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NATIONAL RAIL CORPORATION AGREEMENT ACT 1992 No. 26, 1992 - SCHEDULE
SCHEDULE Sections 3 and 5
AGREEMENT ABOUT THE ESTABLISHMENT OF NATIONAL
RAIL CORPORATION LIMITED THIS AGREEMENT is made on 30th day of July 1991.
BETWEEN: THE COMMONWEALTH OF AUSTRALIA of the first part THE STATE OF NEW
SOUTH WALES of the second part THE STATE OF VICTORIA of the third part THE
STATE OF QUEENSLAND of the fourth part and THE STATE OF WESTERN AUSTRALIA of
the fifth part WHEREAS:
A. To achieve micro-economic reform in the Australian rail industry, the
Commonwealth, State and Territory Governments have agreed that a company
should be established for the purpose of conducting, among other things, rail
freight operations in Australia on a commercial basis in accordance with
principles compatible with those set out in the Heads of Government Agreement
on the National Rail Freight Corporation dated 31 October 1990.
B. These principles are:
(a) that the Company will:
(i) operate on a strictly commercial basis, with a financially
viable corporate plan, and be subject to the Trade Practices
Act 1974 (Commonwealth);
(ii) have access (by ownership or other appropriate arrangements) to
the assets, including track infrastructure, necessary to
achieve commercial viability;
(iii) operate under labour arrangements incorporated in an enterprise
award, which reflects best practice in productivity standards
through efficient work and manning practices, determined by the
technical capacity of its equipment and commercial
considerations, with cost efficiencies being, as a minimum, in
line with those identified by the National Rail Freight
Initiative Task Force in Attachment I to its Report of 21 March
1991;
(iv) have the capacity to contract out activities where that is the
most efficient approach;
(v) provide access on a commercial basis to the NRC network and to
terminal facilities for private and public sector operators;
(vi) have the capacity to provide services to Governments, with the
charging for such services being on a strictly commercial
basis; and
(vii) not be responsible, financially or in any other way, for
redundancies that may arise in rail authorities resulting from
its formation and transfer of functions and assets to it; and
(b) that during the Establishment Period the current financial position of
the Commonwealth and State rail authorities' interstate rail freight
operations will not deteriorate as a result of the Commonwealth and
the States participating in the formation and operation of the
Company.
C. The Company will be established and operated in accordance with the terms
and conditions set out in this Agreement and its Memorandum and Articles of
Association to give effect to the principles referred to in Recital B(a). IT
IS AGREED as follows:
PART I - INTERPRETATION
1. In this Agreement, except where a contrary intention appears or the context
otherwise requires: "asset" means any real or personal property of any
description. "Best Practice Industrial Agreements" means labour arrangements
negotiated by the Company which reflect the most efficient work and manning
practices, determined by the technical capacity of equipment and commercial
considerations. "Commonwealth" means the Commonwealth of Australia as a party
to this Agreement. "Company" means the National Rail Corporation Limited, a
company to be incorporated in the Australian Capital Territory under the
Corporations Law. "Corporate Plan" means the corporate plan prepared in
accordance with the Articles of Association of the Company. "date of
commencement of operations" means 31 January 1992, or such later date as is
mutually agreed between the Relevant Ministers, other than the Ministers of
the other States, being the common date from which all rail authorities of the
Commonwealth and the States carry interstate rail freight on behalf of the
Company. "Establishment Period" means a five year period commencing on the
date of commencement of operations. "finally valued" means, in relation to the
value of an asset or assets transferred (by way of ownership or long term
lease) by the Commonwealth, the States, or their rail authorities to the
Company, that the value of the asset or assets has been agreed or fixed by
arbitration. "interstate rail freight" means interstate rail freight carried
on the NRC network. "long term lease" means a lease which has a term of or in
excess of 20 years. "NRC network" means the rail network connecting the
mainland State capital cities and Alice Springs as specified in the Corporate
Plan. "NRC Standard Costs" means those costs that the Company projects, with
the objective of achieving as a minimum, the potential cost efficiencies
identified by the National Rail Freight Initiative Task Force in Attachment I
of its Report of 21 March 1991, that the Company would achieve by the end of
the Transition Period, if the Company were from the date of commencement of
operations to:
(a) assume the management and operations of all the interstate rail
freight functions set out in Schedule 2 from all rail authorities;
(b) have in place Best Practice Industrial Agreements; and
(c) undertake a capital works program in accordance with the Corporate
Plan. "other State and other States" means the State of Queensland.
"predominant use":
(a) where used in relation to an asset which is a terminal, means the
greatest use of the terminal under consideration taken for the period
of 12 months prior to the date on which the matter is to be
determined, having regard to the volume of freight handled at the
terminal (measured in appropriate units of originating and terminating
throughput).
(b) where used in relation to track, means the greatest use of the section
of track under consideration (as identified in the Corporate Plan)
taken for the period of 12 months prior to the date on which the
matter is to be determined, having regard to the volume of freight
carried and the frequency of freight and passenger services. "rail
authorities" means the railway authorities of the Commonwealth, the
States and, where used in connection with the other States, the
railway authorities of those other States. "Railways of Australia
Agreement" means the interstate rail freight revenue sharing
arrangements determined by the rules contained in Railways of
Australia Commissioners Conference Minute 7248, as they stand at the
date of commencement of operations. "Relevant Ministers" means
Ministers of the Commonwealth, the States and the other States having
responsibility for administration of this Agreement. "State" means the
State of New South Wales, the State of Victoria, the State of Western
Australia and the State of Queensland if it becomes a shareholder of
the Company. "States" means the State of New South Wales, the State of
Victoria, the State of Western Australia and the State of Queensland
if it becomes a shareholder of the Company. "Transition Period" means
the first three year period of the Establishment Period.
PART II - COMMENCEMENT OF OPERATION
OF AGREEMENT
2(1) Clause 3 and subclauses 4(1), (2), (3), (4) and (5) will come into
operation when this Agreement has been executed by the Commonwealth, the
States and the other States.
2(2) The remainder of this Agreement will come into operation on the date on
which the last of the legislation referred to in clause 3 (except the
legislation referred to in subparagraph 3(1)(a)(i)) comes into force.
PART III - LEGISLATION
3(1) The Commonwealth, the States and the other States will, in relation to
the legislation referred to in paragraphs (a)(ii) and (iii), as soon as
possible after the execution of this Agreement by all of them, and in relation
to the legislation referred to in paragraph (a)(i), if the relevant State or
other State proposes to give its approval in writing to the Company engaging
in intra- State rail transport services in that State or other State, prior to
giving that approval, take all practicable steps to seek the enactment of the
following legislation:
(a) legislation by the respective Parliaments of the Commonwealth, the
States and the other States to approve this Agreement and to make such
provision as shall be necessary or appropriate on the part of those
Parliaments respectively for the implementation of this Agreement,
including:
(i) legislation by the States and the other States referring to the
Commonwealth, under s.51(xxxvii) of the Constitution, the
matter of the Commonwealth holding shares in the Company when
the Company engages in intra-State rail transport services in
the States and in the other States;
(ii) legislation by the Commonwealth, the States and the other
States to provide for an additional means for the transfer or
vesting in the Company of assets owned or leased by the
Commonwealth, the States or the other States and their rail
authorities, and for substituting the Company for the
Commonwealth, the States, the other States and their rail
authorities in contracts, in cases where the legislative
transfer or vesting of assets, or contract substitution, has
been agreed in accordance with this Agreement between the
Commonwealth, the States, the other States and their rail
authorities, respectively and the Company; and
(iii) legislation by the Commonwealth, the States and the other
States authorising the making of regulations or by-laws that
are necessary or convenient for carrying out or giving effect
to this Agreement and to the legislation for the implementation
of this Agreement;
PART IV - INCORPORATION OF THE COMPANY AND
SHAREHOLDERS ARRANGEMENTS
4(1) (a) The Commonwealth, the States and the other States agree that the
Company shall be incorporated as a public company limited by shares which
shall be operated on a strictly commercial basis with a financially viable
corporate plan, and have as a principal objective the carriage of interstate
rail freight on a national network.
4(1) (b) The Commonwealth will, as soon as practicable after this Agreement
has been executed, arrange for the Company to be incorporated under the
Corporations Law, with the name of "National Rail Corporation Limited" and
with a Memorandum and Articles of Association substantially in the form set
out in Schedule 1. Nothing in this Agreement shall be construed as limiting or
restricting the amendment of the Memorandum and Articles of Association of the
Company in accordance with their provisions and the Corporations Law.
4(2) The Commonwealth will, itself and though trustees, subscribe to 500
ordinary and 500 B convertible shares in the Company and will, within 30 days
of the date referred to in subclause 2(2), transfer to the States, at par
value, out of these shares, the following number of shares: New South Wales -
140 ordinary shares and 125 B convertible shares Victoria - 65 ordinary shares
and 125 B convertible shares Western Australia - 25 ordinary shares and 125 B
convertible shares
4(3) The funds required for the establishment and functioning of the Company,
until the date of commencement of operations, shall be provided out of the
equity payment to be made by the Commonwealth pursuant to clause 6.
4(4) The Commonwealth and the States agree that subject to subclause 4(6),
until the end of the Establishment Period, there will be nine (9) Directors of
the Company and the Commonwealth, as subscriber and member of the Company, and
the States, as members of the Company, will exercise their appointment and
voting rights in respect of the appointment of the first and subsequent
Directors in such a way as to have during the Establishment Period:
(a) three Directors nominated by the Commonwealth, one being the
Chairperson of the Board of Directors and one, as a matter of
Commonwealth policy, being a nominee of the Australian Council of
Trade Unions, not being a member of a union directly associated with
operations of the Company;
(b) two Directors nominated by the State of New South Wales;
(c) two Directors nominated by the State of Victoria; and
(d) one Director nominated by the State of Western Australia, holding
office during the Establishment Period. The remaining Director, who
will be the Managing Director, will be appointed by the Board of
Directors in accordance with the Articles.
4(5) The Commonwealth and the States agree that, until the end of the
Establishment Period, they will as members of the Company, exercise their
voting rights in respect of the removal of Directors so that a Director
nominated by any of them will, at the request of the Commonwealth, in the case
of a Director nominated by it, or of a State, in respect of a Director
nominated by it, be removed.
4(6) If any other State becomes a shareholder of the Company pursuant to
subclauses 6(8) and 6(9), that State shall have a right from the date it
becomes a shareholder to nominate and have appointed one Director of the
Company, in addition to the Directors referred to in subclause 4(4), to hold
office during the Establishment Period in accordance with the provisions of
subclauses 4(4) and 4(5).
4(7) The Commonwealth and the States agree that, after the Establishment
Period, during such time as the Commonwealth and any of the States are the
only shareholders of the Company, the Commonwealth and those States (as
members of the Company) shall exercise their voting rights relating to the
appointment and removal of Directors in such a way as to ensure that the
Commonwealth and those States each will have the right to nominate at least
one (1) Director, to have that Director appointed and to have that Director
removed. The remainder of the Directors will be appointed in accordance with
the Articles of Association of the Company.
PART V - ESTABLISHMENT AND OPERATION OF THE COMPANY
5(1) The Commonwealth and the States will, to the extent each in its capacity
as a shareholder in the Company is able, procure the Company to:
(a) negotiate Best Practice Industrial Agreements with the relevant unions
leading to an enterprise award as envisaged by Recital B(a)(iii);
(b) before the commitment of any capital upgrading have in place Best
Practice Industrial Agreements which the Company advises provide a
basis for commercial operations;
(c) commence and conduct national interstate rail freight operations;
(d) conduct all marketing and determine pricing for interstate rail
freight carried on by the Company;
(e) collect and retain all revenue generated by the carriage of interstate
rail freight from the date of commencement of operations;
(f) take over progressively from the rail authorities of the Commonwealth
and the States, in whole or in part, functions of the type listed in
Schedule 2 and the management of the associated assets pursuant to the
provisions of this Agreement and the agreements entered into pursuant
to subclauses 5(3), 5(4) and 5(5); and
(g) give effect to this Agreement and to those obligations which by this
Agreement are expressed to be obligations of the Company.
5(2) The Commonwealth, the States and the other States will, and will cause
their respective rail authorities to assist the Company, when requested by the
Company, to undertake the matters set out in subclause 5(1), except, in the
case of the other States, in relation to the matters set out in paragraph
5(1)(f).
Contracts for Services
5(3) Prior to and during the Transition Period, at the request of the Company,
the Commonwealth and the States shall, and shall cause their respective rail
authorities to, enter into contracts with the Company for the provision of
rail services to the Company, relating to interstate rail freight. Those
contracts will make provision for the following during the Transition Period:
(a) The price for services performed under the contracts shall be agreed
on the basis that:
(i) the initial contract price, to apply for no longer than for the
period of 12 months after the date of commencement of
operations, will be set having regard to:
(A) the Company being able to meet its costs incurred in
performing the functions assumed by it in whole or in
part, during the period for which the initial contract
price applies (being reasonable costs); and
(B) the revenue that the rail authority would have received
under the Railways of Australia Agreement, had that
agreement still applied. and,
(ii) thereafter the contract price will, on the basis that the
Company has achieved Best Practice Industrial Agreements and is
implementing its approved capital investment program, reduce
progressively to NRC Standard Costs.
(b) liquidated damages, in an amount or by a formula to be agreed between
the parties to the contract, to be paid to the Company by the
respective rail authorities, or by the Company to the respective rail
authorities, in respect of a failure by a party to meet such
performance standards as are specified in the contract;
(c) the Company and the relevant rail authority are to maintain and make
available to each other externally audited accounts of the costs of
carrying out their respective obligations under any contract. The
accounts shall be in the form specified from time to time by the
auditors of the Company in accordance with generally accepted
accounting practices. Such accounts shall be retained by the parties
to a contract for at least a period of 12 months after the expiration
of the contract. These accounts will only be used for the purpose of
determining payments pursuant to clause 5.
Transfer of Functions
5(4) (a) Subject to this Agreement, the Commonwealth and the States shall and
shall cause their respective rail authorities to permit the Company to assume
performance of the functions relating to interstate rail freight of the type
listed in Schedule 2, in whole or in part, in accordance with a detailed list
of specific functions and the timetable set out in the Corporate Plan and
being no later than the end of the Transition Period.
(b) When a function is assumed pursuant to subclause 5(4)(a) by the
Company, an assessment will be made at that time by the Company of the
initial full cost to the Company of performing that function
determined having regard to any accounts kept pursuant to subclause
5(3)(c) or in the absence of such accounts, such other accounts as may
be relevant. Where that assessed cost exceeds NRC Standard Costs for
that function:
(i) the transferring rail authority and the Company will agree as
to the rate and the time, which is not to exceed three years
from the date of transfer, or the end of the Establishment
Period, whichever shall first occur, at which, and within which
the Company will be able to reduce costs in relation to that
function to NRC Standard Costs, while meeting the Company's
performance standards;
(ii) the Company and the Commonwealth, or the State concerned, will
agree a schedule of payments, to be made by the Commonwealth or
the State to the Company, during the period agreed to in
subclause (i) above while the Company is in the process of
achieving NRC Standard Costs in respect of the function in the
time agreed. The schedule will be based on the difference
between NRC Standard Costs to carry out the function and the
actual costs measured on a comparable basis determined having
regard to any accounts kept pursuant to subclause 5(3)(c) (or
in the absence of such accounts, such other accounts as may be
relevant), to the Commonwealth, the States or their rail
authorities, as the case may be, of carrying out the function
in the twelve month period prior to the transfer.
(c) In the case of the State of Western Australia, if it is established by
an independent expert to be appointed by the Company and approved by
the State of Western Australia, as soon as practicable after the date
of commencement of operations, that transfer of its interstate rail
freight business to the Company would have a detrimental effect on the
financial position of the rail authority of Western Australia, because
of a reduction in revenues not matched by a commensurate reduction in
costs, including fixed costs and overheads, then assessments shall be
made by that expert of the extent in dollar terms, of that effect for
each year of the Establishment Period, and of the maximum practicable
rate at which the Western Australian rail authority could reduce fixed
costs and overheads as a consequence of the transfer of the functions
and assets to the Company. The Company, the Commonwealth and the
States must agree a schedule of annual payments to be made to the
State of Western Australia by the Company within the Establishment
Period, which provides compensation to the State of Western Australia
based on these assessments.
