Amended Constitution
NZX Code: ATM
ASX Code: A2M
The a2 Milk Company Limited
www.thea2milkcompany.com
26 November 2019
NZX/ASX Market Release
Amended Constitution
The a2 Milk Company Limited confirms that amendments to the Company’s constitution were approved by
shareholders at its recent Annual Meeting.
A copy of the updated constitution is attached.
Jaron McVicar
General Counsel and Company Secretary
The a2 Milk Company Limited
CONSTITUTION
The a2 Milk Company Limited
a2MC Constitution - Adopted 191119 - 1007633-5
1. INTERPRETATION ............................................................................................... 2
2. ISSUE OF SHARES .............................................................................................. 8
3. ACQUISITION OF OWN EQUITY SECURITIES .................................................. 9
4. RESTRICTED SECURITIES ............................................................................... 10
5. TRUSTS .............................................................................................................. 10
6. SHARE CERTIFICATES ..................................................................................... 11
7. CALLS ON SHARES ........................................................................................... 12
8. COMPANY'S POWER TO FORFEIT OR SELL SHARES .................................. 13
9. APPLICATION OF PROCEEDS OF SALE ......................................................... 17
10. TRANSFER OF SHARES ................................................................................... 17
11. TRANSMISSION OF SHARES ........................................................................... 18
12. SHARE REGISTER ............................................................................................ 19
13. GENERAL MEETINGS ....................................................................................... 20
14. NOTICE OF GENERAL MEETINGS ................................................................... 20
15. PROCEEDINGS AT MEETINGS OF SHAREHOLDERS .................................... 22
16. VOTES OF MEMBERS ....................................................................................... 25
17. DIRECTORS ....................................................................................................... 29
18. ALTERNATE DIRECTORS ................................................................................. 31
19. DIRECTORS' INTERESTS ................................................................................. 32
20. PROCEEDINGS OF DIRECTORS ...................................................................... 32
21. COMMITTEES .................................................................................................... 38
22. POWERS AND DUTIES OF DIRECTORS .......................................................... 38
23. MANAGING DIRECTOR ..................................................................................... 40
24. INDEMNITY AND INSURANCE .......................................................................... 41
25. DISTRIBUTIONS ................................................................................................ 43
26. DIVIDENDS ......................................................................................................... 44
27. BONUS ISSUES ................................................................................................. 45
28. ACCOUNTS ........................................................................................................ 47
29. AUDIT ................................................................................................................. 47
30. NOTICES ............................................................................................................ 47
31. EXECUTION OF DOCUMENTS ......................................................................... 49
32. LIQUIDATION ..................................................................................................... 49
33. DISTRIBUTION OF ASSETS .............................................................................. 49
a2MC Constitution - Adopted 191119 -1007633-5
COMPANIES ACT 1993
CONSTITUTION OF
The a2 Milk Company Limited
PART I - PRELIMINARY
1. INTERPRETATION
1.1 Definitions: In this Constitution unless the context otherwise requires:
"Act" means the Companies Act 1993 and any statutory modification or re-
enactment thereof;
"Alternate Director" means an Individual appointed as an alternate director under
clause 18 (Alternate Directors);
"Appoint" includes re-appoint and "elect" includes re-elect;
"ASX" means ASX Limited;
"ASX Listing 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 the operating rules (however
described) of ASX Settlement;
"Attorney" means a Person appointed as an attorney of a Shareholder in
accordance with clause 16.4 (Appointment of Attorney);
"Auditor" means any Person or Persons appointed pursuant to the Act to perform
the duties of auditor of the Company;
"Board" means the Directors for the time being of the Company acting together
as the Board of Directors of the Company, and includes a quorum of Directors so
acting;
"Capital" means the total aggregate amounts received in respect of any issue of
Shares from time to time;
"Chairperson" means the Director who has been elected as chairperson of the
Board pursuant to clause 20.2(d) (Chairperson);
"Company" means The a2 Milk Company Limited;
"Constitution" means this constitution as amended from time to time;
"Debt Security" has the meaning given to that term in the Listing Rules;
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"Deputy Chairperson" means the Director who has been elected as deputy
chairperson of the Board pursuant to clause 20.2(d) (Chairperson);
"Director" means any director for the time being of the Company and, except in
clause 18 (Alternate Directors) and clause 20.3 (Resolution in Writing Assented to
by all Directors), includes an Alternate Director acting in the place of a Director;
"Distribution" has the meaning given to that term in section 2(1) of the Act;
"Dividend" has the meaning given to that term in section 53 of the Act;
"Employee" has the meaning given to that term in the NZX Listing Rules and for
the purposes of clause 24 (Indemnity and Insurance) has the additional meaning
given to it in section 162(9) of the Act;
“Exchange” means:
(a) while the Company is listed on the NZX Main Board, the NZX Main
Board;
(b) while the Company is listed on the official list of the ASX, the ASX; and
(c) while the Company is listed on both the NZX Main Board and the official
list of the ASX, both the NZX Main Board and the ASX;
"Holding Company" has the meaning given to that term in section 5 of the Act;
"Individual" means a natural person;
"Interests Register" means the register to be kept under section 189(1)(c) of the
Act;
"Listing Rules" means:
(a) while the Company is listed on the NZX Main Board, the NZX Listing
Rules;
(b) while the Company is listed on the official list of the ASX, the ASX Listing
Rules; and
(c) while the Company is listed on both the NZX Main Board and the official
list of the ASX, both the NZX Listing Rules and the ASX Listing Rules;
"Major Transaction" has the meaning given to that term in section 129(2) of the
Act;
"Managing Director" means an Individual appointed as managing director of the
Company pursuant to clause 23 (Managing Director);
"Minimum Holding" means:
(a) while the Company is listed on the NZX Main Board, the meaning given
to “minimum holding” in the NZX Listing Rules;
(b) while the Company is listed on the official list of the ASX, the meaning
given to the term “marketable parcel” in the ASX Listing Rules; and
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(c) while the Company is listed on both the NZX Main Board and the official
list of the ASX, the lesser number of shares determined by the definition
of “minimum holding” in the NZX Listing Rules and the meaning given to
“marketable parcel” in the ASX Listing Rules;
"NZX Main Board" means the main board equity security market operated by
NZX;
“NZX Listing Rules” means the listing rules (by whatever name called) for the
time being of the NZX;
"NZX" means the NZX Limited and includes its successors and assigns and as
the context permits includes any duly authorised delegate of NZX;
"Month" means a calendar month;
"Office" means the registered office for the time being of the Company;
"Ordinary Resolution" has the meaning given to the term "Ordinary Resolution"
in the Listing Rules except where the context necessarily refers to a resolution of a
meeting of a particular Class or Classes of Securities;
"Person" includes an Individual, company, corporation, firm, partnership, joint
venture, association, organisation, trust, any combination or association of
Individuals or corporate or unincorporated bodies and any state or agency of state
or government department and local or municipal authority in each case whether
or not having a separate legal identity;
"Proxy" means an Individual appointed as a proxy of a Shareholder in
accordance with clause 16.2 (Proxies);
"Register" means the register of Shareholders to be kept under section 189(1)(j)
of the Act;
"Representative" means an Individual authorised by a corporation in accordance
with clause 16.3 (Corporations Acting by Representatives at Meeting) to act as its
representative at a meeting of the Company;
"Security" has the meaning in section 6 of the Financial Markets Conduct Act
2013;
"Share" means a share in the Company;
"Shareholder" means a Person whose name is entered in the Register as being
the holder of Shares;
"Solvency Test" has the meaning given to that term in section 4 of the Act;
"Special Resolution" means a resolution approved by a majority of at least 75%
of the valid Votes cast on the resolution by the Shareholders entitled to vote and
voting on the question, and refers to a resolution of a meeting of the holders of
Shares which carry Votes except where the context necessarily refers to a
resolution of a meeting of a particular Class or Classes of Securities; and
"Terms of Issue" means the terms or conditions attaching to a Security by
agreement on or before issue whether by reference to this Constitution or as
expressly set out or as implied by law or otherwise as they may be duly modified
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from time to time, and which determine the rights, privileges and obligations of a
holder of that Security.
1.2 "In writing" and "Written": Any references to "in writing" or "written" includes
references to words type written, printed, lithographed, photocopied, emailed,
telexed, copied by facsimile, or represented or reproduced in any other mode in a
permanently visible form, or in any medium by electronic means that enables
words to be stored in permanent form and to be retrieved and read or partly in one
and partly another.
1.3 Defined Terms: Any expression not defined in this Constitution but defined in the
Act or the Listing Rules shall, unless the context otherwise requires, bear the
same meaning in this Constitution as in the Act or in the Listing Rules as the case
may be. In the event of any conflict between any expressions defined in both the
Act and the Listing Rules, the Listing Rules definition shall prevail.
1.4 Plural and Singular and Gender: In this Constitution, if not inconsistent with the
context, words importing the singular number include the plural, and vice versa,
and words importing any gender also includes the other gender.
1.5 Headings: Headings and marginal notes contained in this Constitution are aids to
interpretation only and do not form part of this Constitution.
1.6 Statutes: Unless the context otherwise requires, references to a statute mean
any statute, act, regulation, ordinance, rule, by-law or order-in-council of
New Zealand and include:
(a) Amendments: amendments to that statute;
(b) Substitutions: a statute passed in substitution for that statute; and
(c) Regulations: regulations passed under that statute or any of its
amendments or under a statute passed in substitution for that statute.
1.7 Listing Rules: Unless the context otherwise requires, references to any rule of
the Listing Rules include:
(a) Amendments: amendments to that rule;
(b) Substitutions: any rule promulgated in substitution for that rule; and
(c) Modifications: any modification to that rule by any ruling or waiver
relevant to the Company.
1.8 Incorporation by Reference: If the Listing Rules require this Constitution to
incorporate by reference or contain provisions consistent with, and having the
same effect as any provisions of the Listing Rules, then this Constitution is
deemed to contain such provisions and such provisions are hereby incorporated
by reference into this Constitution except to the extent that this Constitution
contains provisions consistent with and having the same effect as those
provisions of the Listing Rules.
1.9 Compliance with NZX Listing Rules: Subject to any enactment or rule of law,
and to any ruling given by NZX, the Company shall at all times comply with the
NZX Listing Rules, provided that this clause 1.9 shall apply only as long as the
Company is (by reason of being party to a listing agreement with NZX) listed on
the NZX Main Board.
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1.10 Constitution Subject to Waiver from NZX: To the extent that NZX has granted
or made or, from time to time, grants or makes any decision, determination, ruling,
waiver or dispensation authorising an act or omission which in the absence of the
decision, determination, ruling, waiver or dispensation would be in contravention
of the Listing Rules or this Constitution, the act or omission shall, unless a
contrary intention appears in this Constitution, be deemed to be authorised by the
Listing Rules and this Constitution.
1.11 Effect of Failure to Comply: Any failure to comply with the Listing Rules does
not affect the validity or enforceability of any transaction, contract, action or matter
whatsoever (including the proceedings of, or voting at, any meeting) done or
entered into by, or affecting, the Company, except that a party to a transaction or
contract who knew of the failure to comply with the Listing Rules is not entitled to
enforce that transaction or contract. This clause 1.11 shall not affect the rights of
any holder of Securities issued by the Company against the Company or the
directors arising from a failure to comply with the Listing Rules.
1.12 Constitution Subject to Act: The provisions of this Constitution shall apply to all
the Company's business and affairs, except to the extent (if any) that such
provisions contravene or are inconsistent with the Act.
1.13 Constitution to Prevail in Some Instances: Subject to clause 1.12, if there is
any conflict between:
(a) Provisions: a provision of this Constitution and a provision which is
expressly permitted by the Act to be altered by this Constitution; or
(b) Words/Expressions: a word or expression defined or explained in the
Act and a word or expression defined or explained by this Constitution,
the provision, word or expression in this Constitution prevails.
1.14 Listing Rules to Prevail: If a provision of this Constitution is inconsistent with the
Listing Rules, the Listing Rules shall prevail.
1.15 Permitted by Act or Listing Rules: A reference to "permitted by the Act" or
"permitted by the Listing Rules" means not prohibited by the Act or not prohibited
by the Listing Rules.
1.16 Incorporation of ASX Listing Rules: If, at any time, the Company is listed on
the official list of the ASX, then:
(a) Comply with the ASX Listing Rules: the Company must comply with
the ASX Listing Rules;
(b) Prohibited Acts: notwithstanding anything contained in this
Constitution, if the ASX Listing Rules prohibit any act from being done,
the act shall not be done;
(c) Required Acts: nothing contained in this Constitution prevents an act
being done that the ASX Listing Rules require to be done;
(d) Authority for Acts: if the ASX Listing Rules require an act to be done
or not to be done, authority is given for that act to be done or not to be
done (as the case may be);
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(e) Required Provisions: if the ASX Listing Rules require this Constitution
to contain a provision and it does not contain such a provision, this
Constitution is deemed to contain that provision;
(f) Prohibited Provisions: if the ASX Listing 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
(g) Inconsistency with ASX Listing Rules: if any provision of this
Constitution is or becomes inconsistent with the ASX Listing Rules, this
Constitution is deemed not to contain that provision to the extent of the
inconsistency.
