Amended Constitution
4 October 2022
The Manager
ASX Market Announcements
Australian Securities Exchange
Exchange Centre
Level 4
20 Bridge Street
Sydney NSW 2000
Electronic Lodgement
Australian Foundation Investment Company Limited
Amendments to the Company Constitution
In accordance with the Listing Rules attached is a copy of the amended Constitution
of Australian Foundation Investment Company Limited (ASX/NZX: AFI), the
amendments to which were approved by shareholders today at the Company’s
Annual General Meeting.
Yours faithfully
Matthew Rowe
Company Secretary
Authorised for release by the Company Secretary
Constitution of Australian
Foundation Investment Company
Limited
ACN 004 147 120
The Corporations Act
Company limited by shares
Registered in Victoria
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Table of Contents
1. Definitions 1
2. Interpretation 2
3. Replaceable Rules 3
4. Transitional 3
5. Issue of Securities 3
6. Preference Shares 3
7. Recognition of Third Party Interests 5
8. Surrender of Securities 5
9. Joint Holders 5
10. Uncertificated Holdings 6
11. Certificates 6
12. Liability to Forfeiture 6
13. Power to Forfeit 7
14. Consequences of Forfeiture 7
15. Lien on Shares 7
16. Notice of Forfeiture 8
17. Disposal of Forfeited Shares 8
18. Sale of Shares to Enforce Lien 8
19. Application of Proceeds of Sale 9
20. Transfers After Forfeiture and Sale 9
20A Payments by the Company 9
21. Directors' Power to Make Calls 10
22. Interest on Unpaid Amounts 11
23. Differentiation Between Holders 11
24. Transfers 11
25. Directors may Refuse to Register 12
26. Transfer and Certificate (if any) 12
27. Transmission on Death 12
28. Transmission by Operation of Law 13
29. Power to Alter Share Capital 13
30. Power of Directors to Convene 13
31. Notice of General Meetings 14
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32. Business of AGMs and General Meetings 14
33. Quorum 14
34. Conduct of Meetings 14
35. Acting Chair 16
36. Adjournments 16
37. Voting at General Meetings 16
38. Special Meetings 17
39. Procedure for Polls 17
40. Chair has Casting Vote 17
41. Representation and Voting of Shareholders 17
42. Restriction on Voting Rights 18
43. Form of Proxy 18
44. Validity of Proxies 19
45. Appointment and Removal 20
46. Retirement 21
47. Remuneration 21
48. Vacation of Office 22
49. Retirement Allowance for Directors 23
50. Directors May Lend to the Company 23
51. Exercise of Voting Power in Other Corporations 24
52. Director May Appoint Alternate Director 24
53. Appointment of Executives 25
54. Powers of Directors and Managing Director 25
55. Proceedings 26
56. Meetings by Technology 26
57. Chair of Directors 27
58. Directors' Voting Rights and Exercise of Powers 27
59. Material Personal Interests 28
60. Committees 28
61. Written Resolutions 29
62. Defects in Appointments 29
63. Secretaries and Other Officers 29
64. Other Officers 29
65. Seals and their Use 30
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66. Powers to Determine Dividends and Pay Interest 30
67. Crediting of Dividends 30
68. Deduction of Unpaid Amounts 31
69. Distributions in Kind 31
70. Payment of Distributions 32
71. Capitalisation of Profits 33
72. Notices Generally 34
73. Winding Up 35
74. Indemnity of Officers, Insurance and Access 36
75. Sale of Small Holdings 37
76. Dividend Reinvestment Plans 41
77. Employee Share Plans 42
78. Restricted Securities 43
79. Restriction on Registration 43
80. Procedures 44
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Constitution of Australian Foundation Investment Company Limited ACN 004 147 120, a public
listed company limited by shares
General
1. Definitions
The following definitions apply in this Constitution unless the context requires otherwise:
ASX Settlement means ASX Settlement Pty Ltd (ABN 49 008 504 532).
ASX Settlement Operating Rules means the operating rules of ASX Settlement or of any
relevant organisation which is an alternative or successor to, or replacement of, ASX
Settlement or of any applicable CS facility licensee.
Business Day has the meaning given in the Listing Rules.
Chair means the person occupying the position of Chair or acting Chair of the Directors
under rule 34 or rule 35.
Corporations Act means the Corporations Act 2001 (Cth) and the Corporations
Regulations 2001 (Cth).
CS facility licensee means a person who holds a licence under the Corporations Act
which authorises the person to operate a clearing and settlement facility.
Direct Vote has the meaning given in rule 41.(e).
Director means a person appointed or elected to the office of director of the company in
accordance with this Constitution and where appropriate includes an alternate Director.
Dividend includes an interim dividend.
Exchange means ASX Limited and includes any successor body.
Finance Director means a person appointed as finance director in accordance with
rul e 53.
Listing Rules means the Listing Rules of the Exchange and any other rules of the
Exchange which are applicable while the company is admitted to the Official List of the
Exchange, each as amended or replaced from time to time.
Managing Director means a person appointed as managing director in accordance with
rule 53.
Marketable Parcel has the meaning given in the Listing Rules.
person and words importing persons means any person including partnerships,
associations and bodies corporate, unincorporated bodies and all other entities or
associations recognised by law as well as individuals.
proper ASTC transfer has the meaning given in the Corporations Regulations 2001 (Cth).
Relevant Director Requirements has the meaning given in rule 45.(e).
Secretary means a person appointed as, or to perform the duties of, secretary of the
company.
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Securities includes shares, rights to shares, options to acquire shares and other securities
with rights of conversion to equity.
Shareholder Present means, in connection with a meeting, the shareholder present at the
venue or venues for the meeting, in person or by proxy, by attorney or, where the
shareholder is a body corporate, by representative (and, for the avoidance of doubt,
includes any of those persons attending a meeting at the venue or venues for the meeting
or using technology approved by the Directors in accordance with this Constitution).
Uncertificated Securities Holding means Securities of the company which under the
Corporations Act, the Listing Rules or any Uncertificated Transfer System may be held in
uncertificated form.
Uncertificated Transfer System means any system operated under the Corporations Act,
the Listing Rules or the ASX Settlement Operating Rules which regulates the transfer or
registration of, or the settlement of transactions affecting, Securities of the company in
uncertificated form and includes CHESS (as defined in the ASX Settlement Operating
Rules) as it applies to Securities in certificated and uncertificated form.
2. Interpretation
Headings are for convenience only and do not affect interpretation. The following rules of
interpretation apply unless any contrary intention appears in this Constitution or the context
requires otherwise.
(a) The singular includes the plural and conversely.
(b) Where a word or phrase is defined, its other grammatical forms have a
corresponding meaning.
(c) A reference to any legislation or to any provision of any legislation includes any
modification or re-enactment of it, any legislative provision substituted for it, and all
regulations and statutory instruments issued under it.
(d) A word or phrase given a meaning in the Corporations Act has the same meaning
in this Constitution.
(e) A reference to the Listing Rules or the ASX Settlement Operating Rules is to the
Listing Rules or the ASX Settlement Operating Rules in force in relation to the
company after taking into account any waiver or exemption which is in force either
generally or in relation to the company.
(f) While the company is admitted to the official list of the Exchange, the following
provisions apply:
(i) notwithstanding anything contained in this Constitution, if the Listing Rules
prohibit an act being done, the act must not be done;
(ii) nothing contained in this Constitution prevents an act being done that the
Listing Rules require to be done;
(iii) if the 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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(iv) if the 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;
(v) if the 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
(vi) if any provision of this Constitution is or becomes inconsistent with the
Listing Rules, this Constitution is deemed not to contain that provision to
the extent of the inconsistency.
3. Replaceable Rules
The replaceable rules contained in the Corporations Act do not apply to the company.
Capital
4. Transitional
(a) This Constitution supersedes the constitution in force immediately before the
adoption of this Constitution.
(b) Everything done under any previous constitution of the company continues to have
the same operation and effect after the adoption of this Constitution as if properly
done under this Constitution. In particular (without limitation) every Director,
alternate Director and Secretary in office immediately before the adoption of this
Constitution is taken to have been appointed and continues in force under this
Constitution.
5. Issue of Securities
(a) Without affecting any special rights conferred on the holders of any Securities, any
Securities may be issued with preferred, deferred or other special rights,
obligations or restrictions, whether in regard to dividends, voting, return of share
capital, payment of calls or otherwise, as the Directors may determine and on any
terms the Directors consider appropriate.
