Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading amended: No. 19 of 2010 s. 4.]
Casino (Burswood Island) Agreement
EIGHTH SUPPLEMENTARY AGREEMENT
THIS AGREEMENT made the 18 day of June 2003
B E T W E E N :
THE HONOURABLE NICHOLAS DAVID GRIFFITHS MLC , the Minister of the Crown for
the time being charged with the administration of the Control Act acting for
and on behalf of the State of Western Australia and its instrumentalities from
time to time (“ the State ”)
AND
BURSWOOD NOMINEES LTD (ACN 078 250 307) C/- Burswood International Resort
Casino, Great Eastern Highway, Burswood in the State of Western Australia as
trustee of the Burswood Property Trust (“ the Trustee ”)
AND
BURSWOOD RESORT (MANAGEMENT) LIMITED (ACN 009 396 945) C/- Burswood
International Resort Casino, Great Eastern Highway, Burswood in the State of
Western Australia as manager of the Burswood Property Trust (“ the
Manager ”) of the third part.
RECITALS:
A. The State, the Trustee (by virtue of the
West Australian Trustees Limited (Merger) Act 1989 ) and the Manager (by
virtue of a deed of retirement and appointment of manager made on 13 August
1990 and a deed of assumption and covenant made on 13 November 1991) are
parties to an agreement dated 20 February 1985 ratified by and scheduled to
the Casino (Burswood Island) Agreement Act 1985 as amended by:
(a) the
Supplementary Agreement made on 14 September 1987;
(b) the
Second Supplementary Agreement made on 3 May 1990;
(c) the
Third Supplementary Agreement made on 13 November 1991;
(d) the
Fourth Supplementary Agreement made on 30 March 1992;
(e) the
Fifth Supplementary Agreement made on 3 April 1995;
(f) the
Sixth Supplementary Agreement made on 22 June 1996; and
(g) the
Seventh Supplementary Agreement made on 9 June 1997,
which agreement as so amended is referred to in
this agreement as “ the State Agreement ”.
B. The parties have agreed to further amend the
State Agreement for the purpose of more efficiently or satisfactorily
implementing or facilitating certain of its objectives.
THE PARTIES AGREE AS FOLLOWS:
Definitions and interpretation
1. Words and expressions defined in the State
Agreement when used in this Agreement have, unless the context otherwise
requires, the same meanings as in the State Agreement and the provisions of
clause 2 of the State Agreement as to interpretation apply to this Agreement.
Variation and operation
2. (a)
The State shall introduce and sponsor a Bill in the Parliament of Western
Australia to ratify this Agreement and endeavour to secure its passage as an
Act.
(b) The
provisions of this Agreement other than this clause and clause 1 shall not
come into operation until the Bill referred to in sub-clause (a) has been
passed by the Parliament of Western Australia and comes into operation as an
Act.
(c) On
the said Bill commencing to operate as an Act, this Agreement shall operate
and take effect according to its terms notwithstanding the provisions of any
Act or law of Western Australia.