1.17 Name: The name of the Company is The a2 Milk Company Limited.
1.18 Change of Name: A Director with approval of the Board may apply to change the
name of the Company.
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PART II - CAPITAL
2. ISSUE OF SHARES
2.1 Board to Issue: Subject to any special rights previously conferred on the holders
of any existing Shares or Class of Shares and subject to the Act and the Listing
Rules, the Board may:
(a) Shares: issue Shares at any time, to any Person and in any number on
such terms and conditions, in such manner and for such consideration
and on such payment terms as it thinks fit;
(b) Shares with Preferential Rights or Privileges etc: issue Shares with
any preferential, deferred, qualified or special rights, privileges or
conditions attached thereto, including redeemable Shares, or subject to
any restrictions or limitations including as to Distributions, Voting rights
and ranking;
(c) Convertible Securities: issue Convertible Securities;
(d) Options: grant Options; and
(e) Equity Securities: issue any other Equity Securities.
2.2 Convert, Consolidate and Subdivide: The Board may:
(a) Convert: convert any issued Shares into another Class of Shares on
such terms as the Board may determine;
(b) Consolidate: consolidate and divide the Shares or any Class of Shares
in proportion to those Shares or the Shares in that Class; and/or
(c) Subdivide: subdivide Shares or any Class of Shares in proportion to
those Shares or the Shares in that Class.
2.3 Board Need Not Comply with Statutory Pre-emptive Rights: Section 45 of the
Act shall not apply to the Company and is hereby negated.
2.4 Modification of Rights and Interest Groups:
(a) Modification of Rights: The Company shall comply with sections 116
and 117 of the Act in respect of Shares of the Company and shall also
comply with those sections in respect of other Equity Securities on the
basis that those sections shall be deemed to be modified so that:
(i) references in those sections to "shares" shall (subject to
clauses (c) and (d)) be deemed to include references to all
Equity Securities of the Company and references to "holders of
shares" and "shareholders" are deemed to be modified
accordingly; and
(ii) in respect of Equity Securities which are not Shares:
(A) references to a special resolution shall be deemed to
be references to a resolution approved by a majority of
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75% of votes of the holders of those Securities entitled
to vote and voting; and
(B) references to the constitution shall be deemed to be
references to the document which governs the rights
of those Equity Securities.
(b) Notice of Meeting: Any notice calling a meeting of an interest group for
the purposes of clause (a) shall comply with the provisions of this
Constitution as to notices of meetings and the notice shall if so required
by the Listing Rules be approved by the Exchange.
(c) Certain Issues Deemed Not to Affect Rights: For the purposes of this
clause 2.4 and section 117 of the Act, the issue of Equity Securities
ranking equally with or in priority to, any existing Equity Securities shall
not be deemed to be an action affecting, modifying, abrogating or
altering the rights attached to existing Equity Securities, except where
specifically provided by the Terms of Issue of any existing Equity
Security.
(d) Exception: Clause (a) shall not require the Company to comply with
sections 116 and 117 of the Act in respect of actions that affect the rights
attached to:
(i) Equity Securities which are not Quoted; or
(ii) Equity Securities which are not shares if those Equity Securities
were issued on terms which expressly permitted the action in
question to be taken without the approval of holders of those
Equity Securities and those terms were clearly disclosed in the
offering document (if any) pursuant to which the Equity
Securities were offered.
2.5 Redeemable Securities: The Company may redeem those Equity Securities,
which by their terms of issue pursuant to clause 2.1 are redeemable, in
accordance with the Act:
(a) Company Option: at the Company's option;
(b) Holder Option: at the option of the holder of the Equity Security; or
(c) Specified Date: on a date specified in the terms of issue of the Equity
Security;
in each case for a consideration that is specified, calculated by reference to a
formula or that is required to be fixed by a suitably qualified person who is not
associated with or interested in the Company.
3. ACQUISITION OF OWN EQUITY SECURITIES
3.1 Company May Acquire Own Equity Securities: The Company may in
accordance with the Act and the Listing Rules purchase or otherwise acquire its
own Equity Securities from one or more of the holders.
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3.2 Treasury Stock:
(a) Company May Hold its Own Shares: The Company may in
accordance with the Act and this Constitution hold any Shares acquired
by it under clause 3.1 and, if the Board so resolves, any such Shares
shall not be deemed cancelled on acquisition provided that the number
of Shares acquired together with any Shares of the same Class held by
the Company pursuant to this clause at the time of the acquisition does
not exceed 5% of the Shares of that Class previously issued (excluding
any Shares of that Class previously acquired and deemed to be
cancelled under section 66(1) of the Act).
(b) Rights Attaching to Treasury Stock: The rights attaching to any Share
held by the Company under clause (a) shall not be exercised while the
Company holds that Share.
(c) Reissue of Treasury Stock: Subject to the Act and the Listing Rules,
the Company may reissue or transfer any Shares held by the Company
under clause (a).
(d) Notice to Exchange: Before disposing of any Treasury Stock to any
Person the Company shall give notice to the Exchange as required by
the Listing Rules.
4. RESTRICTED SECURITIES
4.1 ASX Listing Rule Requirements: If the Company is, at any time, listed on the
official list of the ASX, then notwithstanding any other provisions of this
Constitution:
(a) No Disposal During Escrow Period: Restricted Securities cannot be
Disposed of during the escrow period except as permitted by the ASX
Listing Rules or ASX;
(b) Company to Refuse to Acknowledge Disposal: the Company will
refuse to acknowledge a Disposal (including registering a transfer) of
Restricted Securities during the escrow period except as permitted by
the ASX Listing Rules or ASX; and
(c) No Dividends or Voting Rights: during a breach of the ASX Listing
Rules relating to Restricted Securities, or a breach of a restriction
agreement, the holder of the Restricted Securities is not entitled to any
dividend or distribution, or voting rights, in respect of the Restricted
Securities.
4.2 Terms Defined in ASX Listing Rules: Terms defined in the ASX Listing Rules
that are used in this clause 4 have the same meanings as given in the ASX Listing
Rules.
5. TRUSTS
Except as required by law or as expressly authorised 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 or be compelled in any way to recognise
(even when having notice thereof) any equitable, contingent, future or partial
interest in any Share or an interest in any fractional part of a Share or any other
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rights in respect of a Share except an absolute right to the entirety thereof in the
registered holder.
6. SHARE CERTIFICATES
6.1 Issue of Share Certificates:
(a) Registering Joint Holders: Where two or more persons are registered
as the holder of a Share the Company will register all of those persons
as joint holders of the Share.
(b) No Certificate Required while listed on the NZX Main Board: While
the Company is listed on the NZX Main Board, subject to section 95 of
the Act and any provision of the NZX Listing Rules, the Company shall
not be obliged to provide a share certificate in relation to Shares that can
be transferred under a system authorised or approved under subpart 9 of
part 5 of the Financial Markets Conduct Act 2013 that does not require a
share certificate for the transfer of Shares.
(c) Certificates and Holding Statements required while listed on the
ASX: While the Company is listed on the official list of the ASX:
(i) in relation to Uncertificated Holdings, the Company must
comply with its obligations under the ASX Listing Rules and the
ASX Settlement Operating Rules regarding the provision to
members of holding statements;
(ii) in relation to Certificated Holdings, the Company must comply
with its obligations under the Act, the ASX Listing Rules and the
ASX Settlement Operating Rules regarding the issue to
members of certificates for shares; and
(iii) subject to the ASX Listing Rules, the Company may elect not to
maintain a Certificated Subregister and that all shares on any
class of securities in the Company may only be held as
Uncertificated Holdings.
(d) Certificate Holding Statement requirements while listed on both the
NZX Main Board and ASX: While the Company is listed on both the
NZX Main Board and the official list of the ASX, both clauses 6.1(b) and
6.1(c) will apply.
(e) Terms Defined in ASX Settlement Operating Rules: Terms defined in
the ASX Settlement Operating Rules that are used in this clause have
the same meanings as given in the ASX Settlement Operating Rules.
6.2 Charges for Issue of Share Certificates:
(a) No Charge for Certificates Generally: The Company shall register
transfer forms, split certificates, renunciations and transfer forms, issue
certificates and transmission receipts and mark or note transfer forms
without charge, except where the issue of certificates is to replace those
defaced, lost or destroyed.
(b) Charges for Defaced and Lost Certificates: The Board may before
issuing a new certificate pursuant to clause 6.1, require the payment of
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the actual expenses of the Company of investigating and dealing with the
matter as the Board thinks fit.
7. CALLS ON SHARES
7.1 Board to Make Calls: The Board may from time to time make such calls as it
thinks fit upon the Shareholders in respect of all or any of the money which is
unpaid on their Shares and which is not by the conditions of allotment thereof
made payable at a fixed time or fixed times. Each Shareholder shall (subject to
receiving notice as prescribed in 7.2) pay the amount of every call so made on
him or her to the Company or Person (if any) appointed for the purpose and at the
times and places appointed by the Board. For the avoidance of doubt, it is
recorded that unless expressly stated to the contrary in its Terms of Issue, liability
for calls in respect of a Share will in all cases attach to the holder of such Share
for the time being and not to any prior holder of the Share. A call may be made
payable by instalments and may be revoked or postponed as the Board may from
time to time determine.
7.2 Notice of Call: A Shareholder on whom a call is made must be given not more
than 40 Business Days' notice and at least 30 Business Days' notice before the
due date of payment specifying:
(a) Name: the name of the Shareholder;
(b) Number: the number of Shares held by the Shareholder;
(c) Amount: the amount of the call;
(d) Due Date: the due date for payment;
(e) Consequences: the consequences of a failure to pay the call; and
(f) Listing Rules: all matters required to be included in the notice by the
Listing Rules.
7.3 Time Call Made: A call shall be deemed to have been made at the time when the
resolution of the Board authorising the call was passed.
7.4 Liability of Joint Holders: The joint holders of a Share shall be jointly and
severally liable to pay all calls in respect thereof.
7.5 Interest on Calls: If the sum payable in respect of any call or instalment is not
paid on or before the day appointed for payment thereof, the Person from whom
the sum is due shall be liable to pay interest on the sum from the day appointed
for the payment thereof to the time of actual payment at such rate as the Board
may determine, but the Board shall be at liberty to waive payment of that interest
wholly or in part.
7.6 Sums Due on Issue Are Calls: Any sum which by the terms of any prospectus
or by the Terms of Issue of a Share becomes payable on issue or at any fixed
date or which is payable by instalments shall for the purposes of this Constitution
be deemed to be a call duly made and payable on the date on which, under the
terms of the prospectus or by the Terms of Issue, the same becomes payable, as
if it were a call duly made by the Board, and of which due notice has been given,
and all the relevant provisions of this Constitution with respect to the payment of
calls, and in the case of non-payment the payment of interest and expenses and
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forfeiture of Shares for non-payment of calls, shall apply as if the amount had
become payable by virtue of a call duly made and notified.
7.7 Power to Differentiate Between Holders: The Board may, by the Terms of
Issue of Shares, differentiate between the holders as to the amount of calls to be
paid and the times of payment.
7.8 Payment of Call in Advance: The Board may, if it thinks fit, receive from any
Shareholder willing to advance the same, all or any part of the money uncalled
and unpaid upon any Shares held by him or her, and upon all or any of the
moneys so advanced may (until the same would, but for such advance, become
presently payable) pay interest at such rate as may be agreed upon between the
Shareholder paying the sum in advance and the Board. The Board may at any
time repay to any Shareholder the whole or any portion of any money so
advanced upon giving such Shareholder at least one Month's notice in writing and
as from the date of such repayment interest (if any) shall cease to accrue on the
money so repaid. No Shareholder shall be entitled as of right to any payment on
any amount so paid in advance and the Board may decline to pay any interest.
Any amount so paid in advance shall not be taken into account in ascertaining the
amount of any Dividend or other Distribution payable upon the Shares concerned
or the voting rights in respect of the Shares concerned.
7.9 Proof of Liability: The amount of any unpaid call may be recovered as a debt
due from the Shareholder to the Company by proceedings commenced at any
time after the call becomes payable. In any such proceedings it shall be sufficient
to prove that:
(a) Name on Register: the name of the Shareholder sued is entered in the
Register as the holder or one of the holders of the Share in respect of
which such debt accrued;
(b) Resolution: a resolution of the Board making the call was duly recorded
in the minute book; and
(c) Notice: notice of such call was duly given to the Shareholder sued.
It shall not be necessary to prove the appointment or qualification of any member
of the Board that made such call nor any other matter whatsoever. The proof of
the matters aforesaid shall be conclusive evidence of the debt.
7.10 Cancellation of Unpaid Amounts: Without prejudice to Clause 3.1 of this
constitution, no obligation to pay any amount which is unpaid on any Equity
Security shall be cancelled, reduced or deferred except as permitted by the Listing
Rules.