(b) Unless otherwise provided by the terms of issue, the issue of any new Securities
ranking equally with existing Securities is not a variation of the rights conferred on
the holders of the existing Securities.
6. Preference Shares
If the company at any time proposes to create and issue any preference shares:
(a) the preference shares may be issued on the terms that they are, or at the option of
either or both the company and the holder are, liable to be redeemed, whether out
of share capital, profits or otherwise;
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(b) the preference shares are to confer on the holders the right to convert the
preference shares into ordinary shares if and on the basis the Directors decide at
the time of issue of the preference shares;
(c) (i) the preference shares are to confer on the holders a right to receive out of
the profits of the company available for Dividend a preferential Dividend at
the rate or of the amount (which may be subject to an index) and on the
basis decided by the Directors at the time of issue of the preference
shares;
(ii) in addition to the preferential Dividend, the preference shares may
participate with the ordinary shares in Dividends determined by the
Directors if and to the extent the Directors decide at the time of issue of the
preference shares; and
(iii) the preferential Dividend may be cumulative if and to the extent the
Directors decide at the time of issue of the preference shares;
(d) the preference shares are to confer on the holders:
(i) the right on redemption and in a winding up to payment in cash in priority to
any other class of shares of:
(A) the amount paid or agreed to be considered as paid on each of the
preference shares; and
(B) the amount (if any) equal to the aggregate of any Dividends
accrued (whether determined or not) but unpaid and of any arrears
of Dividends; and
(ii) the right, in priority to any payment of Dividend on any other class of
shares, to the preferential Dividend;
(e) the preference shares do not confer on the holders any further rights to participate
in assets or profits of the company;
(f) the holders of the preference shares have the same rights as the holders of
ordinary shares to receive notices, reports and accounts and to attend and be
heard at all general meetings, but are not to have the right to vote at general
meetings except as follows:
(i) on any question considered at a meeting if, at the date of the meeting, the
Dividend on the preference shares is in arrears;
(ii) on a proposal:
(A) to reduce the share capital of the company;
(B) that affects rights attached to the preference shares;
(C) to wind up the company;
(D) for the disposal of the whole of the property, business and
undertaking of the company;
(iii) on a resolution to approve the terms of a buy-back agreement; and
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(iv) on any question considered at a meeting held during the winding up of the
company; and
(g) the company may issue further preference shares ranking pari passu in all
respects with (but not in priority to) other preference shares already issued and the
rights of the issued preference shares are not to be taken to have been varied by
the further issue.
7. Recognition of Third Party Interests
(a) Except as required by law, the company is not bound to recognise a person as
holding a Security on any trust.
(b) Whether or not it has notice of the rights or interests concerned, the company is
not bound to recognise:
(i) any equitable, contingent, future or partial claim to, or interest in, any
Security or unit of a Security; or
(ii) any other right in respect of a Security,
except an absolute right of ownership of the Security holder or as otherwise
provided by this Constitution or by law.
8. Surrender of Securities
In their discretion, the Directors may accept a surrender of Securities by way of
compromise of any question as to whether or not those Securities have been validly issued
or in any other case where the surrender is within the powers of the company. Any
Securities surrendered may be sold or re-issued in the same manner as forfeited shares.
9. Joint Holders
Where two or more persons are registered as the holders of any Securities, they are
considered to hold the Securities as joint tenants with benefits of survivorship subject to the
following provisions:
(a) the company is not bound to register more than four persons as the holders of the
Securities;
(b) the joint holders of the Securities are liable severally as well as jointly in respect of
all payments which ought to be made in respect of the Securities;
(c) on the death of any one of the joint holders, the remaining joint holders are the only
persons recognised by the company as having any title to the Securities but the
Directors may require evidence of death and the estate of the deceased joint
holder is not released from any liability in respect of the Securities;
(d) any one of the joint holders may give a receipt for any Dividend, bonus or return of
capital payable to the joint holders in respect of the Securities;
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(e) only the person whose name stands first in the Securities register as one of the
joint holders of the Securities is entitled, if the company determines to issue
certificates for Securities, to delivery of a certificate relating to the Securities or to
receive notices from the company and any notice given to that person is
considered notice to all the joint holders; and
(f) any one of the joint holders may vote at any meeting of the company either
personally or by properly authorised representative, proxy or attorney or by Direct
Vote, in respect of the Securities as if that joint holder was solely entitled to the
Securities. If more than one of the joint holders are present personally or by
properly authorised representative, proxy or attorney or by Direct Vote, only the
vote of the joint holder whose name appears first in the Securities register counts.
Certificates for Securities
10. Uncertificated Holdings
If and for so long as dealings in Securities of, the company take place under an
Uncertificated Transfer System:
(a) the company need not issue any certificate in respect of Securities held as an
Uncertificated Securities Holding; and
(b) the Securities register may distinguish between shares or other Securities held in
certificated form and Securities held as an Uncertificated Securities Holding.
11. Certificates
Directors may determine to issue certificates for Securities of the company and to cancel
any certificates on issue and to replace lost, destroyed or defaced certificates on issue on
the basis and in the form they determine from time to time.
Forfeiture and Lien
12. Liability to Forfeiture
(a) If a shareholder fails to pay any sum payable in respect of any shares, either for
money payable on issue, calls or instalments, on or before the day for payment,
the Directors may serve a notice on the shareholder requiring payment of the
unpaid sum, together with interest accrued and all expenses of the company
incurred by reason of the non-payment.
(b) The notice must:
(i) specify a day (not earlier than 14 days after the date of service of the
notice) on or before which and a place where the payment required by the
notice is to be made; and
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(ii) state that, if payment is not made by the time and at the place specified,
the shares in respect of which the call was made are liable to be forfeited.
13. Power to Forfeit
If the requirements of a notice served under rule 12 are not complied with, any share in
respect of which the notice has been given may at any time afterwards, but before the
payment required by the notice has been made, be forfeited by a resolution of the Directors
in their discretion to that effect. The forfeiture includes all Dividends, interest and other
money payable by the company in respect of the forfeited shares and not paid before the
forfeiture.
14. Consequences of Forfeiture
A person whose shares have been forfeited:
(a) ceases to be a shareholder in respect of the forfeited shares at the time and on the
date of the passing of the Directors' resolution approving the forfeiture;
(b) has no claims or demands against the company in respect of those shares;
(c) has no other rights incident to the shares except the rights that are provided by the
Corporations Act or saved by this Constitution; and
(d) remains liable to pay to the company all money that, at the date of forfeiture, was
payable by the person to the company in respect of the shares (including, if the
Directors determine, interest from the date of forfeiture at the rate the Directors
determine). The Directors may enforce the payment of the money or any part of
the money for which the shareholder is liable as they determine.
15. Lien on Shares
(a) The company has a first and paramount lien on every share and on the proceeds
of sale of every share for:
(i) any amount due and unpaid in respect of the share which has been called
or is payable at a fixed time;
(ii) any amounts which remain outstanding on loans made by the company to
acquire the share under an employee incentive scheme;
(iii) all amounts that the company may be called on by law to pay (and has
paid) in respect of the share; and
(iv) reasonable interest and expenses incurred by the company in respect of
the unpaid amounts.
(b) The Directors may at any time exempt a share wholly or in part from the provisions
of this rule.
(c) The lien extends to all Dividends and entitlements determined in respect of the
shares but, if the company registers a transfer of any shares on which it has a lien
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or charge without giving the transferee notice of any claim it may have at that time,
the shares are freed and discharged from the lien or charge of the company in
respect of that claim. The Directors may retain those Dividends or entitlements
and may apply them in or towards satisfaction of all amounts due to the company
in respect of which the lien exists.
(d) No person is entitled to exercise any rights or privileges as a shareholder until the
shareholder has paid all calls and instalments of calls and other moneys (including
interest) for the time being payable in respect of every share held by the
shareholder.
(e) Except in the case of a proper ASTC transfer, if any money is paid or payable by
the company under any law, the company may refuse to register a transfer of any
Securities by the shareholder or the shareholder’s personal representative until the
money and interest is set off or deducted or, in case the money and interest
exceeds the amount of any Dividend, bonus or other money then due or payable
by the company to the shareholder, until the excess is paid to the company. The
power to refuse to register a transfer does not extend to a proper ASTC transfer
which is purported to be effected while a holding lock is in place as referred to in
rule 24.