Clause 2 amended
3. Clause 2 of the State Agreement is amended:
(a) by
deleting the definition of “Casino Gross Revenue”;
(b) by
inserting after the definition of “Casino Gaming Licence” the
following definitions-
“ “ Casino Tax ” means each of
the Electronic Gaming Machine Tax, the Table Game Tax or the International
Commission Business Tax, as the case may be, and “ Casino Taxes ”
means two or all of them;
“ Casino Tax Activity ” means gaming
by way of Electronic Gaming Machine, Table Game or International Commission
Business;
“ Casino Tax Rate ” means the relevant
per centum rate used for determining a Casino Tax as specified in Schedule C
or as determined under clause 23(6) from time to time;
“ Casino Taxable Revenue ” where used
in relation to a particular Casino Tax Activity means all sums, including
cheques and other negotiable instruments whether collected or not, received in
any month from the conduct of the Casino Tax Activity, less the total of all
sums paid out as winnings during that month in respect of the Casino Tax
Activity. For the purposes of this definition:
(a) any
sum received for the issue of a chip for the relevant Casino Tax Activity is a
sum received from the conduct of the Casino Tax Activity and any sum paid out
to redeem a chip is a sum paid out as winnings;
(b) in a
case in which the Commission consents to the extension of credit, the sum
value of chips issued in any month on credit, whether by credit card
transaction or otherwise howsoever, shall be deemed to be sums actually
received in that month from the conduct of the relevant Casino Tax Activity;
and
(c) the
Casino Taxable Revenue for the relevant Casino Tax Activity may be a negative
amount;”;
(c) by
inserting after the definition of “Drawings” the following
definitions-
“ “ Electronic Gaming Machine ”
means an Authorized Game played by means of any electrical, electronic or
mechanical contrivance or machine that is not a Table Game;
“ Electronic Gaming Machine Tax ”
means the amount, which may be a negative amount, determined as follows:
EGMT = (P x EGMR)
Where:
EGMT = Electronic Gaming Machine Tax for the
relevant month
P = the per centum specified for Electronic Gaming
Machine Tax in Item 1 of Schedule C for the relevant period
EGMR = the Casino Taxable Revenue for Electronic
Gaming Machines for the relevant month
relevant month = the month for which the
Electronic Gaming Machine Tax is due and payable under clause
23(1)(a);”;
(d) by
inserting after the definition of “Genting WA” the following
definitions-
“ “ International Commission Business
” includes any of the following activity:
(a)
Junket Activity;
(b)
Premium Player Activity; and
(c)
Privileged Player Activity;
“ International Commission Business Tax
” means the amount, which may be a negative amount, determined as
follows:
ICBT = P x ICBR
Where:
ICBT = International Commission Business Tax for
the relevant month
P = the per centum specified for International
Commission Business Tax in Item 1 of Schedule C for the relevant period
ICBR = the Casino Taxable Revenue for
International Commission Business for the relevant month
relevant month = the month for which the
International Commission Business Tax is due and payable under clause
23(1)(a);
“ Junket Activity ” means gaming
activity limited to Table Games arising from a Junket, and “ Junket
” has the same meaning as that term is defined under section 25A of the
Control Act;”;
(e) by
deleting the definition of “Mandatory Articles” and inserting the
following definition-
“ “ Mandatory Articles ” means:
(a) the
provisions to be included in the constitution of an Approved Company in
accordance with the requirements of clauses 17A(2)(b) and 17A(2)(c); or
(b) any
other provisions of an Approved Company’s constitution as agreed by the
Minister, the Manager and the Trustee from time to time under an agreement
which has been ratified by an Act;”;
(f) by
inserting after the definition of “Person” the following
definitions-
“ “ Premium Player Activity ”
means gaming activity limited to Table Games arising from a patron who is a
non resident of Australia with whom the casino licensee has an arrangement to
pay the patron a commission based on the patron’s turnover of play in
the casino or otherwise calculated by reference to such play. For the purpose
of this definition “non resident of Australia” means the holder of
a foreign passport whose principal place of residence is outside Australia;
“ Privileged Player Activity ” means
gaming activity limited to Table Games arising from a patron who is a non
resident of Australia with whom the casino licensee has an arrangement for the
provision of transport, accommodation, food, drink or entertainment, based on
the patron’s turnover of play in the casino or otherwise calculated by
reference to such play. For the purpose of this definition “non resident
of Australia” means the holder of a foreign passport whose principal
place of residence is outside Australia;”;
(g) by
inserting after the definition of “ “State” or
“Western Australia” ” the following definitions-
“ “ Table Game ” means:
(a) a
game identified in Schedule D;
(b) the
Authorised Game Keno; and
(c) any
new game which is authorised under section 22 of the Control Act and which the
Commission by notice to the Trustee specifies to be a Table Game;
“ Table Game Tax ” means the amount,
which may be a negative amount, determined as follows-
TGT = P x (TGR – ICBR)
Where:
TGT = Table Game Tax for the relevant month
P = the per centum specified for Table Game Tax in
Item 1 of Schedule C for the relevant period
TGR = the Casino Taxable Revenue for Table Games
for the relevant month
ICBR = the Casino Taxable Revenue for
International Commission Business for the relevant month
relevant month = the month for which the Table
Game Tax is due and payable under clause 23(1)(a );”; and
(h)
under the heading “Interpretation”-
(i)
by deleting the full-stop from paragraph (vi) and
substituting “; and”; and
(ii)
by inserting a new paragraph (vii)-
“a month is to a calendar month.”
