Amendment to Meridian Energy Limited’s constitution
Release
M e r i d i a n E n e r g y L i m i t e d ( A R B N 1 5 1 8 0 0 3 9 6 ) A c o m p a n y i n c o r p o r a t e d i n N e w Z e a l a n d
L e v e l 2 , 5 5 L a d y E l i z a b e t h L a n e , P O B o x 1 0 8 4 0 , W e l l i n g t o n 6 1 4 3
m e r i d i a n e n e r g y . c o . n z
Stock Exchange Listings NZX (MEL) ASX (MEZ)
Meridian Energy Limited – Amendment to Constitution
17 October 2019
Meridian Energy Limited’s shareholders approved amendments to its constitution at its Annual
Shareholders’ Meeting held at Riccarton Park Function Centre, Christchurch on Thursday, 17 October
2019.
A copy of the constitution as amended is attached.
ENDS
Neal Barclay
Chief Executive
Meridian Energy Limited
For investor relations queries, please contact:
Owen Hackston
Investor Relations Manager
021 246 4772
For media queries, please contact:
Claire Shaw
Corporate Communications Manager
021 370 677
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CONSTITUTION
OF
MERIDIAN ENERGY LIMITED
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CONTENTS
1. DEFINED TERMS ...................................................................................................................... 1
2. CONSTRUCTION ....................................................................................................................... 3
3. CONFIRMATION IN OFFICE ..................................................................................................... 4
4. EFFECT OF THE ACT ON THIS CONSTITUTION ................................................................... 4
5. EFFECT OF THIS CONSTITUTION .......................................................................................... 4
6. INCORPORATION OF LISTING RULES OF EXCHANGES WHILE LISTED .......................... 4
7. COMPANY MUST COMPLY WITH LISTING RULES OF EXCHANGES WHILE LISTED ....... 5
8. STOCK EXCHANGE RULINGS AND WAIVERS ...................................................................... 5
9. FAILURE TO COMPLY WITH NZX RULES HAS LIMITED EFFECT IN SOME CASES ......... 5
10. COMPLIANCE WITH PUBLIC FINANCE ACT .......................................................................... 6
11. CLASSES OF SHARES ............................................................................................................. 6
12. BOARD NEED NOT COMPLY WITH STATUTORY PRE-EMPTIVE RIGHTS ......................... 6
13. FURTHER ISSUES OF SHARES DO NOT AFFECT RIGHTS OF EXISTING
SHAREHOLDERS ...................................................................................................................... 6
14. BONUS ISSUES ......................................................................................................................... 7
15. TRANSFER OF RIGHTS............................................................................................................ 7
16. CONSOLIDATION AND SUBDIVISION ..................................................................................... 7
17. SHARE REGISTER MAY BE DIVIDED ..................................................................................... 7
18. EQUITABLE INTERESTS IN SHARES ..................................................................................... 7
19. RECORD DATE FOR SHAREHOLDER VOTING ..................................................................... 8
20. REGISTRATION OF SEPARATE PARCELS ............................................................................ 8
21. TRANSFER OF SHARES ........................................................................................................... 8
22. COMPANY TO RETAIN TRANSFER ........................................................................................ 9
23. BOARD MUST REFUSE OR DELAY A TRANSFER ................................................................ 9
24. BOARD MAY REFUSE OR DELAY TRANSFER ...................................................................... 9
25. TRANSMISSION OF SHARES .................................................................................................. 9
26. REGISTRATION NOT TO AFFECT OTHER POWERS .......................................................... 10
27. COMPULSORY SALE OF LESS THAN MINIMUM HOLDINGS ............................................. 10
28. BOARD MAY MAKE CALLS ON SHARES .............................................................................. 10
29. FORFEITURE OF SHARES WHERE CALLS OR OTHER AMOUNTS UNPAID ................... 11
30. COMPANY'S LIEN ................................................................................................................... 11
31. COMPANY MAY ACQUIRE AND HOLD SHARES ................................................................. 11
32. COMPANY MAY ISSUE AND REDEEM SHARES ................................................................. 11
33. DISTRIBUTIONS ...................................................................................................................... 11
34. BOARD DEDUCTIONS FROM DISTRIBUTION ..................................................................... 12
35. DISTRIBUTIONS DO NOT BEAR INTEREST ......................................................................... 12
36. UNCLAIMED DISTRIBUTIONS ............................................................................................... 13
37. MEETINGS OF SHAREHOLDERS .......................................................................................... 13
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38. PROCEEDINGS AT MEETINGS OF SHAREHOLDERS AND INTEREST GROUPS ........... 13
39. COMPOSITION ........................................................................................................................ 13
40. APPOINTMENT OF DIRECTORS ........................................................................................... 13
41. ROTATION OF DIRECTORS ................................................................................................... 14
42. TIMING OF RETIREMENT AND APPOINTMENT .................................................................. 14
43. NO SHAREHOLDING QUALIFICATION FOR DIRECTORS .................................................. 14
44. ELECTION OF CHAIRPERSON OF THE BOARD AND TERM OF OFFICE ......................... 15
45. OFFICE OF DIRECTOR VACATED IN CERTAIN CASES ..................................................... 15
46. POWERS OF DIRECTORS ..................................................................................................... 15
47. MEETINGS OF THE BOARD ................................................................................................... 16
48. WRITTEN RESOLUTIONS OF BOARD PERMITTED ............................................................ 16
49. WRITTEN RESOLUTIONS MAY BE IN COUNTERPARTS .................................................... 16
50. BOARD DELEGATES TO COMPLY WITH REGULATIONS .................................................. 16
51. COMMITTEE PROCEEDINGS ................................................................................................ 16
52. REIMBURSEMENT OF EXPENSES ....................................................................................... 16
53. REMUNERATION .................................................................................................................... 17
54. DIRECTORS MAY APPOINT AND REMOVE ALTERNATE DIRECTORS ............................ 17
55. ALTERNATE DIRECTOR HAS POWERS OF APPOINTER ................................................... 17
56. TERMINATION OF APPOINTMENT OF ALTERNATE DIRECTOR ....................................... 17
57. INSUFFICIENT NUMBER OF DIRECTORS ............................................................................ 18
58. INDEMNITY AND INSURANCE ............................................................................................... 18
59. MANNER OF EXECUTION OF DEEDS .................................................................................. 18
60. DISTRIBUTION OF SURPLUS ASSETS IN KIND .................................................................. 18
61. COMMUNICATION WITH SHAREHOLDERS ......................................................................... 19
62. SECRETARY ............................................................................................................................ 19
63. INSPECTION OF RECORDS .................................................................................................. 19
FIRST SCHEDULE: CALLS, FORFEITURE AND LIENS ............................................................. 20
SECOND SCHEDULE: PROCEEDINGS AT MEETINGS OF SHAREHOLDERS ....................... 24
THIRD SCHEDULE: PROCEEDINGS OF THE BOARD............................................................... 32
FOURTH SCHEDULE: OWNERSHIP RESTRICTIONS INTERPRETATION .............................. 36
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CONSTITUTION
OF
MERIDIAN ENERGY LIMITED
INTERPRETATION
1. DEFINED TERMS
1.1 In this constitution the following expressions have the following meanings:
"Act" means the Companies Act 1993;
"ASX" means ASX Limited or the financial market operated by ASX Limited, as the context
requires;
"ASX Rules" means the listing rules of ASX and any other rules of ASX which are
applicable while the Company is admitted to the official list of ASX, each as amended or
replaced from time to time, except to the extent of any express written waiver by ASX;
"ASX Settlement" means ASX Settlement Pty Ltd (ABN 49 008 504 532);
"ASX Settlement Operating Rules" means operating rules of ASX Settlement or of any
relevant organisation which is an alternative or successor to, or replacement of, ASX
Settlement or of any applicable CS Facility Licensee;
"CHESS Holding" has the meaning given to that term in the ASX Settlement Operating
Rules;
"Class" means a class of Financial Products having identical rights, privileges, limitations
and conditions, and includes or excludes Financial Products which NZX in its discretion
deems to be, or not to be, of that class;
"Company" means Meridian Energy Limited;
"constitution" means this constitution as it may be altered from time to time in accordance
with the Act;
"Crown" has the meaning given to that term in section 45P of the Public Finance Act;
"CS Facility Licensee" means a person who holds a licence under the Australian
Corporations Act 2001 (Cth) that authorises the person to operate a clearing and
settlement facility;
"Director" means a person appointed as a director of the Company in accordance with
this constitution;
"Distribution" has the meaning set out in section 2(1) of the Act;
"Equity Security" means an Equity Security as defined in the NZX Rules issued, or to be
issued, by the Company, as the case may require;
"Financial Product" means a Financial Product as defined in the NZX Rules;
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"Holding Adjustment" has the meaning given to that term in the ASX Settlement
Operating Rules;
"Interest Group" has the meaning set out in section 116 of the Act;
"IPO" has the meaning given to that term in clause 23 of the Fourth Schedule;
"Issuer Sponsored Holding" has the meaning given to that term in the ASX Settlement
Operating Rules;
"NZX" means NZX Limited, its successors and assigns and, as the context permits,
includes any duly authorised delegate of NZX;
"NZX Rules" means the Listing Rules applying to the NZX main board (or any successor
to that market) as altered from time to time by NZX, subject to any ruling or waiver relevant
to the Company granted by NZX from time to time;
"Personal Representative" means:
(a) in relation to a deceased individual shareholder, the executor, administrator or
trustee of the estate of that shareholder;
(b) in relation to a bankrupt individual shareholder, the assignee in bankruptcy of that
shareholder; and
(c) in relation to any other individual shareholder, a person appointed or deemed to
have been appointed to administer property under the Protection of Personal and
Property Rights Act 1988, a manager appointed or deemed to have been
appointed thereunder, and a donee of an enduring power of attorney complying
with that Act;
"Public Finance Act" means the Public Finance Act 1989;
"Records" means the documents required to be kept by the Company under section 189(1)
of the Act;
"Representative" means:
(a) a person appointed as a proxy;
(b) a Personal Representative; or
(c) a representative appointed by a corporation;
"Secretary" means any person or persons appointed as secretary of the Company
pursuant to clause 62.1, and includes a deputy secretary;
"special resolution" means a resolution approved by a majority of 75% of the votes of
those shareholders entitled to vote and voting on the question;
"Share" means a share in the Company, provided that for the purposes of the Fourth
Schedule Share shall have the meaning given to that term in the Fourth Schedule;
"Share Registrar" means an agent appointed by the Company to maintain the Share
Register;
"shareholder" means a holder of Shares;
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“Voting Right” has the meaning given to that term in section 45P of the Public Finance
Act; and
"written or in writing" in relation to words, figures and symbols includes all modes of
presenting or reproducing those words, figures and symbols in a tangible and visible form.
1.2 Subject to clause 1.1, expressions:
(a) which are defined in the NZX Rules (whether or not expressed with an initial
capital letter) have the meanings given by the NZX Rules.
(b) which are defined in the Act (whether generally or for the purposes of one or
more particular provisions) or the Financial Markets Conduct Act 2013 (whether
in sections 6 - 12, or elsewhere for the purposes of a particular subsection,
section or sections) have the meanings given to them by the Act or the Financial
Markets Conduct Act 2013. Where an expression is defined in the Act or the
Financial Markets Conduct Act 2013 more than once and in different contexts,
its meaning will be governed by the context in which it appears in this
constitution.
2. CONSTRUCTION
In this constitution:
(a) the table of contents, headings, and descriptions relating to sections of the Act,
appear as a matter of convenience and do not affect the interpretation of this
constitution;
(b) the singular includes the plural and vice versa, and words importing one gender
include the other genders;
(c) "written" and "in writing" include any means of representing or reproducing
words, figures and symbols in a tangible and visible form;
(d) references to clauses are references to clauses in this constitution, unless stated
otherwise;
(e) where any word or expression is defined in this constitution, any other
grammatical form of that word or expression has a corresponding meaning;
(f) a reference to an enactment or any regulations is a reference to that enactment
or those regulations as amended, or to any enactment or regulations substituted
for that enactment or those regulations, and includes any statutory instruments,
rules and orders issued under an enactment or other instrument;
(g) a reference to an NZX Rule or the NZX Rules includes that NZX Rule or the NZX
Rules as from time to time amended or substituted;
(h) a reference to an ASX Rule or the ASX Rules includes that ASX Rule or the ASX
Rules as from time to time amended or substituted;
(i) a reference to permitted by the Act or permitted by the NZX Rules or permitted
by the ASX Rules means not prohibited by the Act or not prohibited by the NZX
Rules or not prohibited by the ASX Rules; and
(j) the Schedules form part of this constitution.
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CONFIRMATION IN OFFICE
3. CONFIRMATION IN OFFICE
All offices, elections, and appointments (including of or to the Board and committees of
the Board), registers, registrations, records, instruments and delegations, and generally
all acts of authority that originated under any previous constitution of the Company and
are subsisting and in force on the day on which this constitution is duly adopted shall
continue and be deemed to be effective and in full force under this constitution.