(d) Payments to be made by the rail authority of the State of Western
Australia pursuant to subclause 5(4)(b), as well as payments received
by the rail authority of the State of Western Australia pursuant to
subclause 5(3), shall be taken into account in assessing the payments
to be made to the State of Western Australia pursuant to subclause
5(4)(c), as well as any reductions in costs occasioned by the transfer
of functions by the rail authority of the State of Western Australia,
giving rise to payments by the State of Western Australia pursuant to
subclause 5(4)(b).
(e) Prior to any application of Part VII in relation to payments to be
made to the State of Western Australia pursuant to subclause 5(4)(c),
agreement as to payments to the State of Western Australia pursuant to
that subclause shall, if necessary, be negotiated at Heads of
Government level.
Access to and Transfer of Assets
5(5) The Commonwealth and the States shall, or shall cause their rail
authorities to transfer ownership of, or for as long as the Company continues
to conduct national interstate rail freight operations, give leases of, or
grant access to the Company, in relation to any asset, owned or controlled by
the Commonwealth or the State or their rail authorities, and used by their
rail authorities in connection with interstate rail freight. The Company, in
its Corporate Plan, shall identify that a particular asset or class of assets
is required by it. The Commonwealth and the States shall have a discretion
whether to transfer ownership, give a lease or grant access to the Company in
relation to any asset required by it. Transfer of ownership, lease or grant of
access shall be given within a reasonable time following the request by the
Company to make the asset available. The objective is that all transfers of
ownership, leases or grants of access shall be completed before the end of the
Transition Period. The following provisions shall apply:
(a) In the case where the Company requires access to an asset the
predominant use of which has not been for interstate rail freight, or
of which the Company is not, and will not in the future, be the
predominant user (eg metropolitan track) as projected in the Corporate
Plan, the Company will be granted access to that asset pursuant to a
contract, the terms and conditions of which will be agreed between the
Company and the Commonwealth or a State or its respective rail
authority, as the case may be. Such contract will provide for the
Company to pay to the rail authority in respect of such access, an
amount that reflects the cost to the rail authority of providing
access in the most efficient manner and that allows the Company to
meet its service standards specified in the contract;
(b) In the case where the Commonwealth or a State, or its rail authority,
does not agree to transfer ownership, or enter into a long term lease
of an asset, the predominant use of which has been for interstate rail
freight, or of which the Company is or is to be, the predominant user
as projected in the Corporate Plan, the Company will be granted access
to that asset pursuant to a contract, the terms and conditions of
which will be agreed between the Company and the Commonwealth or a
State, or its respective rail authority, as the case may be. Such
contract will provide that the rail authority maintain the asset to
NRC specified standards and for the Company to pay to the rail
authority, in respect of such access, an amount no greater than the
costs (based on NRC Standard Costs) that would be avoided by the rail
authority if the Company were not to utilise the asset on the basis
that the rail authority would for its own purposes maintain the asset
to the standards specified in the contract.
(c) In the case where the Company acquires ownership of, or a long term
lease of, an asset to which a rail authority still requires access (eg
for intrastate rail freight or passenger services), the rail authority
will be granted access to that asset pursuant to a contract, the terms
and conditions of which will be agreed between the Company and the
Commonwealth or a State, or its rail authority, as the case may be.
Such contract will provide for the rail authority to pay to the
Company, in respect of such access, an amount that reflects the cost
to the Company of providing access in the most efficient manner and
that allows the rail authority to meet its service standards specified
in the contract.
(d) In the case where the Company does not nominate as an asset which it
requires to be transferred to it, an asset the predominant use of
which has been for interstate rail freight, but to which it requires
access, access will be granted to the Company pursuant to a contract,
the terms and conditions of which will be agreed between the Company
and the Commonwealth or a State, or its rail authority, as the case
may be. Such contract will provide for the Company to pay to the rail
authority, in respect of such access, an amount that reflects the cost
to the rail authority of providing access in the most efficient manner
and that allows the Company to meet its service standards specified in
the contract.
Other States - Access to and Transfer of Assets and Contracts of Service
5(6) (a) The other States shall, or shall cause their rail authorities to
transfer ownership of, or for as long as the Company continues to conduct
national interstate rail freight operations, give leases of, or grant access
to the Company, in relation to any asset, owned or controlled by the other
States or their rail authorities, and used by their rail authorities in
connection with interstate rail freight. The Company, in its Corporate Plan,
shall identify that a particular asset or class of assets is required by it.
The other State in question shall have a discretion whether to transfer
ownership, give a lease or grant access to the Company in relation to any
asset required by it. Transfer of ownership, lease or grant of access shall be
given within a reasonable time following the request by the Company to make
the asset available. The objective is that all transfers of ownership, leases
or grants of access shall be completed before the end of the Transition
Period. The transfers of ownership, leases and the grants of access shall be
on such commercial terms and conditions as are agreed between the Company and
the other State in question.
(b) Until all the transfers of ownership, leases or grants of access
pursuant to subclause 5(6)(a) are completed, the other States shall,
and shall cause their respective rail authorities to, enter into
contracts with the Company for the provision of rail services to the
Company, relating to interstate rail freight. Those contracts will
make provision for the following: The price for services performed
under the contracts shall be agreed on the basis that:
(i) the initial contract price, to apply for no longer than for the
period of 12 months after the date of commencement of
operations, will be set having regard to:
(A) the Company being able to meet its costs incurred in
performing the functions, identified in Schedule 2,
assumed by it in whole or in part during the period for
which the initial contract price applies (being
reasonable costs); and
(B) the revenue that the rail authority would have received
under the Railways of Australia Agreement, had that
agreement still applied. and,
(ii) thereafter the contract price will be at commercial rates
agreed between the Company and the other State in question or
its rail authority.
PART VI - FUNDING
6(1) (a) The Commonwealth and the States will contribute the following equity
funds to the establishment, capital and operation of the Company:
(i) the Commonwealth - $295.8 million.
(ii) the State of New South Wales - $75.6 million.
(iii) the State of Victoria - $35.1 million.
(iv) the State of Western Australia - $8.0 million.
(b) The Commonwealth and the States shall, prior to the date of
commencement of operations, make an application to the Company for the
issue of A convertible shares equal to the amounts set out in
subclause 6(1)(a).
(c) the Company shall issue to the Commonwealth and the states
respectively, the A convertible shares referred to in subclause
6(1)(b).
(d) Payments by the Commonwealth and the States respectively of funds to
be contributed pursuant to subclause 6(1)(a), and any calls on the A
convertible shares, shall be made from time to time in accordance with
Schedule 4.
6(2) (a) During the Establishment Period, the Commonwealth and the States will
contribute any additional equity funding requirements of the Company provided
for, both as to amounts and times of payment, in the Corporate Plan according
to the following percentages:
Commonwealth 54.3%
New South Wales 27.7%
Victoria 13.1%
Western Australia 4.9%
(b) The Commonwealth and the States shall, during the Establishment
Period, make application to the Company for the issue of A convertible
shares calculated in accordance with subclause 6(2)(a).
(c) The Company shall issue to the Commonwealth and the States
respectively, the A convertible shares referred to in subclause
6(2)(b).
6(3) For the purposes only of determining the numbers of A convertible shares
to be issued pursuant to subclause 6(7), the value of an interest in the
assets transferred (by way of ownership or long term lease) will be agreed
bilaterally by the Company and the Commonwealth or by the Company and the
relevant State, on the following basis:
(a) for an interest in track or terminal, and major associated assets, the
valuation will be agreed prior to the end of the Establishment Period
and will take into account the condition of the asset at the time of
transfer and the net amount expected to be recovered from its
continued use, assessed as at the end of the Establishment Period. The
cost, adjusted in accordance with subclause 6(5), of any improvements
to such assets funded by the Company prior to the valuation of such
assets, whether by capital upgrade or maintenance, will be deducted
from the value of the asset.
(b) for an interest in any other asset:
(i) valuation at market value, assessed at the time of transfer, if
an established market exists for that type of asset; or
(ii) if no such established market exists, then on an asset
valuation methodology appropriate to the type of asset
involved, assessed at the time of transfer.
6(4) In valuing interests in assets transferred (by way of ownership of long
term lease), the valuation methodology adopted will be applied uniformly to
value the interests in assets of the same type transferred by the
Commonwealth, the States and their rail authorities to the Company.
6(5) For the purpose of determining the number of A convertible shares for
issue to the Commonwealth and the States, or the number of ordinary shares to
issue as bonus shares, the monetary value of assets transferred assessed in
accordance with subclauses 6(3) and 6(4), and moneys contributed in accordance
with subclause 6(1), will be adjusted immediately prior to the end of the
Establishment Period (or, in the case of assets finally valued after the
Establishment Period, as soon as practicable after the assets are finally
valued) to constant prices by indexing those monetary values by the All Groups
Consumer Price Index Number published by the Australian Statistician. The
period of indexation will commence from the latest published index number
before the date of the transfer of assets or payment of moneys to the latest
published index number before the end of the Establishment Period.
6(6) The Commonwealth and the States shall, prior to the end of the
Establishment Period, make an application to the Company for the issue of:
(a) A convertible shares equal to the value, as assessed in accordance
with subclauses 6(3), 6(4) and 6(5), of the assets transferred (by way
of ownership or long term lease) respectively by the Commonwealth and
the States and their rail authorities; and
(b) A convertible or ordinary shares, in accordance with subclause 6(7),
equal to the value of the difference between the moneys contributed by
the Commonwealth and the States in accordance with subclause 6(1) and
the adjusted value thereof assessed in accordance with subclause 6(5).
6(7) The Company shall issue to the Commonwealth and the States respectively
the A convertible or ordinary shares referred to in subclause 6(6), provided
that the shares referred to in subclause 6(6)(b) shall only be issued as bonus
shares when there are sufficient profits or reserves out of which the shares
can be so issued and shall be issued as ordinary shares if, at the time of
issue, all the A convertible shares have been converted into ordinary shares
or A convertible cumulative preference shares. The Commonwealth and the States
shall, before the end of the Establishment Period, pass the necessary special
resolution for the A convertible or ordinary shares, referred to in subclause
6(6)(b), to be issued as bonus shares in priority to the rights of any other
shareholder.
6(8) If, during, the first three years of the Establishment Period, any of the
other States notifies the Commonwealth, the States and the Company that it
wishes to contribute a minimum of $5 million in cash for shares in the
Company, the Commonwealth and the States shall, as members, pass a unanimous
resolution for the issue of the shares to the other State and for the issue of
additional shares to the Commonwealth and the States in accordance with the
relevant provisions of the Table in Schedule 3 under the following conditions:
(a) the Commonwealth, the States and the other State, upon making an
application for shares, shall be each issued with the number of
ordinary and B convertible shares at par value set out in Schedule 3.
In addition to the B convertible shares, the other State shall, upon
payment in full of the moneys contributed by it, be issued with A
convertible shares at par value for the remainder of the moneys
contributed by it; and
(b) the other State shall be obliged to contribute such proportion of the
additional equity funding requirements of the Company pursuant to
subclause 6(2)(a), as is determined by the Company and agreed between
the Commonwealth, the States and the other State prior to the date of
the passing of the unanimous resolution to issue shares pursuant to
this subclause. The percentages as then agreed shall, from the date
the other State becomes a shareholder, be the percentages at which the
Commonwealth, the States and the other State have to contribute to
additional equity funding requirements and will replace the
percentages set out in subclause 6(2)(a).
6(9) If, during the last two years of the Establishment Period, any of the
other States notifies the Commonwealth, the States and the Company that it
wishes to purchase shares in the Company, the Commonwealth and the States, as
members, may pass a unanimous resolution for the issue of such shares (if any)
to the other State, subject to such terms and conditions, as they determine,
and are agreed to by the other State.
6(10) After the Establishment Period, if any of the other States notifies the
Company and all the shareholders of the Company that it wishes to purchase
shares in the Company, the other State shall have the right to purchase shares
in the Company on the same terms and conditions as shares are offered for sale
to third parties.
6(11) The Commonwealth and the States shall, at the end of the Establishment
Period, pass a special resolution to convert all the A convertible shares to
ordinary or A convertible cumulative preference shares, or if at the time all
the assets transferred (by way of ownership or long term lease) by the
Commonwealth and the States and their rail authorities to the Company have not
been finally valued, as soon as practicable after the final valuation is
completed.
PART VII - RESOLUTION OF DISPUTES
7. Except for a dispute or difference as to any obligation imposed under Part
III, any dispute or difference whatsoever arising in connection with this
Agreement shall first be the subject of conciliation by a conciliator agreed
between the parties to the dispute or difference, unless one of the parties to
the dispute or difference objects to conciliation. In the event that the
dispute or difference has not been resolved within twenty-eight (28) days (or
such other period as is agreed to in writing between the parties to the
dispute or difference) after the appointment of a conciliator by the parties
to the dispute or difference, or the parties to the dispute or difference
cannot agree to referring the dispute or difference for conciliation, the
dispute or difference shall be submitted to arbitration in accordance with and
subject to the Arbitration Rules of the United Nations Commission on
International Trade Law in force at the date of first notification of the
dispute or difference. A dispute or difference will include, without limiting
the generality thereof, a dispute or difference as to:
(a) the identification of any asset within any class of assets identified
in the Corporate Plan;
(b) the value of the interest in any asset to be transferred or leased or
otherwise made available to the Company;
(c) the terms and conditions of a service contract to be entered into
pursuant to subclauses 5(3) and 5(6);
(d) the schedule of payments to be made by the Commonwealth or a State
pursuant to subclause 5(4)(b);
(e) the schedule of payments which may be made by the Company pursuant to
subclause 5(4)(c); or
(f) the charges and terms and conditions for access to assets pursuant to
subclauses 5(5)(a), (b), (c) and (d) and subclause 5(6)(a).
PART VIII - VARIATION OF AGREEMENT
8(1) The provisions of this Agreement, which do not relate to or affect any of
the other States may be varied, as between the Commonwealth and the States, by
an agreement in writing between the Relevant Ministers of the Commonwealth and
States.
8(2) Any provisions of this Agreement, which affect any of the other States,
may be varied as between the Commonwealth, the States and the other State or
other States affected, by an agreement between the Relevant Ministers of the
Commonwealth, the States and the other State or States affected.
8(3) A copy of an agreement, or copies of documents which constitute an
agreement under subclause 8(1), shall be tabled in the Commonwealth and State
Parliaments within 15 sitting days from the date on which the agreement is
made and shall, if not disallowed by any Parliament within 15 sitting days of
being so tabled, take effect at the expiration of 15 sitting days of the
Parliament in which the agreement or documents are last tabled.
8(4) A copy of an agreement, or copies of documents which constitute an
agreement under subclause 8(2), shall be tabled in the Commonwealth and the
State Parliaments and the Parliament of the other State or States within 15
days from the date on which the agreement is made and shall, if not disallowed
by any Parliament within 15 sitting days of being so tabled, take effect at
the expiration of 15 sitting days of the Parliament in which the agreement or
documents are last tabled.
PART IX - MISCELLANEOUS
9(1) The Relevant Ministers may, from time to time, do all things, or enter
into agreements or arrangements for giving effect to the provisions of this
Agreement.
9(2) During the Establishment Period, the Commonwealth and the States, as
members of the Company, shall not mortgage or otherwise encumber their shares.
9(3) The obligations of a party hereunder, or in any agreement contemplated by
this Agreement shall not be subject to that party holding or continuing to
hold shares in the Company.