8. COMPANY'S POWER TO FORFEIT OR SELL SHARES
8.1 Forfeiture of Shares:
(a) Notice Requiring Payment of Calls: If a Shareholder fails to pay any
call or instalment of a call on or by the day appointed for payment the
Board may, at any time thereafter serve a notice on that Shareholder
requiring payment of the amount unpaid together with any interest which
may have accrued and any expenses that may have been incurred by
the Company by reason of such non-payment.
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(b) Notice to State Time and Place: The notice shall name a further day
(not earlier than the expiration of 14 days from the date of service of the
notice) on or before which the payment required by the notice is to be
made, and shall state that in the event of non-payment on or before the
time appointed, the Shares in respect of which the amount was owing
will be liable to be forfeited.
(c) Forfeiture on Non-Compliance: If the requirements of any such notice
are not complied with, any Share in respect of which the notice has been
given may be forfeited at any time before the required payment has been
made, by a resolution of the Board to that effect. Such forfeiture shall
include all Dividends and other Distributions declared in respect of the
forfeited Shares and not actually paid before the forfeiture.
(d) Company May Dispose of Forfeited Share: A forfeited Share shall be
deemed to be the property of the Company and may be sold or
otherwise disposed of on such terms and in such manner as the Board
thinks fit, and the provisions of clause 8.3(d) shall apply (with all
necessary modifications) in relation to any such sale or other disposition.
The Board may at any time before such Share is disposed of, cancel the
forfeiture upon such terms and conditions as it may approve.
(e) Consequences of Forfeiture: A Person whose Shares have been
forfeited shall cease to be a Shareholder in respect of the forfeited
Shares, but shall, notwithstanding, remain liable to pay to the Company
all amounts which, at the date of forfeiture, were payable by that Person
to the Company in respect of the Shares, but that liability shall cease if
and when the Company receives payment in full of all such amounts.
(f) Notice of Forfeiture: On the forfeiture of any Share the Board shall
cause a note of such forfeiture and the date thereof to be entered in the
Register and shall cause notice of such forfeiture and the date thereof to
be sent to the Shareholder in whose name the Share stood immediately
prior to the forfeiture and shall upon the disposal of any forfeited Share
cause a note of the manner and date of such disposal to be similarly
entered in the Register.
(g) Title to Forfeited Share: A written statutory declaration given by a
Director that a Share has been duly forfeited on a date stated shall be
conclusive evidence of the facts stated in the declaration as against all
Persons claiming to be entitled to the Share.
(h) Validity of Sale: The Company may receive the consideration, if any,
given for the forfeited Share on any sale or disposition thereof and may
execute a transfer of the Share in favour of the Person to whom the
Share is sold or disposed of. The Person to whom the Share is sold or
disposed of shall be entered upon the Register as the holder of the
Share and shall not be bound to see to the application of the purchase
money, if any, nor shall his or her title to the Share be affected by any
irregularity or invalidity in the proceedings in reference to the forfeiture,
sale or other disposal of the Share. If the certificate for the forfeited
Shares is not delivered up to the Company, the Board may issue a new
certificate distinguishing it as it thinks fit from the certificate not delivered
up, whereupon the latter shall be deemed to have been cancelled.
(i) When Forfeiture Applies: The provisions of these clauses as to
forfeiture shall apply in the case of non-payment of any sum which, by
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the Terms of Issue of a Share, becomes payable at a fixed time as if the
same had been payable by virtue of a call duly made and notified.
8.2 Surrender of Shares: The Board may accept from any Shareholder a surrender
of that Shareholder's Shares which are liable to forfeiture or any part thereof upon
such terms as may be agreed upon between the Shareholder and the Board.
8.3 Company's Lien:
(a) When Lien Imposed: The Company shall have a first and paramount
lien upon all the Shares that are registered in the name of a Shareholder
(whether solely or jointly with others) and upon the proceeds of sale
thereof for any amount payable in respect of the Shares and interest
thereon, and sale expenses owing to the Company in respect of such
Shares and also for such amounts (if any) as the Company may be
called upon to pay under any statute in respect of Shares of that
Shareholder, whether the period for the payment, fulfilment or discharge
thereof respectively shall have actually arrived or not, and no equitable
interest in any Share shall be created except upon the basis and
condition that clause 5 is to have full effect and such lien shall extend to
all Dividends and other Distributions from time to time declared in
respect of such Shares.
(b) Registration to Operate as Waiver: The registration of a transfer of
Shares on which the Company has any lien shall, unless notice to the
contrary shall first be given to the transferee, operate as a waiver of the
Company's lien, if any, on such Shares.
(c) Sales of Shares Subject to Lien: The Company may sell, in such
manner as the Board thinks fit, any Shares on which the Company has a
lien, but no sale shall be made unless a sum in respect of which the lien
exists is presently payable nor until the expiration of 14 days after a
notice in writing, stating and demanding payment of such part of the
amount in respect of which the lien exists as is presently payable, has
been given to the registered holder for the time being of the Share, or the
Person entitled thereto by reason of the registered holder's death or
bankruptcy.
(d) Title to Shares Sold Subject to Lien: To give effect to any such sale
the Board may authorise any Person to transfer the Shares sold to the
purchaser thereof. The purchaser shall be registered as the holder of
the Shares comprised in any such transfer and thereupon shall be the
holder of such Shares and discharged from all calls due prior to such
purchase. The purchaser shall not be bound to see to the application of
the purchase money, nor shall his or her title to the Shares be 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. If the certificate for the
forfeited Shares is not delivered up to the Company the Board may issue
a new certificate distinguishing it as it thinks fit from the certificate not
delivered up, whereupon the latter shall be deemed to have been
cancelled.
8.4 Power to Sell Where Less Than Minimum Holdings:
(a) Notice to Shareholder Holding Less Than Minimum Holding: Where
the number of Shares registered in the name of a Shareholder is less
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than a Minimum Holding the Board may at any time give written notice of
that fact and of the provisions of clause 8.4(b) to the Shareholder.
(b) Power of Sale: The Company may, at any time after the expiration of
three months after the date of a notice given under clause 8.4(a) (and
subject to clauses 8.4(c) and (d)), if the Shares then registered in the
name of the Shareholder are less than a Minimum Holding, sell the
Shares, and account to the Shareholder for the proceeds of sale after
deduction of reasonable sale expenses.
(c) Provisions Relating to Sale: To give effect to any sale under clause
(b) the Board may authorise any Person to transfer the Shares sold to
the purchaser thereof. The purchaser shall not be bound to see to the
application of the purchase money, nor shall the purchaser's title to the
Shares be 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. If the
certificate for the Shares sold is not delivered up to the Company, the
Board may issue a new certificate distinguishing it as it thinks fit from the
certificate not delivered up, whereupon the latter shall be deemed to
have been cancelled.
(d) Conditions Relating to Sale: For so long as the Company is listed on
the official list of the ASX, the Company may sell the Shares of a
Shareholder who has less than a Minimum Holding of those Shares on
the following conditions:
(i) the Company may do so only once in any 12 month period;
(ii) the Company must notify the Shareholder in writing of its
intention;
(iii) the Shareholder must be given at least six weeks from the date
the notice is sent in which to tell the Company that the holder
wishes to retain the holding;
(iv) if the Shareholder tells the Company under clause 8.4(d)(iii)
that the holder wishes to retain the holding, the Company will
not sell it;
(v) the Company’s power to sell lapses following the
announcement of a Takeover, however, the procedure may be
started again after the close of the offers made under the
Takeover;
(vi) the Company or the purchaser must pay the costs of the sale;
and
(vii) in the case of a certificated holding, proceeds of the sale will not
be sent until the Company has received any certificate relating
to the Shares (or is satisfied that the certificate has been lost or
destroyed).
8.5 Evidence of Power of Sale or Forfeiture: A written statutory declaration of a
Director that a power of sale under this clause 8 has arisen and is exercisable by
the Company or that a Share has been duly forfeited on the date stated therein,
shall be conclusive evidence of the facts stated therein.
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9. APPLICATION OF PROCEEDS OF SALE
9.1 Proceeds of Sale: The proceeds of sale of any Shares sold under clause 8 shall
be applied as follows:
(a) Unpaid Calls: first, in satisfaction of any unpaid calls, instalments,
premiums or other amounts, and any interest thereon, in respect of
which a lien existed;
(b) Expenses: secondly, in payment of any expenses incurred in relation to
the sale; and
(c) Residue: the residue (if any) shall be paid to, or in accordance with a
direction of, the Person who was the holder of the Shares immediately
before the sale or surrender of the Person's certificate for the Shares or
the executors or administrators or assigns of that Person.
10. TRANSFER OF SHARES
10.1 Power to Transfer: Subject to clause 10.3 and any applicable law, any
Shareholder may transfer all or any of his or her Shares together with (but subject
to the Terms of Issue) any liability in respect of unpaid calls, by instrument of
transfer complying with clause 10.2, or by using a wholly or partly electronic
system for the transfer of securities which has been approved by any statute.
10.2 Form of Transfer:
(a) Financial Markets Conduct Act: Any Shares disposed of under a
system of transfer approved under section 376 of the Financial Markets
Conduct Act 2013 may be transferred in compliance with that system.
(b) Transfers Executed Outside New Zealand: Where an instrument of
transfer would have complied with the provisions of subpart 9 of Part 5 of
the Financial Markets Conduct Act 2013 if it had been executed by the
transferor in New Zealand, it may nevertheless be registered by the
Company if it is executed under the common seal of a corporation or by
some other method required by law for entering into an obligation by
deed as transferor or if the signature of the transferor who is an
Individual has been witnessed by an Individual who has added his or her
occupation and address after his or her signature.
(c) Other Transfers: Every instrument of transfer not falling within the
provisions of clauses 10.1, or clauses (a) or (b) of this clause, shall
comply with the following provisions:
(i) the form of the instrument of transfer shall be any usual or
common form or any other form which the Board may approve;
(ii) the instrument of transfer shall be signed or executed by the
transferor or the transferor's representative;
(iii) if registration of the transfer imposes any liability on the
transferee, as holder of the shares, to the Company the
instrument of transfer shall be signed or executed by the
transferee;
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(iv) the instrument of transfer shall be accompanied by such
evidence as the Board reasonably requires to prove the title of
the transferor to, or right of the transferor to transfer, the
Shares; and
(v) except where execution is under the common seal of a
corporation by a corporation by some other method required by
law for entering into an obligation (by deed), every signature to
the instrument of transfer shall be witnessed by an Individual
who shall add his or her occupation and address after his or her
signature.
(d) No Fee: No fee shall be payable to the Company upon any transfer of
Shares.
(e) Transfer Effective on Registration: The transferor of a Share shall be
deemed to remain the holder of the Share until the name of the
transferee is entered in the Register in respect thereof.
10.3 Power to Refuse or Delay Registration: The Board may, in its absolute
discretion, refuse or delay registration of a transfer of any Shares:
(a) Lien: if the Company has a lien on the Shares and, while the Company
is listed on the official list of the ASX, the lien is permitted by the ASX
Listing Rules; or
(b) Minimum Holding: if the registration, together with the registration of
any further transfer or transfers then held by the Company and awaiting
registration, would result in the proposed transferee holding Shares of
less than a Minimum Holding; or
(c) Listing Rules: in circumstances permitted by the Listing Rules.
10.4 Deposit of Transfer for Registration: Every instrument of transfer shall be
delivered to the Office or the office of the agent of the Company which maintains
the Register for registration.
10.5 Electronic settlement: The Directors may do anything that is necessary or
desirable for the Company to participate in any computerised, electronic or other
system for facilitating the transfer of shares that may be owned, operated or
sponsored by the Exchange or a related body corporate of the Exchange.
11. TRANSMISSION OF SHARES
11.1 Persons Recognised on Death of Shareholder: In the case of the death of a
Shareholder, the survivor, or survivors where the deceased was a joint holder,
and the legal personal representatives of the deceased where he or she was the
sole holder, shall be the only Persons recognised by the Company as having any
title to the deceased's interest in the Shares, but nothing herein contained shall
release the estate of a deceased joint holder from any liability in respect of any
Share which had been jointly held by him or her with any other Person or Persons.
11.2 Registration on Death, Bankruptcy or Mental Disorder:
(a) Manager or Personal Representative: Any Person appointed pursuant
to the Protection of Personal and Property Rights Act 1988 to be in
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charge of the affairs of a mentally disordered Shareholder or any Person
becoming entitled to Shares in consequence of the death or bankruptcy
of a Shareholder, may, upon such evidence being produced as may from
time to time be properly required by the Board and subject as hereinafter
provided, elect either to be registered as the holder of the Shares or to
nominate some other Person as the transferee of the Shares but the
Board shall, in either case, have the same right to decline or suspend
registration as it would have had in the case of a transfer of the Shares
by that Shareholder before that Shareholder becoming mentally
disordered or before that Shareholder's death or bankruptcy, as the case
may be.
