and all
receipts for monies paid to the Company shall be
signed, drawn, accepted, endorsed or otherwise
executed, as the case may be, in such manner as shall
from time to time be determined by resolution of
directors.
------------------------------------------------------------------------
10. Proceedings of Directors
10.1 The directors of the Company or any committee
thereof may meet at such times and in such manner and
places within or without the Australia as the directors
may determine to be necessary or desirable.
10.2 A director shall be deemed to be present at a
meeting of directors if he participates by telephone or
other electronic means and all directors participating
in the meeting are able to hear or otherwise
acknowledge each other.
10.3 A resolution in writing, signed by all the
directors for the time being entitled to receive notice
of a meeting of the directors, shall be as valid and
effectual as if it had been passed at a meeting of the
directors duly convened and held. Any such resolution
may consist of several documents in like form, each
signed by one or more directors.
10.4 A director shall be given not less than 7 days
notice of meetings of directors, but a meeting of
directors held without 7 days notice having been given
to all directors shall be valid if all the directors
entitled to vote at the meeting who do not attend waive
notice of the meeting. The inadvertent failure to give
notice of a meeting to a director, or the fact that a
director has not received the notice, does not
invalidate the meeting.
10.5 A director may by a written instrument appoint an
alternate who need not be a director and an alternate
is entitled to attend meetings in the absence of the
director who appointed him and to vote or consent in
the place of the director.
10.6 A meeting of directors is duly constituted for all
purposes if at the commencement of the meeting there
are present in person or by alternate not less than one
half of the total number of directors, unless there are
only two directors in which case the quorum shall be
two.
10.7 If the Company shall have only one director the
provisions herein contained for meetings of the
directors shall not apply but such sole director shall
have full power to represent and act for the Company in
all matters as are not by the Law or by the Memorandum
or by these Articles required to be exercised by the
members of the Company and in lieu of minutes of a
meeting shall record in writing and sign a note or
memorandum of all matters requiring a resolution of
directors. Such a note or memorandum shall constitute
sufficient evidence of such resolution for all
purposes.
10.8 At every meeting of the directors the Chairman of
the Board of Directors shall preside as Chairman of the
meeting. If there is no Chairman of the Board of
Directors or if the Chairman of the Board of Directors
is not present at the meeting the Vice Chairman of the
Board of Directors shall preside. If there is no Vice
Chairman of the Board of Directors or if the Vice
Chairman of the Board of Directors is not present at
the meeting the directors shall choose someone of their
number to be the Chairman of the meeting.
10.9 The directors shall cause the following corporate
records to be kept:
a. minutes of all meetings of directors,
members, committees of directors, committees
of officers and committees of members;
b. copies of all resolutions consented to by
directors, members, committees of directors,
committees of officers and committees of
members; and
c. such other accounts and records as
required by the Corporations Law.
10.10 The books and records shall be kept at the
registered office of the Company or at such other place
as the directors determine. The minutes shall be kept
at the registered office of the Company, the principal
place of business of the Company or such other place as
the ASC approves.
10.11 The directors may, by a resolution of directors,
designate one or more committees, each comprising of
one or more directors.
10.12 Each committee of directors has such powers and
authorities of the directors, including the power and
authority to affix the Seal, as are set forth in the
resolution of directors establishing the committee,
except that no committee has any power or authority
either to amend the Memorandum or these Articles or
with respects to the matters requiring a resolution of
directors under Articles 9.6, 9.7 and 10.2.
10.13 The meetings and proceedings of each committee of
directors consisting of two or more directors shall be
governed mutatis mutandis by the provisions of these
Articles regulating the proceedings of directors so far
as the same are not superseded by any provisions in the
resolution establishing the committee.
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11. Officers
11.1 The Company may by resolution of directors appoint
officers of the Company at such times as shall be
considered necessary or expedient. Such officers may
consist of a Chairman of the Board of Directors, a Vice
Chairman of the Board of Directors, President and one
or more Vice Presidents, Secretaries and Treasurers and
such other officers as may from time to time be deemed
desirable. Any number of offices may be held by the
same person.