PART X - WINDING UP OF A COMPANY
10. If the Company is wound up within eight years of the date of commencement
of operations, the Commonwealth, the States and the other States will, to the
extent permitted by law, have the first option to acquire by distribution or
purchase, assets of the Company which they or their rail authorities have
respectively transferred to the Company. IN WITNESS WHEREOF this Agreement has
been executed on behalf of the parties respectively as at the day and year
above written. SIGNED BY THE HONOURABLE) ROBERT JAMES LEE HAWKE,)
Prime Minister of the) BOB HAWKE
Commonwealth of Australia,) in the presence of: ROGER BEALE SIGNED BY THE
HONOURABLE) NICHOLAS FRANK GREINER,)
Premier of the State of New) NICK GREINER
South Wales, in the presence) of: ROGER BEALE SIGNED BY THE HONOURABLE) JOAN
ELIZABETH KIRNER,)
Premier of the State of Victoria,) JOAN E. KIRNER
in the presence of:) ROGER BEALE SIGNED BY THE HONOURABLE) WAYNE GOSS, Premier
of)
the State of Queensland,) WAYNE GOSS
in the presence of: ROGER BEALE SIGNED BY THE HONOURABLE) CARMEN LAWRENCE,
Premier of the State of Western) CARMEN LAWRENCE
Australia, in the presence) of: ROGER BEALE
SCHEDULE 1
Australia
Corporations Law
A Company Limited by Shares
MEMORANDUM OF ASSOCIATION
OF
NATIONAL RAIL CORPORATION LIMITED 1. The name of the Company is National Rail
Corporation Limited. 2. Subject to the Corporations Law, the Company may
exercise the legal capacity of a natural person and, without limiting the
generality of the foregoing, has power:
(1) to issue and allot fully or partly paid shares in the Company.
(2) to issue debentures of the Company.
(3) to distribute any of the property of the Company among the members, in
kind or otherwise;
(4) to give security by charging uncalled capital;
(5) to grant a floating charge on property of the Company;
(6) to procure the Company to be registered or recognised as a body corporate
in any place outside Australia; and
(7) to do any other act that it is authorised to do by any other law
(including a law of a foreign country). 3. Notwithstanding the provisions of
clause 2, the Company shall not carry on any intra-State rail services in any
State unless:
(a) there is in relation to that State, a referral of power, referring to
the Commonwealth, under s.51(xxxvii) of the Constitution, the matter
of the Commonwealth holding shares in the Company when the Company
engages in intra-State rail services in the State; and
(b) that State has given its prior approval in writing to the Company to
carry on the intra-State rail services in that State. 4. This clause
and clause 3 may not be amended or deleted without the unanimous
resolution of all of the members of the Company and if, at the
relevant time any of the States of New South Wales, Victoria,
Queensland, Western Australia or South Australia, is not a member of
the Company, the prior approval in writing of such a State will be
required to any amendment. 5. The liability of the members is limited.
6. The capital of the Company is five billion dollars ($5,000,000,000)
divided into five billion (5,000,000,000) shares of One dollar
($1.00). 7. WE, the several persons whose names and addresses are
subscribed hereto, are desirous of being formed into a Company in
pursuance of this Memorandum of Association and respectively agree to
take the number of shares in the capital of the Company set out
opposite our respective names: Name and Address Signature of Number of
Shares Signature
Subscribers taken by each and Address
Subscriber of Witness
DATED this 1991
Australia
Corporations Law
A Company Limited by Shares
ARTICLES OF ASSOCIATION
OF
NATIONAL RAIL CORPORATION LIMITED
PRELIMINARY 1. Table "A" Excluded
The Regulations contained in Table "A" in Schedule 1 to the Law do not apply
to the Company. 2. Definitions and Interpretation 2(1) In these Articles,
unless the contrary intention appears:
"Articles' means the Articles of Association of the Company in force from time
to time, and a reference to a particular article has a corresponding meaning.
"Auditor" means any person appointed to perform the duties of an auditor of
the Company.
"Board" means the whole or any number of the Directors for the time being
assembled at a meeting of Directors and not being less than a quorum.
"Branch Register" means any Register of members authorised and established in
accordance with these Articles outside the State or Territory in which the
principal register is kept whether within or outside Australia.
"Business Days" means the days, other than a Saturday, Sunday or days gazetted
as public holidays or bank holidays in the Australian Capital Territory.
"Capital" means the capital for the time being of the Company.
"Chairperson" means Chairperson of the Board of Directors.
" Company" means the National Rail Corporation Limited.
"Corporate Plan" means the plan prepared in accordance with Article 118(3)
from time to time.
"Directors" means the Directors for the time being of the Company or the
Directors assembled as a Board and includes all Alternate Directors.
"Dividend" includes a bonus issue of shares.
"Establishment Period" means a five year period commencing on 31 January 1992,
or such later date as is agreed by the members in writing, being the common
date from which all rail authorities of the Commonwealth and the States carry
interstate rail freight on behalf of the Company.
"Executive Director" means a Director in the full time employment of the
Company who is concerned, or takes part in the management of the Company.
"Law" means the Corporations Law of the Australian Capital Territory within
the meaning of the Corporations Act 1989 (Commonwealth) and includes any
amendment or re-enactment of the same or any legislation passed in
substitution.
"Managing Director" means any person appointed to perform the duties of
managing director of the Company and includes an acting Managing Director.
"member", "shareholder", or "holder" means any person entered in the Register
as a member for the time being of the Company.
"member present" means a member present at any general meeting of the Company
in person or by proxy or attorney or, in the case of a corporation, by a duly
appointed representative.
"meeting" means a meeting of members duly called and constituted in accordance
with the Articles and any adjourned holding thereof.
"Office" means the registered office for the time being of the Company.
"Register" means the Register of members to be kept pursuant to the Law and
shall also include any Branch Register.
"Resolution" means a resolution other than a special resolution.
"Seal" means the Common Seal of the Company and includes any official seal of
the Company.
"Secretary" means any person appointed to perform the duties of Secretary or
Acting Secretary of the Company or as a temporary substitute for the
Secretary.
"Shares" means the shares into which the Capital is from time to time divided
and, when shares are fully paid up, includes stock, except where a distinction
between stock and shares is expressed or implied.
"special resolution" means a special resolution within the meaning of Section
253 of the Law.
"State" means the State of New South Wales, Victoria, Queensland, or Western
Australia.
"Statement of Corporate Intent" means the statement of corporate intent
referred to in Article 118(4). 2(2) The term "Chairman" or "Chairwoman" shall
be able to be substituted for the term "Chairperson" where the holder of the
office of Chairperson or deputy Chairperson elects to do so at meetings of the
Company, Directors' meetings or in Company documents. 2(3) Headings are for
convenience only and shall not be used in the interpretation of these Articles
or of any part thereof to which they relate. 2(4) Words importing any gender
include the other genders, words importing persons shall include partnerships,
associations, corporations, bodies politic or other legal entities, companies
unincorporated and incorporated whether by Act of Parliament or otherwise, as
well as individuals and words importing the singular include the plural and
vice versa. 2(5) In every case where in these Article general expressions are
used in conjunction with powers, discretions or things, such general
expressions shall not be limited to or controlled by the particular powers,
discretions or things with which the same are concerned. 2(6) Any words and
expressions denoting authority or permission shall be construed as words or
expressions of authority merely and shall not be construed as words or
expressions denoting directions or compulsory trusts. 2(7) Section 46 of the
Acts Interpretation Act 1901 (Commonwealth) applies in relation to these
Articles as if they were an instrument made under the Law as in force on the
date of incorporation of the Company. 2(8) Subject to the aforesaid, an
expression used in a particular Part or Division of the Law that is given by
that Part or Division a special meaning for the purposes of that Part or
Division has, in any of these Articles that deals with a matter dealt with by
that Part or Division, unless the contrary intention appears, the same meaning
as in that Part or Division. 2(9) A reference to any statute, regulation,
proclamation, ordinance or by-law includes all statutes, regulations,
proclamations, ordinances or by-laws varying, consolidating or replacing them,
and a reference to a statute includes all regulations, proclamations,
ordinances and by-laws issues under that statute. 3. Compliance with the Law
In so far as and for so long as the Law applies to the Company, the Company
shall comply with the provisions thereof and these Articles, to the extent
that they may be inconsistent therewith, shall be subject to the provisions of
the Law.
CAPITAL AND VARIATION OF RIGHTS 4.(1) Share Capital 4(1) The capital of the
Company shall be divided into nine hundred (900) ordinary shares of $1 each,
nine hundred (900) B convertible shares and 4,999,998,200 A convertible shares
of $1 each (which may be converted in accordance with these Articles into A
convertible cumulative preference shares). 4(2) The A convertible shares shall
confer on the holders the following rights, privileges and conditions:
(a) a right to receive notices of and to attend General Meetings, but no
right to vote;
(b) a right on winding up and on a reduction of capital to have the
capital paid up on A convertible shares repaid pari passu with the
ordinary shares and the B convertible shares; and
(c) no further right to participate in the assets or profits of the
Company. 4(3) The A convertible cumulative preference shares shall
confer on the holders the following rights, privileges and conditions:
(a) a right to receive notice of and to attend General Meetings, but no
right to vote;
(b) a right to receive a fixed cumulative preferential dividend of 10% per
annum, or such other dividend as is determined by the Directors from
time to time, in preference to all other issued shares in the capital
of the Company;
(c) a right on winding up and on a reduction of capital to have the
capital paid up on the A convertible cumulative preference shares
repaid in priority to all other issued shares in the Company; and
(d) no further right to participate in the surplus assets or profits of
the Company. 4(4) The B convertible shares shall confer on the holders
the following rights privileges and conditions:
(a) a right to receive notices of, attend and vote at General Meetings.
(b) no right to receive any dividends or profits of the Company.
(c) a right on winding-up and on a reduction of capital to have the
capital paid up on the B convertible shares repaid pari passu with the
A convertible shares and the ordinary shares; and
(d) no further right to participate in the surplus assets or profits of
the Company. 4(5) After the Establishment Period, any issue of shares
shall be in accordance with the following conditions:
(a) the shares will first be offered to the existing members in proportion
to the shares held by them who may take up the shares to which they
are entitled in whole or in part. If, within twenty-one (21) days of
such offer being made, the shares, or some of them, are not taken up,
those not taken up will be again offered to all the existing members,
but without regard to their respective shareholdings.
(b) the shares not taken up by any member within twenty-one (21) days of
such offer, may be offered to third parties. If an offer to purchase
the shares is made by a third party which is acceptable to the
Company, the shares will be offered again to the existing members, but
at the value and on the terms at which the third party made the offer.
If any member does not take up the offer within twenty-one (21) days
of such offer being made, the shares not taken up can be issued to the
third party on the basis of that offer.
(c) if any issue of shares to a member pursuant to this Article would
result in that member holding, including shares marked in the Register
as being held in trust for the member, more than 49% of the issued
ordinary shares in the Capital of the Company, the shares in excess of
the 49% holding shall automatically convert into A convertible
cumulative preference shares and shall be dealt with as provided in
Article 28(6).
(d) any offer of shares pursuant to this Article to a body politic will
permit the body politic such period to settle the purchase as is
necessary to allow it a reasonable time to obtain any necessary
Parliamentary approval, including appropriation of funds. 4(6) In the
event a member is entitled to apply during the Establishment Period
for A convertible shares and such entitlement is not exercised prior
to the end of the Establishment Period, that member is entitled to
apply for and be issued with, after the end of the Establishment
Period, the number of ordinary shares equal to the number of A
convertible shares to which the member would have been so entitled.
5.( ) Control of Issue of Shares and Modification of Rights 5(1)
Subject to the provisions of the Articles and the Law and without
prejudice to any special rights previously conferred on the holders of
any existing shares, the unissued shares in the Company (including new
shares created upon an increase of capital), shall be under the
control of the Directors who may allot, grant options over or
otherwise dispose of the same to such persons on such terms and
conditions and either at a premium or at par or subject to the
provisions of the Law at a discount and at such times as the Directors
think fit. 5(2) Without prejudice to any special rights previously
conferred on the holders of any existing shares, any share may be
issued with such preferred, deferred or other special rights or such
restrictions whether in regard to dividend, voting, return of share
capital or otherwise as the Company may from time to time by
resolution determine and any preference share may with the sanction of
a special resolution be issued on the terms that it is or at the
option of the Company is liable to be redeemed. 5(3) During the
Establishment Period, no shares in the capital of the Company, other
than five hundred (500) ordinary shares, five hundred (500) B
convertible shares and such of the A convertible shares as may be
alloted to the Commonwealth or any State in return for cash or in
satisfaction of the transfer of interests in assets, may be alloted
without the unanimous resolution of the Company in general meeting.
5(4) If at any time the Capital is divided into different classes of
shares, the rights and privileges attached to any class (unless
otherwise provided by the terms of issue of the shares of that class)
may only, whether or not the Company is being wound up, be varied with
the sanction of a special resolution passed at a separate general
meeting of the holders of the shares of that class. 5(5) The
provisions of the Articles relating to general meetings shall, mutatis
mutandis, apply to every such meeting, except that in voting on
modification of rights:
(a) the necessary quorum shall be members present holding or representing
seventy five percentum (75%) of the nominal amount of the issued
shares of the class; and
(b) any member present holding shares of the class may demand a poll. 6.
Modification of Rights by Consent in Writing
If a quorum is not present at any separate general meeting of holders of
shares of a class, or if such resolution is not passed by the necessary
majority, all or any of such rights and privileges may be varied with the
consent in writing of the holders of at least seventy five percentum (75%) in
nominal value of the issued shares of the class within two (2) calendar months
from the date of such meeting. 7. Payment of Commission 7(1) The Company may
exercise the power to make payments by way of brokerage or commission
conferred by the Law in the manner provided by the Law. 7(2) Payments by way
of brokerage or commission may be satisfied by the payment of cash and, after
the Establishment Period, by the allotment of fully or partly paid shares, or
partly by the payment of cash and partly by the allotment of fully or partly
paid shares. 8. Recognition of Ownership 8(1) Except as required by law or as
herein provided, no person shall be recognised by the Company as holding any
share upon any trust. 8(2) The Company shall not be bound by or be compelled
in any way to recognise (even when having notice thereof) any equitable
contingent, future or partial interest in any share or unit of a share or
(except only as otherwise provided by these Articles or by law) any other
right in respect of any share except an absolute right to the entirety thereof
in the registered holder. 8(3) Shares held by a trustee may, with the consent
of the Directors, be marked in the Register in such a way as to identify them
as being held subject to the relevant trust, but nothing in this paragraph
derogates from paragraph (1) of this Article.
SHARE CERTIFICATES 9. Issue of Certificates Under Seal
The certificate of title to shares shall be issued under the Seal of the
Company in accordance with the provisions of these Articles. 10. Entitlement
to Certificates 10(1) Every person whose name is entered as a member in the
Register of members shall be entitled free of charge to one certificate
specifying the share or the shares registered in his or her name and the
amount paid up thereon, or if he or she so desires, to several certificates in
reasonable denominations. 10(2) In respect of a share or shares held jointly
by several persons, the Company shall not be bound to issue more than one
certificate and delivery of a certificate for a share to one of several joint
holders shall be sufficient delivery to all such holders. 10(3) Share
certificates shall be dispatched by the Company within ten (10) business days
of the date of allotment or the date of lodgement of a registerable transfer
of the shares, as the case may be. 11. Replacement of Certificates 11(1) If
any certificate, letter of allotment, transfer, receipt or other document of
title to shares is worn out or defaced then, upon production thereof to the
Directors, they may order the same to be cancelled and shall issue a new
certificate in lieu thereof upon the conditions prescribed by the Law. 11(2)
If any certificate, letter of allotment, transfer, receipt or other documents
of title to shares is lost, then the Directors may issue a duplicate thereof
upon the conditions prescribed by the Law. 11(3) A fee of such amount, not
exceeding the amount prescribed under the Law as the Directors determine, may
be charged for a new certificate or duplicate certificate issued under this
Article.