(b) Notice in Writing: If the Person so becoming entitled elects to be
registered as the holder of the Shares, then that Person shall deliver or
send to the Company a notice in writing signed by that Person stating
that that Person so elects. If that Person elects to have another Person
registered that election shall be testified by that Person executing in
favour of the other Person a transfer of the Shares. All the limitations,
restrictions and provisions of this Constitution relating to the right to
transfer and the registration of transfers of Shares shall be applicable to
any such notice or transfer as aforesaid as if the mental disorder, death
or bankruptcy of the Shareholder had not occurred and the notice of
transfer were a transfer signed by that Shareholder.
(c) Entitlement to Distributions and Other Rights: Where the registered
holder of any Shares becomes mentally disordered, dies or becomes
bankrupt that Person's personal representative or the assignee of that
Person's estate, as the case may be, shall, upon the production of such
evidence as may from time to time be properly required by the Board in
that behalf, be entitled to the same Distributions and other advantages,
and to the same rights (whether in relation to meetings of the Company,
or to voting, or otherwise), as the registered holder would have been
entitled to if the registered holder had not died or become bankrupt; and
where two or more Persons are jointly entitled to any Shares in
consequence of the death of the registered holder they shall, for the
purposes of this Constitution, be deemed to be joint holders of the
Shares.
12. SHARE REGISTER
12.1 Share Register: Subject to section 88 of the Act, the Board may divide the share
register into two or more registers to be kept in different places.
12.2 Registration of Shareholdings in Parcels: The share registrar of the Company,
on request by a Shareholder, or proposed transferee, may register a shareholding
in separate parcels identified by a distinguishing word, number or other parcel
differentiator. Where a Shareholder's shareholding is so registered, the Company
may communicate separately with the Shareholder in respect of each parcel, pay
Dividends and Distributions and otherwise act, so far as the Board considers
convenient, as if the separate parcels belonged to different Shareholders.
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PART III - GENERAL MEETINGS
13. GENERAL MEETINGS
13.1 Annual Meetings:
(a) Annual Meeting: The Board shall in each calendar year, not later than
six Months after the balance date of the Company, call a meeting of
Shareholders in addition to any other meetings in that year, and shall
specify the meeting as the annual meeting in the notice calling it.
(b) Maximum 15 Months Between Meetings: No more than 15 Months
shall elapse between the date of one annual meeting of Shareholders
and that of the next.
(c) Board to Appoint Time and Place: Subject to the provisions of the Act,
all meetings of Shareholders shall be held at such time and place as the
Board appoints.
(d) Other Meetings: All meetings of Shareholders other than annual
meetings shall be called special meetings.
13.2 Special Meetings: Whenever it thinks fit, the Board may convene a special
meeting, and special meetings shall also be convened on the written request of
Shareholders holding Shares carrying together not less than 5% of the voting
rights entitled to be exercised on the issue.
13.3 Methods of Holding Meetings: A meeting of Shareholders may be held either:
(a) Shareholders Present: by a number of Shareholders, who constitute a
quorum, being assembled together at the place, date, and time
appointed for the meeting; or
(b) Audio/Visual Meetings: if determined by the Board, by means of audio,
or audio and visual, communication by which all Shareholders
participating and constituting a quorum, can simultaneously hear each
other throughout the meeting.
13.4 Powers Exercisable by Ordinary Resolution: Unless otherwise specified in the
Act or this Constitution, a power or right of approval reserved to Shareholders may
be exercised by way of Ordinary Resolution.
14. NOTICE OF GENERAL MEETINGS
14.1 Method and Format of Notice:
(a) Written Notice: Written notice of the time and place of a meeting of
Shareholders must be sent to every Security holder entitled to receive
notice of meetings and to every Director and Auditor of the Company not
less than 10 Business Days before the meeting.
(b) Notice to State Nature of Business: The notice calling any meeting of
Shareholders must 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 set out the text of any Special
Resolution to be submitted to the meeting.
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(c) Resolutions: So far as is reasonably practicable, resolutions shall be
framed in a manner which enables Shareholders to instruct a Proxy to
vote either for or against any resolution.
14.2 Persons to Whom Notice to be Given: Notice of every meeting of Shareholders
shall be given in any manner authorised by clause 30 to:
(a) Equity Security Holders: every holder of an Equity Security except
those who have not supplied to the Company an address either within or
outside New Zealand for the giving of notices to them;
(b) Representatives: every Person (of whom the Company has due notice)
upon whom the ownership of Equity Securities has devolved by reason
of his or her being the manager, or a legal personal representative, or an
assignee in bankruptcy of a holder of Equity Securities, where the holder
of Shares but for his or her mental disorder, or for his or her death or
bankruptcy, as the case may be, would be entitled to receive notice of
the meeting;
(c) Directors and Auditor: the Directors and the Auditor; and
(d) Other Persons: any other Person entitled under contract, the provisions
of the Act or this Constitution to receive such notice.
No other Person shall be entitled to receive notice of meetings of Shareholders.
14.3 Register Conclusive: The Shareholders entitled to receive a notice of meeting
shall:
(a) Shareholders on Fixed Date: if the Board fixes a date for the purpose
of determining the entitlement, be those Shareholders entered in the
Register on that date; or
(b) Shareholders on Day Before Notice is Given: if the Board does not fix
a date, be those Shareholders entered in the Register at the close of
business on the day immediately preceding the day on which the notice
is given,
provided that the Board shall not fix a date under this clause if such date precedes
by more than 30 Business Days or less than 10 Business Days the date upon
which the meeting is to be held.
14.4 Omission of Notice: The accidental omission to give notice of a meeting to, or
the non-receipt of notice of a meeting by, any Person entitled to receive notice
shall not invalidate the proceedings at that meeting.
14.5 Notice Irregularity: Any irregularity in a notice of meeting shall be waived if all of
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. Failure to comply with any provisions of the Listing Rules relating to the
notice of meeting and the form of resolution shall not render invalid or ineffective
any notices or meeting or any proceeding at a meeting.
14.6 Form of Proxy to be Included with Notice of Meeting: The Company shall
send a proxy form complying with clauses 16.2(d), 16.2(e) and 16.2(i) to every
Shareholder entitled to attend and vote at a meeting of the Company with the
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notice convening the meeting. In every such notice, there shall appear with
reasonable prominence a statement that a Shareholder entitled to attend and vote
at the meeting is entitled to appoint a Proxy to attend and vote instead of him or
her and that a Proxy need not be a Shareholder of the Company.
15. PROCEEDINGS AT MEETINGS OF SHAREHOLDERS
15.1 Quorum:
(a) Quorum Required: Subject to clause (b), no business shall be
transacted at any meeting of Shareholders unless a quorum of
Shareholders is present at the time when the meeting proceeds to
business. Save as is otherwise provided in this Constitution, the quorum
for a meeting shall be five Shareholders having the right to vote at the
meeting present in Person or by Proxy, Attorney, or Representative.
(b) Quorum Not Present: If within 30 minutes from the time appointed for
the meeting a quorum is not present, the meeting, if convened upon the
requisition of Shareholders under section 121 of the Act, shall be
dissolved. In any other case the meeting shall stand adjourned to the
same day in the following week at the same time and place, or to such
other day and at such other time and place as the Board may determine,
and if at the adjourned meeting a quorum is not present within 30
minutes from the time appointed for the meeting the Shareholder or
Shareholders having the right to vote at the meeting who are present in
Person or by Proxy, Attorney or Representative at the meeting shall be a
quorum.
15.2 Chairperson:
(a) Chairperson of Board to be Chairperson: The Chairperson (or failing
the Chairperson, the Deputy Chairperson), if any, must, if present,
preside as chairperson of every meeting of the Shareholders, unless or
except to the extent that the Chairperson considers it not proper or
desirable to act as chairperson, either in relation to the entire meeting or
in relation to any particular business to be considered at the meeting.
(b) Directors to Appoint Chairperson (or Deputy Chairperson): If no
Chairperson has been elected, or if at any meeting, the Chairperson (or
failing the Chairperson, the Deputy Chairperson) is not present within 15
minutes of the time appointed for the commencement of the meeting, or
considers it not proper or desirable to act as chairperson, either in
relation to the entire meeting or in relation to any particular business to
be considered at the meeting, the Directors present may choose one of
their members to be chairperson of the meeting.
(c) Shareholders to Appoint Chairperson: If 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 choose one of their number to be chairperson of the
meeting.
15.3 Regulation of Procedure: Subject to the provisions of the Act, and except as
provided in the Constitution, the chairperson of the meeting may regulate the
proceedings at meetings of Shareholders.
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15.4 Powers to Adjourn Meetings:
(a) Chairperson's Power to Adjourn: The chairperson of any meeting at
which a quorum is present may, with the consent of the meeting (and
shall if so directed by the meeting), adjourn the meeting from time to time
and from place to place.
(b) Business at Adjourned Meeting: No business shall be transacted at
any adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place.
(c) Notice of Adjourned Meeting: When a meeting is adjourned for 30
days or more, notice of the adjourned meeting shall be given as in the
case of an original meeting, but otherwise it shall not be necessary to
give any notice of an adjournment or of the business to be transacted at
an adjourned meeting.
15.5 Powers to Dissolve Meetings:
(a) Chairperson may Adjourn or Dissolve: If any meeting shall become
so unruly, disorderly or inordinately protracted that in the opinion of the
chairperson of the meeting the business of the meeting cannot be
conducted in a proper and orderly manner, the chairperson of the
meeting, notwithstanding any provision to the contrary contained in this
Constitution and without the consent of the meeting, may in his or her
sole and absolute discretion and without giving any reason there for,
either adjourn or dissolve the meeting.
(b) Unfinished Business: If any meeting is dissolved by the chairperson of
the meeting pursuant to clause (a), the unfinished business of the
meeting shall be dealt with as follows:
(i) in respect of any resolution not voted upon by the meeting
concerning the remuneration of the Auditor, the meeting shall
be deemed to have resolved that the Board be authorised to fix
the remuneration of the Auditor; and
(ii) the chairperson of the meeting may direct that any item of
business which is uncompleted at the meeting and which in his
or her opinion requires to be voted upon be put to the vote by a
poll without further discussion in accordance with clause 15.7.
15.6 Voting:
(a) Show of Hands or Voice: In the case of a meeting of Shareholders
held in accordance with clause 13.3(a), unless a poll is demanded, any
voting at any meeting shall be by show of hands or voice vote (as the
chairperson of the meeting may direct).
(b) Voice Vote: In the case of a meeting of Shareholders held in
accordance with clause 13.3(a), unless a poll is demanded, voting at any
such meeting shall be by the Shareholders signifying individually their
assent or dissent by voice.
(c) Passage of Resolution: A declaration by the chairperson that a
resolution has on a show of hands or on a voice vote been carried by the
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requisite majority, shall be conclusive evidence of the fact unless a poll is
demanded.
15.7 Polls: At a meeting, a poll may be demanded by:
(a) Five Shareholders: not less than five Shareholders having the right to
vote at the meeting; or
(b) Shareholders Representing 10% of Voting Rights: a Shareholder or
Shareholders representing not less than 10% of the total voting rights of
all Shareholders having the right to vote at the meeting; or
(c) Shareholders Holding 10% of Capital: a Shareholder or Shareholders
holding Shares that confer a right to vote at the meeting and on which
the aggregate amount paid up is not less than 10% of the total amount
paid up on all the Shares that confer that right; or
(d) Chairperson: the chairperson of the meeting.
15.8 Poll May be Demanded Before or After Show of Hands or Voice Vote: A poll
may be demanded either before or after the vote by show of hands or voice vote.
15.9 NZX Listing: For so long as the Company is listed on the NZX Main Board and
the NZX Listing Rules so require, the chairperson shall demand a poll on all
resolutions.
15.10 Poll Procedure: A poll shall be taken in such manner as the chairperson of the
meeting directs.
15.11 Votes Attached to Shares Counted in a Poll: If a poll is taken, votes must be
counted according to the votes attached to the Shares of each Shareholder
present in person or represented by Proxy or otherwise and voting. The result of
a poll declared by the chairperson of the meeting shall be deemed to be the
resolution of the meeting at which the poll was demanded.
15.12 Chairperson 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 of the meeting shall
be entitled to a second or casting vote.
15.13 Different Polls to be Taken at Different Times: A poll demanded on the
election of a chairperson of the meeting or on a question of adjournment shall be
taken immediately. A poll demanded on any other question shall be taken at such
time as the chairperson of the meeting directs, and 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.
15.14 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 shall have the same effect as a demand
by the Shareholder.
15.15 Directors May Attend Meetings: Each Director shall be entitled to attend every
meeting of Shareholders notwithstanding that he or she is not a Shareholder of
the Company.
15.16 Notices, Reports, Financial Statements: Holders of Equity Securities of all
Classes (whether or not they have the right to vote) shall be entitled to attend
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meetings of Shareholders and to receive copies, or have access to electronic
copies, of all notices, reports and financial statements issued generally to holders
of Securities carrying Votes.
15.17 No Postal Votes: Unless the Board determines otherwise, clause 7 of Schedule
One of the Act providing for postal votes shall not apply to the Company.