Clause 17 amended
4. Clause 17(1) of the State Agreement is amended
by deleting “ Memorandum and Articles of Association ” from clause
17(1)(e), clause 17(1)(ea) and their headings and in each case, substituting
“ constitution ”.
5. Clause 17(1) of the State Agreement is amended:
(a) by
inserting after clause 17(1)(eb) the following new clauses-
“(ec) if a
Person becomes the holder of a relevant interest in more than 10% of the
voting shares of an Approved Company, the Approved Company must notify the
Commission in writing within 30 days after the day on which the Approved
Company becomes aware that the Person has become the holder of a relevant
interest in more than 10% of the voting shares;
(ed) if
an Approved Company becomes aware that a contravention of the Mandatory
Articles contained in its constitution has occurred, then unless agreed by the
Commission the Approved Company must promptly take action, to the fullest
extent permitted by its constitution, to rectify the contravention;”;
(b) by
inserting after clause 17(2) the following new clause-
“(3) For the
purposes of sub-clause (1)(ea) the Minister approves the proposed amendments
to the constitution of Burswood Limited, an Approved Company, in the form set
out in Schedule E, provided that such amendments take effect not earlier than
30 September 2003.” ; and
(c) by
inserting after clause 17(3) the following new clause-
“(4) For the
purposes of sub-clause (1)(ga) in its application to Burswood Limited as an
Approved Company, the Minister, the Manager and the Trustee agree that with
effect from the date of amendment of the constitution of Burswood Limited in
accordance with Schedule E , the provisions of Article 3 as set out in
Schedule E shall be the Mandatory Articles in respect of Burswood
Limited.”
Clause 17A amended
6. Clause 17A of the State Agreement is amended by
deleting “articles of association” from each of clauses 17A(2)(b)
and 17A(2)(c) and in each case, substituting “constitution”.
7. Clause 17A(2)(b) of the State Agreement is
amended by inserting the words “ at the time of approval ” after
the word “ must ”.
Clause 23 amended
8. Clause 23 of the State Agreement is amended by:
(a)
deleting subclause (1)(a) and substituting the following clause-
“ (a) to the
Treasurer of the State in respect of each and every month the aggregate of all
of the Casino Taxes, which shall:
(i)
accrue daily at the rates from time to time applicable
pursuant to Item 1 of Schedule C, or a notice issued under clause 23(6); and
(ii)
be payable in the manner and at the time specified in
Item 2 of Schedule C; ”;
(b)
deleting the words “the aggregate of Casino Gross Revenue” from
subclause (1)(c) and substituting the words “the aggregate Casino
Taxable Revenues for all Casino Tax Activities” ; and
(c)
deleting subclauses (6), (7) and (8) and substituting the following
clauses–
“(6) The
Minister may, with prospective effect from an Anniversary Date:
(a) at
any time after 24 December 2009, review the Casino Tax Rates for International
Commission Business Tax and Table Game Tax or either of them; and
(b) at
any time after 24 December 2004, review the Casino Tax Rate for the Electronic
Gaming Machine Tax,
by not less than 4
weeks’ notice to the Trustee specifying an alternative Casino Tax Rate
or alternative Casino Tax Rates, as the case may be, and the Anniversary Date
on and from which such alternative rate of the Casino Tax Rate is, or Casino
Tax Rates are, payable.
(6A) If the Minister
issues a notice under clause 23(6) (“ Review Notice ”), then
subject to clause 23(7)(c) and clause 23(8), as the case may be, the Casino
Tax Rate for the relevant Casino Tax specified in the Review Notice will be
the rate specified in the Review Notice and will apply on and from the
Anniversary Date specified in the Review Notice.
(6B) Nothing in
clauses 23(6) or (6A) prevents the Minister from issuing a Review Notice in
respect of more than one Casino Tax and those clauses apply mutatis mutandis
if a Review Notice specifies more than one Casino Tax.