LIEN ON SHARES 12. Rights to Lien 12(1) The Company shall have a first and
paramount lien for calls and instalments which are due and unpaid and interest
thereon and expenses incurred in relation thereto upon the specific shares
registered in the name of each member (whether solely or jointly with others)
and such lien shall extend to all dividends from time to time declared in
respect of such shares. 12(2) The Directors may at any time declare any share
to be wholly or in part exempt from the provisions of Article 12(1). 12(3)
Unless otherwise agreed or the Company first gives notice of the claim to the
transferee, the registration of a transfer of shares shall operate as a waiver
of the Company's lien (if any) on such shares. 13. Imposition of a Liability
13(1) Whenever any law for the time being of the Commonwealth or any State or
Territory of Australia imposes any liability, or possible liability, upon the
Company to make any payment or empowers the Commonwealth or any State or
Territory government or taxing authority or government official to require the
Company to make any payment in respect of any shares registered in the
Register or any Branch Register, as held either jointly or solely by any
member, or in respect of any dividends or other moneys due or payable or
accruing due or which may become due or payable to such member by the Company
on or in respect of any shares registered as aforesaid or for or on account or
in respect of any member and whether in consequence of:
(a) the death of such member;
(b) the liability for income tax or other tax by such member;
(c) the liability for any estate, probate, succession, death, stamp or
other duty by the executor or administrator of such member or by or
out of the member's estate; or
(d) any other act or thing; the Company in every such case:
(i) shall be fully indemnified by such member or his or her
executor or administrator from all liability;
(ii) shall have a first and paramount lien upon all shares
registered in the Register or any Branch Register as held
either jointly or solely by such member and upon all dividends
and other moneys payable in respect thereof for any liability
arising under or in consequence of any such law and for any
amount paid in complete or partial satisfaction of such
liability and for interest on any amount so paid at the rate
percentum per annum set by the Directors from the date of
payment to the date of repayment and the Company may deduct
from or set off against any such dividend or other money
payable as aforesaid any moneys paid or payable by the Company
as aforesaid together with interest as aforesaid;
(iii) may recover as a debt due from such member or the member's
executor or administrator wherever constituted any moneys paid
by the Company under or in consequence of any such law and
interest thereon at the rate and for the period aforesaid in
excess of any dividend or other money as aforesaid then due or
payable by the Company to such member;
(iv) may, if any such money is paid or payable by the Company under
any such law as aforesaid, refuse to register a transfer of any
such shares by any such member or the member's executor or
administrator until such money with interest as aforesaid is
set off or deducted as aforesaid, or in case the same exceeds
the amount of any such dividend or other money as aforesaid
then due or payable by the Company to such member, until such
excess is paid to the Company. 13(2) Nothing herein contained
shall prejudice or affect any right or remedy which any such
law may confer or purport to confer on the Company and, as
between the Company and every such member as aforesaid, the
member's executors, administrators and estate wheresoever
constituted or situate, any right or remedy which such law
shall confer or purport to confer on the Company shall be
enforceable by the Company. 14. Enforcement of Lien 14(1) After
the Establishment Period, subject to Article 14(2), the Company
may sell in such manner as the Directors think fit, any shares
on which the Company has a lien. 14(2) A share on which the
Company has a lien shall not be sold unless:
(a) a sum in respect of which the lien exists is presently payable; and
(b) the Company has not less than fourteen (14) days before the date of
the sale given to the registered holder for the time being of the
share, or the person entitled thereto by reason of the holder's death
or bankruptcy, a notice in writing stating and demanding payment of
such part of the amount in respect of which the lien exists as is
presently payable. 15. Sale of Share Subject to Lien
Any share on which the Company has a lien may be disposed of in the same
manner as a forfeited share. 16. Appropriation of Proceeds
The proceeds of the sale shall be received by the Company and applied in
payment of such part of the amount in respect of which the lien exists as is
presently payable and in payment of any other moneys due and payable to the
Company and the residue if any shall (subject to a like lien for sums not
presently payable as existed upon the shares before the sale) be paid to the
person registered or entitled to be registered as the holder of the shares
immediately prior to the sale. 17. Liability for Calls, etc. 17(1) For the
purpose of these Articles, any member whose shares shall have been forfeited
shall, notwithstanding such forfeiture, be liable to pay and shall forthwith
pay to the Company all calls, instalments, interest and expenses owing upon or
in respect of such shares at the time of the forfeiture, together with
interest thereon from the time of forfeiture until payment at the 90 day bank
bill rate as charged by the Company's principal bankers at the time of
forfeiture plus 5 percentage points and the Directors may enforce the payment
of such moneys or any part thereof if they think fit, but they shall not be
under any obligation so to do. 17(2) The liability, if any, of a person whose
shares have been forfeited shall cease if the Company receives payment in full
of all the money (including calls, instalments, interest and expenses) so
payable in respect of the shares.
CALLS ON SHARES 18. Power to Make Calls 18(1) Subject to Article 21, the
Directors may from time to time make such calls as they think fit upon the
members in respect of all or any moneys unpaid on the shares (whether on
account of the nominal value of the shares or by way of premium) held by them
respectively and which are not by the conditions of allotment thereof made
payable at fixed times. 18(2) A call may be made payable by instalments. 18(3)
A call may be revoked, postponed or extended as the Directors may determine.
19. Time of Calls
A call shall be deemed to have been made at the time when the resolution of
the Directors authorising such call was passed. 20. Notice of Calls 20(1) Each
member shall pay the amount of every call so made on the member according to
the terms of the notice thereof. 20(2) Twenty-one (21) days' notice of any
call shall be given to the members specifying the following:
(a) the name of the member;
(b) the number of shares held by the member;
(c) the amount of the call;
(d) the due date for payment;
(e) the place of payment; and
(f) the consequences of non-payment. 20(3) The non-receipt of a notice of
a call by or the accidental omission to give notice of a call to any
of the members shall not invalidate the call. 21. Fixed Calls 21(1) If
by the terms of issue of any share or otherwise any amount is made
payable at any fixed time or by instalments at fixed times (whether on
account of the nominal value of the share or by way of premium), every
such amount or instalment shall be payable as if it were a call duly
made by the Directors and of which due notice had been given. 21(2) In
case of non-payment the provisions of these Articles as to payment of
interest and expenses forfeiture or otherwise shall apply as if such
sum had become payable by virtue of a call duly made and notified. 22.
Interest on Outstanding Calls
If a sum called is not paid on or before the date for payment thereof, the
person from whom the sum is due shall pay interest on the sum (or on so much
as remains unpaid from time to time) at the 90 day bank bill rate as charged
by the Company's principal bankers on the date the sum becomes due plus
5percentage points, calculated from the day appointed for the payment thereof
until the time of actual payment. The Directors may waive such interest in
whole or in part. 23. Liability of Joint Shareholders
The joint holders of shares shall be severally as well as jointly liable for
the payment of all amounts of instalments and calls in respect of such shares.
24. Differentiation between Shareholders
Subject to Article 21(1), during the Establishment Period the Directors shall
not, but thereafter, the Directors may on the issue of shares differentiate
between the holders as to the amount of calls to be paid and the times of
payment. 25. Proceedings on Default
In the event of non-payment of any call, the Company may proceed to recover
the same with interest and expenses (if any) as hereinafter provided by
action, suit or otherwise, but such right of action, suit or otherwise shall
be without prejudice to the right, after the end of the Establishment Period,
to forfeit the share of any member so in arrears and either or both of such
rights may be exercised by the Directors in their discretion. 26. Proof of
Outstanding Calls
On the trial or hearing of any action for the recovery of any call or of any
interest or expenses upon or in respect of any call it shall be sufficient to
prove that:
(a) the name of the member sued is entered in the Register as the holder
or one of the holders of the shares in respect of which such debt
accrued; and
(b) the resolution making the call is duly recorded in the minute book;
and
(c) notice of such call was duly given to the registered holder of the
shares in pursuance of these Articles; or
(d) in the case of calls or instalments payable at fixed times by the
terms of issue of any share or otherwise, to prove such terms and that
such sum or call has not been paid,
and it shall not be necessary to prove the appointment of the Directors who
made the allotment or call, nor the passing of the resolution nor any other
matters whatsoever, but proof of the matters aforesaid, shall be conclusive
evidence of the debt. 27. Payment of Calls in Advance 27(1) The Directors may,
if they think fit, receive from any member all or any part of the amount
unpaid on a share although no part of that amount has been called up and may
authorise the Company to pay interest upon the whole or any part of the moneys
so paid in advance until the amount becomes payable, at the 90 day bank bill
rate as charged by the Company's principal bankers at the date the advance is
made, or such lesser rate as may be agreed between the Directors and the
member. 27(2) Any amount being paid in advance of calls shall not be included
or taken into account in ascertaining the amount of dividend payable upon the
shares in respect of which such advance has been made. 27(3) The Directors may
at any time repay the amount so advanced upon giving to such member one (1)
month's notice in writing.
CONVERSION AND TRANSFER OF SHARES 28. Right to Transfer 28(1) Except where
required by law or elsewhere in these Articles, there shall be no restriction
on the transfer of shares in the Company. 28(2) The Directors may not register
a transfer of shares in the Company unless the transfer is either:
(a) to existing members; or
(b) accompanied by a statutory declaration by the transferor stating that
the provisions of this Article have been complied with.
Nothing in this Article shall prohibit or restrict the transmission of shares
pursuant to Articles 35, 36 and 37. 28(3) During the Establishment Period,
there will be no right for holders of shares to transfer any shares held by
them. 28(4) After the Establishment Period, any transfer of shares, or
disposition by the Company of forfeited or surrendered shares, or transfer of
shares pursuant to the Company's lien, shall be in accordance with the
following conditions:
(a) the shares will first be offered to the existing members at the value
established by an independent valuer appointed by the Company at the
time the offer of transfer is made, in proportion to the shares held
by them and shares so offered may be taken up by each member in whole
or in part. If within twenty-one (21) days of such offer being made,
the shares, or some of them, are not taken up, those not taken up will
be again offered to all the existing members, but without regard to
their respective shareholdings, at the value established by the
independent valuer.
(b) the shares not taken up by any member within twenty-one (21) days of
such offer, may be offered to third parties. If an offer to purchase
the shares is made by a third party which is acceptable to the
transferor, the shares will be offered again to the existing members,
but at the value and on the terms at which the third party made the
offer. If any does not take up the offer within twenty one (21) days
of the offer being made, the shares not taken up can be transferred to
the third party on the basis of that offer.
(c) if any transfer to a purchaser pursuant to this Article would result
in that purchaser holding, including shares marked in the Register as
being held in trust for the member, more than 49% of the issued
ordinary shares in the Capital of the Company, the shares in excess of
the 49% holding shall automatically convert into A convertible
cumulative preference shares and shall be dealt with as provided in
Article 28(6).
28(5)(a) Immediately on the conclusion of the Establishment Period, the B
convertible shares shall automatically convert to A convertible shares.
(b) On a day appointed by the members by a special resolution, such of the
unissued A convertible shares and thoseA convertible shares held by a
member as may be converted to ordinary shares without the member
holding, including shares marked in the Register as being held in
trust for the member, more than 49% of the issued ordinary shares in
the Capital of the Company, shall automatically convert to ordinary
shares. The remainder of the shares held by that member shall
automatically convert into A convertible cumulative preference shares
and shall be dealt with as provided in Article 28(6). 28(6) After the
conversion of ordinary shares and A convertible shares into A
convertible cumulative preference shares, the latter will be dealt
with in the following way:
(a) within thirty (30) days of the conversion, they will be first offered
to the existing members at a value established by an independent
valuer appointed by the Company at the time offer is made in
proportion to the shares held by them, who may take up the shares to
which they are entitled in whole or in part. If within twenty-one (21)
days of such offer being made, the shares, or some of them are not
taken up, those not taken up will be offered again to all the existing
members, but without regard to their respective shareholdings at the
value established by the independent valuer.
(b) the shares not taken up by any member within twelve (12) months of the
offer, will be offered for sale to third parties. If an offer to
purchase the shares is made by a third party which is acceptable to
the seller, the shares will be offered again to the existing members,
but at the value and on the terms at which the third party made the
offer. If any member does not take up the offer within 21 days of the
offer being made, the shares not taken up can be transferred to the
third party on the basis of that offer.
(c) if within a further six (6) months of the date referred to in the
previous paragraph, any of the shares are not sold to existing
shareholders or third parties, the member can, within thirty (30) days
of the expiration of the six (6) month period, elect to convert the
shares into ordinary shares. In that case the member must, at the time
of the election, offer to purchase all other members' holdings at a
value established by an independent valuer appointed by the Company at
the time the offer is made. If the offer is not wholly taken up, the
shares shall automatically convert to ordinary shares.
(d) if a member continues to hold the shares without converting them into
ordinary shares, that member may at any time, on giving to the other
members three (3) months' notice, elect to convert the shares to
ordinary shares, but must, at the time of the election, offer to
purchase all other members' holdings at a value established by an
independent valuer appointed by the Company at the time the offer is
made. If the offer is not wholly taken up, the shares shall
automatically convert to ordinary shares.
(e) if a member disposes of ordinary shares and, on disposal of such
shares, holds, including shares marked in Register as being held in
trust for the member, ordinary shares less than 49% of the issued
ordinary shares in the Capital of the Company, any A convertible
cumulative preference shares held by that member shall automatically
convert to ordinary shares, but to the extent only that such would not
result in that member holding in excess of 49% of the issued ordinary
shares in the Capital of the Company following such conversion.
(f) on the transfer of A convertible cumulative preference shares, they
shall automatically convert into ordinary shares if the transfer of
the shares does not result in the purchaser holding, including shares
marked in the Register as being held in trust for the member, in
excess of 49% of the issued ordinary shares in the Capital of the
Company following such conversion. 28(7) Any offer of shares pursuant
this Article to a body politic will permit the body politic such
period to settle the purchase as is necessary to allow it a reasonable
time to obtain any necessary Parliamentary approval, including
appropriation of funds. 29. Instrument of Transfer 29(1) The
instrument of transfer of any share shall be in writing in any usual
or common form or in any other form which the Directors may approve
and may comprise more than one document. 29(2) No fee shall be charged
on a transfer of shares. 29(3) The instrument of transfer of a share
shall be executed by or on behalf of both the transferor and the
transferee or, where permitted by the provisions of the Law, by the
transferor only. 29(4) The transferor shall be deemed to remain the
holder of the share until the transfer is registered and the name of
the transferee is entered in the Register in respect thereof. 30.
Effect of Powers of Attorney
All powers of attorney granted by members for the purpose (inter alia) of
transferring shares which may be lodged produced or exhibited to the Company
shall, as between the Company and the grantor of such powers, be deemed to
remain in full force and effect and the same may be acted upon until such time
as express notice in writing of the revocation of the same or of death of the
grantor has been lodged at the Office. 31. Power to Refuse Transfer 31(1) The
Directors may refuse to register any instrument of transfer of, or which
includes, shares on which the Company has a lien and may refuse to register a
transfer of partly paid up shares to a transferee who, after being requested
by the Directors so to do, has not demonstrated on reasonable grounds that the
transferee is financially able to meet any unpaid liability in respect of the
shares the subject of the transfer. 31(2) The Directors may also refuse to
register any instrument of transfer of shares, if:
(a) it is not accompanied by the certificate for the shares to which it
relates and such other evidence as the Directors may reasonably
require to show the right of the transferor to make the transfer; or
(b) in the case of a transfer to joint holders they exceed three (3) in
number, except in the case of executors and trustees of a deceased
shareholder; or
(c) the registration of the instrument of transfer would result in a
contravention or failure to observe the provisions of a law of the
Commonwealth of Australia or of a State or Territory of Australia. 32.
Notice of Refusal
Upon any refusal to register an instrument of transfer of shares, the
Directors shall give written notice of the refusal to the transferor and the
transferee and the reasons therefor within ten (10) business days after the
date on which the instrument was lodged with the Company. 33. Retention of
Instruments of Transfer
All instruments of transfer which are registered shall be retained by the
Company, but any instrument of transfer which the Directors may decline to
register shall, except on the grounds of fraud, upon a demand in writing be
returned to the party presenting it. 34. Period of Suspension of Registration
The transfer books and the Register may be closed during such times as the
Directors think fit not exceeding in the whole thirty (30) days in each year.
TRANSMISSION OF SHARES 35. Title to Shares Following Death of Members
In the case of the death of a member, the survivor or survivors, where the
deceased was a joint holder, and the legal personal representative of the
deceased where the deceased was a sole holder, shall, upon producing
satisfactory proof of death, be the only persons recognised by the Company as
having any title to the deceased's interest in the share, but nothing herein
contained shall release the estate of a deceased joint holder from any
liability in respect of any share which has been jointly held by him or her
with any other person. 36. Procedure of Transmission 36(1) This Article is
hereinafter referred to as "the transmission article". 36(2) Any person
becoming entitled to a share in consequence of the death or bankruptcy of a
member, or to a share of a member of unsound mind, may, upon such information
being produced as is properly required by the Directors, and subject as
hereinafter provided, elect either to be registered himself or herself as the
holder of the share or to have some person nominated by him or her registered
as the transferee thereof. 36(3) If the person so becoming entitled elects to
be registered himself or herself, he or she shall deliver or send to the
Company a notice in writing signed by him or her stating that he or she so
elects. If he or she elects to have another person registered, he or she shall
execute a transfer of the share to that person. 36(4) All the provisions of
these Articles relating to the right to transfer and the registration of
transfers of shares shall apply to any such notice or transfer as if the
death, bankruptcy or insanity of the member had not occurred and the notice or
transfer were a transfer executed by that member. 37. Rights on Entitlement
37(1) A person entitled to be registered as a member in respect of a share by
transmission shall upon the production of such evidence as may from time to
time be properly required by the Directors in that behalf, be entitled to the
same dividends and other advantages, and to the same rights (whether in
relation to meetings of the Company, or to voting, or otherwise), as the
registered holder would have been. 37(2) Where two (2) or more persons are
jointly entitled to any share in consequence of the death of the registered
holder, they shall, for the purposes of these Articles, be deemed to be joint
holders of the share.