16. VOTES OF MEMBERS
16.1 Power to Vote:
(a) General Power: Subject to any rights or restrictions for the time being
attaching to any Class or Classes of Shares and to any restrictions in the
Listing Rules or this Constitution, every holder of Shares present in
person or by Proxy, Attorney, or Representative shall be entitled:
(i) on a vote by voices or show of hands, to one vote; and
(ii) on a poll:
(A) to one vote for each Share held by such Shareholder
the issue price of which is fully paid; or
(B) in respect of each Share held by such Shareholder the
issue price of which is not fully paid, a fraction of the
vote which would be exercisable if the issue price of
such Share were fully paid, equivalent to the
proportion which the amount paid (not credited) is of
the total amounts paid and payable (excluding
amounts credited and amounts paid in advance of a
call),
provided that for the purposes of this clause a Security which is not fully
paid is not of the same Class as a fully paid Security.
(b) Joint Holders Right to Vote: In the case of joint holders, the vote of the
senior who tenders a vote, whether in person or by Proxy, Attorney, or
Representative, shall be accepted to the exclusion of the votes of the
other joint holders; and for this purpose seniority shall be determined by
the order in which their names appear in the Register.
(c) Votes of Personal Representatives: Where two or more persons are
entitled under section 93 or 94 of the Act to be registered as holder of
Shares of a deceased or bankrupt Shareholder, the right of one of them
to vote shall be determined by the order in which their names appear in
the Register.
(d) Shareholders within Protection of Personal and Property Rights
Act: A Shareholder who is a mentally disordered Person (within the
meaning of the Mental Health (Compulsory Assessment and Treatment)
Act 1992) and who is subject to assessment or a compulsory treatment
order or a Shareholder who is subject to the jurisdiction of the Family
Court under the Protection of Personal and Property Rights Act 1988 or
whose Shares are subject to a property order or an administration order
there under may vote by his or her manager, administrator, welfare
guardian or other Person having authority to administer his or her estate.
Any such manager, administrator, welfare guardian or other Person as
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aforesaid may vote whether on voices or on a show of hands or on a poll
may vote by Proxy.
(e) Other Shareholders Not Able to Manage Their Own Affairs: The
provisions of this clause apply in respect of Shareholders who are not
subject to the jurisdiction of the Family Court under the Protection of
Personal and Property Rights Act 1988 and to whom the provisions of
clause (d) are accordingly not applicable. Every such member who
would if ordinarily resident in New Zealand be subject to the jurisdiction
of the Family Court under the Protection of Personal and Property Rights
Act 1988 or in respect of whom an order has been made by any court
having jurisdiction in lunacy may vote whether on voices or on a show of
hands or on a poll by his or her committee, receiver, or curator bonis or
other Person in the nature of a committee, receiver, or curator bonis or
appointed by that court and any such committee, receiver, curator bonis
or other Person may on a poll vote by Proxy.
(f) Share Subject to Unpaid Calls: No Shareholder shall be entitled at any
meeting to exercise voting rights in respect of any Shares or to form part
of any quorum by virtue of his or her holding such Shares unless all calls
or other sums presently payable by it, him or her to the Company in
respect of the Shares have been paid.
(g) Votes Need Not be Cast in Same Way: On a poll a Shareholder
(including a Proxy) entitled to more than one vote need not use all its, his
or her votes or cast all the votes it, he or she uses in the same way.
(h) Restrictions in Listing Rules on Voting:
(i) A holder of any Securities shall not vote on a resolution if to do
so would be contrary to rule 6.3 of the NZX Listing Rules.
(ii) The Board shall use reasonable endeavours to ascertain, no
later than five Business Days before any meeting to consider a
resolution referred to in rule 6.3.1 of the NZX Listing Rules, the
identity of the holders of Securities who are disqualified from
voting on that resolution pursuant to that rule and prepare a list
of the holders, if any, who the Board considers are so
disqualified.
(iii) The Board shall supply to the Exchange on request a copy of a
list prepared under clause (ii).
(iv) Any objection to the accuracy or completeness of any list
supplied under clause (iii) shall be disregarded by the Company
and the chairperson of the relevant meeting if the objection is
notified to the Company less than one full Business Day before
the time fixed for commencement of the meeting.
(v) No resolution of, or proceeding of, a meeting of holders of
Securities shall be void on the basis of a breach of clause (i).
16.2 Proxies:
(a) Votes by Proxy: A Shareholder may exercise the right to vote at a
meeting either by being present in person or by Proxy.
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(b) Proxy May Attend Meeting: A Proxy is entitled to attend and be heard
at a meeting as if the Proxy were the Shareholder.
(c) Appointment of Proxy to be in Writing: A Proxy must be appointed by
a notice in writing signed by the Shareholder and the notice must state
whether the appointment is for a particular meeting or for a specified
period not exceeding 12 months. A Proxy need not be a Shareholder.
(d) Form of Proxy: A notice appointing a Proxy shall be in the following
form or in such other form as the Board may approve:
I of being a shareholder of
The a2 Milk Company Limited hereby appoint
or failing him or her
as my proxy to vote for me and on
my behalf at the meeting of shareholders to be held on the
day of 20 , and at any
adjournment thereof.
SIGNED this day of 20 .
This form is to be used in favour of/against the resolution (strike
out the inappropriate words).
Unless otherwise instructed the Proxy will vote or abstain from
voting as he or she thinks fit.
(e) Proxy Not to be Named: The Company shall not issue any proxy form
with a Proxy named therein either by name or by reference to an office
which he or she may hold, but the Company may indicate in a footnote
that certain Persons are willing to act as a Proxy if a Shareholder desires
to appoint any of them and the Company may set out on any proxy form
issued by the Company the names of the Directors for the time being of
the Company.
(f) Validity on Death or Mental Disorder: A vote given in accordance with
the terms of a notice of proxy shall be valid notwithstanding the previous
death or mental disorder of the principal or revocation of the proxy or of
the authority under which the Proxy is given or the transfer of the Share
in respect of which the Proxy is given, if no intimation in writing of such
death, mental disorder, revocation, or transfer has been received by the
Company at the Office before the commencement of the meeting or
adjourned meeting at which the Proxy is used or has been handed to the
Chairperson of the meeting before the vote is given.
(g) Notice of Proxy to be Lodged 48 Hours Before Meeting: No Proxy is
effective in relation to a meeting unless a copy of the notice of
appointment is produced not less than 48 hours before the time of the
meeting in the manner set out in clause (h).
(h) Notice of Proxy to be Lodged in Particular Manner 48 Hours Before
Meeting: A copy of the written notice appointing a Proxy and a copy of
the power of attorney or other authority, if any, under which it is signed
or, if required by the Board, a notarially certified copy of that power or
authority shall be deposited at the Office or at such other place within
New Zealand as is specified for that purpose in the notice convening the
meeting.
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(i) Proxy Form to Allow Vote For or Against: A proxy form shall (to the
extent that the subject matter of the relevant resolution reasonably
permits) allow Shareholders to instruct the Proxy to vote either for or
against any resolution.
(j) Electronic Proxy: Notwithstanding the provisions of clause (h) and to
the extent permitted by the Act and the Listing Rules, and if approved by
the Company, a Proxy may be delivered by electronic mail to an address
specified by the Company for that purpose.
16.3 Corporations Acting by Representatives at Meeting: Any corporation which is
a Shareholder, or an Attorney of a Shareholder, of the Company may by
resolution of its directors or other governing body authorise such Individual as it
thinks fit to act as its representative at any particular meeting of Shareholders, or
any particular meeting of any Class of Shareholders, or at all such meetings until
notice of revocation of such authority shall have been given to the Company and
any Individual so authorised shall be entitled to exercise the same powers on
behalf of the corporation which he or she represents as that corporation could
exercise if it were an individual Shareholder of the Company.
16.4 Appointment of Attorney: Any Shareholder may at any time and from time to
time by power of attorney appoint any Person to be his or her attorney to attend
meetings of the Company and on behalf of the Shareholder to vote and generally
to act for the Shareholder in the capacity as such as fully and effectually to all
intents and purposes as such Shareholder could do if present in person or by
Proxy or Representative.
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PART IV - DIRECTORS
17. DIRECTORS
17.1 Number of Directors: The number of Directors shall not be less than four, nor
more than eight or such other number as is fixed by an Ordinary Resolution and at
least such minimum number of Directors as is or are required by the Listing Rules
and by law shall be ordinarily resident in New Zealand and subject to these
limitations, the number of Directors to hold office shall be fixed from time to time
by the Board. The Persons holding office as Directors on the date of adoption of
this Constitution continue in office and are deemed to have been appointed as
directors pursuant to this Constitution.
17.2 Power to Appoint to Fill Casual Vacancy or in Addition to Existing Directors:
(a) Board's Powers: Subject to the Listing Rules, the Board shall have the
power at any time, and from time to time, to appoint any Individual to be
a Director, either to fill a casual vacancy or as an addition to the existing
Directors, but so that the total number of Directors shall at no time
exceed the maximum determined under clause 17.1. Any Director so
appointed shall hold office only until the next annual meeting of
Shareholders, and shall then be eligible for re-election.
(b) Shareholders' Powers: Without prejudice to the powers of the Board
under clause (a), and subject to the provisions of clause 17.1, and the
Listing Rules, the Company by Ordinary Resolution may, provided notice
proposing the election has been given to each Person entitled to receive
notice of the meeting not less than 10 Business Days before the
meeting, elect any Individual to be a Director, either to fill a casual
vacancy or as an additional Director.
17.3 Resignation and Removal of Directors:
(a) Resignation: A Director may resign from office as such at any time by
tendering to the Company a written notice of resignation or by
announcing the same at a meeting of the Board. A resignation by written
notice shall take effect as from the time of receipt of the notice at the
Office unless a later date is specified in the notice in which case such
registration shall take effect from the date specified in the notice.
(b) Removal: The Company by Ordinary Resolution may remove any
Director before the expiration of his or her period of office
notwithstanding anything in this Constitution or in any agreement
between the Company and that Director. Any such removal shall be
without prejudice to any claim that the Director may have for damages
for breach of any contract of service between him or her and the
Company.
17.4 Rotation of Directors:
(a) Must Seek Election Every Three Years: No Director may hold office
without re-election beyond the third annual meeting following the meeting
at which the Director was last elected or re-elected, or three years,
whichever is the longer.
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(b) Deeming Provision: If a Director retiring at an annual meeting as
required by the Listing Rules and this Constitution, is re-elected at that
meeting, he or she is deemed to have held office until he or she is re-
elected.
17.5 Remuneration of Directors:
(a) Remuneration: Subject to the Listing Rules, the Board may from time to
time in accordance with the Act authorise the payment of remuneration
and other benefits to Directors in their capacity as Directors, but may not
authorise any payment of remuneration or other benefits to any Director
in his or her capacity as Director upon or in connection with the
retirement or cessation of office of that Director.
(b) Directors Entitled to Expenses: The Directors shall be entitled to be
paid reasonable travelling, hotel, entertaining and other expenses
incurred in attendance at meetings of the Board or a committee, or of the
Company and when in any other manner whatsoever and wheresoever
engaged on the business or affairs of the Company together with an
expense allowance of such sum as the Board may consider reasonable
for each day, or part of a day, upon which the Director is absent from his
or her usual place of residence in the execution of such duties.
(c) Special Remuneration: Subject to any applicable restriction in the
Listing Rules, the Board may authorise the Company to pay special
remuneration to any non-executive Director who is or has been engaged
by the Company to carry out any services which in the opinion of the
Board is work not in the capacity of a Director.
(d) Directors' Remuneration not Referable to Turnover or Profit:
Notwithstanding anything hereinbefore contained, the remuneration of
the Directors whether special or otherwise in respect of their services as
Directors shall not be wholly or in part by way of commission on, or
percentage of, turnover or Dividends, nor, except in the case of an
Executive Director, of profits.
17.6 Disqualification of Directors: The office of Director shall be vacated by a
Director, if the Director:
(a) Bankruptcy: becomes bankrupt or makes any arrangement or
composition with his or her creditors generally; or
(b) Prohibition: becomes prohibited from being a Director by reason of
section 151(2) of the Act; or
(c) Protection of Personal and Property Rights Act 1988: becomes of
unsound mind or becomes subject to a property order under the
Protection of Personal and Property Rights Act 1988; or
(d) Resignation: resigns his or her office pursuant to clause 17.3(a); or
(e) Absence: absents himself or herself from attendance at meetings of the
Board continuously for the space of six months (calculated from the date
of the last meeting of the Board attended by that Director) without special
leave of absence from the Board and his or her Alternate Director (if any)
shall not have attended any such meeting in his or her stead, unless the
Board resolves otherwise; or
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(f) Removal: is removed from office pursuant to clause 17.3(b); or
(g) Termination of Employment: being an Executive Director, ceases for
any reason to be in the salaried employment of the Company or any of
its Subsidiaries unless the Board resolves otherwise; or
(h) Retirement under Listing Rules: retires his or her office at an annual
meeting of Shareholders pursuant to the Listing Rules and is not re-
elected at that meeting, in which case he or she will be deemed to have
held office until the end of that meeting or adjournment thereof.