(f) Nothing in this rule affects any right or remedy which any law confers on the
company and any right or remedy is enforceable by the company whether against
the shareholder or the shareholder’s personal representative. The company may
do all things necessary or appropriate under the ASX Settlement Operating Rules
and the Listing Rules in order to protect or enforce any lien or charge.
16. Notice of Forfeiture
When any share is forfeited, notice of the resolution of the Directors must be given to the
shareholder in whose name the share was registered immediately prior to the forfeiture,
and an entry of the forfeiture and the date of forfeiture must be made in the Securities
register. Failure to give notice or make the entry as required by this rule does not
invalidate the forfeiture. At any time before any forfeited share is sold or otherwise
disposed of, the Directors may annul the forfeiture of the share on any condition they
determine.
17. Disposal of Forfeited Shares
Any forfeited share is considered the property of the company and the Directors may sell or
otherwise dispose of or deal with the share in any manner they determine and with or
without any money paid on the share by any former holder being credited as paid up.
18. Sale of Shares to Enforce Lien
(a) For the purpose of enforcing a lien, the Directors may sell the shares which are
subject to the lien in any manner they determine and with or without giving any
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notice to the shareholder in whose names the shares are registered. The Directors
may authorise a person to do everything necessary to transfer the shares sold to
the purchaser of the shares.
(b) The validity of the sale of the shares may not be impeached by any person after
the transfer has been registered, and the purchaser is not bound to see to the
application of the purchase money.
(c) The title of the purchaser to the shares is not affected by any irregularity or
invalidity in connection with the sale.
(d) The purchaser is discharged from liability for any calls which may have been due
before the purchase of those shares, unless otherwise agreed.
(e) The remedy of any person aggrieved by the sale is in damages only and against
the company exclusively.
19. Application of Proceeds of Sale
The proceeds of a sale made under a lien may be applied by the company in payment of:
(a) first, the expenses of the sale; and
(b) second, that part of the amount in respect of which the lien exists as is presently
payable.
Any residue is to be paid to the person entitled to the shares immediately prior to the sale,
on delivery by that person of the certificate, if any, for the shares that have been sold.
20. Transfers After Forfeiture and Sale
(a) The company may:
(i) receive the consideration (if any) given for a forfeited share on any sale or
disposition of the share; and
(ii) effect a transfer of the share in favour of the person to whom the share is
sold or disposed of.
(b) On the completion of the transfer, the transferee is to be registered as the holder of
the share and is not bound to see to the application of any money paid as
consideration.
Payments by the Company
20A Payments by the Company
(a) If the law of any place imposes or purports to impose any immediate or future or
possible liability on the company to make any payments or empowers any
government or taxing authority or government official to require the company to
make any payment:
(i) in respect of any Securities held either jointly or solely by any holder;
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(ii) in respect of any transfer of those Securities;
(iii) in respect of any interest, Dividends, bonuses or other moneys due or
payable or accruing or which may become due or payable to the holder by
the company on or in respect of any Securities; or
(iv) for or on account or in respect of any holder of Securities,
then rules 20A(b) and 20A(c) apply, in addition to any right or remedy the company
may otherwise have.
(b) The company is fully indemnified in respect any such liability by:
(i) the holder;
(ii) the holder's trustee, executor or administrator; or
(iii) any person who becomes registered as the holder of the Securities on the
distribution of the deceased holder's estate.
(c) The company may recover any moneys paid as described in rule 20A(a), which
exceeded any Dividend, bonus or other money then due or payable by the
company to the holder, together with interest at a rate the Directors may determine
from time to time from the date of payment to the date of repayment, as a debt due
from:
(i) the holder;
(ii) the holder's trustee, executor or administrator; or
(iii) any person who becomes registered as holder of the Securities on the
distribution of the deceased holder's estate.
(d) The Directors may:
(i) exempt a Security from all or part of this rule 20A; and
(ii) waive or compromise all or part of any payment due to the company under
this rule 20A.
Call on Shares
21. Directors' Power to Make Calls
(a) Subject to the terms of issue of any shares, the Directors may make calls on the
shareholders in respect of any money unpaid on the shares.
(b) Each shareholder is liable to pay the amount of each call in the manner, at the time
and at the place specified by the Directors.
(c) The Directors may revoke or postpone a call.
(d) A call may be required to be paid by instalments.
(e) A call is made at the time of or as specified in the resolution of the Directors
authorising the call.
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(f) The non-receipt of a notice of a call by, or the accidental omission to give notice of
a call to, any shareholder does not invalidate the call.
22. Interest on Unpaid Amounts
(a) If a sum called or otherwise payable to the company in respect of a share is not
paid before or on the day for payment, the person from whom the sum is due must
pay:
(i) interest on the sum from the due date to the time of actual payment at the
rate determined by the Directors; and
(ii) any costs and expenses incurred by the company by reason of
non-payment or late payment of the sum.
(b) The Directors may waive payment of some or all of the interest, costs and
expenses under rule 22.(a).
23. Differentiation Between Holders
The Directors may differentiate on the issue of shares between the holders as to the
amount of calls to be paid and the times of payment.
Transfer of Securities
24. Transfers
(a) A transfer of any Securities may be effected by:
(i) a written transfer in the usual or common form or in any form the Directors
may prescribe or in a particular case accept, properly stamped (if
necessary) being delivered to the company;
(ii) a proper ASTC transfer, which is to be in the form required or permitted by
the Corporations Act or the ASX Settlement Operating Rules; or
(iii) any other electronic system established or recognised by the Listing Rules
in which the company participates in accordance with the rules of that
system.
(b) Except in the case of a proper ASTC transfer, the transferor is considered to
remain the holder of the Securities transferred until the name of the transferee is
entered on the Securities register. A proper ASTC transfer is considered recorded
in the Securities register and the name of the transferee to be registered as the
holder of the Securities comprised in the proper ASTC transfer, as provided in the
ASX Settlement Operating Rules.
(c) The Directors may take any action they determine to comply with the ASX
Settlement Operating Rules and may request ASX Settlement to apply a holding
lock to prevent a transfer of Securities the subject of the ASX Settlement Operating
Rules if the Directors determine.
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(d) The company may do anything necessary or desirable to facilitate participation by
the company in any Uncertificated Transfer System.
25. Directors may Refuse to Register
(a) The Directors may refuse to register any transfer of Securities:
(i) if the registration of the transfer would result in a contravention of or failure
to observe the provisions of any applicable law or the Listing Rules;
(ii) on which the company has a lien or which are subject to forfeiture; or
(iii) if permitted to do so under the Listing Rules.
(b) The decision of the Directors relating to the registration of a transfer is absolute.
Failure to give notice of refusal to register any transfer as may be required under
the Corporations Act or the Listing Rules does not invalidate the decision of the
Directors.
26. Transfer and Certificate (if any)
(a) Every transfer must be left for registration at the registered office of the company or
any other place the Directors determine. Unless the Directors otherwise determine
either generally or in a particular case, the transfer is to be accompanied by the
certificate (if any) for the Securities to be transferred. In addition, the transfer is to
be accompanied by any other evidence which the Directors may require to prove
the title of the transferor, the transferor's right to transfer the Securities, execution
of the transfer or compliance with the provisions of any law relating to stamp duty.
The requirements of this rule do not apply in respect of a proper ASTC transfer.
(b) Subject to rule 26.(a), on each application to register the transfer of any Securities
or to register any person as the holder in respect of any Securities transmitted to
that person by operation of law or otherwise, the certificate (if any) specifying the
Securities in respect of which registration is required must be delivered to the
company for cancellation and on registration the certificate is considered to have
been cancelled.
(c) Each transfer which is registered may be retained by the company for any period
determined by the Directors after which the company may destroy it.
Transmission of Securities
27. Transmission on Death
(a) Where a Security holder dies:
(i) the legal personal representatives of the deceased, where the Security
holder was a sole holder or a joint holder holding as a tenant in
common; and
(ii) the survivor or survivors, where the Security holder was a joint holder,
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are the only persons recognised by the company as having any title to the Security
holder's interest in the Securities of the company (as the case may be).
(b) Subject to the Corporations Act, the Directors may require evidence of a Security
holder's death as they determine.
(c) This rule does not release the estate of a deceased joint holder from any liability in
respect of any Security that had been jointly held by the holder with other persons.