FORFEITURE AND SURRENDER OF SHARES 38. Notice Requiring Payment
If any member fails to pay the whole or any part of any call or instalment on
or before the day appointed for payment thereof, the Directors may, at any
time thereafter while the same remains unpaid, serve a notice on the member
requiring the member to pay the same, together with any interest that may have
accrued thereon and interest up to the date of payment and any expenses that
may have been incurred by the Company by reason of such non-payment. 39.
Contents of Notice
The notice referred to in Article 38 shall name a further day (not earlier
than the expiration of fourteen (14) days from the date of service of the
notice) on or before which the payment required by the notice is to be made,
the place where payment is to be made and shall state that, in the event of
non-payment on or before the day and at the place appointed the shares in
respect of which such payment is due will be liable to be forfeited. 40.
Effect of Non-Compliance with Notice 40(1) If the requirements of any notice
referred to in Article 38 are not complied with, any share in respect of which
such notice has been given may, after the Establishment Period, at any time
thereafter before payment required by the notice has been made, be forfeited
by a resolution of the Directors to that effect. 40(2) Such forfeiture shall
include all dividends declared in respect of the forfeited shares and not
actually paid before the forfeiture, but this right to forfeit the shares
shall not affect the right of the Company to sue for any allotment moneys,
calls, instalments, interest and expenses due in respect of such shares. 41.
Annulment of Forfeiture
The Directors may, at any time before the forfeited shares have been sold or
otherwise disposed of, annul the forfeiture thereof upon such conditions as
they think fit. 42. Disposition of Forfeited Shares
Every share which is forfeited may be sold or otherwise disposed of upon such
terms and in such manner as the Directors think fit. 43. Liability of
Forfeited Shares
A person whose shares have been forfeited ceases to be a member in respect of
the forfeited shares, but shall be liable to pay and shall forthwith pay to
the Company, all money payable by the person in respect of such shares at the
time of forfeiture, together with interest thereon from the time of forfeiture
until payment, at the 90 day bank bill rate as charged by the Company's
principal bankers at the time of forfeiture plus 5 percentage points, and the
Directors may enforce the payment of such money or any part thereof as they
shall think fit, but shall not be under any obligation to do so. 44. Evidence
of Forfeiture
A statement in writing by a Director or the Secretary of the Company that a
share in the Company has been duly forfeited on a date stated therein shall be
conclusive evidence of the facts therein stated as against all persons
claiming to be entitled to the share. 45. Rights Upon Transfer of Forfeited
Shares 45(1) The Company may receive the consideration (if any) given for a
forfeited share on any sale or disposition thereof and may execute or appoint
some person to execute a transfer of the share in favour of the person to whom
the share is sold or disposed of. 45(2) Upon the execution of the transfer,
the transferee shall thereupon be registered as the holder of the share and
shall not be bound to see to the application of the purchase money (if any).
45(3) The title of the transferee to the share shall not be affected by any
irregularity or invalidity in the proceedings in reference to the forfeiture,
sale or disposal of the share. 46. Surrender of Shares
After the Establishment Period, the Directors may accept the surrender of a
share which is liable for forfeiture or any part thereof upon such terms as
may be agreed between such member and the Directors and ratified by the
Company by special resolution. Any share so surrendered may be disposed of in
the same manner as a forfeited share. 47. Application of Forfeiture Provisions
The provisions of these Articles as to forfeiture shall apply in the case of
non-payment of any sum which by the terms of issue of a share becomes payable
at a fixed time, whether on account of the amount of the share or by way of
premium, as if the same had been payable by virtue of a call duly made and
notified.
ALTERATION OF CAPITAL 48. Power to Increase, Consolidate, Divide, Sub-Divide
and Cancel Shares 48. The Company may by resolution:
(a) increase the Capital by the creation of new shares of such amount as
is specified in the resolution;
(b) consolidate and divide all or any of its share capital into shares of
a larger amount than its existing shares;
(c) convert all or any of its paid up shares into stock andreconvert any
stock into fully paid shares of any denomination;
(d) subdivide its shares or any of them into shares of smaller amount than
is fixed by the Memorandum of Association, but so that in the
subdivision the proportion between the amount paid and the amount (if
any) unpaid on each reduced share shall be the same as it was in the
case of the share from which the reduced share is derived. The
resolution whereby any share is subdivided may determine that, between
the holders of the shares resulting from such subdivision, one or more
of such shares shall have some preference or special advantage as
regards dividend, capital, voting or otherwise as compared with
others; and
(e) cancel shares which, at the date of the passing of the resolution,
have not been taken or agreed to be taken by any person or which have
been forfeited and reduce the amount of its Capital by the amount of
the shares so cancelled. 49. Power to Reduce Capital
Subject to the Law and the provisions of any law of the Commonwealth of
Australia or of a State or Territory of Australia, the Company may by special
resolution reduce its share capital, any capital redemption reserve fund or
any share premium account. 50. Transfer of Interests in Stock 50(1) The
holders of stock may transfer the same or any part thereof in the same manner
and subject to the same provisions of the Articles as and subject to which
fully paid shares may be transferred, or as near thereto as circumstances
admit. 50(2) The Directors may, from time to time, fix the minimum amount of
stock transferable and restrict or forbid the transfer of fractions of that
minimum, but the minimum shall not exceed the aggregate nominal amount of the
shares from which the stock arose and shall be stated on the certificates for
such stock. 51. Rights of Stockholders 51(1) The holders of stock shall,
according to the amount of the stock held by them, have the same rights,
privileges and advantages as regards participation in profits, participation
in assets on a winding up, voting at meetings, and all other matters, as if
they held the shares from which the stock arose. 51(2) No such rights,
privileges or advantages (except participation in dividends and profits and in
the assets on a winding up) shall be conferred by an amount of stock which
would not, if existing in shares, have conferred such rights, privileges or
advantages. 52. Applicability of Share Provisions to Stock
All the provisions of these Articles applicable to fully paid shares shall
apply to stock.
GENERAL MEETINGS 53. Convening of General Meetings 53(1) The Directors may,
whenever they think fit, and shall where required by the Law convene a general
meeting. If at any time there are not within Australia sufficient Directors
capable of forming a quorum, any Director may convene a general meeting in the
same manner as nearly as possible as that in which meetings may be convened by
Directors. 53(2) Any member or members, holding at least five (5) percent of
the total voting rights in the Company, may requisition the Directors to
convene a general meeting in which case the Directors shall convene a general
meeting for the purpose of considering the business proposed by the member or
members requisitioning the meeting. 54. Notice of General Meeting
Every notice of a general meeting shall be accompanied by a form of proxy and
shall specify the place, day and hour of meeting and, in the case of special
business, the general nature of such business and, in the case of an election
of Directors, the names of the candidates for election and shall be given to
the members by notice sent by post or otherwise served as hereinafter
provided. 55. Accidental Omission to Give Notice
The accidental omission to give notice of any general meeting to, or the
non-receipt of any such notice by, any of the members or the Auditors or the
Secretary, or any person required to receive notice pursuant to the Law, or
the accidental omission to advertise (if necessary) such meeting, shall not
invalidate the proceedings at or any resolution passed at any such meeting.
56. Postponement of General Meetings 56(1) The Directors shall have power to
postpone the holding of any general meeting, provided that the postponed
meeting shall be held within twenty-one (21) days of the date for which it was
originally called. 56(2) Whenever any meeting is postponed for ten (10) days
or more, then no less than two (2) days' notice shall be sent to the members
of every such postponed meeting, as in the case of the original meeting, but
it shall not be necessary to specify in such notice the nature of the business
to be transacted at such postponed meeting.
PROCEEDINGS AT GENERAL MEETINGS 57. Quorum 57(1) No business shall be
transacted at any general meeting unless the members present constitute a
quorum at the time when the meeting proceeds to business. 57(2) Save as
provided in Articles 5 or 58 and 118(3)(h), four (4) members present shall be
a quorum. 58. Absence of Quorum
If within fifteen (15) minutes after the time appointed for the holding of a
meeting a quorum is not present, the meeting:
(a) if convened upon the requisition of members or for the purpose of
winding up the Company voluntarily, shall be dissolved; or
(b) (i) in any other case it shall stand adjourned to the first Business
Day thereafter at the same time and place or to such other day time
and place as the Directors may by notice to the shareholders appoint;
(ii) if at such adjourned meeting a quorum is not present within
fifteen (15) minutes after the time appointed for the meeting:
(A) the members present (being not less than three (3)) shall
be a quorum; or
(B) where three (3) members are not present, the meeting
shall be dissolved. 59. Ordinary and Special Business
59(1) The business of an annual general meeting shall be:
(a) to receive and consider the profit and loss account, the balance
sheet, the reports of the Directors and of the Auditors and the
Directors' Statement required by the Law to be attached to the
accounts of the Company;
(b) to elect Directors, in place of those retiring or otherwise;
(c) when necessary, to appoint Auditors;
(d) to declare dividends; and
(e) any other matter required to be considered by law; and
(f) to transact any other business which under these Articles ought to be
transacted at an annual general meeting. 59(2) All other business
transacted at an annual general meeting and all business transacted at
a general meeting shall be deemed special. 60. Resolutions Proposed by
members
No member shall, as regards any special business, be at liberty to move at any
meeting any resolution not previously approved by the Directors unless he or
she has given not less than fourteen (14) days previous notice in writing of
his or her intention to move such resolution at such meeting by leaving such
notice and a signed copy of the resolution at the Office whereupon the
Secretary shall forthwith notify the members thereof if the notice convening
the meeting has then been despatched, but otherwise notice thereof shall be
included with the notice convening the meeting. 61. Chairperson 61(1) The
Chairperson, or in his or her absence the deputy Chairperson (if any), shall
be entitled to preside at every general meeting. 61(2) If there be no
Chairperson or deputy Chairperson, or if at any meeting he or she shall not be
present within fifteen (15) minutes after the time appointed for holding such
meeting or is unwilling to act, the Directors present may choose one of their
number as a chairperson and, in default of their doing so, the members present
shall choose one of the Directors to be chairperson and, if no Director
present is willing to preside, the members present shall choose one of their
number to be chairperson. 62. Adjournment of Meetings
The chairperson of a meeting at which the requisite quorum is present may,
with the consent of the meeting, adjourn the same from time to time and from
place to place as the meeting shall determine, 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.
VOTING AT GENERAL MEETINGS 63. Voting Rights 63(1) Subject to any rights or
restrictions for the time being attached to any class, votes may be given
either personally or by proxy or by attorney under power, or in the case of a
corporation, by its duly authorised representative. 63(2) No person shall be
entitled to vote unless he or she is a member and present in person or by
proxy or attorney, or is the representative of a corporation which is a member
duly authorised in accordance with the Law. 63(3) Subject to the rights or
restrictions attached to any class of shares, on a show of hands every member
present shall have one vote. 63(4) On a poll every member present shall have
one vote for each share held by the member in the Company, provided that in
respect of partly paid shares the voting rights of a member shall be pro-rata
to the proportion of the total issue price paid up on such shares. 64. Voting
Disqualification
A member is not entitled to vote at a general meeting unless all calls and
other sums presently payable by the member in respect of the member's shares
have been paid. 65. Power to Demand Polls
Every question submitted to a general meeting shall be decided by a show of
hands unless a poll (before or on the declaration of the result of the show of
hands) is demanded by:
(a) the chairperson of the meeting; or
(b) any member present having the right to vote at the meeting; 66.
Evidence of Resolutions
At any general meeting (unless a poll is demanded as aforesaid), a declaration
by the chairperson that a resolution has been carried, or carried by a
particular majority, or lost, or not carried by a particular majority, and an
entry in the book of minutes of proceedings of the Company signed by the
chairperson of that or the next succeeding meeting, shall be conclusive
evidence of the fact without proof of the number of proportion of the votes
recorded in favour of or against such resolution. 67. Conduct of Polls 67(1)
If a poll is demanded, it shall be taken in such manner and either by ballot
or otherwise and at such time not exceeding fourteen (14) days after the
meeting and at such place, as the chairperson of the meeting directs and
either at once or after an interval or adjournment or otherwise and the result
of the poll shall be the resolution of the meeting at which the poll was
demanded. 67(2) No poll shall be demanded on the election of a chairperson of
a meeting and a poll demanded on any question of adjournment shall be taken at
the meeting and without an adjournment. 67(3) The demand for a poll shall not
prevent the continuance of a meeting for the transaction of any business,
other than the question on which a poll has been demanded. 67(4) The demand
for a poll may be withdrawn. 68. Casting Vote
In the case of an equality of votes, and where all members are present at the
meeting personally or by proxy or representative, but not otherwise, the
chairperson of the meeting shall on a show of hands and on a poll have a
casting vote in addition to his or her deliberative vote (if any). 69. Voting
Rights of Joint Shareholders 69(1) In the case of joint holders, any one may
vote, but the vote of the person first named in the Register who tenders a
vote, whether in person or by proxy, shall be accepted to the exclusion of the
votes of the other joint holders. 69(2) Several executors or administrators of
a deceased member shall for the purposes of this Article be deemed joint
holders. 70. Voting Rights of Persons Entitled under Transmission Articles
Any person entitled under the transmission articles to the transfer of any
shares may vote at any meeting in respect thereof in the same manner as if he
or she were the registered holder of such shares, provided that twenty four
(24) hours at least before the time of holding the meeting or adjourned
meeting, as the case may be, at which he or she proposes to vote, he or she
shall satisfy the Directors of his or her right to the transfer of such
shares, unless the Directors shall have previously admitted his or her right
to vote at such meeting in respect thereof. 71. Objections to Exercise of
Voting Rights 71(1) No objection shall be made to the validity of any vote,
except at a meeting or adjourned meeting or poll at which such vote is
tendered and every vote not disallowed at any such meeting or poll shall be
valid for all purposes. 71(2) In recording votes the last copy of the Register
shall be adopted and acted on as the voting roll in respect of shares on the
Register. 72. Determination of Validity of Votes
The chairperson of any meeting shall be the sole judge of the validity of
every vote tendered at the meeting and his or her determination shall be final
and conclusive. 73. Right to Appoint Proxies and Attorneys 73(1) A member may
appoint no more than two (2) proxies, neither of whom need be a member. 73(2)
Where a member appoints two (2) proxies, the appointment shall be of no effect
unless each proxy is appointed to represent a specified proportion of the
member's voting rights. 74. Deposit of Proxy and Attorney Instrument
An instrument appointing a proxy (and the power of attorney (if any) under
which it is signed or proof thereof to the satisfaction of the Directors)
shall be deposited at the Office or with the chairperson before the time for
the holding of the meeting or adjourned meeting, as the case may be, at which
the person named in such instrument proposes to vote. 75. Proxy Instrument to
be in Writing
An instrument appointing a proxy shall be in writing under the hand of the
appointor or his or her attorney duly authorised in writing, if such appointor
is a corporation, under its common seal or the hand of its attorney or duly
authorised representative or if such an appointor is a body politic, under the
hand of a Minister of State. 76. Form of Proxy
Every instrument of proxy shall be in the form determined by the Directors
from time to time, provided however, that it is in such form as will enable
the member to vote for or against each resolution and is blank so far as the
person primarily to be appointed as proxy is concerned, but may make provision
for the Chairman of the meeting to act as proxy in the absence of any other
appointment or if the person or persons nominated fails or all fail to attend.