11.2 The officers shall perform such duties as shall be
prescribed at the time of their appointment subject to
any modification in such duties as may be prescribed
thereafter by resolution of directors or resolution of
members, but in the absence of any specific allocation
of duties it shall be the responsibility of the
Chairman of the Board of Directors to preside at
meetings of directors and members, the Vice Chairman to
act in the absence of the Chairman, the President to
manage the day to day affairs of the Company, the Vice
Presidents to act in order of seniority in the absence
of the President but otherwise to perform such duties
as may be delegated to them by the President, the
Secretaries to maintain the share register, minute
books and records (other than financial records) of the
Company and to ensure compliance with all procedural
requirements imposed on the Company by applicable law,
and the Treasurer to be responsible for the financial
affairs of the Company.
11.3 The emoluments of all officers shall be fixed by
resolution of directors.
11.4 The officers of the Company shall hold office
until their successors are duly elected and qualified,
but any officer elected or appointed by the directors
may be removed at any time, with or without cause, by
resolution of directors. Any vacancy occurring in any
office of the Company may be filled by resolution of
directors.
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12. Conflict of interest
12.1 No agreement or transaction between the Company
and one or more of its directors or any person in which
any director has a financial interest or to whom any
director is related, including as a director of that
other person, is void or voidable for this reason only
or by reason only that the director is present at the
meeting of directors or at the meeting of the committee
of directors that approves the agreement or transaction
or that the vote or consent of the director is counted
for that purpose if the material facts of the interest
of each director in the agreement or transaction and
his interest in or relationship to the other party to
the agreement or transaction are disclosed in good
faith or are known by the other directors.
12.2 A director who has an interest in any particular
activity to be considered at a meeting of directors or
members may be counted for the purposes of determining
whether the meeting is duly constituted.
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13. Indemnification
13.1 Subject to the Law and Article 13.2 the Company
may indemnify against all expenses, including legal
fees, and against all judgments, fines and amounts paid
in settlement and reasonably incurred in connection
with legal, administrative or investigative
proceedings, any person who:
a. is or was a party or is threatened to be
made a party to any threatened, pending or
completed proceedings, whether civil,
criminal, administrative or investigative, by
reason of the fact that the person is or was
a director, an officer or a liquidator of the
company; and
b. is or was, at the request of the company,
serving as a director, officer or liquidator
of, or in any other capacity is or was acting
for, another company or a partnership, joint
venture, trust or other enterprise.
13.2 Article 13.1 only applies to a person referred to
in that Article if the person acted honestly and in
good faith with a view to the best interests of the
Company and, in the case of criminal proceedings, the
person had no reasonable cause to believe that his
conduct was unlawful.
13.3 The decision of the directors as to whether the
person acted honestly and in good faith and with a view
to the best interests of the Company and as to whether
the person had no reasonable cause to believe that his
conduct was unlawful is, in the absence of fraud,
sufficient for the purposes of these Articles, unless a
question of law is involved.
13.4 The termination of any proceedings by any
judgment, order, settlement, conviction or the entering
of a nolle prosequi does not, by itself, create a
presumption that the person did not act honestly and in
good faith and with a view to the best interests of the
Company or that the person had reasonable cause to
believe that his conduct was unlawful.
13.5 If a person referred to in Article 13.1 has been
successful in the defence of any proceedings referred
to in that Article the person is entitled to be
indemnified against all expenses, including legal fees,
and against all judgments, fines and amounts paid in
settlement and reasonably incurred by the person in
connection with the proceedings.
13.6 Subject to the Law, the Company may purchase and
maintain insurance in relation to any person who is or
was a director, an officer or a liquidator of the
Company, or who at the request of the Company is or was
serving as a director, an officer or a liquidator of,
or in any other capacity is or was acting for, another
company or a partnership, joint venture, trust or other
enterprise, against all liability asserted against the
person and incurred by the person in that capacity,
whether or not the Company has or would have had the
power to indemnify the person against the liability
under Article 13.1.
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14. Seal
14.1 The Company shall have a company seal, and an
imprint shall be kept at the registered office of the
Company. The directors shall provide for the safe
custody of the Seal. The Seal when affixed to any
written instrument shall be witnessed by a director or
any other person so authorised from time to time by
resolution of directors. The directors may provide for
a facsimile of the Seal and of the signature of any
director or authorised person which may be reproduced
by printing or other means on any instrument and it
shall have the same force and validity as if the Seal
had been affixed to such instrument and the same had
been signed as hereinbefore described.
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15. Dividends
15.1 The Company shall not declare or pay dividends as
it is a non-profit corporation.
15.2 The directors may set aside any surplus funds of
the Company as they may think proper as a reserve fund.
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16. Accounts
16.1 The Company shall keep such accounts and records
as the directors of the Company consider necessary or
desirable in order to reflect the financial position of
the Company.