28. Transmission by Operation of Law
A person (a transmittee) who establishes to the satisfaction of the Directors that the right
to any Securities has devolved on the transmittee by will or by operation of law may be
registered as a holder in respect of the Securities or may (subject to the provisions in this
Constitution relating to transfers) transfer the Securities. The Directors have the same right
to refuse to register the transmittee as if the transmittee was the transferee named in a
transfer presented for registration.
Alteration of Capital
29. Power to Alter Share Capital
The company may reduce or alter its share capital in any manner provided for by the
Corporations Act. The Directors may do anything which is required to give effect to any
resolution authorising reduction or alteration of the share capital of the company and,
without limitation, may make provision for the issue of fractional certificates or the sale of
fractions of shares and the distribution of net proceeds as they think fit.
General Meetings
30. Power of Directors to Convene
By a resolution of the Directors, the company may call a general meeting of the company
to be convened at the time and place or places (including at two or more venues using
technology that gives shareholders a reasonable opportunity to participate) and in the
manner determined by the Directors. No shareholder may convene a general meeting of
the company except where entitled under the Corporations Act to do so. By resolution of
the Directors any general meeting may be cancelled or postponed prior to the date on
which it is to be held, except where the cancellation or postponement would be contrary to
the Corporations Act. The Directors may give notice of cancellation or postponement as
they determine, but any failure to give notice of cancellation or postponement does not
invalidate the cancellation or postponement or any resolution passed at a postponed
meeting.
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31. Notice of General Meetings
Where the company has called a general meeting, notice of the meeting may be given in
the form and manner in which the Directors determine. The non-receipt of a notice
convening a general meeting by, or the accidental omission to give notice to, any person
entitled to receive notice does not invalidate the proceedings at or any resolution passed at
the meeting.
32. Business of AGMs and General Meetings
(a) The business of an annual general meeting of the company is to receive and
consider the accounts and reports required by the Corporations Act to be laid
before each annual general meeting, to elect Directors, when relevant to appoint
an auditor and fix the auditor’s remuneration, and to transact any other business
which, under this Constitution, is required to be transacted at any annual general
meeting.
(b) Except with the approval of the Directors, with the permission of the Chair or under
the Corporations Act, no person may move at any meeting either any resolution
(except in the form set out in the notice of meeting given under rule 31) or any
amendment of any resolution.
33. Quorum
(a) No business may be transacted at any general meeting except, subject to rule 34,
the election of the chair of the meeting unless a quorum of shareholders is present
at the time when the meeting proceeds to business.
(b) Except as otherwise provided in this Constitution, five Shareholders Present
constitutes a quorum.
(c) If there is not a quorum at a general meeting within 15 minutes after the time
specified in the notice of the meeting, the meeting is dissolved unless the chair of
the meeting or the Directors adjourn the meeting to a date, time and place
determined by the chair of the meeting or the Directors, and unless the meeting is
adjourned for one month or more no notice of any such adjournment is required to
be given to the shareholders. If no quorum is present at any adjourned meeting
within 15 minutes after the time for the meeting, the meeting is dissolved.
34. Conduct of Meetings
(a) Subject to rule 34.(b), the Chair or, in the Chair's absence, the deputy Chair is
entitled to preside as Chair at every general meeting.
(b) Where a general meeting is held and:
(i) there is no Chair or deputy Chair; or
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(ii) the Chair or deputy Chair is not present within 15 minutes after the time
appointed for the meeting or does not wish to act as Chair of the meeting,
the Directors present may choose one of their number or, in the absence of all
Directors or if none of the Directors present wish to act, the Shareholders Present
may elect one of their number to be chair of the meeting.
(c) The general conduct of each general meeting of the company and the procedures
to be adopted at the meeting are as determined at, during or prior to the meeting
by the chair of the meeting.
(d) The chair of a meeting may make rulings without putting the question (or any
question) to the vote if the chair considers action is required to ensure the orderly
conduct of the meeting.
(e) The chair of a meeting may require the adoption of any procedures which are in
the chair’s opinion necessary or desirable for the proper and orderly casting or
recording of votes at any general meeting of the company, whether on a show of
hands or on a poll.
(f) The chair of a meeting or a person acting with the chair's authority may require any
person who wishes to attend the meeting to comply with searches, restrictions or
other security arrangements the chair or a person acting with the chair's authority
considers appropriate. The chair of the meeting or a person acting with the chair's
authority may refuse entry to any person who does not comply with the
arrangements, any person who possesses a recording or broadcasting device
without the consent of the chair or a person acting with the chair's authority, or any
person who possesses an article which the chair or person acting with the chair's
authority considers to be dangerous, offensive or liable to cause disruption. At any
time the chair of a meeting considers it necessary or desirable for the proper and
orderly conduct of the meeting, the chair may demand the cessation of debate or
discussion on any business, question, motion or resolution being considered by the
meeting and require the business, question, motion or resolution to be put to a vote
of the Shareholders Present.
(g) Any determination by the chair of a meeting in relation to matters of procedure
(including any procedural motions moved at, or put to, any meeting) or any other
matter arising directly or indirectly from the business is final (including any
procedural motions moved at, or put to, any meeting). Any challenge to a right to
vote (whether on a show of hands or on a poll) or to a determination to allow or
disregard a vote (including in either case a Direct Vote) may only be made at the
meeting and may be determined by the chair of the meeting whose decision is
final.
(h) If a person purports to cast a vote (including a Direct Vote) in contravention of the
Corporations Act or Listing Rules, the chair of the meeting may determine that the
vote be disregarded and treated as not having been cast.
(i) Nothing contained in this rule limits the powers conferred on a chair of a meeting
by law.
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35. Acting Chair
(a) If during any general meeting the chair of the meeting acting under rule 34 is
unwilling to chair any part of the proceedings, the Chair may withdraw during the
relevant part of the proceedings and may nominate any person who immediately
before the general meeting was a Director or who has been nominated for election
as a Director at the meeting to be acting chair of the meeting during the relevant
part of the proceedings. On the conclusion of the relevant part of the proceedings
the acting chair is to withdraw and the chair of the meeting is to resume to chair the
meeting.
(b) Where an instrument of proxy appoints the Chair as proxy for the part of the
proceedings for which an acting Chair has been nominated, the instrument of proxy
is taken to be in favour of the acting Chair for the relevant part of the proceedings.
36. Adjournments
During the course of the meeting the chair of the meeting may adjourn the meeting or any
business, motion, question or resolution being considered or remaining to be considered by
the meeting or any debate or discussion either to a later time at the same meeting or to an
adjourned meeting to be held at the time and place determined by the chair. If the chair of
the meeting exercises a right of adjournment of a meeting under this rule, the chair has the
sole discretion to decide whether to seek the approval of the Shareholders Present to the
adjournment and, unless the chair exercises that discretion, no vote may be taken by the
Shareholders Present in respect of the adjournment. No business may be transacted at
any adjourned meeting other than the business left unfinished at the meeting from which
the adjournment took place.
37. Voting at General Meetings
(a) Subject to the requirements of the Corporations Act, any question submitted to a
general meeting is to be decided by a simple majority of votes validly cast on the
question at or for the purpose of the meeting.
(b) Subject to rule 37.(c) and the requirements of the Corporations Act, each question
submitted to the general meeting is to be decided in the first instance by a show of
hands.
(c) A question must be decided on a poll without first submitting the question to the
meeting to be decided by a show of hands if:
(i) the question is a resolution set out in the notice of meeting provided in
accordance with rule 31;
(ii) the chair of a general meeting determines that the question be determined
by a poll without first submitting the question to the meeting to be decided
by a show of hands; or
(iii) otherwise required by law or the Listing Rules.
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(d) Unless a poll is demanded, a declaration by the chair of the meeting following a
vote on a show of hands that a resolution has been passed or lost is conclusive,
without proof of the number or proportion of the votes recorded in favour of or
against the resolution.
(e) A poll may be demanded by a shareholder in accordance with the Corporations Act
(and not otherwise) or by the chair of the meeting. No poll may be demanded on
the election of a chair of a meeting or, unless the chair of the meeting otherwise
determines, the adjournment of a meeting. A demand for a poll may be withdrawn.
38. Special Meetings
All the provisions of this Constitution as to general meetings apply to any special meeting
of any class of shareholders which may be held under the operation of this Constitution or
the Corporations Act.
39. Procedure for Polls
(a) When demanded, a poll may be taken in the manner and at the time the chair of
the meeting directs.