RELATIONSHIP BETWEEN CONSTITUTION AND ACT
4. EFFECT OF THE ACT ON THIS CONSTITUTION
4.1 The Company, the Board, each Director, and each shareholder have the rights, powers,
duties, and obligations set out in the Act except to the extent that they are negated or
modified, in accordance with the Act, by this constitution. If there is any conflict between:
(a) a provision in this constitution and a provision in the Act which is expressly
permitted to be altered by this constitution; or
(b) a word or expression defined or explained in the Act and a word or expression
defined or explained in this constitution,
the provision, word or expression in this constitution prevails.
5. EFFECT OF THIS CONSTITUTION
This constitution has no effect to the extent that it contravenes the Act, or is inconsistent
with it.
RELATIONSHIP BETWEEN CONSTITUTION, NZX RULES AND ASX RULES
6. INCORPORATION OF LISTING RULES OF EXCHANGES WHILE LISTED
For so long as the Company is listed on the NZX main board (or any successor to that
market):
(a) this constitution is deemed to incorporate all provisions of the NZX Rules
required under the NZX Rules to be contained or incorporated by reference in
this constitution, as those provisions apply from time to time (and as modified by
any waiver or ruling relevant to the Company) and such provisions shall have
effect as if they were set out in full in this constitution;
(b) shareholders must not cast a vote if prohibited from doing so by the NZX Rules
and/or the ASX Rules; and
(c) Directors must not cast a vote if prohibited from doing so by the NZX Rules
and/or the ASX Rules.
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7. COMPANY MUST COMPLY WITH LISTING RULES OF EXCHANGES WHILE LISTED
7.1 Notwithstanding anything else in this constitution, for so long as the Company is listed on
the NZX main board (or any successor to that market):
(a) the Company must comply with the NZX Rules (as modified by any waiver or
ruling) subject to the requirements of the Act and any other applicable legislative
requirements; and
(b) Subject to clause 8, if this constitution contains any provision inconsistent with
the NZX Rules, then the relevant NZX Rules prevail.
7.2 Where matters in this constitution are expressed in relation to the requirements and
restrictions of the NZX Rules, including matters "subject to", "permitted" or "required by"
the NZX Rules, those requirements and restrictions will apply only for so long as the
Company is listed on the NZX main board (or any successor to that market).
7.3 While the Company is admitted to the official list of ASX:
(a) notwithstanding anything contained in this constitution, if the ASX Rules prohibit
an act being done, the act shall not be done;
(b) nothing in this constitution prevents an act being done that the ASX Rules require
to be done;
(c) if the ASX Rules require an act to be done or not to be done, authority is given
for that act to be done or not to be done (as the case may be);
(d) if the ASX Rules require this constitution to contain a provision and it does not
contain such a provision, this constitution is deemed to contain that provision;
(e) if the ASX Rules require this constitution not to contain a provision and it contains
such a provision, this constitution is deemed not to contain that provision; and
(f) if any provision of this constitution is or becomes inconsistent with the ASX
Rules, this constitution is deemed not to contain that provision to the extent of
the inconsistency.
7.4 Where matters in this constitution are expressed in relation to the requirements and
restrictions of the ASX Rules, including matters "subject to", "permitted" or "required by"
the ASX Rules, those requirements and restrictions will apply only for so long as the
Company is admitted to the official list of ASX.
8. STOCK EXCHANGE RULINGS AND WAIVERS
If any act or omission which in the absence of a ruling and/or waiver from either or both
of NZX or ASX would be in contravention of the NZX Rules, the ASX Rules and/or this
constitution, and rulings or waivers are granted by the relevant stock exchange or stock
exchanges, that act or omission will, unless a contrary intention appears in this
constitution, be deemed to be authorised by this constitution and the relevant listing rules.
9. FAILURE TO COMPLY WITH NZX RULES HAS LIMITED EFFECT IN SOME CASES
Any failure to comply with the NZX Rules, or failure to comply with a provision of this
constitution corresponding to a provision of the NZX Rules (whether such wording is set
out in full in this constitution or incorporated in it pursuant to clause 7), by the Company
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or shareholders does not affect the validity or enforceability of any transaction, contract,
action, decision or vote taken at a meeting of shareholders, or other matter done or
entered into by, or affecting, the Company, except that a party to a transaction or contract
who knew of the non-compliance is not entitled to enforce that transaction or contract.
This clause does not limit the rights of any Equity Security holders against the Company
or the Directors arising from failure to comply with the NZX Rules or those provisions of
this constitution.
COMPLIANCE WITH PUBLIC FINANCE ACT
10. COMPLIANCE WITH PUBLIC FINANCE ACT
The Company must comply with all of its obligations under Part 5A of the Public Finance
Act. For such time as the Company is a company listed in Schedule 5 of the Public
Finance Act the Fourth Schedule forms part of this constitution.
SHARES AND SHAREHOLDERS
11. CLASSES OF SHARES
Subject to Part 5A of the Public Finance Act and this constitution, different Classes of
Shares may be issued by the Company. Without limiting the Classes which may be
issued, any Share may be issued upon the basis that it:
(a) ranks equally with, or in priority to, any existing Share;
(b) confers preferential rights to distributions of capital or income;
(c) confers special, limited or conditional voting rights;
(d) does not confer voting rights;
(e) is redeemable in accordance with section 68 of the Act; or
(f) is convertible.
12. BOARD NEED NOT COMPLY WITH STATUTORY PRE-EMPTIVE RIGHTS
Section 45(1) and section 45(2) of the Act do not apply to the Company.
13. FURTHER ISSUES OF SHARES DO NOT AFFECT RIGHTS OF EXISTING
SHAREHOLDERS
13.1 The Company shall, before taking action affecting the rights attached to any Shares, comply
with the provisions of sections 116 and 117 of the Act.
13.2 Subject to this constitution, the Board may issue Shares or other Equity Securities that
rank as to voting or distribution rights, or both, equally with or in priority to any existing
Shares, in accordance with this constitution and Part 5A of the Public Finance Act and
(for so long as the Company is listed on the NZX main board (or any successor to that
market) the provisions of the NZX Rules. Any such issue will not be treated as an action
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affecting the rights attached to those existing Shares unless the terms of issue of those
Shares expressly provide otherwise.
14. BONUS ISSUES
14.1 Subject, if applicable, to the NZX Rules, the Public Finance Act, and this constitution, the
Board may resolve to apply any amount which is available for Distribution either:
(a) in paying up in full Shares or other Financial Products of the Company to be issued
credited as fully paid to:
(i) the shareholders who would be entitled to that amount if it were
distributed by way of dividend, and in the same proportions; and
(ii) if applicable, the holders of any other Financial Product of the Company
who are entitled by the terms of issue of such Financial Products to
participate in bonus issues by the Company, whether at the time the
bonus issue is made to the shareholders, or at some later time, in
accordance with their respective entitlements; or
(b) in paying up any amount which is unpaid on any Shares held by the shareholders
referred to in clause 14.1(a)(i),
or partly in one way and partly in the other.
15. TRANSFER OF RIGHTS
Every person to whom unissued Equity Securities are offered pursuant to an offer complying
with NZX Rule 4.3.1(a) may decline or accept the offer, or transfer their rights thereunder to
any person or persons to whom the Equity Securities, when issued, could be transferred
but the Directors have the same right to decline to issue Equity Securities in relation to which
the rights have been transferred as they would have if the transfer of rights were a transfer
of Shares, and the provisions of this constitution as to the transfer of Shares, with all
necessary modifications, apply to transfers of rights to unissued Equity Securities.
16. CONSOLIDATION AND SUBDIVISION
The Board may:
(a) consolidate and divide Shares or any class of Shares in proportion to those
Shares or the Shares in that class; or
(b) subdivide Shares or any class of Shares in proportion to those Shares or the
Shares in that class.
17. SHARE REGISTER MAY BE DIVIDED
The share register may be divided into 2 or more registers kept in different places.
18. EQUITABLE INTERESTS IN SHARES
18.1 No notice of a trust, whether express, implied, or constructive, may be entered on the share
register.
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18.2 Except as required by law or by this constitution, no person shall be recognised by the
Company as holding any Share upon trust and the Company shall not be bound by, nor be
compelled to recognise (even after notice), any equitable, contingent, future or partial
interest in any Share, or any interest in any fraction or part of a Share or (except as provided
by this constitution or by law) any other rights in respect of any Share, except an absolute
right of the registered holder to the entire Share.
19. RECORD DATE FOR SHAREHOLDER VOTING
The Board may determine in a notice of meeting for the purpose of voting at that meeting
that those registered shareholders as at 5 p.m. on a day not more than 2 working days
before the meeting will be the only persons entitled to exercise the right to vote at that
meeting and only the Shares registered in the name of those shareholders at that time
may be voted at that meeting.
20. REGISTRATION OF SEPARATE PARCELS
A shareholder or a transferee may request the Company to register the Shares held by
that person in two or more separately identifiable parcels. Where the Company agrees to
such a request, the Company may, so far as it considers convenient, communicate with
the shareholder, pay dividends and otherwise act in respect of such parcel, as if the
separately identifiable parcels belonged to different persons.
21. TRANSFER OF SHARES
21.1 Subject to any restrictions contained in this constitution, a shareholder or Personal
Representative may transfer any Share:
(a) under a system of transfer approved under section 376 of the Financial Markets
Conduct Act 2013 or pursuant to a "designated settlement system" within the
meaning set out in section 156M of the Reserve Bank of New Zealand Act 1989,
which is applicable to the Company;
(b) under any other share transfer system which operates in relation to the trading of
securities on any stock exchange outside New Zealand on which Shares are listed
and which is applicable to the Company; or
(c) by an instrument of transfer which complies with this constitution.
21.2 A Share which is disposed of in a transaction which complies with the requirements of a
system of transfer authorised under clause 21.1(a) or 21.1(b) may be transferred in
accordance with the requirements of that system. Where an instrument of transfer executed
by a transferor outside New Zealand would have complied with the provisions of the
Financial Markets Conduct Act 2013 if it had been executed in New Zealand, it may
nevertheless be registered by the Company if it is executed in a manner acceptable to the
Company or the Share Registrar.
21.3 An instrument of transfer of Shares to which the provisions of clause 21.2 are not applicable
shall:
(a) be in any common form or any other form approved by the Company or the Share
Registrar;
(b) be signed or executed by or on behalf of the transferor; and
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(c) if registration as holder of the Share imposes a liability on the transferee, be signed
or executed by or on behalf of the transferee.
21.4 An instrument transferring Shares must be delivered to the Company or to the Share
Registrar, together with such evidence (if any) as the Company or the Share Registrar
reasonably requires to prove the title of the transferor to, or right of the transferor to transfer,
the Shares.
22. COMPANY TO RETAIN TRANSFER
If the Company registers an instrument of transfer it shall retain the instrument.
23. BOARD MUST REFUSE OR DELAY A TRANSFER
The Board must refuse or delay the registration of any transfer of Shares where the Board
has actual knowledge, or believes, that registration of the transfer would or would be likely
to contravene Part 5A of the Public Finance Act.
24. BOARD MAY REFUSE OR DELAY TRANSFER
24.1 The Board may in its absolute discretion refuse or delay the registration of any transfer of
Shares (subject to their terms of issue) if permitted to do so by the Act, and if applicable
the NZX Rules or clause 10 of the Fourth Schedule or for so long as the Board or the
Company is in the process of exercising any of their respective powers set out in the
Fourth Schedule with respect to those Shares.
24.2 Subject to the Act (which imposes certain procedural requirements on a board), the Board
may further refuse to register, or delay the registration of, a transfer of any Share if:
(a) the Company has a lien on the Share;
(b) the transferor fails to produce such evidence as the Company or the Share
Registrar reasonably requires to prove the title of the transferor to, or right of the
transferor to transfer, the Share; or
(c) registration of the transfer (together with registration of any further transfer or
transfers then held by the Company and awaiting registration) would result in less
than a Minimum Holding of Shares of the relevant Class standing in the name of
the transferee or transferor.
25. TRANSMISSION OF SHARES
25.1 If a shareholder dies, the survivor, if the deceased was a joint shareholder, or the Personal
Representative shall be the only persons recognised by the Company as having any title to
or interest in the Shares of the deceased shareholder but nothing in this clause shall release
the estate of a deceased joint shareholder from any liability in respect of any Share or
constitute a release of any lien which the Company may have in respect of any Share.
25.2 A Personal Representative of a shareholder:
(a) is entitled to exercise all rights (including without limitation the rights to receive
Distributions, to attend meetings and to vote in person or by Representative), and
is subject to all limitations, attached to the Shares held by that shareholder; and
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(b) is entitled to be registered as holder of those Shares, but such registration shall
not operate as a release of any rights (including any lien) to which the Company
was entitled prior to registration of the Personal Representative pursuant to this
sub-clause.
25.3 Where a Share is subject to the control of two or more persons as Personal
Representatives, they shall, for the purposes of this constitution, be deemed to be joint
holders of the Share.
26. REGISTRATION NOT TO AFFECT OTHER POWERS
The registration of any transfer of Shares shall not prejudice or affect in any way the
powers exercisable by the Board under the Fourth Schedule or otherwise.
27. COMPULSORY SALE OF LESS THAN MINIMUM HOLDINGS
27.1 The Company may at any time give notice to a shareholder holding less than a Minimum
Holding of Shares that if, at the expiration of 3 months after the date the notice is given,
Shares then registered in the name of the holder are less than a Minimum Holding the
Company may sell those Shares on market (including through a broker acting on the
Company's behalf).