(7) If a Review Notice
has the effect of increasing a Casino Tax Rate, it –
(a)
shall not be given more than once in respect of any one Anniversary Date;
(b)
shall not on any one occasion increase the relevant Casino Tax Rate by more
than one per centum (1%) per annum; and
(c)
shall not be given without the consent of the Trustee if the effect of the
Review Notice would be to cause the relevant Casino Tax Rate to exceed twenty
per centum (20%) per annum.
(8) If a dispute shall
arise between the Minister and the Trustee as to whether the effect of a
Review Notice under clause 6A would or is likely to have an adverse impact on
the viability of the Burswood Casino such dispute shall be referred to
arbitration in accordance with clause 33 provided that pending the
determination upon such reference Casino Tax at such higher rate shall be
payable by the Trustee provided further that if the dispute is decided in
favour of the Trustee the State shall as soon as practicable cause to be
repaid to the Trustee any such additional tax.”
Clause 36 amended
9. Clause 36(b) of the State Agreement is amended
by:
(a)
deleting the notice details for the Trustee and substituting the following-
“ Burswood Nominees Ltd
C/- Burswood International Resort Casino
Great Eastern Highway
Burswood WA 6100
Facsimile: 08 9470 1789
Attention: Managing Director”;
(b)
deleting the notice details for the Manager and substituting the following-
“ Burswood Resort (Management) Limited
C/- Burswood International Resort Casino
Great Eastern Highway
Burswood WA 6100
Facsimile: 08 9470 1789
Attention: Managing Director”;
(c)
deleting the notice details for the Minister and substituting the following-
“ 10th Floor
London House
216 St Georges Terrace
Perth WA 6000
Facsimile: 08 9222
8951”; and
(d)
deleting the notice details for the Commission and substituting the following-
“ Gaming Commission of Western Australia
Level 1
Hyatt Centre
87 Adelaide Terrace
East Perth WA 6004
Facsimile: 08 9325 1636
Attention: Chairman”.
Schedules C, D and E inserted
10. The State Agreement is amended by inserting
after Schedule B new Schedules C, D and E in the form attached to this
Agreement.
SCHEDULE C
ITEM 1 – CASINO TAX
Electronic Gaming Machine Tax
|
Period |
Electronic Gaming Machine Tax |
|
On and from 24 December 2002 to 23 December 2003 |
17% of Casino Taxable Revenue for Electronic Gaming Machines |
|
On and from 24 December 2003 to 23 December 2004 |
18% of Casino Taxable Revenue for Electronic Gaming Machines |
|
On and from 24 December 2004 |
20% of Casino Taxable Revenue for Electronic Gaming Machines |
Table Game Tax
|
Period |
Table Game Tax |
|
On and from 24 December 2002 to 23 December 2004 |
16% of Casino Taxable Revenue for Table Games |
|
On and from 24 December 2004 to 23 December 2006 |
17% of Casino Taxable Revenue for Table Games |
|
On and from 24 December 2006 |
18% of Casino Taxable Revenue for Table Games |
International Commission Business Tax
|
Period |
International Commission Business Tax |
|
On and from 24 December 2002 to 23 December 2004 |
13% of Casino Taxable Revenue for International Commission Business |
|
On and from 24 December 2004 to 23 December 2006 |
12% of Casino Taxable Revenue for International Commission Business |
|
On and from 24 December 2006 |
11% of Casino Taxable Revenue for International Commission Business |
ITEM 2
1 All Casino Taxes are to be paid to the Treasurer
of the State each month, within 8 days after the end of the month.
2 To give effect to the parties’ agreement
that the Casino Tax Rates specified in this Schedule C take effect from 24
December 2002:
(a) the
Commission will determine the amount equal to all of the Casino Taxes which
would have been payable for the period commencing 24 December 2002 and
concluding on the last day of the month within which this Agreement takes
effect, if this Agreement had taken effect on 24 December 2002;
(b) if
the amount calculated under paragraph 2(a) of this Item 2 is more than the
actual amount paid by the Trustee under clause 23(1)(a) of the State Agreement
for the period referred to in paragraph 2(a), then the Trustee must pay the
difference between the two amounts to the Treasurer at the same time and in
the same manner as the next monthly payment is due under clause 23(1)(a); and
(c) if
the amount calculated under paragraph 2(a) of this Item 2 is less than the
actual amount paid by the Trustee under clause 23(1)(a) of the State Agreement
for the period referred to in paragraph 2(a), then the difference between the
two amounts shall be set off against monthly payments due under clause
23(1)(a) until it has been set off in full.