(b) The result of a poll may be announced in the manner and at the time (whether
during the relevant meeting or afterwards) as the chair of the meeting considers
appropriate.
(c) The result of the poll is the resolution of the meeting at which the poll was
demanded.
(d) The demand for a poll does not prevent a meeting from continuing for the
transaction of any business other than that on which a poll has been demanded. A
poll demanded on any question of adjournment is to be taken at the meeting and
without adjournment.
40. Chair has Casting Vote
In the case of an equality of votes on a show of hands or on a poll the chair of the meeting
has a casting vote in addition to any vote to which the chair may be entitled as a
shareholder or as a proxy, attorney or properly appointed representative of a shareholder.
41. Representation and Voting of Shareholders
Subject to this Constitution and any rights or restrictions for the time being attached to any
class or classes of shares:
(a) at meetings of shareholders or classes of shareholders each shareholder entitled
to attend and vote may attend and vote in person or by proxy, by attorney or
(where the shareholder is a body corporate) by representative;
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(b) on a show of hands:
(i) subject to rule 41.(b)(ii) and (iii), each Shareholder Present has one vote;
(ii) where a shareholder has appointed more than one person as
representative, proxy or attorney for the shareholder, none of the
representatives, proxies or attorneys is entitled to vote; and
(iii) where a person is entitled to vote because of rule 41.(b)(i) in more than
one capacity, that person is entitled only to one vote;
(c) on a poll, subject to rule 41.(d), only Shareholders Present may vote and every
Shareholder Present having the right to vote on the resolution has:
(i) one vote for each fully paid share they hold; and
(ii) in the case of a partly paid share, that fraction of a vote equivalent to the
proportion which the amount paid up (not credited) on that shareholder's
share bears to the total amount paid and payable for that share (excluding
amounts credited). Amounts paid in advance of a call are ignored when
calculating the proportion;
(d) where the Directors have approved, consistently with the Corporations Act, other
means (including electronic) for the casting and recording of votes by shareholders
on any resolution to be put to a general meeting, every shareholder having the
right to vote on the resolution has:
(i) one vote for each fully paid share they hold; and
(ii) in the case of a partly paid share, that fraction of a vote equivalent to the
proportion which the amount paid up (not credited) on that shareholder's
share bears to the total amount paid and payable for that share (excluding
amounts credited). Amounts paid in advance of a call are ignored when
calculating the proportion; and
(e) the Directors may, subject to law, determine that, at any general meeting or class
meeting, a member who is entitled to attend and vote at that meeting is entitled to
give their vote by a valid notice of their voting intention (a Direct Vote). A Direct
Vote includes a vote delivered to the company by post, fax, electronic or other
means approved by the Directors. The Directors may specify the form, method
and timing of giving a Direct Vote at a meeting in order for the vote to be valid.
42. Restriction on Voting Rights
A shareholder is not entitled to vote at a general meeting or to be counted for the purpose
of constituting a quorum unless all calls and other sums presently payable by the
shareholder in respect of shares have been paid.
43. Form of Proxy
(a) A shareholder who is entitled to attend and vote at a meeting of the company may
appoint a person as a proxy to attend and vote for the shareholder in accordance
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with the Corporations Act but not otherwise. A proxy appointed in accordance with
the Corporations Act to attend and vote may exercise the rights of the shareholder
on the basis and subject to the restrictions provided in the Corporations Act but not
otherwise.
(b) A form of appointment of a proxy is valid if it is in accordance with the Corporations
Act or in any form (including electronic) which the Directors may prescribe or
accept.
(c) If a proxy appointment is not properly executed or validated, incomplete or unclear,
the following provisions apply. Nothing obliges the Directors or the company to do
anything referred to in those provisions.
(i) Any appointment of proxy under this rule 43 which is incomplete may be
completed by the Secretary on the authority of the Directors and the
Directors may authorise completion of the proxy by the insertion of the
name of any Director or the Secretary as the person in whose favour the
proxy is given (which may occur later than the time specified in the relevant
notice of meeting for the receipt of proxy appointments).
(ii) If the appointment has not been duly signed or validated, the company
may:
(A) return the appointment to the appointing shareholder; and
(B) request that the shareholder sign or validate the appointment and
return it to the company within a period decided by the Directors
(which may be later than the time specified in the relevant notice of
meeting for the receipt of proxy appointments).
(iii) If the appointment is otherwise incomplete or unclear, the company may,
by written or oral communication, clarify with a shareholder any instruction
on the appointment and complete or amend the contents of any
appointment to reflect any clarification in instruction received from the
shareholder (which completion or amendment may occur later than the
time specified in the relevant notice of meeting for the receipt of proxy
appointments). For this purpose the shareholder appoints the company as
its attorney.
(d) Where a notice of meeting provides for electronic lodgement of proxy
appointments, an appointment lodged at the electronic address or by electronic
means specified in the notice is taken to have been received at the registered
office of the company and validated by the shareholder if there is compliance with
the requirements set out in the notice.
44. Validity of Proxies
(a) A vote exercised in accordance with the terms of an instrument of proxy, a power
of attorney or other relevant instrument of appointment is valid despite:
(i) the previous death or unsoundness of mind of the principal;
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(ii) the revocation of the instrument (or of the authority under which the
instrument was executed) or the power; or
(iii) the transfer of the share in respect of which the instrument or power is
given,
if no notice in writing of the death, unsoundness of mind, revocation or transfer (as
the case may be) has been received by the company at its registered office at least
48 hours (or any shorter period as the Directors may permit or specified by the
Corporations Act) before the commencement of the meeting, or adjourned
meeting, at which the instrument is used or the power is exercised.
(b) A proxy is not revoked by the principal attending and taking part in the meeting
unless the principal actually votes at the meeting on a resolution for which the
proxy is proposed to be used.
(c) Voting instructions given by a shareholder to a Director or employee of the
company who is held out by the company in material sent to shareholders as
willing to act as proxy who is appointed as proxy (Company Proxy) are valid only if
contained in the form of appointment of the Company Proxy. If a shareholder
wishes to give a Company Proxy appointed by the shareholder new instructions or
variations to earlier instructions, the new or varied instructions are only valid if
either they are received at the registered office of the company at least 48 hours
before the meeting or adjourned meeting by a notice in writing signed by the
shareholder or they are otherwise validated by the shareholder in a manner
acceptable to the Directors in their discretion prior to the commencement of the
meeting.
Appointment, Removal and Remuneration Of Directors
45. Appointment and Removal
(a) Subject to rule 45.(e), the shareholders in general meeting may appoint any person
as a Director by resolution.
(b) No person other than a retiring Director or a Director vacating office under
rule 45.(d) is eligible to be elected a Director at any general meeting unless a
notice of the Director's candidature is given to the company at least 40 Business
Days (or, in the case of a meeting that the shareholders have requested Directors
to call, 30 Business Days) before the meeting. In the case where the candidate
has been recommended by the Directors for election, notice is required to be given
to the company at least 28 days before the meeting.
(c) The number of Directors (not including alternate Directors) must be the number,
not being less than 3 nor more than 10, which the Directors may determine but the
Directors may not reduce the number below the number of Directors in office at the
time of the reduction. All Directors are to be natural persons.
(d) The Directors may at any time appoint any person as a Director either to fill a
casual vacancy or as an addition to the board of Directors. Any Director appointed
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under this rule 45.(d) (other than an exempt Managing Director) may hold office
only until the next annual general meeting of the company and is then eligible for
election at that meeting.
(e) A person is not eligible to hold office as a Director unless the person:
(i) provides all information and consents that the Directors reasonably request
to enable the Directors to determine if the person is eligible to hold that
office under the law, the Listing Rules, the Corporations Act, any Australian
legislation or any regulatory requirement or standard made in accordance
with such legislation applicable to the company (together, the Relevant
Director Requirements); and
(ii) the person is also eligible to hold that office under the Relevant Director
Requirements.
46. Retirement
(a) Subject to rule 53, a Director may not hold office for a continuous period in excess
of three years or past the third annual general meeting following the Director's
appointment, whichever is the longer, without submitting for election or re-election.
If no Director would otherwise be required to submit for election or re-election but
the Listing Rules require that an election of Directors be held, the Director to retire
at the annual general meeting is the Director who has been longest in office since
their last election, but, as between persons who became Directors on the same
day, the one to retire is (unless they otherwise agree among themselves)
determined by ballot.