27.2 The Board may authorise the transfer of the Shares sold under this clause to a purchaser
of the Shares through NZX or in some other manner approved by NZX, and the holder is
deemed to have authorised the Company to act on behalf of the holder and to sign all
necessary documents relating to the sale. For the purposes of the sale and of Rule 5.12
of the ASX Settlement Operating Rules, where the Company has given a notice that
complies with Rule 5.12.2 of the ASX Settlement Operating Rules, the Company may,
after the expiration of the time specified in the notice, initiate a Holding Adjustment to
move the relevant Shares from that CHESS Holding to an Issuer Sponsored Holding or
to take any other action the Company considers necessary or desirable to effect the sale.
The purchaser of Shares sold by the Company under this clause shall have no obligation
to ensure the proceeds of the sale of those Shares is applied in accordance with clause
27.3, nor shall the title to the Shares be affected by any irregularity or invalidity in the
procedures under this constitution relating to the sale. The remedy of any person
aggrieved by the sale is in damages only and against the Company exclusively.
27.3 The proceeds of the sale of any Shares sold under this clause must be applied as follows:
(a) first, in payment of any reasonable sale expenses.
(b) second, in satisfaction of any unpaid calls or any other amounts owing to the
Company in respect of the Shares.
(c) the residue, if any, must be paid to the person who was the holder immediately
before the sale or his or her executors, administrators or assigns.
27.4 A certificate, signed by a Director, that records that a power of sale under this clause has
arisen and is exercisable by the Company is conclusive evidence of the facts stated in
that certificate.
28. BOARD MAY MAKE CALLS ON SHARES
The Board may make calls on any shareholder for any money that is unpaid on that
shareholder's Shares and not otherwise payable at a specified time or times under this
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constitution or the terms of issue of those Shares or any contract for the issue of those
Shares. The First Schedule governs calls on Shares.
29. FORFEITURE OF SHARES WHERE CALLS OR OTHER AMOUNTS UNPAID
The Board may exercise the rights set out in the First Schedule for forfeiture of any Shares
if the holder of those Shares fails to pay:
(a) a call, or an instalment of a call, on those Shares; or
(b) any amount that is payable under this constitution or the terms of issue of those
Shares or any contract for the issue of the Shares.
30. COMPANY'S LIEN
The Company has a lien on Shares and dividends in respect of such Shares on the terms
set out in the First Schedule.
31. COMPANY MAY ACQUIRE AND HOLD SHARES
Subject to this constitution, and if applicable, the NZX Rules and Part 5A of the Public
Finance Act, the Company may:
(a) purchase or otherwise acquire Shares issued by the Company and may hold
Shares as treasury stock; and
(b) make an offer to one or more holders of Shares to acquire Shares issued by the
Company in such number or proportions as it thinks fit,
in accordance with the Act, the NZX Rules and Part 5A of the Public Finance Act.
32. COMPANY MAY ISSUE AND REDEEM SHARES
Subject to this constitution, and if applicable, the NZX Rules and Part 5A of the Public
Finance Act, the Company may:
(a) issue or redeem redeemable Shares; and
(b) exercise an option to redeem redeemable Shares issued by the Company in
relation to one or more holders of redeemable Shares,
in accordance with the Act, the NZX Rules and Part 5A of the Public Finance Act.
33. DISTRIBUTIONS
33.1 The Board, if satisfied on reasonable grounds that the Company will immediately after the
Distribution satisfy the solvency test may, subject to the Act and this constitution, authorise
Distributions by the Company at times, and of amounts, and to any shareholders, as it thinks
fit and may do everything which is necessary or expedient to give effect to any such
Distribution.
33.2 Subject to the rights of holders of any Shares in a Class, the Board may make a Distribution
in such form as it thinks fit, but except as provided in clause 33.3 shall not differentiate
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between shareholders as to the form in which a Distribution is made without the prior
approval of the shareholders.
33.3 The Board, if it thinks fit, may differentiate between shareholders as to the currency in which
any Distribution is to be paid. In exercising its discretion the Board may have regard to the
registered address of a shareholder, the register on which a shareholder's Shares are
registered and such other matters (if any) as the Board considers appropriate. If the Board
determines to pay a Distribution in a currency other than New Zealand currency, the amount
payable shall be converted from New Zealand currency in such manner, at such time, and
at such exchange rate, as the Board thinks fit.
33.4 The Board shall not authorise a dividend:
(a) in respect of some but not all the Shares in a Class; or
(b) that is of a greater value per Share in respect of some Shares of a Class than it is
in respect of other Shares of that Class,
unless the amount of the dividend in respect of a Share of that Class is in proportion to
the amount paid to the Company in satisfaction of the liability of the shareholder under
this constitution or under the terms of issue of the Share, but a Shareholder may waive
that shareholder's entitlement to receive a dividend or any part thereof by written notice
to the Company signed by or on behalf of the shareholder.
33.5 A Distribution payable in cash may be paid in such manner as the Board thinks fit to the
entitled shareholders or, in the case of joint shareholders, to the shareholder named first in
the share register, or to such other person and in such manner as the shareholder or joint
shareholders may in writing direct.
33.6 Where the net amount of a Distribution payable to a shareholder is less than such minimum
amount as may be determined from time to time by the Board for the purposes of this clause,
the Company may, with the prior approval of that shareholder, defer payment of the
Distribution to that shareholder until the earlier of:
(a) such time as that shareholder has an aggregate entitlement to net Distributions of
not less than such minimum amount; and
(b) the date upon which that shareholder ceases to hold any Shares.
34. BOARD DEDUCTIONS FROM DISTRIBUTION
The Board may, at its discretion, deduct from any dividend or other distribution payable to
a shareholder any amount owed by the shareholder to the Company in respect of which
the Company has a lien over the specific Shares on which the dividend or other
distribution is payable. The Board must deduct from any dividend or other distribution
payable to any shareholder any amount it is required by law to deduct, including
withholding and other taxes.
35. DISTRIBUTIONS DO NOT BEAR INTEREST
No dividend or other distribution shall bear interest against the Company unless the
applicable terms of issue of a Share expressly provide otherwise.
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36. UNCLAIMED DISTRIBUTIONS
All dividends and other distributions unclaimed for one year after the due date for payment
may be invested or otherwise made use of by the Board for the benefit of the Company
until claimed. The Company shall be entitled to mingle the distribution with other money
of the Company and shall not be required to hold it or to regard it as being impressed with
any trust but, subject to compliance with the solvency test, shall pay the distribution to the
person producing evidence of entitlement.
37. MEETINGS OF SHAREHOLDERS
37.1 The Company shall hold annual meetings of shareholders in accordance with section 120
of the Act.
37.2 A special meeting of shareholders entitled to vote on an issue:
(a) may be called by the Board at any time; and
(b) shall be called by the Board on the written request of shareholders holding Shares
carrying together not less than 5% of the voting rights entitled to be exercised on
any of the questions to be considered at the meeting.
37.3 Each meeting of shareholders shall be held at such time and place as the Board appoints.
38. PROCEEDINGS AT MEETINGS OF SHAREHOLDERS AND INTEREST GROUPS
38.1 The Second Schedule governs the proceedings at meetings of shareholders. The Second
Schedule also governs the proceedings of meetings of any interest group required to be
held by the Act, and if applicable, the NZX Rules or this constitution, with all necessary
consequential modifications, except that the quorum shall be the members of the interest
group holding 5% or more of the total number of Shares held by all members of that group
having the right to vote at the meeting.
38.2 Unless otherwise specified in the Act or this constitution, a power or right of approval
reserved to shareholders may be exercised by an ordinary resolution.
DIRECTORS
39. COMPOSITION
39.1 The Company shall comply with the minimum Board composition requirements of the NZX
Rules.
39.2 The maximum number of Directors (other than alternate Directors) shall be 9. The
maximum number of Directors may be increased by an ordinary resolution of
shareholders.
40. APPOINTMENT OF DIRECTORS
40.1 Any natural person who is not disqualified under the Act and, if required under the NZX
Rules, who has been nominated within the time limits under the NZX Rules, may be
appointed as a Director by an ordinary resolution of shareholders.
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40.2 The Board may appoint any person who is not disqualified under the Act to be a Director
to fill a casual vacancy or as an addition to the existing Directors. Any Director appointed
under this clause (including any person who subsequent to his or her appointment as a
Director becomes an executive Director) may hold office only until the next annual meeting
(at which he or she must retire), and is then eligible for election.
40.3 The persons holding office as Directors of the Company on adoption of this constitution
continue in office and are deemed to have been appointed as Directors pursuant to this
constitution. Similarly the chairperson of the Board continues in office and is deemed to
have been appointed as chairperson pursuant to this constitution.
40.4 The acts of a person as a Director are valid even though the person's appointment was
defective or the person is not qualified for appointment.
40.5 Each resolution to appoint, elect or re-elect a Director must be for the appointment, election
or re-election of one Director only. Nothing in this clause 40.5 shall prevent the election of
two or more Directors by ballot or poll including where the number of candidates for the
office of Director exceeds the vacancies available and the ballot or poll will result in the
election of those candidates, equal to the number of vacancies to be filled, who receive the
highest number of votes.
41. ROTATION OF DIRECTORS
41.1 Each Director shall retire from office when required to do so by the NZX Rules, but, subject
to the NZX Rules, shall be eligible for re-election (including at any meeting at which the
Director retires).
41.2 The shareholders may, in accordance with clause 40.1, fill the office vacated by a Director
who is retiring in accordance with this clause by appointing a person at the meeting at
which the outgoing Director retires.
42. TIMING OF RETIREMENT AND APPOINTMENT
42.1 A retiring Director continues to hold office:
(a) until he or she is re-elected at a meeting at which he or she retires and offers
himself or herself up for re-election; or
(b) if he or she is not re-elected, or does not offer himself or herself up for re-election,
until the end of the meeting or any adjournment of the meeting at which he or
she retires.
42.2 If a Director is removed from office at a meeting of shareholders by ordinary resolution, the
Director shall remain in office until, and his or her removal shall take effect at, the conclusion
of the meeting.
42.3 If a person who is not already a Director is appointed or elected as a Director at a meeting
of shareholders, that person shall take office as a Director immediately after the conclusion
of the meeting.
43. NO SHAREHOLDING QUALIFICATION FOR DIRECTORS
There is no shareholding qualification for Directors.
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44. ELECTION OF CHAIRPERSON OF THE BOARD AND TERM OF OFFICE
44.1 The Directors may elect one of their number, who must be (for such time as the Company
is a company listed in schedule 5 of the Public Finance Act) a person approved for this
purpose by the Minister of Finance as chairperson of the Board and determine a period
for which the chairperson may hold office.
44.2 The chairperson of the Board holds that office until the expiry of any period determined
by the Board; or he or she vacates that office; or the Directors elect a chairperson in his
or her place.
45. OFFICE OF DIRECTOR VACATED IN CERTAIN CASES
The office of Director is vacated if the person holding that office:
(a) is removed from office by an ordinary resolution of shareholders, or
(b) dies, or becomes mentally disordered or subject to a property order or personal
order made under the Protection of Personal and Property Rights Act 1988; or
(c) resigns by written notice delivered to the Company at its address for service or at
its registered office (such notice to be effective at the time when it is so received
unless a later time is specified in the notice); or
(d) is absent from 6 consecutive meetings of the Board without leave being granted
by a resolution of the Board and the Board resolves that the Director has vacated
office; or
(e) becomes disqualified from being a Director pursuant to the Act; or
(f) becomes bankrupt or makes an arrangement or composition with his or her
creditors generally; or
(g) retires from office and is not re-elected under this constitution.
46. POWERS OF DIRECTORS
46.1 The business and affairs of the Company shall be managed by, or under the direction or
supervision of, the Board.
46.2 The Board may exercise all the powers of the Company which are not required, either by
the Act or this constitution, to be exercised by the shareholders.
46.3 The Board may delegate to a committee of Directors, a Director, an employee of the
Company, or to any other person, any one or more of its powers, other than a power set out
in the second schedule to the Act.
46.4 The Company may exercise the power conferred by section 181 of the Act to appoint a
person as its attorney, either generally or in relation to a specified matter. Any such power
of attorney may contain such provisions for the protection of persons dealing with the
attorney as the Board thinks fit, and may also authorise any attorney to delegate all or any
of the powers, authorities and discretions vested in the attorney.
46.5 Subject to the provisions of section 177 of the Act (relating to ratification of directors' actions)
the shareholders, or any other person in whom a power is vested by this constitution or the
Act, may ratify the purported exercise of that power by a Director or the Board in the same
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manner as the power may be exercised. The purported exercise of a power that is ratified
under this clause is deemed to be, and always to have been, a proper and valid exercise of
that power.
47. MEETINGS OF THE BOARD
The Third Schedule governs the proceedings at meetings of the Board, except where
otherwise agreed by all Directors in relation to a particular meeting or meetings. The third
schedule to the Act does not apply to proceedings of the Board.
48. WRITTEN RESOLUTIONS OF BOARD PERMITTED
A written resolution signed or assented to by a majority of the Directors then entitled to
receive notice of a meeting of the Board is as valid and effective as if it had been passed
at a meeting of the Board duly convened and held. A copy of any such written resolution
shall, as soon as reasonably practicable, be given to each Director who did not sign or
assent to such written resolution.