77. Effect of Proxy Instrument 77(1) The instrument appointing a proxy shall
be deemed to confer authority to demand or join in demanding a poll. 77(2) A
proxy may only be for a single meeting and each proxy shall specify the day
upon which the meeting at which it is intended to be used is to be held and
shall be available only at the meeting so specified and any postponement or
adjournment thereof. 77(3) Any proxy may be revoked at any time by notice in
writing to the Company. 78. Voting Rights of Proxies and Attorneys 78(1) An
instrument appointing a proxy may specify the manner in which the proxy is to
vote in respect of a particular resolution and, where an instrument of proxy
so provides, the proxy is not entitled to vote on the resolution except as
specified in the instrument. 78(2) A vote given or act done in accordance with
the terms of an instrument of proxy, or power of attorney, shall be valid
notwithstanding the previous death of the principal or revocation of the proxy
or power of attorney or transfer of the share in respect of which the vote is
given or act done, provided no duly authenticated intimation in writing of the
death, revocation or transfer shall have been received at the Office before
the vote is given or act done.
APPOINTMENT AND REMOVAL OF CHAIRPERSON AND DIRECTORS 79. Number qualifications
and Residency of Directors 79(1) The number of Directors shall be not less
than five (5), nor more than twelve (12). 79(2) Not less than two (2)
Directors shall be ordinarily resident within the Commonwealth of Australia.
79(3) The Company in General Meeting may by special resolution increase or
reduce the number of Directors, provided that at no time does the number of
Directors fall below five (5). 79(4) The Chairperson, appointed in accordance
with Article 80, shall be a Director of the Company. 79(5) The Managing
Director, appointed in accordance with Article 92, shall be a Director of the
Company. 79(6) There shall be no share qualification for Directors. 80.
Appointment of Chairperson 80(1) The Commonwealth shall have the right, by
notice in writing to the Company, to appoint the Chairperson from the date of
incorporation of the Company to the end of the Establishment Period, such
appointment or appointments expiring at the end of the Establishment Period.
80(2) Thereafter the Directors may elect one of their number to be Chairperson
and may determine the period, not exceeding three (3) years, for which he or
she is to hold office. 81. Appointment and Removal of Directors and
Chairperson 81(1) The first Directors of the Company (other than the
Chairperson and the Managing Director) shall be appointed in writing by the
subscribers to the Memorandum and Articles of Association and such persons
shall, upon incorporation of the Company, be deemed to be the Directors. 81(2)
The Company may, at any annual general meeting at which any Director is to
retire in accordance with Article 83(2), appoint any a replacement Director
provided that the person appointed:
(a) holds office as a Director at the annual general meeting and is due
for retirement; or
(b) has been nominated by a member or members holding not less than 5% of
the issued shares in the Company for appointment as a Director not
less than 21 days prior to the annual general meeting. and the person
consents to re-appointment or appointment as the case may be. 81(3)
The Directors, with the consent of the members may or the Company may,
at any general meeting appoint a Director. 81(4) The Directors shall
hold office until they shall be removed by resolution of the Company
passed in general meeting or until they retire, or their office shall,
ipso facto, become vacant pursuant to these Articles or pursuant to
the Law. 82. Insufficient Directors
The continuing Directors may act notwithstanding any vacancy in their body,
but if the number falls below the minimum fixed in accordance with Article 79,
the Directors may act only for the purpose of summoning a general meeting or
in emergencies, but for no other purpose. 83. Retirement from Office 83(1) Any
Director may retire from office upon giving notice in writing to the Company
of his or her intention to do so and such resignation shall take effect upon
the expiration of the notice or its earlier acceptance. 83(2) Directors (other
than the Chairperson and other than the Managing Director to the extent that
the terms of appointment of the Managing Director may be inconsistent with
this Article) shall retire from office at the conclusion of the annual general
meeting next following the expiration of three (3) years from the date of
their appointment, but are eligible for reappointment. 84. Removal from Office
Subject to the provisions of these Articles and the Law, the Company may by
resolution passed at any general meeting remove any Director and appoint
another person in his or her stead. 85. Disqualification
In addition to the circumstances in which the office of Director becomes
vacant by virtue of the Law, the office of Director shall be, ipso facto,
vacated if the Director:
(a) becomes of unsound mind or a person whose person or estate is liable
to be dealt with in any way under the law relating to mental health;
(b) is removed by a resolution pursuant to Article 84;
(c) absents himself or herself from meetings of Directors for a continuous
period of six (6) months without special leave of absence from the
Directors and the Directors thereupon declare his or her seat to be
vacant;
(d) if he or she ceases to hold his or her qualification shares (if any be
required by these Articles) or fails to pay any call due on any shares
held by him or her for the space of one (1) month or such further time
as the Directors shall allow after the time when the call shall have
been made;
(e) being the Managing Director ceases to hold that office; or
(g) being an Executive Director ceases to be employed full time by the
Company.
ALTERNATE DIRECTORS 86. Power to Appoint 86(1) Each Director shall have power
from time to time to appoint any person approved for that purpose by a
majority of his or her co-Directors to act as an Alternate Director in his or
her place whenever he or she is unable to act personally by reason of illness
absence or any other cause whatsoever and may do so generally or for a meeting
or for any other purpose or for a specified period. 86(2) Nothing in this
Article is to be construed as empowering a Managing Director to appoint an
alternate to act as Managing Director. 87. Rights and Powers of Alternate
Directors
An Alternate Director, while he or she holds office, shall for all purposes be
deemed to be a Director of the Company and shall have the same rights and
powers and be subject in all respects to the same terms and conditions, except
remuneration and share qualification (if any be required by these Articles),
as exist with reference to other Directors and except that he or she shall not
be taken into account in determining the number of Directors pursuant to
Article 79(1). 88. Suspension or Revocation of Appointment 88(1) A Director
may at any time revoke or suspend the appointment of an Alternate Director
appointed by him or her. 88(2) The Directors may at any time suspend or remove
an Alternate Director by resolution after giving the appointor reasonable
notice of their intention so to do. 89. Form of Appointment, Suspension or
Revocation 89(1) Every appointment, suspension or removal under Articles 86 or
88 shall be effected by notice in writing signed by the Director or Directors
making the same. 89(2) Any such notice under Articles 86 or 88 or a
resignation under Article 90(c) may be given by facsimile, telex, telegram or
cable. 90. Termination of Appointment
The appointment of an Alternate Director shall automatically determine in any
of the following events:
(a) the Director for whom he or she acts as alternate ceasing to hold
office as Director;
(b) on the happening of any event which, if he or she were a Director,
would cause him or her to vacate the office of Director; or
(c) if by writing under his or her hand, left at the Office, he or she
shall resign such appointment. 91. Power to Act as Alternate for More
than One Director
A Director or any other person may act as Alternate Director to represent more
than one Director.
MANAGING DIRECTORS AND EXECUTIVE DIRECTORS 92. Power to Appoint
The Directors may from time to time appoint any person to be the Managing
Director of the Company, either for a fixed term not exceeding 5 years, or
without fixing any term and otherwise subject to such conditions limitations
and restrictions as the Directors may determine. 93. Qualification
A Managing Director shall, subject to the provisions of any contract between
him or her and the Company and to these Articles, be subject to the same
provisions as to resignation, disqualification and removal as the other
Directors and, if he or she ceases to hold the office of Director from any
cause, he or she shall, ipso facto, immediately cease to be a Managing
Director. 94. Temporary Appointments
In the event of the Managing Director becoming at any time in any way
incapable of acting as such, the Directors may appoint any other Director to
act as Managing Director temporarily. 95. Removal or Dismissal
Subject to any contract between the Managing Director or an Executive Director
and the Company, the Directors at any time may remove or dismiss him or her
from office and appoint another in his or her place. 96.Powers 96(1) The
Directors may, upon such terms and conditions and with such restrictions as
they think fit, confer upon a Managing Director or an Executive Director any
of the powers exercisable by them. 96(2) Any powers so conferred may be
concurrent with, or be to the exclusion of, the powers of the Directors. 96(3)
The Directors may, at any time, withdraw or vary any of the powers so
conferred on a Managing Director or an Executive Director. 97.Remuneration
Subject to the provisions of any Contract between the Company and the Managing
Director or an Executive Director, the remuneration of the Managing Director
or an Executive Director shall from time to time be fixed by the Directors and
may be by way of fixed salary or participation in profits of the Company or of
any other company in which the Company is interested or by any or all of those
modes, but shall not be by way of commission on or percentage of operating
revenue of the Company and, unless otherwise determined by the Company in
general meeting, may be in addition to any remuneration which he or she may
receive as a Director of the Company.
REMUNERATION OF DIRECTORS 98.Payment of Fees 98(1) The Directors (other than
the Managing Director or other Executive Director) shall be paid out of the
funds of the Company as fees for their ordinary services as Directors such sum
as may from time to time be determined by the Company in general meeting.
98(2) Such fees shall be by a fixed sum and not by a commission on or
percentage of the operating revenue of the Company or of any other company in
which the Company is interested or (except in the case of a Managing Director
or other Executive Director) its profits. 98(3) The sum so fixed shall be
divided amongst the Directors (other than the Managing Director or other
Executive Director) in such proportion and manner as the members may resolve
in general meeting and, failing such resolution, as the Directors shall from
time to time agree, or in default of agreement, equally. 98(4) The fees of
each Director for his or her ordinary services shall be deemed to accrue from
day to day and shall be apportionable accordingly. 99. Payment of Expenses
The Directors shall also be entitled to be paid their reasonable travelling
and other expenses incurred in connection with their attendance at board
meetings and otherwise in the execution of their duties as Directors. 100.
Payment for Extra Services
Any Director (other than the Managing Director or other Executive Director)
who, being willing, is called upon to perform extra services or to make any
special exertions or to undertake any executive or other work for the Company
beyond his or her ordinary duties, or to go or reside abroad or otherwise for
any of the purposes of the Company, shall be remunerated either by a fixed sum
or a salary as may be determined by the Directors and such remuneration may be
either in addition to or in substitution for his or her share in the
remuneration above provided. 101. Increases in Remuneration
In the event of a proposal to increase the fees of the Directors for their
ordinary services, the notice calling the general meeting at which such
increase is to be proposed shall state the amount of the proposed increase and
the maximum sum that may be paid. 102. Cancellation, Suspension, Reduction or
Postponement
A resolution of Directors, cancelling suspending reducing or postponing
payment of such remuneration or any part thereof, shall bind all the Directors
for the time being. 103. Effect of Cessation of Office 103(1) Upon a Director
ceasing or at any time after his or her ceasing to hold office, the Directors
may pay to the former Director, or in the case of his or her death, to his or
her legal personal representatives, or to his or her dependants, or any of
them, a lump sum payment in respect of past services of such Director of any
amount not exceeding the amount permitted by the Law. The Company may contract
with any Director, other than an Executive Director, to secure payment of any
such sum to him or her, to his or her legal personal representatives or to his
or her dependants or any of them. 103(2) A determination made by the Directors
in good faith, that a person is or was, at the time of the death of such
Director, a dependant of such Director, shall be conclusive for all purposes
of Article 103(1) .
PROCEEDINGS OF DIRECTORS 104. Meetings of Directors 104(1) The Directors may
meet together for the despatch of business and adjourn and otherwise regulate
their meetings as they see fit. 104(2) Subject to Article 110, the Directors
may conduct the meetings by way of video, telephone, radio or any other form
of instantaneous audio or audio and visual communication without a Director
being in the physical presence of another Director or Directors. 104(3) The
minutes of any meeting of the Directors, howsoever convened and held, shall
state the method of meeting. 104(4) The minutes of any meeting of the
Directors, howsoever convened and held, shall be given to each Director within
the one (1) month after the date of the meeting. 105. Quorum
A quorum of Directors shall be four (4) Directors, present in person or by
telephone, radio or other form of instantaneous audio or audio and visual
communication at the meeting. 106. Convening of Meeting
A Director may at any time and the Secretary, upon the request of a Director,
shall convene a meeting of the Directors. 107. Notice of Meeting 107(1) Notice
of every Directors' meeting shall be given to each Director and Alternate
Director who is within the Commonwealth of Australia, but it shall not be
necessary to give a notice of a meeting of Directors to any Director who is
absent from the Commonwealth of Australia or who has been given special leave
of absence. 107(2) Any notice of a meeting of Directors may be given in
writing or by facsimile, telex, telegram or cable or by telephone or any other
means of communication. 108. Voting 108(1) Questions arising at any meeting of
the Directors shall be decided by a majority of votes and each Director shall
have one vote. 108(2) A person, who is an Alternate Director, shall be
entitled (in addition to his or her own vote if he or she is a Director) to
one vote on behalf of each Director whom he or she represents as an Alternate
Director at the meeting. 108(3) In the case of an equality of votes and where
all Directors (or their Alternates) are present at the meeting, the
Chairperson of the meeting, in addition to his or her deliberative vote (if
any), shall have a casting vote. 109. Chairperson and Deputy Chairperson
109(1) The Directors may from time to time appoint a Deputy Chairperson, who
in the absence of the Chairperson at a meeting of the Directors, may exercise
all the powers and authorities of the Chairperson. 109(2) If no Chairperson or
Deputy Chairperson is appointed or elected, or if at any meeting the
Chairperson, or failing him or her, the Deputy Chairperson is not present at
the meeting within half an hour of the time appointed for holding the same,
the Directors so present shall choose some one of their number so present to
be chairperson of such meeting. 110. Teleconference Meeting of Directors
110(1) For the purpose of these Articles the contemporaneous linking together
by an instantaneous communication device of a number of Directors constituting
not less than the quorum required for the purpose of these Articles, whether
or not one or more of the Directors is outside the Commonwealth of Australia,
shall be deemed to constitute a meeting of the Directors and all the
provisions of these Articles as to meetings of the Directors shall apply to
such meetings, so long as the conditions set out in paragraph (3) are met.
110(2) For the purpose of these Articles a reference to the Chairperson,
Deputy or a Director being present at a meeting of the Directors shall refer
to the Chairperson, Deputy Chairperson, or Director being present in person or
through an instantaneous communication device. 110(3) The conditions referred
to in paragraph (1) are that:
(a) all the Directors for the time being entitled to receive notice of the
meeting of the Directors (including any Alternate Director for a
Director) shall be entitled to notice of the meeting;
(b) notice of any such meeting shall be given in accordance with Article
107;
(c) each of the Directors taking part in the meeting shall be linked by an
instantaneous communication device and must throughout the meeting be
able to hear each of the other Directors so taking part;
(d) at the commencement of the meeting each Director must acknowledge his
or her presence for the purpose of the meeting to all the other
Directors taking part; and
(e) if the Secretary is not present at the meeting, one of the Directors
so present shall take minutes of the meeting. 110(4) A Director may
not leave a meeting conducted pursuant tothis Article 110 by
disconnecting his or her instantaneous communication device, unless he
or she has previously obtained the express consent of the chairperson
of the meeting. 110(5) A Director shall be conclusively presumed to
have been present and to have formed part of the quorum at all times
during the meeting by instantaneous communication device unless he or
she has previously obtained the express consent of the chairperson of
the meeting to leave the meeting. 110(6) A minute of the proceeding at
a meeting held by instantaneous communication device shall be
sufficient evidence of such proceedings and of the observance of all
necessary formalities if certified on a correct minute by the
chairperson of the meeting or by the Secretary, if present, at the
meeting. 110(7) For the purposes of this Article, ``instantaneous
communication device'' shall include telephone, television or any
other audio and visual device which permits instantaneous
communication. 111.( ) Circulated Resolutions 111(1) If all the
Directors have signed a document containing a statement that they are
in favour of a resolution of the Directors in terms set out in the
document, a resolution in those terms shall be deemed to have been
passed at a meeting of the Directors held on the day on which the
document was signed at the time at which the document was last signed
by a Director, or if the Directors have signed the document on
different days, on the day on which and, at the time at which, the
document was last signed by a Director. 111(2) For the purposes of
paragraph (1), two (2) or more separate documents containing
statements in identical terms, each of which is signed by one or more
Directors, shall together be deemed to constitute one document
containing a statement in those terms signed by those Directors on the
respective days on which they signed the separate documents. 111(3) A
reference in paragraph (1) to all the Directors does not include a
reference to a Director who, at a meeting of Directors, would not be
entitled to vote on the resolution. 111(4) Every resolution so made
and signed shall be, as soon as practicable, entered in the minutes of
the Directors' meetings. 111(5) A facsimile, telex, cable, telegram or
such similar means of communication addressed to or received by the
Company and purporting to be signed by a Director shall, for the
purpose of this Article, be deemed to be writing signed by such
Director. 112. Restriction on Voting
No Director shall be entitled to be present in person or by an Alternate
Director or to vote at a meeting of Directors or to be reckoned in a quorum if
and as often as, he or she shall have failed to pay any call to the Company on
shares held by him or her after the date upon which the call should have been
made. 113. Committees of Directors 113(1) The Directors may delegate any of
their powers to committees consisting of such Directors with such quorum as
they think fit and may from time to time revoke such delegation. 113(2) Any
committee formed pursuant to paragraph (1) shall, in the exercise of the
powers so delegated, conform to any regulations that may from time to time be
imposed upon it by the Directors. 113(3) Save as aforesaid, the meetings and
proceedings of any such committee consisting of two (2) or more Directors
shall be governed by the provisions herein contained for regulating the
meetings and proceedings of the Directors. 114. Validation of Acts of
Directors
All acts done at any meeting of Directors, or of a committee of Directors, or
by any person acting as a Director, or by any person purporting to act as an
attorney under power of the Company, shall, notwithstanding that it shall
afterwards be discovered that there was some defect in the appointment or
continuance in office of such Director, or person, or attorney acting as
aforesaid, or that they or any of them were disqualified or were not entitled
to vote, be as valid as if every such person had been duly appointed, or had
duly continued in office and was qualified to be a Director, or attorney and
was entitled to vote.