(b) A retiring Director under rule 46.(a) is eligible for re-election without needing to give
any prior notice of an intention to submit for re-election and holds office as a
Director until the end of the meeting at which the Director retires.
47. Remuneration
(a) The Directors are to be paid for their services as Directors.
(b) Each non-executive Director is to be paid or provided remuneration for services,
determined by the Directors, at the time and in the manner determined by the
Directors, the total amount or value of which in any year may not exceed an
amount approved by the company in general meeting from time to time. The
expression remuneration in this rule does not include any amount which may be
paid by the company under any of rules 47.(e), 47.(f), 49 (excluding
superannuation contributions), and 74.
(c) The remuneration to be paid or provided under rule 47.(b)is to be divided among
the Directors in the proportions as they may agree or, if they cannot agree, equally
among them.
(d) The remuneration to which a Director is entitled may be provided to a Director in
cash or in any other form as is agreed between the company and the Director. A
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Director may elect to forgo some or all of the Director’s entitlement to cash
remuneration in favour of another agreed form of remuneration and vice versa,
provided the total cost to the company of that Director’s remuneration is not
increased above the maximum for that Director under rule 47(c).
(e) The Directors are also entitled to be paid or reimbursed for all travelling and other
expenses properly incurred by them in attending and returning from any meeting of
the Directors, committee of the Directors, general meeting of the company or
otherwise in connection with the business or affairs of the company.
(f) If any Director, with the approval of the Directors, performs extra services or makes
any special exertions for the benefit of the company which in the opinion of the
Directors are outside the scope of the ordinary duties of a Director, the Directors
may approve the payment to that Director of special and additional remuneration
as the Directors determine having regard to the value to the company of the extra
services or special exertions. Any special or additional remuneration must not
include a commission on or percentage of profits or operating revenue or turnover.
(g) An executive Director may be appointed on terms as to remuneration, tenure of
office and otherwise as may be agreed by the Directors.
(h) Subject to the Corporations Act, a Director may be engaged by the company in any
other capacity (other than auditor) and may be appointed on terms as to
remuneration, tenure of office and otherwise as may be agreed by the Directors.
48. Vacation of Office
(a) In addition to the circumstances in which the office of a Director becomes vacant:
(i) under the Corporations Act;
(ii) under rule 46,
the office of a Director becomes vacant if the Director:
(iii) becomes of unsound mind or a person whose person or estate is liable to
be dealt with in any way under the law relating to mental health;
(iv) resigns by notice in writing to the company;
(v) is absent without the consent of the Directors from meetings of the
Directors held during a continuous period of three months;
(vi) dies;
(vii) if the Director fails to provide all information and consents that the Directors
reasonably request to enable the Directors to determine if the Director is
eligible to hold the office of Director under the Relevant Director
Requirements; or
(viii) the Director is not eligible to hold the office of Director under the Relevant
Director Requirements.
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(b) The office of a Director who is an employee of the company or any of its
subsidiaries is terminated on the Director ceasing to be employed but the person
concerned is eligible for reappointment or re-election as a Director of the company.
49. Retirement Allowance for Directors
(a) The company may pay, provide or make any payment, pension, retiring allowance
or other benefit (whether in the form of shares in the company, shares in any other
corporations or otherwise) to any Director of the company or of a subsidiary or any
other person in connection with the Director's retirement, resignation from or loss of
office or death while in office.
(b) Subject to rule 49(a) the Directors may:
(i) make contracts or arrangements with a Director or a person about to
become a Director of the company or a subsidiary under which the Director
or any person nominated by the Director is paid or provided with a
payment, pension, retiring allowance or other benefit (whether in the form
of shares in the company, shares in any other corporation or otherwise) on
or after the Director or person about to become a Director ceases to hold
office for any reason; and
(ii) establish any fund or scheme to provide payments, pensions, retiring
allowances or other benefits (whether in the form of shares in the
company, shares in any other corporation or otherwise) for:
(A) Directors, on them ceasing to hold office; or
(B) any person including a person nominated by the Director, in the
event of the Director's death while in office,
and from time to time pay to the fund or scheme any sum as the company
considers necessary to provide those benefits.
(c) Without limiting rules 49.(a) and 49.(b), the company may pay superannuation
contributions for each Director to the extent necessary for the avoidance or
minimisation of any penalty, charge, tax, or other impost on the company under
any applicable legislation which imposes a penalty, charge, tax or other impost on
employers if a minimum level of superannuation contributions is not paid for an
employee (within the meaning of the legislation).
50. Directors May Lend to the Company
Any Director may lend money to the company at interest with or without security or may, for
a commission or profit, guarantee the repayment of any money borrowed by the company
or underwrite or guarantee the subscription of Securities of the company or of any
corporation in which the company may be interested without being disqualified in respect of
the office of Director and without being liable to account to the company for the commission
or profit.
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51. Exercise of Voting Power in Other Corporations
The Directors may exercise the voting power conferred by the shares in any corporation
held or owned by the company as the Directors determine (including the exercise of the
voting power in favour of any resolution appointing the Directors or any of them directors of
that corporation or voting or providing for the payment of remuneration to the directors of
that corporation) and a Director of the company may vote in favour of the exercise of those
voting rights, despite the fact that the Director is, or may be about to be appointed, a
director of that other corporation and may be interested in the exercise of those voting
rights.
Alternate Directors
52. Director May Appoint Alternate Director
Subject to this constitution, each Director may appoint any person approved by a majority
of the other Directors to act as an alternate Director in the Director's place, either for a
stated period or until the happening of a specified event, whenever by absence or illness or
otherwise the Director is unable to attend to duties as a Director. The appointment must be
in writing and signed by the Director and a copy of the appointment must be given to the
registered office or to a meeting of the Directors. The appointment takes effect on approval
by a majority of the other Directors or, where the approval has been granted, at any later
time specified in the appointment. The following provisions apply to any alternate Director:
(a) the appointment of the alternate Director is terminated or suspended on receipt at
the registered office of notice in writing from the Director by whom the alternate
Director was appointed;
(b) the alternate Director is entitled to receive notice of meetings of the Directors and
to attend and vote at the meetings if the Director by whom the alternate Director
was appointed is not present;
(c) the alternate Director is entitled to exercise all the powers (except the power to
appoint an alternate Director) and perform all the duties of a Director, to the extent
the Director by whom the alternate Director was appointed has not exercised or
performed them or they have not been limited by the instrument appointing the
alternate Director;
(d) the alternate Director is not, unless the Directors otherwise determine, (without
affecting the right to reimbursement for expenses under rule 47.(e)) entitled to
receive any remuneration as a Director from the company, and any remuneration
(not including remuneration authorised by the Directors or reimbursement for
expenses) paid to the alternate Director by the company is to be deducted from the
remuneration of the Director by whom the alternate Director was appointed;
(e) the office of the alternate Director is terminated on the death of, or termination of
office by, the Director by whom the alternate Director was appointed;
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(f) the alternate Director is not to be taken into account in determining the number of
Directors; and
(g) the alternate Director is, while acting as a Director, responsible to the company for
the alternate Director's own acts and defaults and is not the agent of the Director
by whom the alternate Director was appointed.
Powers of Directors and Executives
53. Appointment of Executives
(a) The Directors may appoint one or more:
(i) executives of the company to be Directors (subject to the provisions of this
Constitution dealing with the appointment of person as Directors); or
(ii) Directors as executives of the company and determine the terms of such
executive appointments; or
(iii) persons to be both executives and Directors (subject to the provisions of
this Constitution dealing with the appointment of Directors) and determine
the terms of such executive appointments.
(b) Subject to the terms of any agreement entered into in a particular case, the
Directors may at any time revoke any appointment made pursuant to this rule 53,
with or without cause.
(c) The Directors may determine that anyone so appointed bears the title Managing
Director or Finance Director or any other title the Directors determine.
(d) An exempt Managing Director is not subject to election and re-election. An exempt
Managing Director is the Managing Director or, if there is more than one Managing
Director, the Managing Director designated by the Directors to be an exempt
Managing Director.
(e) If a person appointed as an executive or a Director under this rule 53 ceases to be
a Director, then the executive appointment automatically terminates, subject to any
contrary determination by the Directors (and without prejudice to any rights of any
party under any relevant service agreement).
(f) If a person appointed as an executive or a Director under this rule 53 ceases to be
an executive, then the person automatically ceases to be a Director unless the
other Directors resolve that the person should remain a Director until the next
annual general meeting, in which case that Director is treated as a retiring Director
at that annual general meeting.