49. WRITTEN RESOLUTIONS MAY BE IN COUNTERPARTS
Any written resolution may consist of several copies of the resolution, each signed or
assented to by one or more of the Directors. A copy of a written resolution, which has
been signed and is sent by electronic communication or any similar means of
communication, will satisfy the requirements of this clause.
50. BOARD DELEGATES TO COMPLY WITH REGULATIONS
In exercising the Board's delegated powers, any committee of Directors, Director,
employee, or any other person must comply with any regulations that the Board may
impose.
51. COMMITTEE PROCEEDINGS
The provisions of this constitution relating to meetings and proceedings of the Board also
apply to meetings and proceedings of any committee of Directors, except to the extent
the Board determines otherwise.
52. REIMBURSEMENT OF EXPENSES
52.1 A Director may be reimbursed for reasonable travelling, accommodation and other
expenses incurred in the course of performing duties or exercising powers as a Director
without requiring the prior approval of shareholders.
52.2 An alternate Director is not entitled to any remuneration from the Company in his or her
capacity as an alternate Director, but is entitled to be reimbursed by the Company for all
expenses incurred in attending meetings of the Directors and in the discharge of his or
her duties, to the same extent as if he or she were a Director.
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53. REMUNERATION
53.1 The Board may, subject to the NZX Rules, exercise the power conferred by section 161 of
the Act to authorise payments and other benefits to and for Directors.
53.2 The Board may, subject, if applicable, to the NZX Rules, authorise the Company to pay
special remuneration to any non-executive Director who is, or has been, engaged by the
Company to carry out work in a capacity other than that of Director.
54. DIRECTORS MAY APPOINT AND REMOVE ALTERNATE DIRECTORS
Every Director may:
(a) appoint any person who is not a Director and is not disqualified by the Act or this
constitution from being a Director, and whose appointment has been approved
in writing by a majority of the other Directors, to act as an alternate Director in
his or her place either for a specified period, or generally during the absence or
inability to act from time to time of such Director; and
(b) remove his or her alternate Director from that office,
by giving written notice to that effect to the Company. No Director shall appoint a deputy
or agent otherwise than by way of appointment of an alternate.
55. ALTERNATE DIRECTOR HAS POWERS OF APPOINTER
While acting in the place of the Director who appointed him or her, an alternate Director:
(a) has, and may exercise and discharge, all the powers, rights, duties and
privileges of that Director (including the right to receive notice of, be counted as
part of the quorum of, and participate in a meeting, of the Board, and to sign any
document, including a written resolution, and to act as chairperson of the Board,
but excluding the right to appoint an alternate Director);
(b) is also subject to the same terms and conditions of appointment as that Director,
except that he or she is not entitled to receive remuneration other than such
proportion (if any) of the remuneration otherwise payable to his or her appointer
as the appointer may direct by notice in writing to the Company;
(c) is not entitled to be given notice of a meeting of the Directors unless his or her
appointor has given written notice to the Company requesting that notice be
given to the alternate Director.
56. TERMINATION OF APPOINTMENT OF ALTERNATE DIRECTOR
The appointment of an alternate Director terminates automatically if the Director who
appointed him or her ceases to be a Director or if an event occurs which would cause him
or her to vacate office if he or she were a Director or if a majority of the other Directors
revoke the consent previously provided to that alternate Director acting. A Director retiring
by rotation and being re-elected is not to be treated as having ceased to be a Director for
the purposes of this clause.
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57. INSUFFICIENT NUMBER OF DIRECTORS
Directors may act notwithstanding any vacancy in their body but, if and for so long as their
number is reduced below the minimum number set out in the NZX Rules, the continuing
Directors may act for the purpose of increasing the number of Directors to the minimum
number set out in the NZX Rules or of summoning a meeting of the Company's
Shareholders, but for no other purpose.
GENERAL
58. INDEMNITY AND INSURANCE
58.1 The Company may indemnify a Director or employee of the Company or a related company
for any liability or costs for which a Director or employee may be indemnified under the Act.
The Board may determine the terms and conditions of such an indemnity.
58.2 The Company may, with the prior approval of the Board, effect insurance for a Director or
employee of the Company or a related company for any liability or costs for which a
company may effect insurance for a Director or employee under the Act. The Board may
determine the amounts and the terms and conditions of any such insurance.
59. MANNER OF EXECUTION OF DEEDS
An obligation which, if entered into by a natural person, would, by law, be required to be
by deed, may be entered into on behalf of the Company in writing signed under the name
of the Company by:
(a) two or more Directors; or
(b) a Director, or any other person authorised by the Board, whose signature must
be witnessed; or
(c) one or more attorneys appointed by the Company in accordance with the Act.
60. DISTRIBUTION OF SURPLUS ASSETS IN KIND
If the Company is liquidated the liquidator may, with the approval of shareholders by
ordinary resolution, but subject to any other sanction required by the Act:
(a) divide among the shareholders in kind the whole or any part of the surplus assets
of the Company and for that purpose the liquidator may:
(i) fix such values for surplus assets as the liquidator considers to be
appropriate, and
(ii) determine how the division will be carried out as between shareholders
or different classes of shareholder;
and
(b) vest the whole or any part of any such surplus assets in trustees upon such trusts
for the benefit of such of those shareholders as the liquidator thinks fit,
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but so that no shareholder is compelled to accept any Shares on which there is any
liability.
61. COMMUNICATION WITH SHAREHOLDERS
61.1 If a shareholder has notified the Company that the shareholder wishes to receive notices
electronically and has provided the Company an electronic address to which notices are
to be delivered, the Company must send that shareholder notices by electronic means in
accordance with the notification, whether or not the notices are also sent by another
method.
61.2 A notice may be given by the Company to the joint holders of a Share by giving the notice
to the joint holder named first in the register in respect of that Share.
61.3 If a shareholder dies or is adjudicated bankrupt, notice may be given in any manner in which
notice might have been given if the death or bankruptcy had not occurred, or by giving notice
in the manner provided in section 391 of the Act to the Personal Representative of the holder
at the address supplied to the Company for that purpose.
61.4 Subject to section 212(2) of the Act, a shareholder may from time to time, by written notice
to the Company, waive the right to receive all or any documents from the Company and
may at any time thereafter revoke the waiver in the same manner. While any waiver is in
effect, the Company need not send to the shareholder the documents to which the waiver
relates.
62. SECRETARY
62.1 The Board may from time to time appoint one or more persons (other than a body
corporate) to act as secretary or deputy secretary of the Company for such terms, at such
remuneration, and upon such conditions as the Board thinks fit.
62.2 Subject to the Act, the Secretary has the powers conferred by this constitution (if any) and
any other powers the Board may confer on the Secretary.
62.3 If the Board thinks fit, two or more persons may be appointed under clause 62.1 as joint
Secretaries.
62.4 Any Secretary or joint Secretary may, at any time, be removed from office by the Board,
but without prejudice to any claim for damages for breach of any contract of service
between him or her and the Company.
63. INSPECTION OF RECORDS
63.1 Subject to section 191(2) of the Act (which relates to the power of a court to limit inspection),
all accounting and other records of the Company shall be open to the inspection of any
Director.
63.2 No shareholder who is not also a Director is entitled to inspect any accounting or other
records of the Company except as expressly authorised by law or permitted by the Board.
Subject to the provisions of section 216 of the Act (which permits inspection of certain
records by shareholders) the Board may from time to time determine whether, to what
extent, at what times and places, and under what conditions, the accounting or other records
of the Company or any of them are open to the inspection of shareholders (who are not also
Directors).
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FIRST SCHEDULE: CALLS, FORFEITURE AND LIENS
INTERPRETATION
1 Construction
Unless stated otherwise, references to clauses are references to clauses in this Schedule.
CALLS ON SHARES
2 Shareholders must pay calls
Every shareholder on receiving at least 10 working days' notice specifying the time or
times and the place of payment must pay, in accordance with that notice, the amount
called to be paid in respect of any Shares that shareholder holds. The Board may revoke
or postpone a call, or require a call to be paid by instalments.
3 Call made when Board resolution passed
A call is regarded as having been made at the time when the Board resolution authorising
the call was passed.
4 Joint holders are jointly and severally liable
The joint holders of a Share are jointly and severally liable to pay all calls for that Share.
5 Unpaid calls will accrue interest
If an amount called is not paid in full at the time specified for payment, the person from
whom the amount is due must pay the Company interest on the amount that remains
unpaid at a rate determined by the Board and calculated from the time specified for
payment until the day of actual payment. The Board may waive some or all of the payment
of that interest.
6 Amounts payable under terms of issue treated as calls
Any amount that becomes payable on issue or at any specified date under this constitution
or under the terms of issue of Shares or under a contract for the issue of Shares, will be
regarded as being a call duly made and payable on the specified date. If the payment is
not made, the relevant provisions of this constitution will apply as if the amount had
become payable by virtue of a call made in accordance with this constitution.
7 Board may differentiate between shareholders as to calls
On the issue of Shares, the Board may differentiate between shareholders as to the
amount of calls to be paid and the times of payment.
8 Board may accept payment in advance for calls
8.1 Where a shareholder is willing to advance some or all of the money unpaid and uncalled
on any Share of that shareholder, the Board may accept the amount advanced on the
Company's behalf. The Board may pay interest on that amount at a rate agreed between
the Board and that shareholder for the period between the date that the amount is
accepted and the date that the amount becomes payable pursuant to a call or the date
specified for its payment.
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8.2 The Board may at any time repay to any shareholder the whole or any portion of any
money so advanced upon giving that holder at least 48 hours notice in writing and as from
the date of such repayment interest (if any) shall cease to accrue on the money so repaid.
8.3 A shareholder is not entitled as of right to any payment of interest on any amount so paid
in advance and the Board may decline to pay any interest. Any amount so paid in advance
must not be taken into account in ascertaining the amount of any dividend or other
distribution payable upon the Shares concerned.
FORFEITURE OF SHARES
9 Board may by notice require forfeiture of Shares if calls unpaid
The Board may during the time that a call, instalment, or other amount remains unpaid on
a Share, serve a notice on the holder of that Share requiring payment of the unpaid call,
instalment, or other amount, together with any accrued interest and any expenses
incurred by the Company by reason of non-payment.
10 Notice of forfeiture must satisfy certain requirements
The notice served on a shareholder under clause 9 must specify a date not earlier than
10 working days after the date the notice is served by which the payment is to be made.
The notice must also state that, in the event of non-payment by the appointed time, the
Shares to which the call, instalment, or other amount relates, will be liable to be forfeited
by the shareholder.
11 Failure to comply with notice may lead to forfeiture
Where a valid notice under clause 9 is served on a shareholder and the shareholder fails
to comply with the notice, then the Board may resolve that any Share for which that notice
was given and all distributions authorised and not paid before the notice was served be
forfeited.
12 Board may deal with forfeited Share
A forfeited Share may be sold or otherwise disposed of on such terms and in such manner
as the Board thinks fit. However, the Board may cancel the forfeiture at any time before
the sale or other disposition on such terms as the Board thinks fit if the call, instalment or
other amount which remains unpaid on the Share is paid.
13 Shareholder whose Shares are forfeited loses rights
A person whose Shares have been forfeited immediately ceases to be a shareholder in
respect of those Shares notwithstanding any other provision of this constitution, and
remains liable to pay the unpaid amount that the shareholder owes the Company, but that
liability shall cease if the Company receives payment in full of all money owing for those
Shares.
14 Evidence of forfeiture
A certificate signed by a Director that a Share has been duly forfeited on a stated date is
conclusive evidence of the facts stated in that certificate.
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15 Company may sell forfeited Share
The Company may receive the consideration, if any, given for a forfeited Share following
a sale or disposition, and may execute a transfer of the Share in favour of the person to
whom the Share is sold or disposed of, and register that person as the holder of the Share.
That person is not bound to see to the application of the purchase money, if any, nor is
the title to the Share affected by any irregularity or invalidity in the procedures under this
constitution in respect of the forfeiture, sale or disposal of that Share. Any residue after
satisfaction of unpaid calls, instalments, premiums or other amounts and interest, and
expenses, shall be paid to the previous holder, or to his or her executors, administrators
or assigns.
16 Notice of Forfeiture
When a Share has been forfeited, the Company shall give notice of the resolution to the
shareholder in whose name the Share stood immediately prior to the forfeiture, and shall
enter in the share register details of the forfeiture.
17 Proceedings for recovery of call
In any proceedings for recovery of a call:
(a) it is sufficient to prove that:
(i) the name of the relevant shareholder is entered in the share register as
the holder, or one of the holders, of the Shares to which the call relates;
and
(ii) except in relation to any amount which, by the terms of issue of a Share,
is payable on allotment or at a fixed date, the resolution making the call
is entered in the Records and notice of the call has been duly given,
and proof of the matters mentioned in this clause is conclusive evidence of the
debt; and
(b) it is not necessary to prove the appointment or qualification of any member of the
Board which made the call nor any other matter.