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17. Notices
17.1 Any notice, information or written statement to be
given by the Company to members must be served in the
case of members holding registered shares by mail
addressed to each member at the address shown in the
share register.
17.2 Any summons, notice, order, document, process,
information or written statement to be served on the
Company may be served by leaving it, or by sending it
by registered mail addressed to the Company, at its
registered office, or by leaving it with, or by sending
it by registered mail to, the registered agent of the
Company.
17.3 Service of any summons, notice, order, document,
process, information or written statement to be served
on the Company may be proved by showing that the
summons, notice, order, document, process, information
or written statement was mailed in such time as to
admit to its being delivered in the normal course of
delivery within the period prescribed for service and
was correctly addressed and the postage was prepaid.
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18. Pension and Superannuation Funds
18.1 The directors may establish and maintain or
procure the establishment and maintenance of any
non-contributory or contributory pensions or
superannuation funds for the benefit of, and give or
procure the giving of donations, gratuities, pensions,
allowances or emoluments to any persons who are or were
at any time in the employment or service of the Company
or any company which is a subsidiary of the Company or
is allied to or associated with the Company or with any
such subsidiary, or who are or were at any time
directors or officers of the Company or of any such
other company as aforesaid or who hold or held any
salaried employment or office in the Company or such
other company, or any persons in whose welfare the
Company or any such other company as aforesaid is or
has been at any time interested, and to the wives,
widows, families and dependents of any such person, and
may make payments for or towards the insurance of any
such persons as aforesaid, and may do any of the
matters aforesaid, either alone or in conjunction with
any such other company as aforesaid. Subject always to
the proposal being approved by resolution of members, a
director holding any such employment or office shall be
entitled to participate in and retain for his own
benefit any such donations, gratuity, pension allowance
or emolument.
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19. Arbitration
19.1 Whenever any difference arises between the Company
on the one hand and any of the members or their
executors, administrators or assigns on the other hand,
touching the true intent and construction or the
incidence or consequences of these Articles or of the
Law, touching anything done or executed, omitted or
suffered in the pursuance of the Law or touching any
breach or alleged breach or otherwise relating to the
premises or to these Articles, or to any Act or
Ordinance affecting the Company or to any of the
affairs of the Company ("Dispute") the parties must
follow the dispute resolution procedures in the
following clauses before starting any arbitration or
court proceedings (except for court proceedings seeking
interlocutory relief).
19.2 A party claiming that a Dispute has arisen must
notify in writing each other party to the Dispute
giving details of the Dispute.
19.3 Within 7 days after a notice is given under
Article 19.2 each party to the Dispute (Disputant) must
nominate in writing a representative authorised to
settle the Dispute on its behalf.
19.4 During the 20 day period after expiration of the 7
day period referred to in Article 19.3 (or longer
period agreed in writing by the Disputants) ("Initial
Period") each Disputant must in good faith use its best
endeavours to resolve the Dispute.
19.5 If the Disputants are unable to resolve the
Dispute within the Initial Period they must refer the
Dispute to arbitration by one arbitrator agreed to by
the parties or, if they cannot agree, by the chair of
the Institute of Arbitrators Australia, or the chair's
nominee, and the arbitration will be conducted in
accordance with the UNCITRAL rules for the conduct of
commercial arbitrations.
19.6 Any information or documents prepared for the
arbitration and disclosed by a Disputant during the
arbitration process:
a. must be kept confidential; and
b. must not be used except for the purpose of
resolving the Dispute.
19.7 Each Disputant must bear its own costs regarding
arbitration of a Dispute under Article 19, and the
Disputants must bear equally the fees, and any other
costs or charges, of any arbitrator engaged, unless a
binding decision of the arbitrator states otherwise.
19.8 The place for any arbitration will be at a time
and at an address in the City of the principal place of
business of the Company appointed by the arbitrator,
unless otherwise agreed by the Disputants and the
arbitrator.
19.9 If, in relation to a Dispute, a Disputant breaches
any of the provisions of Articles 19.2 to 19.4, each
other Disputant need not comply with Article 19 in
relation to that Dispute.
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20. Voluntary winding up and dissolution
20.1 The Company may voluntarily commence to wind up
and dissolve by a special resolution of members.
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21. Continuation
21.1 The Company may by resolution of members or by
resolution passed unanimously by all directors of the
Company continue as a Company incorporated under the
laws of a jurisdiction outside Australia in the manner
provided under those laws.
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