54. Powers of Directors and Managing Director
(a) The business of the company is managed by the Directors, who may exercise all
powers of the company which are not, by the law or this Constitution, required to
be exercised by the company in general meeting.
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(b) The Directors may, on the terms and conditions and with any restrictions as they
determine, delegate to a Managing Director any of the powers exercisable by them
and may at any time withdraw, suspend or vary any of those powers conferred on
the Managing Director.
Proceedings of Directors
55. Proceedings
(a) The Directors may meet together for the dispatch of business and adjourn and
otherwise regulate their meetings as they determine.
(b) A Director may at any time, and a Secretary upon the request of a Director must,
convene a meeting of the Directors. A meeting of the Directors m ay also be
convened in any other manner determined by the Directors from time to time.
(c) Until otherwise determined by the Directors, two Directors form a quorum. Notice
of meeting of the Directors may be given by mail (electronic or otherwise), personal
delivery or facsimile transmission to the usual place of business or residence of the
Director or at any other address given to the Secretary by the Director or by any
technology agreed by all the Directors.
56. Meetings by Technology
(a) For the purposes of the Corporations Act, each Director, by consenting to be a
Director (or by reason of the adoption of this Constitution), consents to the use of
each of the following technologies for holding a Directors meeting:
(i) video;
(ii) telephone;
(iii) electronic mail;
(iv) any other technology which permits each Director to communicate with
every other Director; or
(v) any combination of these technologies.
A Director may withdraw the consent given under this rule in accordance with the
Corporations Act.
(b) Where the Directors are not all in attendance at one place and are holding a
meeting using technology and each Director can communicate with the other
Directors:
(i) the participating Directors are, for the purpose of every provision of this
Constitution concerning meetings of the Directors, taken to be assembled
together at a meeting and to be present at that meeting; and
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(ii) all proceedings of those Directors conducted in that manner are as valid
and effective as if conducted at a meeting at which all of them were
physically present in the one location.
57. Chair of Directors
(a) The Directors may elect one of their number as their Chair and one as deputy
Chair and may decide the period for which the Chair and deputy Chair are to hold
office as Chair and deputy Chair. References to the Chair in this Constitution
include, in the absence of the Chair, the deputy Chair (unless the context otherwise
requires).
(b) Where a meeting of Directors is held and:
(i) a Chair has not been elected as provided by rule 57.(a); or
(ii) the Chair is not present at the time appointed for the holding of the meeting
or does not wish to chair the meeting,
the deputy Chair is chair of the meeting or, if rule 57.(b)(i) or (ii) applies to the
deputy Chair, the Directors present may elect one of their number to be chair of the
meeting.
58. Directors' Voting Rights and Exercise of Powers
(a) Subject to this Constitution, questions arising at a meeting of Directors are decided
by a majority of votes of Directors present and voting.
(b) In the case of an equality of votes at a meeting of Directors, the chair of the
meeting has a casting vote in addition to the chair's deliberative vote except that
the chair of the meeting must not exercise a casting vote at any meeting at which
only two of the Directors who are present are entitled to vote.
(c) Subject to the Corporations Act and the Listing Rules, a Director:
(i) who has an interest in a matter may vote in respect of that matter if it
comes before the Directors and be counted as part of the quorum;
(ii) may enter into contracts with, or otherwise have dealings with, the
company; and
(iii) may hold other offices in the company.
(d) A Director is not disqualified from the Director's office by contracting with the
company or any related body corporate of the company in any capacity by reason
of holding the office of Director.
(e) A Director is not liable to account to the company for any profit realised by any
contract or arrangement, by reason only of holding the office of Director or of the
fiduciary relationship established by the office.
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(f) Subject to the Corporations Act and the Listing Rules, a Director or any person
who is an associate of a Director may participate in any issue by the company of
financial products.
(g) Despite having an interest in any contract or arrangement a Director may
participate in the execution of any document evidencing or connected with the
contract or arrangement, whether by signing, sealing or otherwise.
59. Material Personal Interests
In relation to a contract or arrangement in which a Director has a material personal interest:
(a) the fact that the Director signed the document evidencing the contract or
arrangement will not in any way affect its validity;
(b) a contract or arrangement made by the company or any related body corporate
with a Director may not be avoided merely because the Director is a party to the
contract or arrangement or otherwise interested in it; and
(c) the Director will not be liable to account to the company for any profit derived in
respect of the contract or arrangement merely because of the Director's office or
the fiduciary relationship it entails.
(d) Nothing in this rule 59 affects the duty of a Director:
(i) who holds any office or possesses any property whereby, directly or
indirectly, duties or interests might be created in conflict with the Directors'
duties or interests as a Director, to declare at a meeting of Directors, the
fact and the nature, character and extent of the conflict; or
(ii) to comply with the Corporations Act.
60. Committees
(a) The Directors may delegate any of their powers to committees consisting of any
one or more Directors or any other person or persons as the Directors think fit. In
the exercise of delegated powers, any committee formed or person or persons
appointed to the committee must conform to any regulations that may be imposed
by the Directors. A delegate of the Directors may be authorised to sub-delegate
any of the powers for the time being vested in the delegate.
(b) The meetings and proceedings of any committee are to be governed by the
provisions of this Constitution for regulating the meetings and proceedings of the
Directors so far as they are applicable and are not in conflict with or superseded
by, any regulations made by the Directors under rule 60.(a).
(c) Nothing in this rule 60 limits the power of the Directors to delegate.
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61. Written Resolutions
A resolution in writing of which notice has been given to all Directors and which is signed
by a majority of the Directors entitled to vote on the resolution (not being less than the
number required for a quorum at a meeting of the Directors) is a valid resolution of the
Directors and is effectual as a resolution duly passed at a meeting of the Directors. The
resolution may consist of several documents in the same form each signed by one or more
of the Directors. A facsimile transmission or other document produced by mechanical or
electronic means under the name of a Director with the Director's authority is considered a
document in writing signed by the Director and is deemed to be signed when received in
legible form. For the purpose of this rule, the references to Directors include any alternate
Director for the time being present in Australia who is appointed by a Director for the time
being not present in Australia but do not include any other alternate Directors.
62. Defects in Appointments
(a) All actions at any meeting of the Directors or by a committee or by any person
acting as a Director are, despite the fact that it is afterwards discovered that there
was some defect in the appointment of any of the Directors or the committee or the
person acting as a Director or that any of them were disqualified, as valid as if
every person had been properly appointed and was qualified and continued to be a
Director or a member of the committee.
(b) If the number of Directors is reduced below the minimum number fixed under this
Constitution, the continuing Directors may act for the purpose of increasing the
number of Directors to that number or of calling a general meeting of the company
but for no other purpose.
Secretaries
63. Secretaries and Other Officers
(a) A Secretary of the company holds office on the terms and conditions as to
remuneration and otherwise, as the Directors decide.
(b) The Directors may at any time terminate the appointment of a Secretary.
64. Other Officers
(a) The Directors may from time to time:
(i) create any other position or positions in the company with the powers and
responsibilities as the Directors may from time to time confer; and
(ii) appoint any person, whether or not a Director, to any position or positions
created under rule 64.(a)(i).
(b) The Directors may at any time terminate the appointment of a person holding a
position created under rule 64.(a)(i) and may abolish the position.
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Seals
65. Seals and their Use
The company may have a common seal and a duplicate common seal which are to be
used by the company as determined by the Directors.
Dividends, Interest and Reserves
66. Powers to Determine Dividends and Pay Interest
(a) The Directors may from time to time determine that a Dividend is payable. The
Directors may fix the amount, the time for payment and the method of payment of a
Dividend. The method of payment may include the payment of cash, the issue of
shares, the grant of options and the transfer of assets, including shares or other
Securities in another body corporate (or any combination of them).
(b) No Dividend bears interest against the company.
67. Crediting of Dividends
(a) Subject to any special rights or restrictions attached to any shares, every Dividend
on a share in the company is to be paid as follows, unless otherwise determined by
the Directors:
(i) if the share to which a particular Dividend relates is fully paid and was fully
paid during the whole period in respect of which the Dividend is to be paid,
that Dividend is equal to the Dividend paid on each other share which was
fully paid during the whole period in respect of which the Dividend is to be
fully paid; and
(ii) if the share to which a particular Dividend relates is partly paid, or is fully
paid but was not fully paid during the whole of the period in respect of
which the Dividend is to be paid, that Dividend is apportioned, and paid
proportionately to the amounts paid (not credited) on the share in respect
of which the Dividend is to be paid with respect to the issue price of the
share (excluding amounts credited) during any part or parts of the period in
respect of which the Dividend is to be paid.