SCHEDULE D
TABLE GAMES
Baccarat
Big and Small
Blackjack
Caribbean Stud Poker
Craps
Fan Tan
French
Boule
Mini Baccarat
Mini Dice
Money Wheel
Multiple Action Blackjack
Pai Gow
Poker
Burswood Manila
Competition Burswood Manila
Five Card Stud
Competition
Five Card Stud
Six Card Stud
Competition Six Card Stud
Seven Card Stud
Competition Seven Card Stud
Draw Poker
Competition Draw Poker
Draw Poker Ante
Competition Draw Poker Ante
Manila
Competition Manila
American Roulette
Tournament American Roulette
Super Pan 9
Tournament Baccarat
Tournament
Baccarat (Burswood)
Tournament Blackjack
Tournament Two Up
Two Up Coins
Two Up
Dice
Progressive Blackjack
Pai Gow Dominoes
Pontoon
SCHEDULE E
PROPOSED AMENDMENTS TO THE CONSTITUTION OF BURSWOOD LIMITED
The constitution of Burswood Limited is amended by deleting Article 3 and
substituting the following Article 3:
“3 REQUIREMENTS OF THE STATE AGREEMENT
Interpretation
3.1 In this Article 3:
(a)
State Agreement means the agreement referred to in the Casino (Burswood
Island) Agreement Act 1985 ;
(aa)
probity approval notice in relation to a person means a notice served on the
Company in respect of that person under section 14(9) of the
Casino (Burswood Island) Agreement Act 1985;
(ab)
approval cancellation notice in relation to a person means a notice served on
the Company in respect of that person under section 15(4) of the
Casino (Burswood Island) Agreement Act 1985;
(ac)
probity review period in relation to a person means a period of 90 days, or
such longer period as the Commission may allow under section 13(2) of the
Casino (Burswood Island) Agreement Act, after the person becomes the holder of
a relevant interest in Shares that represent more than 10% of the voting
Shares in the Company;
(ad)
section 17 notice in relation to a person means a notice served on the Company
in respect of that person under section 17(4) of the
Casino (Burswood Island) Agreement Act;
(b)
Commission, Commission’s Nominated Representative and Minister have the
same meaning as in the State Agreement;
(c)
Australian citizen, foreign person and relevant interest have the same
meaning as in Schedule B to the State Agreement; and
(d) a
reference to the requirements of the State Agreement includes the provisions
and restrictions that must be included in this Constitution under clause 17 of
the State Agreement.
Background
3.2 The State Agreement requires this Constitution
to comply with certain requirements. These requirements include restrictions
on the acquisition and ownership and voting of Shares. Accordingly, it is
necessary to regulate these matters in the manner set out in this Article 3.
Except as set out in Articles 3.6 to 3.9A inclusive, Shares in the Company may
be acquired, owned, and the voting rights in respect of those Shares may be
exercised, in any manner permitted by the other provisions of this
Constitution, the Corporations Act and the Listing Rules.
3.3 The Company’s compliance with the
Listing Rules and the granting of CHESS approval for its securities may limit
the Company’s ability to restrict registration of transfer of Company
Securities prior to the Company being satisfied that there would be no breach
of the requirements of the State Agreement. Accordingly, this Article 3
contains provisions consistent with the requirements of the State Agreement
which entitle the Directors in certain circumstances to deprive a person of
rights and powers in relation to Company Securities registered in a
person’s name and to order the divestiture of Company Securities.
3.4 The Company, its members and holders of
Company Securities acknowledge and recognise that the exercise of the powers
given to the Company and its Directors under this Article 3 may cause
individual members and holders of Company Securities considerable financial
disadvantage, but the members, holders of Company Securities and Company
acknowledge that such a result is necessary to enable the Company to comply
with the requirements of the State Agreement.