17.7 Validity of Acts: The actions taken by the Board, or any committee, or any
Director to whom the Board has delegated any of its powers or by any Individual
acting as a Director shall, notwithstanding that it is afterwards discovered that
there was some defect in the appointment of any Director or Person acting as
aforesaid or that they or any of them were not qualified for appointment, be as
valid as if every such Person had been duly appointed and was qualified to be a
Director.
18. ALTERNATE DIRECTORS
18.1 Appointment of Alternate Director: Each Director shall have the power to
appoint, by notice in writing to the Company, any Individual who is not already a
Director and who is approved 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. The
appointment may be revoked at any time by a majority of the other directors, or by
the Director who appointed the alternate giving written notice to the Company. A
Director may not be appointed to act as alternate for another Director. No Director
may appoint a deputy or agent otherwise than by way of appointment of an
alternate under this clause 18.
18.2 Termination of Appointment: The appointment of an Alternate Director shall
terminate on the happening of any event which if he or she were a Director would
cause him or her to vacate such office, or if his or her appointor ceases to be a
Director or if a majority of Directors other than his or her appointor give written
notice to that appointor and to the Company withdrawing the approval of that
Individual as an Alternate Director (provided that a Director retiring at a meeting of
Shareholders and being re-elected at that meeting as required by the Listing
Rules shall not for the purposes of this provision be treated as having ceased to
be a Director).
18.3 Powers of Alternate Director: An Alternate Director shall, unless otherwise
provided by the terms of his or her appointment, whilst acting in the place of the
Director he or she represents, have, exercise, and discharge all the powers,
rights, duties, and privileges (including without limitation the right to receive notice
of, and participate in, meetings of the Board, the power to sign resolutions of the
Directors in accordance with clause 20.3, but excluding the right of acting as
Managing Director and excluding the right to appoint an Alternate Director) of the
Director appointing him or her and be subject in all respects to the same terms
and provisions as that Director except in respect of remuneration.
18.4 Remuneration of Alternate Directors: An Alternate Director may be paid
expenses, and shall be entitled to be indemnified by the Company to the same
extent, with any necessary modifications, as if he or she were a Director but he or
she shall not be entitled to receive from the Company, in respect of his or her
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appointment as Alternate Director, remuneration other than such proportion (if
any) of the remuneration otherwise payable to his or her appointer as such
appointor may by notice in writing to the Company from time to time direct.
19. DIRECTORS' INTERESTS
19.1 Directors' Declaration of Interests:
(a) Entry in Interests Register: If a Director becomes aware of the fact
that he or she is interested in a transaction or proposed transaction with
the Company, he or she must cause to be entered in the Interests
Register, and disclose to the Board:
(i) if the monetary value of the Director's interest is able to be
quantified, the nature and monetary value of that interest; or
(ii) if the monetary value of the Director's interest cannot be
quantified, the nature and extent of that interest.
(b) General Notice: For the purposes of clause (a), a general notice
entered in the Interests Register or disclosed to the Board to the effect
that a Director:
(i) is a shareholder, director, officer, or trustee of another named
company or other person; and
(ii) is to be regarded as interested in any transaction which may,
after the date of the entry or disclosure, be entered into with
that other company or person,
shall be a sufficient disclosure of interest in relation to such transactions.
(c) Failure to Comply: Failure by a Director to comply with clause (a) shall
not affect the validity of a transaction entered into by the Company or the
Director.
(d) Interested Director Voting: A Director who is interested in a
transaction entered into, or to be entered into, by the Company shall not
vote on a matter relating to the transaction but may attend a meeting of
Directors at which a matter relating to the transaction arises, (but shall
not be included among the Directors present for the purpose of a
quorum) provided that an interested Director may vote and be counted in
the quorum in respect of such a matter if the matter is one in respect of
which, pursuant to an express provision of the Act, Directors are required
to sign a certificate or one which relates to the grant of an indemnity
pursuant to section 162 of the Act. For the purposes of this clause, the
term "interested" has the meaning given to that term in section 139 of the
Act.
20. PROCEEDINGS OF DIRECTORS
20.1 Third Schedule Does Not Apply: The proceedings at meetings of the Board
shall be as set out in this Constitution and the provisions set out in the Third
Schedule to the Act shall not apply to proceedings of the Board.
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20.2 Meetings of Directors:
(a) Convening of Meetings: The Board may meet for the despatch of
business, adjourn, and otherwise regulate its meetings and proceedings
as it thinks fit. Any Director may at any time summon a meeting of the
Board (including a teleconference meeting as provided for in clause
20.4).
(b) Notice of Meetings: Notice of every meeting of the Board shall be
given to every Director either personally or by written notice sent to the
last address notified to the Company by the Director for this purpose. A
notice convening a meeting of the Board shall be in writing and shall
specify:
(i) the date and time (in accordance with New Zealand time) at
which the meeting is to be held;
(ii) the place at which the meeting is to be held; and
(iii) in the case of a meeting which may be attended by telephone
or other instantaneous audio (or audio and visual
communication) the telephone number to which it is necessary
to be connected for the purposes of attending the meeting by
such means.
(c) Quorum: Until otherwise determined by the Board and subject to any
restrictions in the Listing Rules, the quorum necessary for the transaction
of the business of the Board shall be three Directors. A meeting of the
Board at which the quorum is present shall be competent to exercise all
or any of the authorities, powers and discretions by or under this
Constitution for the time being vested in or exercisable by the Board.
(d) Chairperson: The Board may elect a Chairperson and (if it thinks fit) a
Deputy Chairperson and determine the period for which each is to hold
office. The Chairperson, or in his or her absence the Deputy
Chairperson (if any), shall preside at all meetings of the Board but if
neither the Chairperson nor the Deputy Chairperson (if any) is present
within 15 minutes after the time appointed for holding the meeting, the
Directors present may choose one of their number to be Chairperson of
the meeting.
(e) Votes: Questions arising at any meeting of the Board shall be decided
by a majority of votes. Each Director present at the meeting, except any
Director prohibited by the Listing Rules from voting, shall have one vote.
The Chairperson shall have a casting vote in the event of a tie unless
only a quorum is present. A Director present at a meeting of the Board is
presumed to have agreed to, and to have voted in favour of, a resolution
of the Board unless he or she expressly dissents from or votes against,
or expressly abstains from voting on, the resolution at the meeting.
(f) Proceedings in Case of Vacancy: The continuing Directors may act
notwithstanding any vacancy in their body, but if and so long as their
number is reduced below the number fixed by or pursuant to this
Constitution as the minimum number of Directors, the continuing
Directors or Director may act only for the purposes of increasing the
number of Directors to the said minimum number or to summon a
meeting of the Company but for no other purpose.
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(g) Presence by Telephone: Without limiting clause 20.4, a Director may
participate in any meeting of the Board by telephone or other
instantaneous audio (or audio and visual) communication provided such
Director has given notice in writing of his or her intention so to do to the
Company at least 48 hours prior to the scheduled commencement time
of such meeting. The requirements as to such notice may be waived by
the Board. Any such Director:
(i) must throughout the meeting be able to hear each of the other
Directors taking part;
(ii) must, at the commencement of the meeting, acknowledge his
or her presence for the purpose of the meeting, to all the other
Directors taking part;
(iii) may not leave such meeting by disconnecting his or her
telephone or other means of communication unless he or she
has first obtained the express consent of the Chairperson; and
(iv) shall (for the purposes of this Constitution) be conclusively
presumed to have been physically present and to have formed
part of the quorum at all times during the meeting unless he or
she first obtained the express consent of the Chairperson of the
meeting to leave the meeting as aforesaid. Neither the
meeting, nor any business conducted thereat, shall be
invalidated if a Director does leave a meeting conducted as
aforesaid without the express consent of the Chairperson.
(h) Provisions to Apply Except Where Otherwise Agreed: The
provisions contained in this clause 20 shall apply in relation to all
meetings of the Board except where otherwise agreed by all the
Directors for the time being in relation to any particular meeting or
meetings.
(i) Omission of Notice: The accidental omission to give notice of a
meeting to, or the non-receipt of notice of a meeting by, any Director
shall not invalidate the proceedings at that meeting.
20.3 Resolution in Writing Assented to by All Directors: A resolution in writing
signed or assented to by letter, telex, facsimile, or other written message, by each
Director (or by his or her Alternate Director) shall be as valid and effective as if it
had been passed at a meeting of the Board duly called and constituted. Any such
resolution may consist of several documents in like form, each signed or
purporting to have been despatched by one or more Directors or their Alternate
Directors as the case may be. Every such resolution shall be recorded in the
minutes and copies shall be sent to any Directors by whom the resolution has not
been signed.
20.4 Teleconference Meeting of Directors:
(a) Power to Meet by Teleconference: For the purpose of this Constitution
the contemporaneous linking together by telephone or other means of
instantaneous audio (or audio and visual) communication of a number of
the Directors not less than the quorum of a meeting of the Board,
whether or not any one or more of the Directors is out of New Zealand,
shall be deemed to constitute a meeting of the Board and all the
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provisions in this Constitution as to meetings of the Board shall apply to
such meetings so long as the following conditions are met:
(i) all the Directors for the time being entitled to receive notice of a
meeting of the Board shall be entitled to notice of a meeting by
telephone or other means of communication and to be linked by
telephone or such other means for the purposes of such
meeting; notice of any such meeting may be given on the
telephone or by other means of communication at least twelve
hours before the time of commencement of the meeting;
(ii) each of the Directors taking part in the meeting by telephone or
other means of communication must throughout the meeting be
able to hear each of the other Directors taking part; and
(iii) at the commencement of the meeting each Director must
acknowledge his or her presence for the purpose of a meeting
of the Board to all the other Directors taking part.
(b) Restriction on Leaving Teleconference: A Director may not leave a
meeting conducted pursuant to clause (a) by disconnecting his or her
telephone or other means of communication unless he or she has first
obtained the express consent of the Chairperson of the meeting and a
Director shall for the purposes of this Constitution be conclusively
presumed to have been present and to have formed part of the quorum
at all times during the meeting by telephone or other means of
communication unless he or she first obtained the express consent of the
chairperson of the meeting to leave the meeting as aforesaid. Neither
the meeting nor any business conducted thereat shall be invalidated if a
Director does leave a meeting conducted pursuant to this clause without
the express consent of the Chairperson.
(c) Minutes at Teleconference: A minute of the proceedings at a meeting
by telephone or other means of communication shall be sufficient
evidence of such proceedings and of the observance of all necessary
formalities if certified as a correct minute by the chairperson of the
meeting.
20.5 Scheduling and Notice of Meetings:
(a) Regular Meetings: The Board shall schedule its regular meetings in
advance as follows:
(i) as soon as reasonably practicable after the commencement of
each calendar year, the Board shall decide upon the date, time
and place of every meeting ("scheduled meeting") of the Board
then proposed to be held during the remainder of the then
current calendar year; and
(ii) as soon as reasonably practicable after the Board has decided
upon the date, time and place of every scheduled meeting of
the Board for any calendar year, the Managing Director or,
failing him or her, any other Director appointed for that purpose
by the Board, shall give a notice to every Director setting out
that information and such notice shall serve as notice of each
such meeting for the purposes of this clause 20.5.
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(b) Notice Periods: The following periods of notice shall apply to the
convening of meetings of the Board.
(i) In the case of a scheduled meeting of the Board, where notice
of that meeting has previously been given in accordance with
clause (a)(ii) no further notice shall be required. The minimum
period of notice required in order to change the scheduled date,
time or place of a scheduled meeting of the Board shall be
seven clear days.
(ii) Except in the case of urgency falling within clause (b)(iii), the
minimum period of notice for convening a meeting of the Board
other than a scheduled meeting shall be seven clear days.
(iii) In the case of urgency where, in the opinion of the Chairperson
or in his or her absence the Deputy Chairperson (if any) or in
the absence of both, the Managing Director, (if any) or any
other two Directors a meeting of the Board is required in the
interests of the Company to be convened on less than seven
clear days' notice, the meeting may be convened on shorter
notice provided that:
(A) not less than three-quarters of the Directors consent to
such shorter notice; or
(B) the Chairperson or in his or her absence the Deputy
Chairperson (if any) or in the absence of both the
Managing Director (if any) and at least one other
Director consider that by reason of extreme urgency, a
meeting on shorter notice determined by them is
required in the interests of the Company and that it is
not practicable to comply with clause (b)(iii)(A) above.
(c) Meetings Convened on Short Notice: In the case of a meeting
convened on short notice pursuant to clause (b)(iii) so far as can
reasonably be achieved:
(i) a copy of the notice convening the meeting shall be given to
each Director either personally or sent by email or facsimile
transmission to his or her email address or facsimile number
prior to the holding of the meeting;
(ii) the Chairperson, if any, or Managing Director shall endeavour
to contact every Director personally or by telephone prior to the
holding of the meeting to try to ensure that every Director is
aware that the meeting is to be held;
(iii) every Director shall be entitled to participate in the meeting by
telephone notwithstanding his or her failure to give the required
notice provided for under clause 20.2(g); and
(iv) the business to be transacted at the meeting shall be limited to
business related to the urgent matter or matters which
necessitated the meeting being called on short notice.