DIRECTORS' CONTRACTS WITH COMPANY AND
DISCLOSURE OF INTEREST 115. Contracts with Directors 115(1) Subject to this
Article, no Director shall be disqualified by his or her office from holding
any other office, or place of profit, under the Company, or any of its
subsidiary companies or under any company in which the Company is or becomes a
shareholder or is otherwise interested, or from contracting or arranging with
the Company or any other such company as aforesaid, either as vendor,
purchaser or otherwise howsoever, nor shall any such contract or any contract
or arrangement entered into or to be entered into by or from or on behalf of
the Company in which the Director shall or may be in any way interested, be
avoided, nor shall the Director so contracting, or being so interested, be
liable to account to the Company for any profit arising from any such office
or place of profit or realised by any such contract or arrangement by reason
only of the Director holding that office or of the fiduciary relationship
thereby established. 115(2) The nature of the Director's interest as referred
to in paragraph (1) must be disclosed by him or her before or at the meeting
of Directors at which the question of entering into the contract or
arrangement is first taken into consideration if his or her interest then
exists, or in any other case at the first meeting of the Directors after he or
she becomes so interested. 115(3) No Director shall vote in respect of any
contract, or proposed contract or arrangement, in which he or she whether
directly or indirectly has a material interest and, if he or she does so vote,
when prohibited by this Article his or her vote shall not be counted although
he or she may be counted, in the quorum present at any Directors' meeting at
which such contract or arrangement is considered. 115(4) Subject to any law,
the restrictions contained in paragraph (3) may, at any time or times, be
suspended or relaxed to any extent and either prospectively or retrospectively
by resolution of the Company in general meeting. 115(5) A Director may,
notwithstanding his or her interest, and whether or not he or she is entitled
to vote or does vote, participate in the execution of any document evidencing
any contract or arrangement referred to in paragraph (1) by or on behalf of
the Company and whether by signing or sealing the same or otherwise. 116.
Disclosure of Interests
A general notice given to the Directors by any Director to the effect that he
or she is an officer or a member of, or interested in, any specified firm or
corporation and is to be regarded as interested in all transactions with such
firm or corporation, shall be sufficient disclosure as required by the Law as
regards such Director and the said transactions and, after such general
notice, it shall not be necessary for such Director to give any special notice
relating to any particular transaction with such firm or corporation, unless
requested to do so by the Board, in which case the Director shall provide such
special notice. 117. Other Directorships and Shareholdings
A Director of the Company may be or become a director or other officer of, or
otherwise interested in, any corporation promoted by the Company, or in which
the Company may be interested as shareholder or otherwise, or which holds any
shares in the Company, and no such Director shall be accountable to the
Company for any remuneration or other benefits received by him or her as a
director or officer of, or from his or her interest in, such corporation. The
Directors may exercise the voting power conferred by the shares or other
interest in any such other corporation held or owned by the Company, or
exercisable by them as directors of such other corporation in such manner in
all respects as they think fit (including the exercise thereof in favour of
any resolution appointing themselves or any of them directors or other
officers of such corporation), and any Director may vote in favour of the
exercise of such voting rights in the manner aforesaid, notwithstanding that
he or she may be, or be about to be, appointed a director or other officer of
such corporation and as such is, or may become, interested in the exercise of
such voting rights in manner aforesaid.
POWERS AND DUTIES OF DIRECTORS 118. General Business Management 118(1) Subject
to the Law, paragraph (2) and to any other provisions of these Articles, the
management and control of the business of the Company shall be vested in the
Directors, who may exercise all such powers of the Company as are not hereby
or by the Law required to be exercised by the Company in general meeting, but
no Article made or resolution passed by the Company in general meeting, shall
invalidate any prior act of the Directors which would have been valid if that
Article or resolution had not been made or passed. 118(2) The Company reserves
to itself the power or function of:
(a) approval subject to Article 118(3)(h), of the Corporate Plan, by a
special resolution;
(b) approval of the formation or acquisition by whatever means of any
subsidiary of the Company; and
(c) any power or function resolved by a special resolution to be reserved
for exercise by the Company by a special resolution.
118(3)(a) The Directors shall prepare a corporate plan for the Company as soon
as possible after the incorporation of the Company. The Directors shall
prepare a corporate plan in each year thereafter.
(b) The corporate plan or plans prepared for any period within the
Establishment Period shall set out a strategic framework for the
management of the Company for the period to which it refers (being a
period of not less than three years) and shall:
(i) set out the Company's proposed national rail network;
(ii) identify functions proposed to be assumed by the Company, and
nominate and identify associated classes of assets to be
transferred or to which access is to be given to the Company;
(iii) provide a schedule for the transfer of control or the giving of
access to the Company of identified functions and associated
assets;
(iv) provide a schedule for the making of calls on the issued A
convertible shares;
(v) provide details of any additional equity funding requirements
and timetable;
(vi) provide a business plan for the Company;
(vii) provide financial projections for the Company, including any
borrowing requirements;
(viii) provide an investment strategy for the Company, including a
capital works program and timetable;
(ix) identify NRC Standard Costs;
(x) such other information as the Company in annual general meeting may
require; and
(xi) provide a Statement Of Corporate Intent.
(c) The corporate plan or plans prepared for any period following the
Establishment Period shall set out a strategic framework for the
management of the Company for the period to which it refers (being a
period of not less than three years) and shall:
(i) provide a business plan for the Company;
(ii) provide financial projections for the Company, including any
borrowing requirements;
(iii) provide an investment strategy for the Company, including a
capital works program and timetable;
(iv) such other information on the Company in annual general meeting
may require;
(v) provide a Statement Of Corporate Intent;
(d) The Directors may from time to time amend or replace the Corporate
Plan in accordance with paragraph (g).
(e) The Directors shall provide copies of the Corporate Plan and all
amendments to and replacements of the Corporate Plan, to all members
of the Company.
(f) Members shall keep the Corporate Plan confidential.
(g) The Directors shall, within seven (7) days of preparing a corporate
plan, submit the corporate plan to the members for approval. On
receipt of the corporate plan the members shall consult each other in
relation to the corporate plan and may, within thirty (30) days of
such receipt, approve by a special resolution, the corporate plan,
either as submitted or subject to such amendments as may be specified
in the special resolution.
(h) During the Establishment Period, if the members have not approved the
corporate plan as provided in paragraph (g) within thirty (30) days of
the date of receiving the plan, the plan, either as submitted or
subject to such amendments as may be specified in the resolution, may
be approved within thirty (30) days of the expiry of that thirty (30)
day period by resolution
as follows - (i) by a vote of any two (2) members
(irrespective of the number of shares held by the members) if there are three
members in the Company;
(ii) by a vote of any three (3) members (irrespective of the number
of shares held by the members) if there are four members in the
Company;
(iii) by a vote of any four (4) members (irrespective of the number
of shares held by the members) if there are five members in the
Company;
(iv) by a vote of any five (5) members (irrespective of the number
of shares held by the members) if there are six members in the
Company.
(i) After the Establishment Period, on receipt of the corporate
plan, the members shall consult each other in relation to the
corporate plan and may approve the plan by a special
resolution, either as submitted by the Directors or subject to
such amendments as may be specified in the special resolution.
(j) Upon approval by the members in accordance with paragraph (g), (h) or
(i), the corporate plan, or the corporate plan as amended or replaced,
shall be the Corporate Plan for the Company until replaced or amended.
118(4) The Statement of Corporate Intent shall set out:
(a) the objectives of the Company;
(b) its main undertakings;
(c) the nature and scope of the activities to be undertaken by the
Company;
(d) the accounting policies to be applied by the Company in its accounts;
(e) appropriate information or the companies performance; and
(f) such other matters as may be agreed upon by the Directors and the
members from time to time. 118(5) Any member may publish the Statement
of Corporate Intent in such manner as it thinks fit. 118(6) The
Directors will act in a manner not inconsistent with the Statement of
Corporate Intent, unless required to do so by law. 119. Borrowing
Powers
The Directors shall have power to raise or borrow any sum or sums of money and
to secure the payment or repayment of such moneys and any other obligation or
liability of the Company in such manner and on such terms and conditions in
all respects as they think fit (not inconsistent with the Corporate Plan),
whether upon the security of any mortgage or by the issue of debentures or
debenture stock of the Company charged upon all or any of the property of the
Company (both present and future), including its goodwill undertaking and
uncalled capital for the time being, or upon bills of exchange promissory
notes or other obligations or otherwise. 120. Loans to Directors
Without limiting the generality of the foregoing, it is expressly declared
that the Directors shall have power to make such loans to Directors and to
provide such guarantees and security for obligations undertaken by, Directors,
as may be permitted by the Law, and by resolution of the Company, but not
otherwise. 121. Negotiable Instruments
All cheques, promissory notes, drafts, bills of exchange and other negotiable
instruments and all receipts for money paid to the Company may be signed,
drawn, accepted, endorsed or otherwise executed, as the case may be, in such
manner as the Directors from time to time determine, provided however, until
determined otherwise, at least two (2) persons, duly authorised by the
Directors for this purpose, shall be required to execute any negotiable
instruments. 122. Use of Seals
The Directors may exercise all the powers of the Company in relation to any
official seal for use outside the State or Territory in which the registered
office of the Company is located and in relation to Branch Registers. 123.
Appointment of Attorney
The Directors may from time to time, by power of attorney, appoint any person
or persons to be the attorney or attorneys of the Company for such purposes
and with such powers authorities and discretions (not exceeding those vested
in or exercisable by the Directors under these Articles) and for such period
and subject to such conditions as they may think fit, and any such powers of
attorney may contain such provisions for the protection and convenience of
persons dealing with any such attorney as the Directors may think fit and may
also authorise any such attorney to delegate all or any of the powers
authorities and discretions vested in him or her. 124. Conferment of Powers
The Directors may, from time to time, confer upon any Director for the time
being, or such other person as they may select, such of the powers exercisable
under the Articles by the Directors as they may think fit for such time and to
be exercised for such objects and purposes and upon such terms and conditions
and with such restrictions as they think expedient; and they may confer such
powers either collaterally with, or to the exclusion of and in substitution
for, all or any of the powers of the Directors in that behalf and may, from
time to time, revoke withdraw alter or vary all or any of such powers. 125.
Inadvertent Omissions
Notwithstanding anything contained in these Articles, if it be found that some
formality required by these Articles to be done has been inadvertently omitted
or has not been carried out, such omission shall not invalidate any
resolution, act, matter or thing which, but for such omission would have been
valid, unless it is proved to the satisfaction of the Directors, or a majority
of them, that such omission has directly prejudiced any member financially.
The decision of the Directors shall be conclusive and final and shall be
binding on all members.
SECRETARY 126. Appointment of Secretary 126(1) Any Secretary shall hold office
for such term, at such remuneration and upon such conditions, as the Directors
may think fit. 126(2) The Directors may at any time appoint a person as an
Acting Secretary or as a temporary substitute for a Secretary.
MINUTES 127. Minutes to be Kept 127(1) The Directors shall cause minutes to be
duly entered in books provided for the purpose of recording:
(a) all appointments of officers made by the Directors;
(b) the names of the Directors present at each meeting of the Directors
and of any committee of the Directors;
(c) all orders, resolutions and proceedings of general meetings and of
meetings of the Directors and committees; and
(d) such matters as are required by the Law to be contained therein.
127(2) Any such minutes as aforesaid, if purporting to be signed by
any person purporting to be the chairperson of such meeting, or to be
the chairperson of the next succeeding meeting, shall be received in
evidence without any further proof as sufficient evidence that the
matters and things recorded by or appearing in such minutes actually
took place or happened as recorded or appearing and of the regularity
thereof in all respects and that the same took place at a meeting duly
convened and held. 127(3) The minutes of any meeting shall be entered
in the relevant book with one (1) month after the relevant meeting is
held.
THE SEAL 128. Company Seal 128(1) The Directors shall provide for the safe
custody of the Seal. 128(2) In accordance with section 219 of the Law the
Seal, and each other seal of the Company, shall contain the Company's
Australian Company Number. 128(3) The Seal shall be used only by the authority
of the Directors, or of a committee of the Directors authorised by the
Directors to authorise the use of the Seal in such form and manner as required
by Law. 128(4) Every document to which the Seal is affixed shall be signed by
a Director and countersigned by another Director, a Secretary or another
person appointed by the Directors to countersign that document or a class of
documents in which that document is included. 129. Share Seal
The Company may adopt a duplicate common seal to be known as the Share Seal,
which shall be a facsimile of the Seal with the substitution on its face of
the words "Share Seal" or "Certificate Seal" for the words "Common Seal". Any
certificate may be issued under such a duplicate Seal and, if so issued, shall
be deemed to be sealed with the Seal of the Company. 130. Affixing of Seal
The signature of any Directors, Secretary or other person as aforesaid and the
Share Seal may be affixed by some mechanical means to certificates which have
first been approved for sealing by the Company, or other person appointed for
that purpose by the Company. 131. Meaning of Certificate
For the purpose of the foregoing Articles 129 and 130, "certificate" means a
certificate in respect of shares or stock or stock units, debentures,
certificates of debenture or any certificate or other document evidencing any
options or rights to take up shares or other interests in the Company.
BRANCH REGISTER
132. Use of Branch Registers
The Directors may make such provisions as they think fit respecting the
keeping of any Branch Register and the Directors may appoint any such person
as they think fit to approve of and register or reject transfers and make
entries thereof in any Branch Register and to issue certificates in respect of
shares on the Branch Register and may make such other provisions relating
thereto as they may think fit. 133. Transfer Between Registers
Subject to the provisions of the Law, the Directors may transfer shares from
one register to another and may at any time discontinue any Branch Register.
No fee shall be charged on any transfer between two registers both being
within the Commonwealth of Australia.
ACCOUNTS AND AUDIT 134. Record Keeping
The Directors shall ensure that accounting records of the Company are kept in
accordance with the Law. 135. Auditors
Auditors shall be appointed for the Company in accordance with the Law and the
accounts of the Company shall be duly audited each year.
INSPECTION OF RECORDS 136. Rights of Inspection 136(1) The Directors shall
cause proper books of account to be kept with respect to all sums of money
received and expended by the Company and the matters in respect of which the
receipt and expenditure takes place and with respect to the assets and
liabilities of the Company. 136(2) The books of account and all other
documents and records of the Company shall be kept at the Office, or subject
to the Law at such other place or places as the Directors think fit, and shall
always be open to inspection by any Director and subject to Article 137 by any
member. 136(3) Subject to this Article, no person shall have any right of
inspecting any account or book or papers of the Company except as required by
Law. 137. Confidential Information
No member (not being a Director) shall be entitled to require or receive any
information concerning the business trading or customers of the Company or any
trade secret, secret process or other confidential information of or used by
the Company beyond such information as to the accounts and business of the
Company as is by these Articles or by the Law directed to the laid before the
Company in general meeting. No member shall be entitled to inspect any books,
papers, correspondence or documents of the Company except so far as such
inspection is expressly authorised by the Law or these Articles.