LIEN ON SHARES
18 Company's lien
The Company has a lien, ranking in priority over all other equities, on:
(a) all Shares registered in the name of a shareholder; and
(b) all dividends authorised in respect of such Shares; and
(c) the proceeds of sale of such Shares,
for:
(d) unpaid calls and instalments payable in respect of any such Shares; and
(e) interest on any such calls or instalments; and
(f) sale expenses owing to the Company in respect of any such Shares; and
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(g) any amounts that the Company may be called on to pay under any statute,
regulation, ordinance or other legislation in respect of the Shares of that
shareholder, whether or not the due date for payment thereof has passed.
19 Waiver of lien
Registration of a transfer of Shares on which the Company has any lien will operate as a
waiver of the lien, unless the Company gives notice to the contrary to the transferee prior
to registration.
20 Company may sell Share on which it has a lien
The Company may sell a Share on which it has a lien in such manner as the Board thinks
fit, where:
(a) the lien on the Share is for a sum which is presently payable; and
(b) the registered holder of the Share, or the person entitled to it on his or her death
or bankruptcy, has failed to pay that sum within 10 working days after the
Company has served that registered holder written notice demanding payment
of that sum.
21 Company may transfer Share and apply proceeds
21.1 The Company may receive the consideration given for a Share sold under clause 20, and
may execute a transfer of the Share in favour of the person to whom the Share is sold,
and register that person as the holder of the Share discharged from all calls due prior to
the purchase.
21.2 The purchaser is not bound to see to the application of the purchase money, and the
purchaser's title to the Share is not affected by any irregularity or invalidity in the
proceedings relating to the sale. The remedy of any person aggrieved by the sale shall
be in damages only and against the Company exclusively.
21.3 The Company must apply the sale proceeds in payment of the sum presently payable on
the lien, and the balance, if any, shall (subject to a like lien for sums not presently payable
that existed upon the Share before the sale) be paid to the person who held the Share
immediately before the date of sale or to his or her executors, administrators or assigns.
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SECOND SCHEDULE: PROCEEDINGS AT MEETINGS OF SHAREHOLDERS
INTERPRETATION
1 Construction
1.1 Unless stated otherwise, references to clauses are references to clauses in this Schedule.
1.2 A reference in this Schedule to a shareholder present at a meeting or entitled to vote at a
meeting includes a reference to a proxy of a shareholder, a representative of a corporate
shareholder, an attorney of a shareholder, and any person who may lawfully act on behalf
of a shareholder.
NOTICE
2 Written notice must be given to shareholders, Directors and auditors
2.1 Written notice of the time and place of a meeting of shareholders must be sent to every
shareholder entitled to receive notice of the meeting and to every Director and any auditor
of the Company not less than 10 working days before the meeting.
2.2 All notices, reports, accounts and other documents required to be sent:
(a) to a shareholder, shall be sent in the manner provided in section 391 of
the Act; or
(b) to a holder of any other Equity Security, shall be sent in the same
manner, as though that holder were a shareholder.
3 Notice must state nature of business
The notice must:
(a) state the nature of the business to be transacted at the meeting in sufficient detail
to enable a shareholder to form a reasoned judgment in relation to it; and
(b) state the text of any special resolution to be submitted to the meeting; and
(c) state in the case of special resolutions required by sections 106(1)(a), 106(1)(b)
or 106(1)(c) of the Act, the right of a shareholder under section 110 of the Act; and
(d) state that a shareholder entitled to attend and vote at the meeting is entitled to
appoint a proxy to attend and vote instead of the shareholder and that a proxy
need not be a shareholder; and
(e) contain or be accompanied by sufficient explanation to enable a reasonable
person to understand the effect of the resolutions proposed in the notice; and
(f) for so long as the Company is listed on the NZX main board (or any successor
to that market), comply with the requirements of the NZX Rules.
4 Proxy form must be sent with notice
A proxy form must be sent by mail or electronically with each notice of meeting.
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5 Irregularities in notice may be waived
Any irregularity in a notice of a meeting is waived if all the shareholders entitled to attend
and vote at the meeting attend the meeting without protest as to the irregularity or if all
such shareholders agree to the waiver.
6 Company's accidental failure to send notice does not invalidate meeting
The accidental omission to send notice of a meeting to, or the failure to receive notice by,
any person entitled to that notice, does not invalidate the proceedings at that meeting.
7 Notice of an adjournment
7.1 If a meeting is adjourned for less than 30 days no notice of the time and place of the
adjourned meeting need be given other than by announcement at the meeting from which
the adjournment took place.
7.2 If a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be
given in the same way as notice was given of the meeting from which the adjournment
took place.
MEETING AND QUORUM
8 Methods of holding meetings
8.1 A meeting of shareholders may be held by a quorum of the shareholders:
(a) being assembled together at the time and the place appointed for the meeting;
or
(b) participating in the meeting by means of audio, audio and visual, or electronic
communication, to the extent permitted by the Act and if applicable the NZX
Rules; or
(c) by a combination of both the methods described in clauses (a) and (b) above.
8.2 The Company is not required to hold meetings of shareholders in the manner specified in
clauses 8.1(b) or 8.1(c). Meetings will be held in that manner only if the notice of meeting
so specifies or the Board otherwise decides that the Company should do so. To avoid
doubt, a shareholder participating in a meeting by means of audio, audio and visual, or
electronic communication is present at the meeting and part of the quorum.
9 Business to be transacted only if a quorum is present
Subject to clauses 11 and 12, business may be transacted at a meeting of shareholders
only if a quorum is present at the time when the meeting proceeds to business.
10 Quorum for shareholders' meeting
A quorum for a meeting of shareholders is present if 3 or more shareholders are present
having the right to vote at the meeting.
11 Meeting convened at shareholders' request dissolved if no quorum
If a quorum is not present within 30 minutes after the time appointed for the meeting
convened on the written request of shareholders holding Shares together carrying at least
5 percent of the voting rights entitled to be exercised, the meeting will be dissolved
automatically.
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12 Other meetings to be adjourned if no quorum
If a quorum is not present within 30 minutes after the time appointed for a meeting (other
than a special meeting convened under the Act or a meeting of an interest group), the
meeting will be adjourned to the same day in the following week at the same time and
place, or to such other day, time, and place as the Directors may appoint. If at the
adjourned meeting a quorum is not present within 30 minutes after the time appointed for
the meeting, the shareholders present will constitute a quorum.
CHAIRPERSON
13 Chairperson of Board to be chairperson of meeting
The chairperson of the Board, if one has been elected by the Directors and is present at
a meeting of shareholders, will chair the meeting.
14 Directors may elect chairperson if chairperson of Board not available
If no chairperson of the Board has been elected or, if at any meeting of shareholders the
chairperson of the Board is not present within 15 minutes of the time appointed for the
commencement of the meeting or is unwilling to act, the Directors present may elect one
of their number to be chairperson of the meeting.
15 As a last resort shareholders may elect chairperson
If at any meeting of shareholders, no Director is willing to act as chairperson or if no
Director is present within 15 minutes of the time appointed for the commencement of the
meeting, the shareholders present may elect one of their number to be chairperson of the
meeting.
16 Chairperson's power to adjourn meeting
16.1 The chairperson of a meeting at which a quorum is present:
(a) may adjourn the meeting with the consent of the shareholders present who are
entitled to attend and vote at that meeting; and
(b) must adjourn the meeting if directed by the meeting to do so.
16.2 The only business that may be transacted at any adjourned meeting is the business left
unfinished at the meeting from which the adjournment took place.
17 Chairperson may dissolve or adjourn unruly meetings
The chairperson may adjourn or dissolve the meeting if in his or her opinion the meeting
has become so unruly, disorderly, or inordinately protracted, that the business of the
meeting cannot be conducted in a proper and orderly manner. The chairperson may
exercise this power without the consent of the meeting and without giving reasons.
18 Dissolved meetings - unfinished business
If the chairperson proposes to dissolve a meeting pursuant to clause 17, and there is any
item of unfinished business of the meeting which in his or her opinion requires to be voted
upon, then that item shall be dealt with by the chairperson directing it to be put to the vote
by a poll without further discussion.
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VOTING
19 Voting by show of hands or voice vote at meeting
In the case of a meeting of shareholders held under clause 8.1(a), unless a poll is
demanded, voting at the meeting will be by a show of hands or by voice vote, as the
chairperson may determine.
20 Voting by voice if audio-conference meeting
In the case of a meeting of shareholders held under clause 8.1(b) or 8.1(c), unless a poll
is demanded, voting at the meeting will be by any method permitted by the chairperson of
the meeting.
21 Voting by electronic means
To the extent permitted by the Act, and if applicable, the NZX Rules, the Company may
allow shareholders to vote by signifying their assent or dissent by electronic means
(including, for the avoidance of doubt, voting on a personal computer, with such vote being
transmitted to the meeting), instead of the shareholder voting by another method
permitted by the Act or this constitution.
22 Votes of joint holders
Where two or more persons are registered as the holders of a Share, the vote of the
person named first in the share register and voting on a matter must be accepted to the
exclusion of the votes of the other joint holders.
23 Shareholder loses certain voting rights if calls unpaid
If a sum due to the Company in respect of any Share registered in a shareholder's name
has not been paid then that Share may be voted at a meeting of an interest group but not
at any other meeting of shareholders.
24 Chairperson not allowed casting vote
In the case of an equality of votes, whether on a show of hands, voice vote or on a poll,
the chairperson does not have a casting vote.
25 Chairperson's declaration of result
Unless a poll is demanded, a declaration by the chairperson of the meeting that a
resolution on a show of hands or voice vote or by such other manner as the chairperson
may have decided under clause 19 or clause 20 is carried by the requisite majority or lost,
shall be conclusive evidence of that fact.
POLLS
26 Poll may be demanded by chairperson or shareholder
At a meeting of shareholders, a poll may be demanded, either before or after a vote by
show of hands or voice vote, by:
(a) the chairperson, at his or her absolute discretion; or
(b) at least 5 shareholders having the right to vote at the meeting; or
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(c) a shareholder or shareholders having the right to exercise at least 10 percent of
the total votes entitled to be exercised on the business to be transacted at the
meeting; or
(d) a shareholder or shareholders holding Shares that confer a right to vote at the
meeting and on which the total amount paid up is at least 10 percent of the total
amount paid up on all the Shares that confer that right,
and shall be taken in such manner as the chairperson directs.
27 Time at which polls to be taken
A poll demanded on the election of a chairperson of a meeting or on a question of
adjournment must be taken immediately. A poll demanded on any other question is to be
taken at such time as the chairperson of the meeting directs. The meeting may proceed
to deal with any business other than that upon which a poll has been demanded pending
the taking of the poll.
28 Counting votes cast in a poll
28.1 If a poll is taken, votes must be counted according to the votes attached to the Shares of
each shareholder present and voting in person or by Representative.
28.2 Each shareholder present in person or by Representative has:
(a) in respect of each fully paid Share held by that shareholder, one vote; and
(b) in respect of each Share held by that shareholder which is not fully paid, a fraction
of the vote or votes which would be exercisable if that Share were fully paid
equivalent to the proportion which the amount paid (excluding amounts credited
as paid) on that Share bears to the total amount paid and payable thereon
(excluding amounts credited as paid and amounts paid in advance of calls).
28.3 A shareholder need not cast all the votes to which the shareholder is entitled and need not
exercise in the same way all of the votes which the shareholder casts.
29 Declaration of poll result
29.1 The chairperson of the meeting may declare the result of a poll either at or after the
meeting, and when the outcome of the poll is known, may do so regardless of whether all
votes have been counted.
29.2 The result of a poll declared by the chairperson of the meeting will be treated as the
resolution of the meeting at which the poll was demanded on the issue for which the poll
was taken.
30 Proxy allowed to demand a poll
The instrument appointing a proxy to vote at a meeting confers authority to demand, or
join in demanding a poll, and a demand by a person as proxy for a shareholder has the
same effect as a demand by the shareholder.
31 Auditor of Company to be scrutineer
The auditor of the Company (including employees and agents of the auditor) for the time
being, or if the auditor of the Company is unable or unwilling to act, then such person as
the chairperson nominates, shall act as scrutineer for the purposes of a poll.
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SHAREHOLDER PROPOSALS
32 Shareholder proposals by written notice
A shareholder may give written notice to the Board of a matter the shareholder proposes
to raise for discussion or resolution at the next meeting of shareholders at which the
shareholder is entitled to vote. The provisions of clause 9 of the first schedule to the Act
apply to any notice given pursuant to this clause.
PROXIES
33 Proxies permitted
A shareholder may either exercise the right to vote by being present in person or
represented by proxy.
34 Proxy to be treated as shareholder
A proxy for a shareholder is entitled to attend and be heard at a meeting of shareholders
as if the proxy were the shareholder.
35 Appointment of proxy must be in writing or approved electronic format and specify
restrictions
35.1 A proxy must be appointed by a notice in writing that is signed by or, in the case of an
electronic notice, sent by the shareholder, or by appointing the proxy online as per the
Company's instructions in a notice of meeting, and the notice must state whether the
appointment is for a particular meeting or a specified term. A proxy need not be a
shareholder of the Company.
35.2 A shareholder may appoint more than one proxy for a particular meeting, provided that
more than one proxy is not appointed to exercise the rights attached to a particular share
held by the shareholder.