3.5 The powers conferred under this Article 3 are
to be interpreted widely. In exercising the powers under this Article 3, the
Directors are entitled to have sole regard to the interests of the Company and
may disregard any loss or disadvantage that may be suffered by individual
members or holders of Company Securities affected by the exercise of those
powers. Members and holders of Company Securities acknowledge that they have
no right of action against the Directors or the Company for any loss or
disadvantage incurred by them as a result, whether directly or indirectly, of
the Directors exercising the powers pursuant to this Article 3.
Restrictions on ownership of Shares
3.6 A person is not eligible to be issued, acquire
or own (including own jointly) Shares if, as a result of that issue,
acquisition or ownership, foreign persons would have a relevant interest in
Shares that represent in total more than 40% of the voting Shares in the
Company. This does not apply to the extent that the Minister by notice to the
Company has exempted any existing or future holding of Shares by a specified
person from this restriction for a period specified in the notice.
3.7 A person is not eligible to be issued Shares
if as a result of that issue an individual person would have a relevant
interest in Shares that represent more than 10% of the voting Shares in the
Company, unless in relation to that person the Company:
(a) has
received a probity approval notice;
(b) has
not received an approval cancellation notice; and
(c) has
not received a section 17 notice.
3.7A A person is not eligible to own (including
own jointly) Shares if as a result of that ownership an individual person (a
“substantial holder”) would have a relevant interest in Shares
that represent more than 10% of the voting Shares in the Company:
(a)
after the expiry of the probity review period in relation to that person,
unless the Company has received a probity approval notice in relation to that
person; or
(b) at
any time after the Company has received an approval cancellation notice or a
section 17 notice in relation to that person.
Voting
3.8 On any vote in respect of the appointment,
replacement or removal of a Director, the votes attaching to any substantial
foreign shareholdings will not be counted in respect of the appointment,
replacement or removal of more than one-third of the Directors who hold office
at any particular time, so that at any particular time not less than
two-thirds of the Directors have been appointed by a resolution of
Shareholders in respect of which no votes attaching to any substantial foreign
shareholding was counted.
3.9 For the purposes of Article 3.8, a
“substantial foreign shareholding” is a shareholding of 10% or
more of the voting Shares in the Company in which a particular foreign person
has a relevant interest.
3.9A On any vote at a meeting of members or a
class of members, where any individual person holds a relevant interest in
Shares that represent more than 10% of the voting Shares in the Company and in
relation to that person the Company:
(a) has
not received a probity approval notice; or
(b) has
received a section 17 notice,
the votes cast in respect of those Shares will be
disregarded to the extent that they exceed the total number of votes that
could have been cast on that resolution in respect of 10% of the voting Shares
in the Company.
Enforcement powers of Directors
3.10 The Directors have the following powers to
enable them to enforce the restrictions referred to in Articles 3.6, 3.7,
3.7A, 3.8 and 3.9A:
(a) the
power to do anything necessary to effect the transfer or disposal of Company
Securities held by a person in accordance with Articles 3.21 - 3.25;
(b) the
power to remove or limit the right of a person to exercise voting rights
attached to voting Shares in accordance with Articles 3.27 - 3.29;
(c) the
power to end the appointment of a person to the office of Director in
accordance with Article 3.26;
(d) the
power to suspend the rights to dividends attaching to a Share; and
(e) the
power to require or cause divesture of Company Securities held by a person in
accordance with Articles 3.21 - 3.25.
Change of name
3.11 The Company must not take any action to bring
about a change of the company name under which the Company is registered for
the purposes of the Corporations Act to a name that does not include the word
“Burswood”, unless the prior approval of the Minister has been
obtained.
Head office
3.12 The head office of the Company must always be
located in Western Australia. For this purpose, “head office”
means the place of business of the Company where central management and
control are exercised.
Board of Directors
3.13 Any one Shareholder must not nominate more
than one of the Directors unless:
(a) that
Shareholder holds more than 10% of the voting shares in the Company; and
(b) the
Company has received a probity approval notice, and has not received a
section 17 notice, in relation to that Shareholder.