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(d) Despatch of Notices: Except as provided in clause (c)(i), notices
convening a meeting of the Board shall, so far as the circumstances
reasonably permit, be despatched as follows:
(i) in the case of a Director having an address within New Zealand,
either:
(A) delivered to each Director at his or her address; or
(B) sent by facsimile transmission to the Director's
facsimile number; or
(C) handed to the Director personally; or
(D) sent to the Director's email address; or
(E) made available to the Director by such electronic
means as the Board may approve from time to time;
(ii) in the case of a Director having an address outside
New Zealand, either:
(A) sent by air courier to the Director's address (in which
case an advice of despatch shall be promptly sent by
facsimile transmission to the Director's facsimile
number); or
(B) sent by facsimile transmission to the Director's
facsimile number; or
(C) handed to the Director personally; or
(D) sent to the Director's email address; or
(E) made available to the Director by such electronic
means as the Board may approve from time to time.
(e) Board Papers:
(i) The documentation required for each meeting of the Directors
("board papers") shall comprise:
(A) an agenda of the general nature of the business to be
transacted at the meeting;
(B) where practicable, details of the resolutions to be put
to the meeting; and
(C) such explanatory or background papers as the
Chairperson (or failing him or her the Deputy
Chairperson (if any)) shall think fit.
(ii) The requirements concerning the despatch of the board papers
relating to a meeting of the Directors are as follows:
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(A) the board papers shall be despatched in a timely
manner, having regard to the circumstances of each
Director;
(B) the board papers shall be delivered or sent in the
same manner as is laid down by clause (f) in relation
to notices; and
(C) in the case of a meeting convened on short notice
pursuant to clause (c) a Director shall be entitled to
require the Company to send the board papers to him
or her by email or facsimile transmission to his or her
email address or facsimile number provided that the
Director is able to give satisfactory assurances that
confidentiality will be preserved in relation to the email
or facsimile transmission.
(f) Notices:
(i) Each Director shall from time to time give written notice to the
Company of his or her address, facsimile number, email
address and telephone number or numbers for the purposes of
this clause 20.
(ii) A notice given to a Director pursuant to this clause 20 shall be
deemed to be given when delivered at the address notified
under clause (f)(i) or in the case of a facsimile transmission
when the Company receives an acknowledgment of receipt, or
in the case of a notice sent to an email address at the time the
email enters an information system outside the control of the
Company.
21. COMMITTEES
The Board may, from time to time, subject to section 130 of the Act and the Listing
Rules, appoint committees consisting of an Individual or such Individuals (whether
or not Directors) as it thinks fit and may delegate any of its powers to any such
committee and may, from time to time, vary, suspend or remove such delegation.
Any committee so formed shall in the exercise of its powers so delegated conform
to any regulation that may be imposed on it by the Board and subject to any such
regulations the proceedings of any committee appointed under this clause shall be
governed by clause 20 but substituting the words "committee member" for the
word "Director" on each occasion therein.
22. POWERS AND DUTIES OF DIRECTORS
22.1 Management of Company: Subject to clause 22.6 and the Listing Rules, the
business and affairs of the Company shall be managed by the Board except to the
extent of any provision to the contrary in this Constitution.
22.2 General Power: The Board has all the powers necessary for managing, and for
directing and supervising the management of, the Company's business and
affairs.
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22.3 Exercise of Powers by Board: The Board may exercise all the powers of the
Company which are not required by the Act, this Constitution or the Listing Rules,
to be exercised by the Shareholders.
22.4 Appointment of Attorney: 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 specific 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.
22.5 Ratification by Shareholders: 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 manner as the
power may be exercised. The purported exercise of that power that is ratified
under this clause is deemed to be, and always to have been, a proper and valid
exercise of that power.
22.6 Major Transactions: The Company must not enter into a Major Transaction
unless the transaction is:
(a) Special Resolution: approved by a Special Resolution; or
(b) Contingent on Special Resolution: contingent upon approval by a
Special Resolution.
22.7 Board to Cause Minutes to be Kept:
(a) Minutes: The Board shall cause minutes to be made, in books provided
for the purpose of recording:
(i) all appointments of officers made by the Board;
(ii) the names of all the Directors present at each meeting of the
Board and the names of all committee members present at
each meeting of a committee;
(iii) all resolutions and proceedings at all meetings of the Company,
and of the Board, and of committees of the Board; and
(iv) all instruments whose execution is authorised.
(b) Evidence of Minutes: Any minutes of any meeting of the Company or
of the Board or of any committee, purporting to be signed by the
Chairperson of such meeting or of the next succeeding meeting, shall be
receivable in all courts, and by any Person authorised to take evidence,
and may be relied on by all other Persons (not being Persons having
actual knowledge to the contrary), as prima facie evidence of the matters
stated in such minutes.
22.8 Acts in Interest of Holding Company:
(a) Wholly-Owned Subsidiary: If at any time the Company is a wholly-
owned Subsidiary, a Director may, when exercising his or her powers or
performing his or her duties as a Director, act in a manner which he or
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she believes is in the best interests of the Company's Holding Company
even though it may not be in the best interests of the Company.
(b) Subsidiary: If at any time the Company is a Subsidiary (not being a
wholly-owned Subsidiary), a Director may, when exercising powers or
performing duties of a Director, with the prior consent of the
Shareholders (excluding the Company's Holding Company), act in a
manner which he or she believes is in the best interests of the
Company's Holding Company even though it may not be in the best
interests of the Company.
23. MANAGING DIRECTOR
23.1 Power to appoint Managing Director: The Board may from time to time appoint
one of the Directors to the office of Managing Director of the Company for such
period and on such terms as it thinks fit and, subject to the Listing Rules, may at
any time within a period of three months before the expiration of such period of
appointment as aforesaid extend such period of appointment for a further period
and may likewise extend any such further period or periods of appointment. If the
Board so determines, a Managing Director may be referred to as the Chief
Executive of the Company.
23.2 Managing Director Liable to Dismissal: Every Managing Director shall be liable
to be dismissed or removed by the Board (with or without cause), but the Board
may enter into any agreement on behalf of the Company with any Person who is,
or is about to become, a Managing Director, with regard to the length and terms of
his or her employment, but so that the remedy of any such Person for any breach
of the agreement shall be in damages only, and he or she shall have no right to
claim to continue in such office contrary to the will of the Board.
23.3 Remuneration of Managing Director: Subject to the Listing Rules, the
remuneration of a Managing Director shall be fixed by the Board and may be by
way of salary, commission, participation in profits, or partly in one way and partly
in another. Such remuneration may be in addition to the remuneration of that
Managing Director as an ordinary Director.
23.4 Removal of Managing Director: Subject to the Listing Rules and to any
agreement entered into between a Managing Director and the Company as
aforesaid, a Managing Director shall be subject to the same provisions as regards
resignation, removal, and disqualification as the other Directors of the Company,
and if he or she ceases to hold the office of Director from any cause, he or she
shall thereupon cease to be a Managing Director. If a Managing Director shall
cease to be employed by the Company then, unless the Board otherwise
determines, he or she shall ipso facto cease to be a Director.
23.5 Powers Capable of Being Conferred Upon Managing Director: Subject to
section 130 of the Act, the Board may from time to time entrust to and confer upon
a Managing Director any of the powers exercisable by the Board upon such terms
and conditions, and with such restrictions, as it may think fit and either collaterally
with or to the exclusion of its own powers and may from time to time revoke,
withdraw, alter or vary all or any of those powers.
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24. INDEMNITY AND INSURANCE
24.1 Indemnity of Directors: Subject to the Listing Rules and clause 24.3, every
Director shall be indemnified by the Company:
(a) Unsuccessful, Acquitted or Discontinued Actions: for any costs
incurred by him or her in any proceeding that relates to liability for any
act or omission in his or her capacity as a Director or a director of a
Subsidiary of the Company and in which judgment is given in his or her
favour, or in which he or she is acquitted, or which is discontinued; and
(b) Acts or Omissions: in respect of liability to any person other than the
Company or a Related Company for any act or omission by him or her in
his or her capacity as a Director or a director of a Subsidiary of the
Company, and costs incurred by him or her in defending or settling any
claim or proceeding relating to any such liability.
24.2 Other Indemnities: Subject to the Listing Rules and clause 24.3, the Company
may, with the prior approval of the Board, indemnify a director of a Related
Company, or an Employee of the Company or a Related Company:
(a) Unsuccessful, Acquitted or Discontinued Actions: for any costs
incurred by him or her in any proceeding that relates to liability for any
act or omission by him or her in such capacity and in which judgment is
given in his or her favour, or in which he or she is acquitted, or which is
discontinued; and
(b) Acts or Omissions: in respect of liability to any person other than the
Company or a Related Company for any act or omission by him or her in
such capacity, or costs incurred by him or her in defending or settling any
claim or proceeding relating to such liability.
24.3 Exceptions: An indemnity conferred by clause 24.1(b), or given pursuant to
clause 24.2(b), shall not apply in respect of:
(a) Criminal Liability: any criminal liability;
(b) Breach of Fiduciary Duty: in the case of an Employee of the Company
or a Related Company, any liability in respect of a breach of any fiduciary
duty owed to the Company or a Related Company; or
(c) Directors' Duties: in the case of a Director or a director of a Related
Company, any liability in respect of a breach of the duties specified in
section 131 of the Act.
24.4 Insurance: The Company may, with the prior approval of the Board, effect
insurance for a Director or Employee of the Company or a director or employee of
a Related Company, in respect of:
(a) Acts or Omissions: liability, not being criminal liability, for any act or
omission by him or her in such capacity; or
(b) Claims or Proceedings: costs incurred by him or her in defending or
settling any claim or proceeding relating to any such liability; or
(c) Criminal Proceedings: costs incurred by him or her in defending any
criminal proceedings:
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(i) that have been brought against the Director or Employee in
relation to any act or omission in his or her capacity as a
Director or Employee; and
(ii) in which he or she is acquitted.
24.5 Definitions: In this clause 24:
(a) Director: "Director" includes a former Director and "director" includes a
former director; and
(b) Other Extended Meanings: other words given extended meanings in
section 162(9) of the Act have those extended meanings.
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PART V - DISTRIBUTIONS
25. DISTRIBUTIONS
25.1 Power to Make Distribution: The Board may in accordance with the Act
authorise a Distribution by the Company at any time, and of an amount, and to
any Shareholder the Board thinks fit, if it is satisfied on reasonable grounds that
the Company will, immediately following the Distribution, satisfy the Solvency
Test. If after a Distribution is authorised and before it is made, the Board ceases
to be satisfied on reasonable grounds that the Company will, immediately after the
Distribution is made, be able to satisfy the Solvency Test, the Distribution is
deemed not to have been authorised.
25.2 Rules for Application of Solvency Test: In applying the Solvency Test for the
purposes of clause 25.1, "Debts" and "Liabilities" have the meanings given to
those terms in section 52(4) of the Act.
25.3 Solvency Test: The Directors who vote in favour of a Distribution must sign a
certificate stating that, in their opinion the Company will, immediately after the
Distribution is made, satisfy the Solvency Test and the grounds for that opinion in
terms of and in the manner provided under the Act.
25.4 Distribution to Joint Holders: If several Persons are registered as joint holders
of any Shares, and such Persons are entitled to receive Distributions in respect of
the Shares, any one of them may give effectual receipts for any Distribution.
25.5 Manner of Payment: Any Distribution may be paid in any usual manner (whether
by direct credit or otherwise) reasonably directed by the Person entitled thereto
and failing any such direction may be paid by cheque or warrant sent through the
post to the registered address of the Person entitled thereto or in the case of joint
holders to any one of such joint holders at his or her registered address, or to
such Person and such address as the Person entitled or such joint holders, as the
case may be, may direct, and the Company shall not be responsible for any loss
arising from such mode of transmission.
25.6 Deductions from Distributions: The Board may deduct from Distributions
payable to any Person all such sums of money as may be due from him or her to
the Company on account of calls or otherwise or any debt or liability in respect of
which the Company has a lien pursuant to this Constitution upon the specific
Shares in respect of which the Distribution is payable, and on account of such
amounts as the Company may be called upon to pay under any statute or
legislative enactment in respect of the Shares of a deceased or other
Shareholder.
25.7 Persons to Whom Distributions Payable: Distributions shall be payable to the
Persons who are the registered holders of the Shares in respect of which they are
authorised at the time of the authorisation of such Distributions or, if so stipulated
by the terms of the authorisation, at the time when such Distributions are resolved
to be payable.