36 Notice of proxy to be produced at least 48 hours before meeting
No appointment of a proxy is effective in relation to a meeting unless a copy of the notice
of appointment is produced to the Company at least 48 hours before the time for holding
the meeting or adjourned meeting at which the person named in the notice proposes to
vote. The notice of meeting may provide for different matters for different kinds of proxies
(for example, a different specified time for the production of a proxy by electronic means).
If the written notice appointing a proxy is signed under power of attorney, a copy of the
power of attorney (unless already deposited with the Company) and a signed certificate
of non-revocation of the power of attorney must accompany the notice.
37 Form of notice of proxy
37.1 A notice appointing a proxy shall be in such form as the Board may direct.
37.2 Proxy forms must as a minimum (so far as the subject matter and form of resolutions
reasonably permits) provide for four-way voting (for, against, abstention or proxy
discretion) on all resolutions, enabling the shareholder to instruct the proxy as to the
casting of the vote, and must not be sent with any name or office (e.g. "chairman of
Directors") filled in as proxy holder.
37.3 So far as reasonably practicable, resolutions must be framed in a manner which facilitates
four-way voting instructions for proxy holders.
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38 Vote by proxy valid where no notification before meeting of disqualified proxy
Where:
(a) the shareholder has died or become incapacitated; or
(b) the proxy, or the authority under which the proxy was executed, has been
revoked; or
(c) the Share in respect of which the notice of proxy is given has been transferred,
before a meeting at which a proxy exercises a vote in terms of a notice of proxy but the
Company does not receive written notice of that death, incapacity, revocation, or transfer
before the start of the meeting, the vote of the proxy is valid.
POSTAL VOTES
39 Postal votes are permitted only at Board's option
39.1 A shareholder may exercise the right to vote at a meeting by casting a postal vote only if
the Board, prior to the giving of notice of a meeting, has so determined and, if the Board
so determines, the provisions of clause 7 of the first schedule to the Act shall apply.
39.2 To avoid doubt, a postal vote may be cast using electronic means permitted by the Board.
CORPORATE REPRESENTATIVES
40 Corporations may act by representative
A body corporate which is a shareholder may appoint a representative to attend any
meeting of shareholders on its behalf in the same manner as that in which it could appoint
a proxy. The representative shall be entitled to attend and be heard at a meeting of
shareholders as if the representative were the shareholder.
MINUTES
41 Board must keep minutes of proceedings
The Board must ensure that minutes are kept of all proceedings at meetings of
shareholders and that a record is kept of all written resolutions of shareholders. Minutes
which have been signed correct by the chairperson of the meeting are evidence of the
proceedings at the meeting unless they are shown to be inaccurate.
OTHER PROCEEDINGS
42 Shareholder participation by electronic means
42.1 For the purposes of this Schedule, a shareholder, or the shareholder's proxy or
representative, may, to the extent permitted by the Act and if applicable, the NZX Rules,
participate in a meeting by means of audio, audio and visual, or electronic communication
if:
(a) the Board approves those means; and
(b) the shareholder, proxy, or representative complies with any conditions imposed
by the Board in relation to the use of those means (including for example,
conditions relating to the identity of the shareholder, proxy, or representative and
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that person's approval or authentication (including electronic authentication) of
the information communicated by electronic means).
42.2 To avoid doubt, participation in a meeting includes participation in any manner specified
in this Schedule or permitted by this constitution.
43 Chairperson may regulate other proceedings
Except as provided in this Schedule, the chairperson of a meeting of shareholders may
regulate the proceedings at the meeting.
44 Voting of overseas protected persons
A shareholder who is not living in New Zealand, and who is of unsound mind or in respect
of whom an order has been made by any court having appropriate jurisdiction, may vote in
respect of any Shares held by that shareholder, by his or her committee, manager, or other
person of a similar nature appointed by that court, voting in person or by proxy.
45 Management review by shareholders
The chairperson of a meeting of shareholders shall allow a reasonable opportunity for
shareholders at the meeting to question, discuss, or comment on the management of the
Company. The shareholders may pass a resolution relating to the management of the
Company at that meeting but no such resolution is binding on the Board.
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THIRD SCHEDULE: PROCEEDINGS OF THE BOARD
NOTICE OF MEETING
1 Director's power to convene meetings
A Director, or any other person at the request of a Director, may convene a meeting of
the Board by giving notice in accordance with this Schedule.
2 Notice to be sent to Director's address
The notice of meeting must be in writing (whether printed and/or in electronic format) and
must be:
(a) delivered by hand to the Director; or
(b) sent to the address which the Director provides to the Company for that purpose;
or
(c) sent by electronic means in accordance with any request made by the Director
to the Company from time to time for such purpose; or
(d) if an address is not provided, and an electronic means of delivery not requested,
delivered to his or her last place of employment or residence or email address
known to the Company; or
(e) given to the Director in person by telephone or other oral communication.
3 Notice to contain certain details
The notice of meeting must include the date, time and place of the meeting and an
indication of the matters to be discussed in sufficient detail to enable a reasonable Director
to appreciate the general import of the matters. In the case of a meeting by means of
audio, or audio and visual, communication, the notice of meeting must specify the manner
in which each Director may participate in the proceedings of the meeting.
4 Period of notice required to be given to Directors
4.1 At least five days' notice of a meeting of the Board must be given unless the chairperson
(or, in the chairperson's absence from New Zealand, any other Director) believes it is
necessary to convene a meeting of the Board as a matter of urgency, in which case
shorter notice of the meeting of the Board may be given, so long as at least two hours'
notice is given. Any such shorter notice may be given by telephone communication to
each Director at the telephone number provided to the company by each Director provided
that written notice shall be given to the Directors within the shorter notice period where it
is practicable to do so.
4.2 A notice of meeting given to a Director pursuant to this clause is deemed to be given:
(a) in the case of oral communication, at the time of notification;
(b) in the case of delivery, when handed to the Director or when delivered to the
address of the Director;
(c) in the case of posting, three days after it is posted; or
(d) in the case of electronic means, at the time of transmission.
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4.3 If all reasonable efforts have been made to give notice of a meeting to a Director in
accordance with this Schedule but the Director cannot be contacted, notice of the meeting
shall be deemed to have been duly given to that Director
5 Absent Directors
If a Director, who is for the time being absent from New Zealand, supplies the Company
with a means of electronic communication to or through which notices are to be sent to
him or her during his or her absence, then notice must be given to that Director. Otherwise
notice need not be given to any Director for the time being absent from New Zealand.
However, if he or she has an alternate Director who is in New Zealand, then notice must
be given to that person.
6 Directors may waive irregularities in notice
Any irregularity in the notice of a meeting, or failure to comply with clauses 2 to 5 of this
Schedule is waived if all Directors entitled to receive notice of the meeting attend the
meeting without protest as to the irregularity or failure, or if all Directors entitled to receive
notice of the meeting agree to the waiver.
MEETING AND QUORUM
7 Methods of holding meetings
A meeting of the Board may be held by a number of Directors who constitute a quorum
either:
(a) by being assembled together at the place, date and time appointed for the
meeting; or
(b) by means of audio, or audio and visual, communication by which all Directors
participating can simultaneously hear each other throughout the meeting; or
(c) by a combination of the methods described in clauses 7(a) and 7(b) of this
Schedule.
8 Quorum for Board meeting
Unless otherwise determined by the Board, the quorum necessary for the transaction of
business at a meeting of the Board is a majority of the Directors. No business may be
transacted at a meeting of the Board unless a quorum is present.
9 Meeting adjourned if no quorum
If a quorum is not present within 30 minutes after the time appointed for a meeting of the
Board, the meeting will be adjourned automatically until the same day in the following
week at the same time and place. If at the adjourned meeting a quorum is not present
within 30 minutes from the time appointed for the meeting, the Directors present will
constitute a quorum. Notice of the adjourned meeting must be given to the Directors at
least 24 hours prior to the date of the adjourned meeting.
CHAIRPERSON
10 Chairperson to chair meetings
The chairperson of the Board will chair all meetings of the Board. If no chairperson is
elected, or if at a meeting of the Board the chairperson is not present within 15 minutes
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after the time appointed for the commencement of the meeting, then the Directors present
may elect one of their number to be chairperson of the meeting.
VOTING
11 Voting on resolutions
Each Director has one vote. Subject to clause 8 of this Schedule, a resolution of the
Board is passed if it is agreed to by all Directors present without dissent or if a majority of
the votes cast on it are in favour of it. A Director must not vote where that Director is not
permitted to vote by this constitution, or if applicable the NZX Rules. A Director present
at a meeting of the Board may abstain from voting on a resolution, and any Director who
abstains from voting on a resolution will not be treated as having voted in favour of it for
the purposes of the Act.
12 Interested Directors
12.1 A Director shall comply with the provisions of section 140 of the Act (relating to disclosure
of interest of directors) but failure to comply with that section does not affect the operation
of clause 12.4.
12.2 Subject to clause 12.3 of this Schedule, a Director shall not vote on a Board resolution in
respect of any matter in which that Director is interested (as that term is defined in the
Act), nor shall the Director be counted in the quorum for the purposes of that matter.
12.3 Notwithstanding the above, a Director may vote in respect of and be counted in the
quorum for the Board for the consideration of a matter in which that Director is interested
if that matter is one in respect of which Directors are expressly required to sign a certificate
or which relates to the grant of indemnity under section 162 of the Act.
12.4 Notwithstanding any rule of law or equity to the contrary, but subject, if applicable, to the
NZX Rules and to sections 107(3) and 141 of the Act (relating to avoidance of transactions
in which a Director is Interested) and section 36(4) of the Financial Reporting Act 2013
(prohibiting a director from acting as auditor of a company), a Director may:
(a) contract with the Company in any capacity;
(b) be a party to any transaction with the Company;
(c) have any direct or indirect personal involvement or Interest in any transaction or
arrangement to which the Company is a party or in which it is otherwise directly or
indirectly interested or involved;
(d) become a director or other officer of, or otherwise Interested in, any corporation
promoted by the Company or in which the Company may be directly or indirectly
interested as a shareholder or otherwise; and
(e) retain any remuneration, profit or benefits in relation to any of the foregoing,
and no contract or arrangement of any kind referred to in this clause may be avoided by
reason of a Director's Interest.
13 Chairperson does not have a casting vote
In the case of an equality of votes, the chairperson of the Board shall not have a casting
vote.
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MINUTES
14 Board must keep minutes of proceedings
The Board must ensure that minutes are kept of all proceedings of meetings of the Board.
Minutes which have been signed correct by the chairperson of the meeting are evidence
of the proceedings at the meeting unless they are shown to be inaccurate.
OTHER PROCEEDINGS
15 Board may regulate other proceedings
Except as set out in this Schedule, the Board may regulate its own procedure.
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FOURTH SCHEDULE: OWNERSHIP RESTRICTIONS INTERPRETATION
1 Definitions
In this Schedule, unless the context otherwise requires:
"Affected Shares" means any Shares in respect of which the Board has determined
under clause 13, in its discretion, that a person has a Relevant Interest in contravention
of clause 5;
"Affected Shareholder" has the meaning given to that term in clauses 23 and 24;
"Approved Nominee" means a person to whom the exemption contained in section 45U
of the Public Finance Act applies and who is in compliance with all requirements of that
section;
"Associated Person" means:
(a) persons who are relatives within the meaning of the Income Tax Act 2007;
(b) persons who are partners to whom the Partnership Act 1908 applies;
(c) bodies corporate that consist substantially of the same members or shareholders
or that are under the control of the same persons;
(d) a body corporate and a person who has the power, directly or indirectly, to
exercise, or control the exercise of, the rights to vote attached to 25% or more of
the voting securities of the body corporate; or
(e) a body corporate and a person who is a director of the body corporate;
"Breach Shares" has the meaning given to that term in clauses 23 and 24;
"Cancellation Notice" has the meaning given to that term in clause 23;
"Class" means a class of Shares (whether Quoted or not) having attached to them
identical rights, privileges, limitations and conditions;
"IPO" has the meaning given to that term in clause 23;
"Maximum Specified Percentage" means the percentages set out in section 45S of the
Public Finance Act;
"Minimum Crown Percentage" means the percentage set out in section 45R of the
Public Finance Act;
"Other Holder" has the meaning given to that term in clause 8;
"Non-Notifying Holder" has the meaning given to that term in clause 12;
"Notifying Holder" has the meaning given to that term in clause 6;
"Possible Interest Holder" has the meaning given to that term in clause 8;
"Relevant Interest" has the meaning given to that term in section 45P of the Public
Finance Act; and
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"Share" means a share in the Company or any other security (as that term is defined in
section 45P of the Public Finance Act) of the Company which confers a Voting Right.
2 Construction
In this Schedule, unless the context requires otherwise:
(a) capitalised terms which are not otherwise defined in this Schedule have the
meanings given to them in this constitution of which this Schedule forms part;
and
(b) a reference to a clause is reference to a clause in this Schedule.
COMPLIANCE WITH PART 5A OF THE PUBLIC FINANCE ACT
3 None of the Company, the Board or any registered holder of Shares may act in a manner
that contravenes Part 5A of the Public Finance Act.