3.14 At all times at least two-thirds of the
Directors must be Australian citizens.
3.15 At all meetings of the Board of Directors,
the Director presiding at or chairing the meeting (however described) must be
an Australian citizen.
Place of incorporation
3.16 The Company must not at any time take any
action to become incorporated outside Australia.
Auditor
3.17 The Company must appoint the Auditor or
Auditors of the Company in accordance with the provisions of the
Corporations Act, but no person may be so appointed as Auditor unless that
person’s appointment has first been approved by the Minister.
Making information available
3.18 The Company and the Directors must make
available for inspection by the Minister, the Commission or the
Commission’s Nominated Representative all information held in respect of
the ownership, holdings of Shares and other Company Securities, Directors or
corporate structure of the Company, and all minutes of meetings of
Shareholders and Directors and other records relating thereto.
Right to attend and speak
3.19 The Commission or the Commission’s
Nominated Representative is entitled to attend and speak at any meeting of the
Company or its Directors as though it or he or she were a Shareholder or a
Director. Nothing contained in this Article confers on the Commission or the
Commission’s Nominated Representative a right to vote.
3.20 The Company must deliver to the Commission a
copy of all notices that are forwarded to Shareholders or Directors of such
meetings in the same manner and at the same time as such notices are forwarded
to Shareholders or Directors as the case may be.
Right to transfer
3.21 The Directors have the right to effect the
transfer or disposal of Company Securities held by a person to the extent
considered necessary by the Directors to prevent a possible contravention or a
possible continuation of a contravention of the restrictions referred to in
Articles 3.6, 3.7 and 3.7A.
3.22 If the Directors reasonably believe that
circumstances exist which permit them to effect the transfer or disposal of
Company Securities under Article 3.21, the Directors may by notice in writing
(“Sale Notice”) to the holder of the Company Securities specified
in the Sale Notice require that, within 30 days of the date of the Sale Notice
(or such other period as specified in the Sale Notice provided that where the
period is reduced the ASX gives its approval to the reduction):
(a)
those Company Securities be transferred or disposed of; or
(b) the
holder satisfy the Directors that the requirements of Articles 3.6, 3.7 and
3.7A have not been and will not be contravened.
Right to require information
3.23 A person holding Company Securities must, if
required by notice from the Company, furnish to the Company within 15 days of
the date of the notice (or within such other period as the Directors notify,
provided that where the period is reduced the ASX gives its approval to the
reduction) a written statement by that person, or in the case of a corporation
by a director or secretary of that corporation, in a form approved by the
Directors (and if required by the Directors verified by statutory declaration
or by other means acceptable to the Directors) setting out whatever
information is in the opinion of the Directors necessary for the Directors to
determine the eligibility of that person or corporation to continue to hold
Company Securities having regard to the requirements of Articles 3.6, 3.7 and
3.7A.
Power to disenfranchise and dispose
3.24 If a person fails to comply with a
requirement of Articles 3.22 or 3.23 and the Directors know of such failure:
(a) the
Directors may, at any time, declare by notice in writing (“ Suspension
Notice ”) to the person who is the holder of the Company Securities that
the voting interests, dividend interests and winding up interests that the
holder is entitled to (under this Constitution or by any law) in relation to
those Company Securities that the Directors believe are or may be held in
breach of Article 3.6, 3.7 or 3.7A are, to the extent declared in the notice,
suspended from the date of the Suspension Notice until the Company Securities
are disposed of in accordance with clause 3.22 or until a written statement or
statutory declaration or both is provided as required by Article 3.23; and
(b) in
the case of a person failing to comply with Article 3.23 - if within 15 days
of the date of a Suspension Notice the relevant written statement or statutory
declaration or both has not been provided, the Directors may give notice in
writing (“ Disposal Notice ”) to the holder of the Company
Securities requiring that the Company Securities (or some of them) must be
transferred or disposed of within 30 days of the date of the Disposal Notice
(or such other period as is specified in the Disposal Notice provided that
where the period is reduced the ASX gives its approval to the reduction).