25.8 Shareholder May Agree That Distribution Payable To Third Party:
Notwithstanding clause 25.1, the Board may enter into any agreement on behalf
of the Company with a Person (whether as a term of the issue of Shares or
otherwise) for Distributions in respect of all or some of the Shares held by that
Person to be paid, during such period or periods as may be specified in such
agreement, to one or more third parties nominated by that Person and payment by
the Company of any Distribution to such one or more third parties in accordance
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with that agreement shall constitute a full discharge of the obligations of the
Company to that Person in respect of the relevant Distribution. Nothing in this
clause 25.8 shall derogate from clause 5.
25.9 Right Not Transferred: Subject to the terms of authorisation of any Distribution,
a transfer of any Share shall not as against the Company pass the right to any
Distribution authorised in respect of that Share payable before the registration of
the transfer.
25.10 Distributions Payable in Currencies other than the Currency of New
Zealand: The Board may direct the payment of any Distribution wholly or partly in
a currency or in currencies other than the lawful currency of New Zealand and
may direct that the Distribution payable in respect of any Shares shall be paid
wholly or partly in one currency and that the Distribution payable in respect of
other Shares shall be paid in one or more other currencies. The Board may
determine or provide for the determination of the exchange rate or exchange rates
to be used in calculating the amount of any Distribution to be paid in a currency or
currencies other than the lawful currency of New Zealand and where any question
arises in regard to any payment of a Distribution in a currency or in currencies
other than the lawful currency of New Zealand the Board may settle the same as it
considers expedient.
25.11 No Interest on Distributions: The Company is not liable to pay interest in
respect of any Distribution.
26. DIVIDENDS
26.1 Entitlement to Dividends: The provisions of clause 25 apply to any Dividend
authorised by the Board provided that the Board must not authorise a Dividend:
(a) Selective: in respect of some but not all of the Shares in a Class; or
(b) Unequal Amounts: 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 the Terms of Issue of the Share. Nothing in
this clause prevents the Board from issuing Shares wholly or partly in lieu of any
Dividend in accordance with the Act.
26.2 Unclaimed Dividends:
(a) Investment: All Dividends unclaimed for one year after having been
declared may be invested or otherwise made use of by the Board for the
benefit of the Company until claimed and the Company shall be entitled
to mingle the amounts of any such Dividends with other money of the
Company or spend the same, and shall not be required to hold them or
regard them as being impressed with any trust.
(b) Forfeiture: All Dividends, and any other moneys payable to any
Shareholder or former Shareholder in respect of Shares and/or interest
in respect of Debt Securities issued by the Company remaining
unclaimed for five years after having been declared or otherwise having
become payable, shall be automatically forfeited for the benefit of the
Company, unless the Board shall resolve otherwise. Subject to the
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provisions of clause 25, the Board shall at any time annul such forfeiture
and pay the Dividend or other money so forfeited to any Person
producing evidence that he or she is entitled to the same.
(c) Waiver: A Shareholder may waive his or her right to receive a Dividend
by notice in writing to the Company signed by or on behalf of the
Shareholder.
27. BONUS ISSUES
27.1 Power to Issue Bonus Shares: The Board may resolve that any Distribution
authorised under clause 25 or clause 26 may be applied either in or toward paying
up any amounts for the time being unpaid on any Shares held by those Persons
respectively or paying up in full the issue price of Securities issued as fully paid up
to and amongst those Persons in the proportion as they would have been entitled
to the same, or partly in the one way and partly in the other, and the Board shall
give effect to every such resolution.
27.2 Participation by Holders of Shares Having Special Terms of Issue: Where
the holders of any Shares issued by the Company are, by virtue only of the Terms
of Issue thereof, entitled to participate in any Distribution whether at the time such
Distribution is made or at some future time, such holders shall participate in any
such Distribution to the extent and in the manner authorised by the Terms of
Issue, and all the provisions of clauses 25 and 26 shall be subject to the Terms of
Issue and shall be deemed to be modified in order to give effect thereto.
27.3 Power of Directors on Distribution: In the event of any Distribution under
clause 27.2 the Board shall make all allotments and issues of fully paid Securities,
if any, and generally shall do all acts and things required to give effect thereto,
and may either round up or disregard fractional entitlements to a Security or make
such provision by the issue of fractional certificates or by payment in cash or
otherwise as the Board thinks fit, and the Board may also authorise any Person to
enter on behalf of all the Persons entitled thereto into an agreement with the
Company providing for the allotment to them respectively, credited as fully paid
up, of any further Security to which they may be entitled upon any such
Distribution, or (as the case may require) for the payment up by the Company on
their behalf, by the application thereto of their respective proportions of the
Distribution, of the amounts or any part of the amounts remaining unpaid on their
existing Shares and any agreement made under any such authority shall be
effective and binding on all such Persons.
27.4 Issue of Shares in Lieu of Dividends: The Board may, in its discretion,
constitute, implement and maintain, on such terms and conditions as it may
determine from time to time, one or more schemes for the benefit of the holders of
Shares in the Company pursuant to which the holders of all or some of the Shares
in the Company may be given any one or more of the following options, namely:
(a) Subscription for Shares: instead of taking in cash the whole or any
part of any Dividend which is declared on any ordinary Shares held by
them, to invest such cash in subscribing for Shares payable in full or by
instalments, or in paying up any unpaid or partly paid ordinary Shares
held by them, on the terms and conditions of any such scheme; or
(b) Forgo Entitlement: to forgo their entitlement to any Dividend or
Distribution declared on ordinary Shares in respect of all or any ordinary
Shares held by them and to take instead fully paid ordinary Shares, to be
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issued by the Company by way of bonus, on the terms and conditions of
any such scheme; or
(c) Not Rank for Dividend: to elect that all or any of the Shares held by
them will not rank for Dividend during such period or periods as may be
fixed by the terms and conditions of any such scheme and will instead
entitle the Shareholder to the issue of fully paid Shares, to be issued by
the Company by way of bonus, on the terms and conditions of any such
scheme; or
(d) Other Options: any other option in respect of the whole or any part of
any Dividend on any ordinary Shares held by them as the Board shall
determine.
Participation in any such scheme shall be available to those Shareholders who
wish to participate therein and are eligible to do so under the terms and conditions
of the scheme. The Board may in its discretion vary, terminate or suspend any
such scheme which may be in existence from time to time on reasonable written
notice to all Shareholders who are eligible (under the terms and conditions of that
scheme) to participate in that scheme.
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PART VI - GENERAL
28. ACCOUNTS
28.1 Books to be Kept:
(a) Accounting Records: The Board shall cause accounting records to be
kept that comply with the requirements of the Act.
(b) Place of Records: The books of account shall be kept at the Office or,
subject to section 195 of the Act, at such other place or places as the
Board thinks fit.
(c) Inspection by Directors: 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.
(d) Inspection by Shareholders: Subject to the provisions of sections 215,
216, 217 and 218 of the Act, the Board shall from time to time determine
whether and to what extent and at what times and places and under
what conditions or regulations the accounts and books of the Company,
or any of them, shall be open to the inspection of Shareholders not being
Directors, and no Shareholder (not being a Director) shall have any right
of inspecting any account or book or papers of the Company except as
conferred by statute or authorised by the Board.
28.2 Accounts to be Prepared: The Board shall from time to time, in accordance with
the Financial Markets Conduct Act 2013, cause to be prepared financial
statements and shall send to every shareholder the annual report and financial
statements of the Company in accordance with the Financial Markets Conduct Act
2013 and the Financial Markets Conduct Regulations 2014.
29. AUDIT
Auditors shall be appointed and their duties regulated in accordance with the Act.
30. NOTICES
30.1 Manner of Notice: A notice, report, account or other document required to be
given or sent by the Company under this Constitution or the Listing Rules may be
given or sent by the Company to any Shareholder either personally or by sending
it by post (which, in the case of a registered address outside New Zealand, shall
be airmail post) to that Shareholder or to that Shareholder's registered address or,
with the Shareholder's consent, to that Shareholder's email address.
30.2 Notice to Other Holders: All notices, reports, accounts and other documents
required to be sent to a holder of any other Equity Security, shall be sent in the
same manner, as though the holder were a Shareholder.
30.3 Service of Notice:
(a) By Post: Where a notice is sent by post, service of the notice shall be
deemed to be effected by properly addressing, pre-paying, and posting a
letter containing the notice, and to have been effected in the case of a
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notice of a meeting on the day after the date of its posting, and in any
other case at the time at which the letter would be delivered in the
ordinary course of post. In proving the giving of any notice by mail it
shall be sufficient to prove that the letter, post card, envelope or wrapper
containing the notice was properly addressed, stamped and posted and
a certificate in writing signed by any Director or other officer or Employee
of the Company that the letter, post card, envelope or wrapper containing
the notice was so addressed, stamped and posted shall be conclusive
proof thereof.
(b) Postal Address outside New Zealand: If a holder of a Security quoted
on the Exchange has no registered address within New Zealand and has
not supplied to the Company an address within New Zealand or an email
address for the giving of notices, but has supplied an address outside
New Zealand, then notices shall be posted to that Security holder at such
address and shall be deemed to have been received by that Security
holder 24 hours after the time of the posting.
(c) By Email: Where a notice is sent by email, service of the notice shall be
deemed to be effected by property addressing an email and to have
been effected at the time that email first enters an information system
outside the control of the Company or outside the control of the
Company's agent sending the notice on the Company's behalf.
30.4 Notice Where Shareholder has No Registered Address: If a Shareholder has
no registered address he or she shall not be entitled to have any notice sent to
him or her from the Company and all proceedings taken without notice to any
such Shareholder shall be as valid as if he or she had due notice thereof. If a
Shareholder has no registered address, a notice may (but need not) be given by
the Company to any such Shareholder by advertisement in a newspaper
circulating in the neighbourhood of the Office addressed to the Shareholders of
the Company generally and any notice so given shall be deemed to have been
duly given at noon on the day on which the advertisement appears.
30.5 Notice to Joint Holders: A notice may be given by the Company to the joint
holders of a Share by giving the notice to the joint holder first named in the
Register in respect of the Share.
30.6 Notice to Representatives or Manager: A notice may be given by the Company
to the Person entitled to a Share in consequence of the mental disorder, death or
bankruptcy of a Shareholder, by sending it through the post in a prepaid letter
addressed to him or her by name, or by the title of the manager of the mentally
disordered Person, or the legal personal representatives of the deceased, or the
assignee of the bankrupt, or by any like description, as the case may be, at the
address, if any, supplied for the purpose by the Person claiming to be so entitled,
or (until such an address has been so supplied) by giving the notice in any
manner in which the same might have been given if the mental disorder, death or
bankruptcy had not occurred.
30.7 Signature of Notice: The signature of any notice to be given by the Company
may be written in accordance with the definition of "written" in clause 1.2.
30.8 Registered Address: The address entered in the Register shall be the registered
address of each Shareholder. It shall be the duty of each Shareholder upon
changing his, her or its address to notify the Company of such change. If notices
or communications posted to a Shareholder's registered address are returned to
the Company marked by the postal authorities or otherwise to the effect that the
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Shareholder is not known at that address or that delivery cannot be effected at
that address, then the Company may send a registered letter to the Shareholder's
registered address and if such registered letter is returned not having been
delivered, then the Shareholder shall be deemed to have no registered address.
30.9 Accidental Omissions: The failure to send an annual report, notice or other
document to a Shareholder or other Equity Security holder in accordance with the
Act or this Constitution does not invalidate the proceedings at a meeting of
Shareholders if the failure to do so was accidental.
30.10 Waiver by Shareholders: Subject to 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 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.
31. EXECUTION OF DOCUMENTS
31.1 Execution of Documents: Contracts and other enforceable obligations requiring
the signature of the Company may be signed:
(a) Deeds: if a deed, by:
(i) two or more Directors; or
(ii) a Director and one other person appointed by the Board for the
purpose, both of whose signatures must be witnessed; or
(iii) one or more attorneys of the Company; or
(b) Other Written Obligations: if not a deed, by any person acting under
the express authority of the Company.
32. LIQUIDATION
If the Company is liquidated, the liquidator may, with the sanction of the Company
by Special Resolution and any other sanction required by the Act, divide amongst
the Shareholders in kind the whole or any part of the assets of the Company
(whether they consist of property of the same kind or not) and may for the purpose
set such value as he or she deems fair upon any property to be divided as
aforesaid and may determine how the division shall be carried out as between the
Shareholders or different Classes of Shareholders. The liquidator may, with the
like sanction, vest the whole or any part of any such assets in trustees upon such
trusts for the benefit of the contributories as the liquidator, with the like sanction,
thinks fit, but so that no Shareholder shall be compelled to accept any Shares or
other Securities on which there is any liability.
33. DISTRIBUTION OF ASSETS
33.1 Distribution of Excess Assets: Subject to the terms and conditions upon which
any Class of Securities may have been issued, upon liquidation the surplus assets
of the Company shall be distributed among the Shareholders in proportion to the
number of Shares held by them respectively less any amount of the issue price for
such Shares which remains outstanding.
Page 50
a2MC Constitution - Adopted 191119 -1007633-5
33.2 Interpretation: In this clause 33 "surplus assets" means the assets in the hand of
the liquidator after the payment of all the debts and liabilities of the Company
including all the costs of the winding up.
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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