LIMITATION ON ISSUES, ACQUISITIONS AND REDEMPTIONS OF SHARES
4 The Company must not issue, acquire or redeem any Shares if:
(a) such issue, acquisition or redemption, would result in the Crown holding less
than the Minimum Crown Percentage of a Class of Shares; or
(b) the Company has actual knowledge that such issue, acquisition or redemption
will result in any person other than the Crown having a Relevant Interest in
Shares that comprise more than the Maximum Specified Percentage of a Class
of Shares unless the person is an Approved Nominee and has a Relevant
Interest in the relevant Shares in accordance with the requirements of section
45U of the Public Finance Act.
LIMITATION ON OWNERSHIP BY PERSONS OTHER THAN THE CROWN
5 Limitation on ownership
No person, other than the Crown, may have a Relevant Interest in Shares that comprises
more than the Maximum Specified Percentage of a Class of Shares unless the person is
an Approved Nominee and has a Relevant Interest in the relevant Shares in accordance
with the requirements of section 45U of the Public Finance Act.
6 Notification of contravention of limitation on ownership
If a registered holder of Shares (a Notifying Holder):
(a) has or acquires a Relevant Interest in Shares in contravention of clause 5; or
(b) knows or believes that a person who has a Relevant Interest in Shares held by
the Notifying Holder has, or may have, a Relevant Interest in Shares in
contravention of clause 5,
the Notifying Holder must notify the Company in writing of such contravention, or possible
contravention, immediately it becomes aware of the same and in that notice must, to the
extent known to the Notifying Holder, advise the Company of:
(c) where paragraph (a) of this clause applies:
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(i) the number and Class of Shares in which the Notifying Holder has a
Relevant Interest in contravention of clause 5; and
(ii) the name(s) and address(es) of the registered holder(s) of any Shares
in which the Notifying Holder has a Relevant interest, where the
Notifying Holder is not the registered holder of those Shares, and the
name and address of any other person who has a Relevant Interest in
any such Shares; and
(d) where paragraph (b) of this clause applies:
(i) the name and address of the person who has, or may have, a Relevant
Interest in Shares in contravention of clause 5;
(ii) the number and Class of the Shares held by the Notifying Holder in
which that person has a Relevant Interest; and
(iii) the names of any other persons who are registered as the holders of
Shares in which that person also has a Relevant Interest and the nature
of any such Relevant Interest, if and to the extent known by the
Notifying Holder.
The Company must provide to the Crown a copy of any notice provided to it under this
clause as soon as is practicable.
7 Automatic suspension of rights where contravention of limitation on ownership
If a person has a Relevant Interest in any Shares in contravention of clause 5 (irrespective
of whether or not the registered holder of any such Shares has acted (knowingly or
otherwise) in contravention of clause 5):
(a) no vote may be cast (whether by voice, show of hands, on a poll or in any other
manner) in respect of any of the Shares in which that person has a Relevant
Interest in contravention of clause 5 (being, for the avoidance of doubt, the
Shares in a Class of Shares in which the person has a Relevant Interest in
excess of the Maximum Specified Percentage) on any matter arising for
determination at any meeting of the holders of the relevant Class of Shares, or
any meeting at which the holders of the relevant Class of Shares are entitled to
vote (and any such vote cast at any such meeting will be disregarded); and
(b) the registered holder of the Shares in which that person has a Relevant Interest
in contravention of clause 5 will not be entitled to receive, in respect of the Shares
in a Class of Shares in which the person has a Relevant Interest in excess of the
Maximum Specified Percentage, any dividend or other distribution authorised by
the Board in respect of the Class of Shares of which those Shares form part.
8 Power to require declaration of holding
If the Board has actual knowledge, or believes, that a person:
(a) has or may have a Relevant Interest in Shares in contravention of clause 5; or
(b) will have, or is likely to have, following the registration of a transfer of Shares
that has been lodged with or presented to the Company for registration (including
under a share or other security transfer system approved under the Financial
Markets Conduct Act 2013 or pursuant to a "designated settlement system"
within the meaning set out in section 156M of the Reserve Bank of New Zealand
Act 1989), a Relevant Interest in Shares in contravention of clause 5,
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(each, a "Possible Interest Holder"),
the Company must require each Possible Interest Holder that is a registered holder of
Shares and any other person that is registered as a holder of Shares in which the Board
knows or believes that a Possible Interest Holder has, or may have, a Relevant Interest
(an "Other Holder") to lodge with the Company within 14 days of the date on which such
notice is given by the Company, a statutory declaration by that Possible Interest Holder
or Other Holder (or such other documentary evidence as may be required by the Board)
as to the following matters (to the extent known to the Possible Interest Holder or Other
Holder, as the case may be):
(c) the number and Class of Shares in which the Possible Interest Holder has a
Relevant Interest;
(d) the name and address of any other person who has a Relevant Interest in the
Shares in (c) above in contravention of clause 5, the number and Class of Shares
concerned and the nature of that Relevant Interest;
(e) the names and addresses of the registered holders of any Shares in which the
Possible Interest Holder has a Relevant Interest, where the Possible Interest
Holder is not the registered holder of those Shares, and the name and address
of any other person who has a Relevant Interest in any such Shares;
(f) the name and address of any other person who has, or may have, a Relevant
Interest in Shares in contravention of clause 5, the number and Class of Shares
concerned and the nature of that Relevant Interest, and the names of the
registered holders of those Shares; and
(g) such other information as the Board may require for the purposes of determining
whether there has been a contravention of clause 5.
The Company must provide to the Crown a copy of any statutory declaration or other
documentary evidence provided to it under this clause as soon as is practicable.
9 Disclosure register
The Company:
(a) must keep a register containing all information obtained by it from notices,
statutory declarations and other documentary evidence provided under clauses
6 and 8; and
(b) must provide to the Crown a copy of the whole or any part of that register on
request in writing from the Crown.
10 Power to refuse to register
In addition to any other grounds the Board may have under this constitution or otherwise
for declining to register any transfer of Shares, the Board may decline to register a transfer
of Shares:
(a) if the Company has required the transferee by notice in writing under clause 8 to
lodge with the Company a statutory declaration or other documentary evidence
in accordance with that clause and:
(i) that declaration or other documentary evidence has not been received
by the Company from the transferee within 14 days of the date on which
such notice was given by the Company; or
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(ii) that declaration or other documentary evidence has been received by
the Company but has not been completed to the reasonable
satisfaction of the Board or is otherwise unsatisfactory to the Board (in
its discretion) or in the opinion of the Board is or may be materially
incorrect or misleading; or
(b) if the Board has actual knowledge, or believes, that the transfer of those Shares
will result in a contravention of clause 5,
and the Board resolves to exercise its powers under this clause within 30 days after
receipt or presentation of the relevant transfer and notice of the resolution is sent to the
transferor and to the transferee (with a copy to the Crown) within seven days of the
resolution being passed by the Board.
11 Registration of transfer not to affect rights of the Board
The registration of any transfer will not prejudice or affect in any way the provisions of, or
the powers exercisable by the Board or the Company under, this Schedule.
AFFECTED SHARES
12 Notification that Shares may be Affected Shares
Where:
(a) the registered holder of any Shares:
(i) has not or may not have, in the opinion of the Board, complied with
clause 6 in all material respects; or
(ii) has not lodged any statutory declaration or other documentary
evidence required by the Company under clause 8 within the 14 day
period specified in clause 8 or that declaration or documentary
evidence has been received by the Company but has not been
completed to the reasonable satisfaction of the Board or is otherwise
unsatisfactory to the Board (in its discretion) or in the opinion of the
Board is or may be materially incorrect or misleading,
(a "Non-Notifying Holder"); or
(b) the Board is of the opinion, in its discretion, that any declaration or documentary
evidence provided to the Company under clause 8, or any other information held
by or known to the Board, reveals that any person has, or may have, a Relevant
Interest in Shares in contravention of clause 5,
the Company shall promptly give notice in writing to the Non-Notifying Holder, or to each
registered holder of Shares in which the Board is of the opinion that a person may have a
Relevant Interest in contravention of clause 5, (with a copy to the Crown) notifying them:
(c) that, in the opinion of the Board, Shares held by that person may be Affected
Shares and the grounds for such opinion;
(d) of the consequences should the Board determine that any such Shares are
Affected Shares (including, in particular, the consequences under clause 15
should the Board also determine that any contravention of clause 5 was not
inadvertent); and
3707290 v13
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(e) that they may make representations in writing to the Company as to the matters
set out in the notice within seven days of receiving the notice. The Company
must provide a copy of any such representations received by it to the Crown as
soon as is practicable.
13 Final determination of Affected Shares
Within:
(a) 14 days of the date of a notice given by the Company under clause 12 (if no
representations are received by the Company within the time referred to in
clause 12(e)); or
(b) 14 days of receiving any representations in writing pursuant to clause 12(d),
as the case may be, the Board must determine whether a person has a Relevant Interest
in Shares in contravention of clause 5 (with the result that such Shares will be Affected
Shares) and, if so, whether the contravention was inadvertent. The determination of the
Board, including any determination whether to consider any representations and other
evidence of a registered holder of the relevant Shares and the weight to be placed on the
same, is binding on each registered holder and is not subject to challenge, appeal or
review. In making its determination, the Board may take into account such evidence or
other information as it deems appropriate in its discretion. The Company must promptly
give notice in writing (with a copy to the Crown) to each registered holder of Shares who
received a notice under clause 12 following any final determination made by the Board
under this clause. That notice must state:
(c) whether the Board has determined that Shares held by that registered holder are
Affected Shares;
(d) if so, the number of Shares in each Class of Shares held by that registered holder
that the Board has determined are Affected Shares (being, for the avoidance of
doubt, the Shares in the relevant Class of Shares held by that registered holder
in which a person has a Relevant Interest in excess of the Maximum Specified
Percentage); and
(e) whether the Board is or is not satisfied that the contravention of clause 5 was
inadvertent.
A determination of the Board under this clause that some or all of the Shares held by a
registered holder are or are not Affected Shares does not prevent the Board from
subsequently making a different determination as to whether any such Shares are
Affected Shares.
14 Inadvertent contravention
If the Board makes a determination under clause 13 that Shares are Affected Shares but
that any contravention of clause 5 was inadvertent, the registered holder(s) of those
Affected Shares:
(a) will not (unless the notice given by the Board under clause 13 is withdrawn) be
entitled to exercise the votes attached to those Affected Shares (being, for the
avoidance of doubt, the Shares in the relevant Class of Shares in which a person
has a Relevant Interest in excess of the Maximum Specified Percentage, as
determined by the Board under clause 13) at any meeting of the holders of the
relevant Class of Shares or at any meeting at which the holders of the relevant
Class of Shares are entitled to vote (including at any meeting of an interest
group) and any such vote cast at any such meeting is to be disregarded. This
3707290 v13
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voting restriction is without prejudice to the right of any such registered holder to
attend any meeting referred to in this clause;
(b) will not (unless the notice given by the Board under clause 13 is withdrawn) be
entitled to receive, in respect of those Affected Shares (being, for the avoidance
of doubt, the Shares in the relevant Class of Shares in which a person has a
Relevant Interest in excess of the Maximum Specified Percentage, as
determined by the Board under clause 13), any dividend or other distribution
authorised by the Board in respect of the Class of Shares of which the Affected
Shares form part; and
(c) must (unless the notice given by the Board under clause 13 is withdrawn), within
the period required under section 45T(1)(b) of the Public Finance Act, ensure
that Shares, or Relevant Interest(s) in Shares, are disposed of such that the
Affected Shares cease to be Affected Shares and if the Board is not satisfied
that such a disposal has been made or if made the disposal has not otherwise
resulted in there no longer being a contravention of clause 5, the Company must
arrange for the sale of Affected Shares on behalf of the registered holder:
(i) in the case of Shares that are Quoted, on the NZX main board (or any
successor market on which the Shares are Quoted); or
(ii) in the case of Shares that are not Quoted, by such means as the Board
determines,
such that the relevant Shares are no longer Affected Shares.
15 Contravention where Board not satisfied breach was inadvertent
If the Board makes a determination under clause 13 that Shares are Affected Shares and
that any contravention of clause 5 was not inadvertent or does not have sufficient
information to determine if the contravention of clause 5 was not inadvertent, the
registered holder(s) of those Affected Shares:
(a) subject to the proviso to this clause, will not (unless the notice given by the Board
under clause 13 is withdrawn) be entitled to exercise the votes attached to any
Shares held by it that are of the same Class as the Affected Shares at any
meeting of the holders of the relevant Class of Shares or at any meeting at which
the holders of the relevant Class of Shares are entitled to vote (including at any
meeting of an interest group) and any such vote cast at any such meeting is to
be disregarded. This voting restriction is without prejudice to the right of any
such registered holder to attend any meeting referred to in this clause;
(b) subject to the proviso to this clause, will not (unless the notice given by the Board
under clause 13 is withdrawn) be entitled to receive any dividend or other
distribution authorised by the Board in respect of any Shares held by it that are
of the same Class as the Affected Shares; and
(c) must (unless the notice given by the Board under clause 13 is withdrawn), within
the period required under section 45T(1)(b) of the Public Finance Act, ensure
that Shares, or Relevant Interest(s) in Shares, are disposed of such that the
Affected Shares cease to be Affected Shares and if the Board is not satisfied
that such a disposal has been made or if made the disposal has not otherwise
resulted in there no longer being a contravention of clause 5, the Company must
arrange for the sale of the Affected Shares on behalf of the registered holder:
(i) in the case of Shares that are Quoted, on the NZX main board (or any
successor market on which the Shares are Quoted); or
3707290 v13
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(ii) in the case of Shares that are not Quoted, by such means as the Board
determines,
such that the relevant Shares are no longer Affected Shares.