3.25 If a notice under Article 3.22 or 3.24(b) is
not complied with by the holder of the Company Securities within the time
limit specified, the Directors may appoint a person to execute any documents
and implement any procedures that may be required to procure the transfer or
disposal of the Company Securities on behalf of the holder and to receive and
give a good discharge for the purchase price. The Company Securities are to be
sold as part of the ordinary trading on the ASX and the Directors are to use
reasonable endeavours to obtain a fair and reasonable purchase price. The net
proceeds of any transfer or disposal under this Article must be paid to the
person who held the Company Securities, provided that the person has delivered
to the Company such documents or information as may be reasonably required by
the Directors. Upon the name of the transferee being entered in the Register
in purported exercise of the powers under this Article, the validity of the
transfer or disposal may not be challenged by any person.
Composition of Board
3.26 If at any time the composition of the Board
of Directors is or may become inconsistent with Articles 3.13 or 3.14, or has
been affected by a resolution passed in circumstances where the voting
exclusion in Articles 3.8 or 3.9A has not been applied or has not been applied
properly, the Directors may:
(a)
appoint one or more new Directors under Article 14.11; or
(b)
convene a general meeting to consider one or more resolutions to remove or
appoint a Director; or
(c)
subject to the Corporations Act take such steps as are available to them to
remove a Director,
as they consider necessary to prevent a possible
contravention or a possible continuation of a contravention of the
requirements of this Article 3.
Right to vote
3.27 The Directors have the right to prevent the
votes attaching to Shares being exercised or counted in circumstances where
that is considered necessary by the Directors to give effect to the provisions
of Articles 3.8 or 3.9A.
3.28 A person holding Company Securities must, if
required by notice from the Company, furnish to the Company within 15 days of
the date of the notice (or within such other period as the Directors notify,
provided that where the period is reduced the ASX gives its approval to the
reduction), a written statement by that person, or in the case of a
corporation by a director or secretary of that corporation, in a form approved
by the Directors (and if required by the Directors verified by statutory
declaration or by other means acceptable to the Directors) setting out
whatever information is in the opinion of the Directors necessary for the
Directors to determine the eligibility of that person or corporation to have
its votes counted.
3.29 If a person fails to comply with a
requirement of Article 3.28 and the Directors know of such failure, the
Directors may, within a reasonable time, declare by notice in writing to the
person who is the holder of the Company Securities that some or all of the
voting rights that the holder is entitled to in relation to Company Securities
are, to the extent declared in the notice, suspended from the date of the
Suspension Notice until a written statement or statutory declaration or both
is provided as required by Article 3.28.
Application of Article 3
3.30 To the extent of any inconsistency, the
provisions of this Article 3 override the remainder of the Articles in this
Constitution.
3.31 The provisions of this Article 3 only apply
for so long as and to the extent necessary to comply with the requirements of
the Casino (Burswood Island) Agreement Act 1985 and the State
Agreement.”
AS WITNESS the execution of this Agreement by or on behalf of the parties the
day and year first hereinbefore written.
SIGNED by THE HONOURABLE )
NICHOLAS DAVID
GRIFFITHS
)
MLC )
N Griffiths
for and on behalf of the State of
)
Western Australia in the presence of:
)
B A Sargeant
B A Sargeant
THE COMMON SEAL of )
BURSWOOD NOMINEES LTD
)
C.S.
(ACN 078 250 307) is duly affixed
)
by authority of its directors in the
)
presence of: )
John W Schaap M J Egan
Signature of authorised
person Signature of authorised person
MANAGING DIRECTOR COMPANY SECRETARY
Office held
Office held
M. J. EGAN
Name of authorised person
Name of authorised person
(block letters)
(block letters)
THE COMMON SEAL of )
BURSWOOD RESORT
) C.S.
(MANAGEMENT) LTD
)
(ACN 009 396 945) is duly affixed
)
by authority of its directors in the )
presence of: )
John W Schaap M J Egan
Signature of authorised
person Signature of authorised person
MANAGING DIRECTOR COMPANY SECRETARY
Office held
Office held
JOHN W. SCHAAP M. J. EGAN
Name of authorised
person Name of authorised person
(block letters)
(block letters)
[Schedule 9 inserted by No. 51 of 2003 s. 8.]