DIVIDENDS AND RESERVES 138. Declaration of Dividends 138(1) The Directors may,
from time to time, recommend to the Company a dividend to be paid to members.
138(2) Unless the Company, by special resolution, rejects or amends the
Directors' recommended dividend, the dividend shall be declared by the
Directors to be paid to members. 138(3) If the Company, by special resolution,
amends the Directors' recommended dividend, the amended dividend shall be paid
to members. 138(4) The time for payment of dividends shall be determined by
the Directors and notice of the declaration or payment of dividends may be
given to members by advertisement or otherwise as the Directors determine.
139. Interim Dividends
The Directors may, from time to time, declare such interim dividends to be
paid to the members entitled thereto as appear to the Directors to be
justified by the profits of the Company. 140. Source of Dividends
No dividend shall be paid otherwise than out of profits, nor bear interest,
against the Company. 141. Power to Employ Reserves
The Directors may, before declaring any dividend, set aside out of the profits
of the Company such sums as they think proper as reserves, which shall, at the
discretion of the Directors, be applicable for any purpose to which the
profits of the Company may be properly applied and, pending any such
application, may at the like discretion either be employed in the business of
the Company or be invested in such investments (other than shares in the
Company) as the Directors may, from time to time, think fit. The Directors
may, with the approval of the members by resolution, also without placing the
same to reserve, carry forward any profits which they may think prudent not to
set aside. 142. Crediting of Dividends 142(1) Subject to the rights of
persons, if any, entitled to shares with special rights as to dividend, all
dividends shall be declared and paid according to the amounts paid or credited
as paid on the shares in respect whereof the dividend is paid, but no amount
paid or credited as paid on a share in advance of calls shall be treated for
the purpose of this Article as paid on the share. 142(2) All dividends shall
be apportioned and paid proportionately to the amounts paid or credited as
paid on the shares during any portion or portions of the period in respect of
which the dividend is paid, but, if any share is issued on terms providing
that it shall rank for dividend as from a particular date, that share shall
rank for dividend accordingly. 143. Deductions from Dividends
The Directors may deduct from any dividend payable to any member all sums of
money (if any) presently payable by him or her on account of calls or
otherwise in relation to the shares of the Company. 144. Methods of Paying
Dividends
Any general meeting declaring a dividend may, by resolution direct payment of
a dividend wholly or partly by the distribution of specific assets and, in
particular, of paid up shares, debentures or debenture stock of any other
company, or in any one or more of such ways, and where any difficulty arises
in regard to such distribution, the Directors may settle the same as they
think expedient and fix the value for distribution of such specific assets or
any part thereof and may determine that cash payments shall be made to any
members upon the footing of the value so fixed in order to adjust the rights
of all parties and may vest any such specific assets in trustees as may seem
expedient to the Directors. 145. Administration of Dividend Payments 145(1)
Any dividend interest or other money payable in cash in respect of shares may
be paid by electronic transfer to an account nominated by the holder or
alternatively by cheque sent through the post directed to the registered
address of the holder or, in the case of joint holders, to the registered
address of that one of the joint holders who is first named on the Register,
or to such person and to such address as the holder or joint holders may in
writing direct. 145(2) Every such cheque shall be made payable to the person
to whom it is sent and may be made payable to bearer. 145(3) Any one of two
(2) or more joint holders may give effectual receipts for any dividends or
other money payable in respect of the shares held by them as joint holders.
146. Power to Make Concurrent Call
The Directors, when declaring a dividend, may, with the prior consent of a
member, make a call on the member of such amount as they may fix, but so that
the call on each member shall not exceed the dividend payable to him or her
and so that the call be made payable at the same time as the dividend and the
dividend may, if so arranged between the Company and the member, be set off
against the call. 147.Unclaimed Dividends
Subject to the provisions of the law relating to unclaimed monies, all
dividends unclaimed for one (1) year after having been declared may be
invested or otherwise made use of by the Directors for the benefit of the
Company until claimed. 148.Entitlement to Dividends
Subject to these Articles, all dividends and interest shall belong (subject to
any lien of the Company) to those members whose names are on the Register at
the date at which such dividend or bonus is declared, or at the date on which
such interest is payable respectively, or at such other date as the Directors
may determine and shall be paid in the manner set forth in these Articles,
notwithstanding any subsequent transfer or transmission of shares. 149.Payment
of Dividends on Transmission
The Directors may retain the dividends or bonuses payable on shares in respect
of which any person is under the transmission articles entitled to become a
member, or which any person is under articles entitled to transfer, until such
person shall become a member in respect of such shares or shall duly transfer
the same. 150.Reinvestment of Dividends
The Directors may, from time to time, grant to members or any class of
members, or to the holders of any convertible notes, debentures or unsecured
notes of the Company, the right, upon such terms and conditions as the
Directors may determine, to elect to reinvest all or part of the dividends,
interest or any other moneys (as the case may be) paid by the Company in
respect of any such holdings in subscribing for shares of the same or, at the
Directors' discretion, a different class in the capital of the Company or in
subscribing for convertible notes, debentures, unsecured notes or any other
securities issued or to be issued by the Company and, for any such purposes,
may implement and maintain, on such terms and conditions as they may determine
from time to time, any scheme or plan for such reinvestment and may, at their
absolute discretion, modify or terminate any such scheme or plan by not less
than one (1) month's notice in writing to all members and holders of any
convertible notes, debentures or unsecured notes issued by the Company, as the
case may be eligible to participate in such scheme or plan.
CAPITALISATION OF PROFITS 151.Power to Capitalise Profits and Reserves
The Directors may resolve that it is desirable to capitalise any sum, being
the whole or a part of the amount for the time being standing to the credit of
any reserve account, or the profit and loss account or otherwise available for
distribution to members, and that that sum be applied, in any of the ways
mentioned in Article 152, for the benefit of members in the proportions to
which those members would have been entitled in a distribution of that sum by
way of dividend and such distribution or payment shall be accepted by such
members in full satisfaction of their interests in the said capitalised sum.
152.Methods of Capitalisation 152(1) The ways in which a sum may be applied
for the benefit of members under Article 150 are:
(a) in paying up any amounts unpaid on shares held by members;
(b) in paying up in full, either at par or at such premium as the
Directors may resolve, unissued shares or debentures to be issued to
members as fully paid; or
(c) partly as mentioned in paragraph (a) and partly as mentioned in
paragraph (b). 152(2) Where the holders of any redeemable preference
shares or issued shares of the company are by virtue only of the
special terms of issue thereof, entitled to participate in any
distribution pursuant to Article 151 whether at the time such
distribution is made or at some future time such holders shall
participate in any such distribution to the extent and in the manner
authorised by the said terms of issue and all the provisions of
Article 151 shall be subject to the said terms of issue and shall be
deemed to be modified in order to give effect thereto. 153.Directors'
Powers upon Capitalisation
The Directors shall do all things necessary to give effect to the resolution
made pursuant to Article 151 and, in particular, to the extent necessary to
adjust the rights of the members among themselves, may:
(a) issue fractional certificates or make cash payments in cases where
shares or debentures become issuable in fractions;
(b) fix the value for distribution of any specific assets or any part
thereof;
(c) determine that cash payments shall be made to any members upon the
footing of the value so fixed or that fractions of less value than
fifty cents ($0.50) may be disregarded in order to adjust rights of
all parties;
(d) vest any such cash or specific assets in trustees, upon trusts for the
persons entitled to the dividend or capitalised fund; and
(e) authorise any person to make, on behalf of the members entitled to any
further shares or debentures upon the capitalisation, an agreement
with the Company providing for the issue to them, credited as fully
paid up, of any such further shares or debentures or for the payment
up by the Company on their behalf of the amounts remaining unpaid on
their existing shares by the application of their respective
proportions of the sum resolved to be capitalised,
and any agreement made under an authority referred to in paragraph (e) is
effective and binding on all the members concerned. 154.Powers upon Redemption
of Shares
If the Company has redeemed any redeemable preference shares, or has issued
any shares at a premium, the Directors may resolve that all or any part of any
capital redemption fund arising from the redemption of such shares or shares
premium account arising from such issue, may be applied in paying up in full
any unissued shares to be issued to such members as would be entitled to
receive the same if distributed by way of dividend equal to the nominal amount
of the shares so issued or otherwise in such manner as may be authorised by
the Law. Where requisite, a proper contract shall be filed in accordance with
the Law and the Directors may appoint any person to sign such contract on
behalf of the persons entitled to be dividend or capitalised fund and such
appointment shall be effective.
NOTICES 155.Service of Notices
Subject to these Articles, a notice may be served by the Company upon any
member either personally or by sending it by post addressed to such member at
his or her address entered in the Registry or the address supplied by him or
her for the giving of notices to him or her or where the facsimile number of
the member is known to the Company, by facsimile transmission. 156.Notice upon
Transmission
It shall not be necessary to give notice of meetings to any person entitled to
a share by transmission, unless such person shall have been duly registered as
a member of the Company. 157.Notice to Joint Shareholders
A notice may be given by the Company to the joint holders of a share by giving
the notice to the joint holder first named in the register of members in
respect of the share. 158.Method of Service
Where a notice is sent by post, service of the notice shall be deemed to be
effected by properly addressing, prepaying and posting a letter containing the
notice and to have been effected on the business day after the date of its
posting. Notices and other documents for overseas shareholders shall be
forwarded by air mail. Where notice is sent by facsimile transmission, notice
shall be deemed to be effected forthwith upon such transmission, unless the
member subsequently establishes that the notice was not in fact received by
its facsimile machine. 159.Constructive Notice
Every person, who by operation of law, transfer or other means whatsoever,
becomes entitled to any share, shall be bound by every notice in respect of
such share which, previously to his or her name and address being entered on
the Register, has been duly given to the person from whom he or she derives
his or her title and to every previous holder thereof. 160.Period of Notice
Subject to the Law, where a specified number of days notice or notice
extending over any period is required to be given, the day of service shall
not be, but the day upon which such notice will expire shall be included in
such number of days or other period. The accidental omission to give any
notice of a meeting to any member or the non-receipt by any member of any
notice shall not invalidate the proceedings at any meeting. 161.Service by
Company
Subject to law, all summonses, notices, processes, orders and judgments in
relation to any legal proceedings by the Company or its liquidators against
any member may be served by registered post and the foregoing provisions as to
notices shall apply, mutatis mutandis, and such service shall be considered
for all purposes to be personal service. 162.Service upon Company
Every summons notice order or other document required to be served upon the
Company, or upon any officer of the Company, may be served by leaving the same
at the Office. 163.Form of Signature
The signature to any notice to be given by the Company may be written or
printed or stamped.
INDEMNITY 164.Right to Indemnity 164(1) Every person, who is or has held
office as a Director, Auditor, Secretary or other officer of the Company and
their respective executors or administrators, shall be indemnified out of the
assets of the Company against any liability incurred by him or her in
defending any proceedings, whether civil or criminal in which judgment is
given in his or her favour, or in which he or she is acquitted or in
connection with any application under the Law in which relief is granted to
him or her by the Court in respect of any negligence, default, breach of duty
or breach of trust. 164(2) Every person, who is or has held office as a
Director, Secretary and other officer or employee of the Company and their
respective executors or administrators, shall be indemnified by the Company
from and against all costs losses and expenses which any such Director,
Secretary or other officer or employee may properly incur or become liable to
pay by reason of any contract entered into, or other act or thing done by any
of them as such officer or employee, or in any way in the discharge of his or
her duties and it shall be the duty of the Directors to pay the same out of
the funds of the Company.
WINDING UP 165.Shareholders' Rights on the Distribution of Assets
If the Company is wound up, the liquidator may, with the sanction of a special
resolution of the Company, divide amongst the members in kind the whole or any
part of the assets of the Company (whether they consist of property of the
same kind or not) and may for that purpose set such value as he or she deems
fair upon any property to be divided as aforesaid and may determine how the
division shall be carried out as between the members or different classes of
members. The liquidator may, with the like sanction, vest the whole or any
part of any such assets in trustees upon such trusts for the benefit of the
contributories as the liquidator with the like sanction thinks fit, but so
that no member shall be compelled to accept any shares or other securities
whereon there is any liability. 166.Remuneration of Liquidator
The Company in general meeting shall not fix the remuneration to be paid to a
liquidator pursuant to the Law, unless at least fourteen (14) days' notice of
the meeting has been given to the members and such notice has specified the
amount of the proposed remuneration of the liquidator. WE the several
subscribers to the Memorandum of Association agree to the foregoing Articles
of Association.
Signature of
Subscribers Signature and Address
of Witness
DATED this day of 1991.
SCHEDULE 2
NATIONAL RAIL CORPORATION LIMITED
MAJOR INTERSTATE RAIL FREIGHT FUNCTIONS
FUNCTION DESCRIPTION
Interstate Rail Freight
Business: The marketing of interstate rail freight
business, including, but not limited to:
- business planning and analysis
- rail freight promotion
- service specification
- services pricing
- service agreements and contracts
- operational cost modelling
- freight train operations and terminal
forecasting
Freight accounting, including, but not
limited to:
- consignment management and tracking, freight
reservations, acceptance and invoicing
- freight customer interface management
- revenue accounting and collection
Terminals: Operation of interstate rail freight
terminals and freight terminal management,
including, but not limited to:
- loading/unloading, delivery, operation and
management
- location/inventory management
- operation and resource planning, management
and usage
- customer interface and consignment
acceptance Train Operations: Operation of interstate freight trains,
including, but not limited to:
- train control
- traffic management
- line haul
- train configuration and scheduling
- crewing, rostering and crew management
- train quality control
Locomotive and wagon management, including,
but not limited to:
- booking, scheduling, supply and provisioning
of locomotives and wagons
Bogie exchange and other gauge transhipment. Maintenance and
Procurement: Responsibility for arranging maintenance
and procurement functions relating to
interstate rail freight, including, but not
limited to:
- track and structures (including tunnels,
bridges and related rail infrastructure)
- locomotives and wagon fleet
- operational plant
- signals and train control systems
- communication systems
- terminals, plant and freight depots
- land and buildings
Supply functions including, but not limited
to:
- stores and inventory control/management
- purchasing
- salvage Support Services: Responsibility for arranging support
services for interstate rail freight,
including, but not limited to:
- computing services
- security services
- insurance and claims management
- property management
- human resource services
- contracts administration
- industrial relations
- finance and accounting management
SCHEDULE 3
ISSUE OF ADDITIONAL SHARES The total number of shares held by the
Commonwealth, the States and the other States and the number of shares to be
issued to them pursuant to subclause 6(8)(a) are set out in the Table below:
TABLE
Initial Shareholding 5th State Joins 6th State
Joins
Ordinary B Convertible Ordinary B Convertible Ordinary B Convertible
Shares Shares Shares Shares Shares
COMMONWEALTH
. new shares issued 135 25 84 -
. total shares held after issue
270 125 405 150 489 150
NEW SOUTH WALES
. new shares issued 68 25 41 -
. total shares held after issue
140 125 208 150 249 150
VICTORIA
. new shares issued 35 25 18 -
. total shares held after issue
65 125 100 50 118 150
WESTERN AUSTRALIA
. new shares issued 12 25 7 -
. total shares held after issue
25 125 37 150 44 150
5TH STATE . new shares issued
- - - 150 - -
. total shares held after issue
- - - 150 - -
6TH STATE . new shares issued
- - - - - 150
. total shares held after issue
- - - - - 150
SCHEDULE 4
CONTRIBUTIONS TO NRC FUNDING REQUIREMENTS
1991- 1992- 1993- 1994- 1995- 1996- Total
1992 1993 1994 1995 1996 1997
$M $M $M $M $M $M $M
CWLTH 40.0 131.6 58.7 37.1 22.3 6.1 295.8
NSW - - 9.5 14.0 23.6 28.5 75.6
VIC - - 2.2 11.7 11.7 9.5 35.1
WA - - 1.0 2.0 2.5 2.5 8.0
TOTAL 40.0 131. 71.4 64.8 60.1 46.6 414.5
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