If a registered holder of Affected Shares to which this clause applies is an Approved
Nominee, paragraphs (a) and (b) of this clause shall apply only in respect of Shares held
by the Approved Nominee on behalf of a person who has a Relevant Interest in Shares in
contravention of clause 5.
16 Validity of resolutions etc unaffected
Notwithstanding clauses 7, 14(a) and 15(a), no resolution of, or proceeding at, a meeting
of the shareholders of the Company or at any meeting of the holders of Shares in an
interest group) or the holders of any Class of Shares shall be deemed to be invalid on the
grounds that:
(a) a registered holder of Affected Shares cast a vote in breach of those clauses,
provided any such vote was counted by (or on behalf of) the Company in good
faith and without knowledge that it was cast in contravention of those clauses;
or
(b) a registered holder of Shares was prohibited from casting a vote or votes
because the Board had determined in accordance with clause 13 that the
registered holder held Affected Shares in circumstances where it is subsequently
determined that the relevant Shares were not, or were not all, Affected Shares.
17 Appointment of Company as agent and attorney
For the purposes of clauses 14 and 15, the registered holder of any Affected Shares will
be deemed to have appointed, and does hereby irrevocably appoint, the Company as its
agent and its attorney, in each case with full authority to act on its behalf in relation to the
sale of the Affected Shares and to sign all documents relating to such sale and transfer of
the Affected Shares and the Board may register a transfer of the Affected Shares so sold,
whether or not the transfer has been properly completed and whether or not it is
accompanied by the certificates (if any) for the Affected Shares. For the purposes of the
sale and of Rule 5.12 of the ASX Settlement Operating Rules, where the Company has
given a notice that complies with Rule 5.12.2 of the ASX Settlement Operating Rules, the
Company may, after the expiration of the time specified in the notice, initiate a Holding
Adjustment to move all Shares held by the registered holder of the Affected Shares from
that CHESS Holding to an Issuer Sponsored Holding or a certificated holding and effect
a transfer to give effect to the sale of the relevant number of Shares held by the registered
holder. The person to whom such Shares are transferred will not be bound to see to the
application of the purchase money, nor will his, her or its title to the Shares be affected by
any irregularity or invalidity in the proceedings relating to the sale of those Shares. The
net proceeds of sale, after deduction of any brokerage, other costs of sale and other costs
incurred by the Company in connection with the sale (including, for the avoidance of
doubt, all costs reasonably incurred by the Company or the Board in investigating whether
there had been a contravention of clause 5 and all other costs reasonably incurred by the
Company or the Board in connection with that contravention), will be held on trust by the
Company for and be paid (together with interest at such rate (if any) as the Board deems
appropriate) to the former registered holder on surrender of the certificate (if any) for the
Affected Shares and otherwise as soon as practicable after the sale has been completed.
18 Identifying Affected Shares
When:
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(a) deciding which Shares are to be identified for the purposes of any notice given
by the Company under clause 12; or
(b) making a determination as to whether Shares are Affected Shares under clause
13,
the Board is to have regard to which Relevant Interests, in its opinion, have caused the
contravention of clause 5 to arise (or be capable of arising) and otherwise is to have regard
to such other criteria as it may, in its discretion, consider appropriate and equitable.
19 Withdrawal or amendment of notice
If the Board considers that any notice issued by the Company under clause 12 or 13
should be withdrawn (because it no longer believes that the Shares to which the notice
applied may be, or are, (as the case may be) Affected Shares) or amended, it may do so,
and must give notice of the withdrawal or amendment to the registered holder of the
relevant Shares and give a copy of such notice to the Crown. No withdrawal or
amendment of any notice issued under clause 12 or 13 will affect the operation of clauses
5, 6 or 7.
20 No liability
Subject to the obligation of the Company to pay the net proceeds from the sale of Affected
Shares to the former registered holder of the same, none of the Company, any Director,
any officer, any employee of the Company, or the Crown is to have any liability of any
nature to any person (including any registered holder of any Shares or any person who
has a Relevant Interest in any Shares) for or in connection with the exercise or purported
exercise of any of the powers permitted by this Schedule or otherwise in connection with
the provisions of this Schedule.
RIGHTS OF THE CROWN
21 Where the Crown suspects that any person may be a Non-Notifying Holder or has, or may
have, a Relevant Interest in Shares in contravention of clause 5, the Crown may, by notice
in writing to the Board or the Company (as the case may be), require that:
(a) the Company exercise its power under clause 8 to require that a statutory
declaration or other evidence be delivered to the Board irrespective of whether
or not the Board has the knowledge or belief referred to in that clause;
(b) if the Company has given a notice to a Non-Notifying Holder or other registered
holder of Shares under clause 12, the Board make a determination under, and
in accordance with, clause 13 as to whether or not any Shares held by that Non-
Notifying Holder or other registered holder are Affected Shares; or
(c) the Company exercise a power of sale that has arisen under clause 14 or 15,
and the Company and the Board, as applicable, will comply (as promptly as is reasonably
practicable in the circumstances) with any such notice and keep the Crown informed as
to the actions taken and expected to be taken by the Company or the Board (as the case
may be) and issues arising therefrom. For the avoidance of doubt, the giving of a notice
by the Crown under clause 21(b) or 21(c) does not prevent the Board from subsequently
giving a notice under clause 19 withdrawing or amending the notice initially given by the
Company under clause 12 or 13.
TERMS OF ISSUE OF OTHER FINANCIAL PRODUCTS
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22 If the Company issues any Financial Products other than shares in the Company then the
Board must ensure that the terms of issue of those other Financial Products include or
otherwise incorporate clauses 1 to 21 (inclusive) of this Schedule, with such amendments
as may be necessary to reflect the nature of the relevant Financial Products.
CANCELLATION OF SALE OF SHARES BY THE CROWN
23 Cancellation for misrepresentation
The Crown may cancel the sale of Shares (the "Breach Shares") to a shareholder (the
"Affected Shareholder") under the initial public offering of Shares by the Crown ("IPO"),
by giving notice in writing (the "Cancellation Notice") to the Company and to the Affected
Shareholder at the address provided to the Crown for that purpose by the Company (being
the address for the Affected Shareholder recorded on the Company's share register), if
the Affected Shareholder misrepresented its entitlement to apply for, and be sold, Shares
under the IPO as a New Zealand Applicant (as defined in the offer document for the IPO)
on its application for Shares under the IPO. (For the purposes of clauses 23 to 28
(inclusive), the Shares held by the Affected Shareholder as at the date of the Cancellation
Notice, up to the number of Shares sold to the Affected Shareholder under the IPO, will
be deemed to be Breach Shares, with the result that the provisions of clauses 23 to 28
(inclusive) are to apply to them, irrespective of whether or not those Shares were acquired
by the Affected Shareholder under the IPO or after the IPO was completed unless the
Affected Shareholder has previously sold, transferred or otherwise disposed of all of the
Shares held by it to a person who is not an Associated Person of that Affected Shareholder
before acquiring further Shares).
24 Subsequent disposal of Breach Shares
If the Affected Shareholder has subsequently transferred, sold or otherwise disposed of
some or all of the Breach Shares to an Associated Person of that Affected Shareholder:
(a) the Crown's right to cancel the sale of Breach Shares under clause 23 will
extend, to the extent necessary, to Shares held by that Associated Person, who
will also be deemed to be an "Affected Shareholder" for the purposes of clauses
23 to 28 (inclusive), (with the result that the provisions of those clauses are to
apply to it as if it were an "Affected Shareholder"); and
(b) Shares held by that Associated Person will be deemed to be Breach Shares if
and to the extent necessary to enable the Crown to exercise its rights under
clauses 23 to 28 (inclusive) in respect of the total number of Shares sold to the
Affected Shareholder under the IPO (irrespective of whether the Associated
Person has acquired Shares other than from that Affected Shareholder) provided
that the:
(i) Crown has given a notice in writing to the Associated Person at the
address provided to the Crown for that purpose by the Company (being
the address for the Associated Person of the Affected Shareholder
recorded on the share register) that the relevant shares are held by it
are deemed to be "Breach Shares"; and
(ii) number of Shares held by the Associated Person that are deemed to
be "Breach Shares" is not to exceed the number of Shares transferred
to the Associated Person by the Affected Shareholder.
25 Effect of Cancellation Notice
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If the Crown gives a Cancellation Notice under clause 23 and, if applicable, a notice to an
Associated Person of an Affected Shareholder under clause 24(b)(i), then the following
provisions are to apply:
(a) the relevant Affected Shareholder will cease to have the right to sell, transfer or
otherwise dispose of the Breach Shares, or any interest in them, with effect on
and from the date of the Cancellation Notice;
(b) on receipt of the Cancellation Notice, the Company shall:
(i) immediately direct the registrar of the share register to place a block on
the Breach Shares to prevent the relevant Affected Shareholder from
transferring the Breach Shares; and
(ii) as soon as reasonably practicable, sell the relevant Breach Shares on
the NZX main board (or any successor market on which the Breach
Shares are Quoted) on behalf of the relevant Affected Shareholder and
pay to it the lesser of:
(A) the sale price for the relevant Breach Shares less the costs
incurred by the Crown and the Company in connection with
the cancellation of the sale, and the subsequent sale, of the
Breach Shares; and
(B) the offer price at which Shares were allotted to investors
under the IPO less the costs of the Company and the Crown
in connection with the cancellation of the sale, and the
subsequent sale, of the Breach Shares,
with any excess amount being payable to the Crown.
26 Appointment of Company as agent and attorney
For the purposes of clause 25, each and every Affected Shareholder will be deemed to
have appointed, and does hereby irrevocably appoint, the Company as its agent and its
attorney, in each case with full authority to act on its behalf in relation to the sale of Breach
Shares under clause 25 and to sign all documents relating to such sale of Breach Shares
and the Board shall (subject to clause 10) register a transfer of Breach Shares so sold,
whether or not the sale has been properly completed and whether or not it is accompanied
by the certificates (if any) for those Breach Shares. For the purposes of the sale and of
Rule 5.12 of the ASX Settlement Operating Rules, where the Company has given a notice
that complies with Rule 5.12.2 of the ASX Settlement Operating Rules, the Company may,
after the expiration of the time specified in the notice, initiate a Holding Adjustment to
move all Shares held by the registered holder of the Affected Shares from that CHESS
Holding to an Issuer Sponsored Holding or a certificated holding and effect a transfer to
give effect to the sale of the relevant number of Shares held by the registered holder.
27 Title not affected by irregularity
The purchaser's title to Breach Shares sold to it pursuant to clause 25(b)(ii) will not be
affected by any irregularity or invalidity in the proceedings relating to the sale of those
Breach Shares.
28 No liability
Subject to the obligation of the Company to pay the net proceeds from the sale of Breach
Shares to the Affected Shareholder and any deemed Affected Shareholder pursuant to
clause 25(b)(ii), none of the Crown, the Company, any Director, any officer or any
3707290 v13
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employee of the Company is to have any liability to an Affected Shareholder or deemed
Affected Shareholder (or any person who has a Relevant Interest in the relevant Breach
Shares) for or in connection with the exercise or purported exercise of any of the powers
permitted by clauses 23 to 27 (inclusive) or otherwise in connection with the provisions
of clauses 23 to 27 (inclusive).
GENERAL
29 Notices
(a) A notice required to be given to a person under this Schedule may be given in
the manner set out in section 391 of the Act, provided that where the Crown has
provided the Company with an address for service (which address will be
recorded in the share register) then notices to, or copies of notices that must be
provided to, the Crown are to be given, or provided, to the Crown at that address.
(b) The Company is not obliged to give any notice required under this Schedule to
any person if it does not know either the identity or address of the person.
(c) The absence of such a notice in such circumstances, and any accidental error
in or failure to give any notice to any person to whom notice is required to be
given under this Schedule will not prevent the implementation of or invalidate
any procedure under this Schedule.
30 Decisions final, conclusive and binding
Any resolution or determination of, or decision or declaration or exercise of any discretion
or power by, the Company or the Board under or pursuant to this Schedule is to be final
and conclusive; and any disposal or transfer made, or other thing done, by or on behalf
of, or on the authority of, the Company or the Board pursuant to this Schedule is to be
conclusive and binding on all persons concerned and is not open to challenge, appeal or
review, whether as to its validity or otherwise on any ground whatsoever.
31 Certificate conclusive
A certificate signed by a Director and countersigned by a second Director that a power of
sale under clause 14, 15 or 25 has arisen and is exercisable by the Board, or that a Share
has been duly transferred under clause 14, 15 or 25 on the date stated therein, is
conclusive evidence of the facts stated therein.
Data sourced from publicly available filings. Our datasets may not be complete. Automated analysis can produce errors. If you believe any data on this page is incorrect, please contact us at hello@nzxplorer.co.nz. For informational purposes only. Not investment advice.
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