(b) An amount paid on a share in advance of a call is not taken for the purposes of
rule 67.(a)(ii) to be paid on the share.
(c) Subject to any special rights or restrictions attached to any shares, the Directors
may from time to time resolve that Dividends are to be paid out of a particular
source or particular sources, and in those circumstances the Directors may in their
absolute discretion:
(i) allow each or any shareholder to elect from which specified sources that
particular shareholder's Dividend may be paid by the company; and
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(ii) where elections are permitted and any shareholder fails to make an
election, identify the particular source from which Dividends are payable.
68. Deduction of Unpaid Amounts
The Directors may apply any part of any Dividend otherwise payable to a shareholder
towards satisfaction of all sums of money presently payable by the shareholder to the
company on account of calls or otherwise in relation to shares in the company.
69. Distributions in Kind
If the Directors have determined to pay a Dividend or to return capital by a reduction of
capital, a buy-back or otherwise, wholly or partly by the distribution of specific assets
(including by the issue of shares or other financial products or by the transfer of shares or
financial products), the Directors may do one or more of the following:
(a) if a difficulty arises in regard to that distribution, settle the matter as they determine
and fix the value for distribution of the specific assets or any part of those assets;
(b) decide that cash payments may be made, and make the payments to any
shareholders on the basis of the value fixed by them in order to appropriately
adjust the rights of all shareholders as the Directors determine in their discretion;
(c) vest any specific assets in trustees;
(d) sell or cause to be sold any specific assets distributed (or which, save for the
operation of this rule 69.(d), would otherwise have been distributed) to any
shareholders (or group of shareholders) determined by the Directors in any way
and on such terms as the Directors determine in its discretion, including by
transferring the assets to a nominee or agent determined by the Directors to sell
those assets on behalf of such shareholders, and distributing to such shareholders
their proportion of the net proceeds of that sale (as determined by the Directors);
(e) authorise any person to make, on behalf of all the shareholders entitled to any
financial products, an agreement with the company (or other relevant body
corporate) providing for the issue or transfer to them of any further financial
products and, in executing the document, the officer acts as agent and attorney for
the shareholders; and
(f) if the Dividend or reduction of capital is by way of a distribution of shares or other
securities in another corporation, then each shareholder is taken to have agreed to
become a shareholder or security holder of that corporation and to have agreed to
be bound by the constitution of that corporation. Each shareholder also appoints
each Director and each Secretary their agent and attorney to:
(i) agree to the shareholder becoming a shareholder or security holder of that
corporation;
(ii) agree to the shareholder being bound by the constitution of that
corporation; and
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(iii) execute any transfer of shares or securities, or other document required to
give effect to the distribution of shares or other securities to that
shareholder.
Nothing in any of paragraphs (a) to (f) of this rule 69 limits anything in any of those other
paragraphs.
70. Payment of Distributions
(a) Any Dividend, interest or other money payable in cash in respect of Securities may
be paid in any manner and by any means determined by the Directors, at the sole
risk of the intended recipient. Without limiting any other means of payment which
the Directors may adopt, any payment may be made:
(i) by cheque sent through the post directed to:
(A) the address of the Security holder as shown in the Securities
register or, in the case of joint holders, to the address shown in the
Securities register as the address of the joint holder first named in
that Securities register; or
(B) any other address as the Security holder or joint holders in writing
directs or direct; or
(ii) by electronic funds transfer to an account with a bank or other financial
institution nominated by the Security holder or joint holders in writing and
acceptable to the company.
(b) Without limiting rule 70.(d), if the Directors decide to make a payment by electronic
funds transfer under rule 70.(a) and an account is not nominated by the
shareholder or joint holders in accordance with the requirements of rule 70.(a), the
company may hold the amount payable in a separate account of the company until
the holder or joint holders nominate an account in accordance with the
requirements of rule 70.(a).
(c) Payments of Dividends and other distributions by the company may be made in
Australian dollars or any other currency determined by the Directors in their
discretion. Payments in different currencies may be made to different Security
holders as determined by the Directors in their discretion. If a payment is made in
a currency other than Australian dollars the Directors may determine in their
discretion the appropriate exchange rate and the time of calculation to calculate the
amount payable in the relevant currency. The determinations of the Directors are,
in the absence of manifest error, final.
(d) Subject to law, all Dividends unclaimed may, until claimed or otherwise disposed of
according to law, be:
(i) invested on behalf of the relevant shareholder in Securities of the company
or otherwise as the Directors determine in their discretion; or
(ii) invested or otherwise used by the Directors for the benefit of the company.
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Capitalisation of Profits
71. Capitalisation of Profits
(a) The company in general meeting or the Directors may resolve:
(i) to capitalise any sum, being the whole or a part of the amount for the time
being standing to the credit of any reserve account, profit and loss account
or otherwise available for distribution to Security holders; and
(ii) that the sum referred to in rule 71.(a)(i) be applied, in any of the ways
mentioned in rule 71.(b), for the benefit of Security holders in full
satisfaction of their interest in the capitalised sum, in the proportions to
which those Security holders would have been entitled in a distribution of
that sum by way of Dividend or if there is no proportional entitlement, as
the Directors determine.
(b) The ways in which a sum may be applied for the benefit of Security holders under
rule 71.(a) are:
(i) in paying up any amounts unpaid on Securities held by Security holders;
(ii) in paying up in full unissued Securities to be issued to Security holders as
fully paid;
(iii) partly as mentioned in rule 71.(b)(i) and partly as mentioned in
rule 71.(b)(ii); or
(iv) any other application permitted by law or the Listing Rules.
(c) Where the conditions of issue of a partly paid Security provide, the holder is
entitled to participate in any application of a sum under rule 71.(b) to a greater
extent than would have been the case had those funds been distributed by
Dividend but not to any greater extent than permitted by the terms of issue.
(d) The Directors may do all things they consider necessary to give effect to the
resolution and, in particular, to the extent they consider necessary to adjust the
rights of the Security holders amongst themselves, may:
(i) fix the value for distribution of the specific assets or any part of those
assets;
(ii) issue fractional certificates or make cash payments in cases where
Securities become issuable in fractions or determine that fractions may be
disregarded or that any fractional entitlements are to be increased to the
next whole number;
(iii) vest any cash or specific assets in trustees on trust for the persons entitled
as they determine; and
(iv) authorise any person to make, on behalf of all the Security holders entitled
to any further Securities on the capitalisation, an agreement with the
company providing for the issue to them, credited as fully paid up, of any
further Securities or for the payment by the company on their behalf of the
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amounts or any part of the amounts remaining unpaid on their existing
Securities by the application of their respective proportions of the sum
resolved to be capitalised and any agreement made under that authority is
effective and binding on all the Security holders concerned.
Notices
72. Notices Generally
Subject to the Corporations Act and the Listing Rules:
(a) A notice or any other document may be given by the company to any Security
holder by, in its discretion:
(i) serving it on the Security holder personally;
(ii) sending it by post to the Security holder or leaving it at the Security
holder's address as shown in the Securities register or the address
supplied by the Security holder to the company for giving notices;
(iii) transmitting it to the fax number supplied by the Security holder to the
company for giving notices;
(iv) transmitting it electronically (including by providing a URL link to any
document or attachment) to the electronic address given by the Security
holder to the company for giving notices or by other electronic means
nominated by the Security holder;
(v) by sending it by any of the means referred to in rules 72.(a)(i) to (iv) that
notifies the holder of the electronic address where the primary notice can
be accessed; or
(vi) serving it in any manner contemplated in this rule 72.(a) on a Security
holder's attorney as specified by the Security holder in a notice given under
rule 72.(c).
(b) This rule 72 applies to any notice or any other document given under this
Constitution, the Corporations Act, the Listing Rules and any other notice that the
company is required to, or may elect to, give to any Security holder, including:
(i) any document that comprises or includes an offer of Securities to any
Security holder; and
(ii) any document that includes an offer for, or in respect of or in relation to,
any Securities held by any Security holder.
(c) By written notice to the Secretary left at or sent to the registered office or Securities
registry, a Security holder may request that all notices to be given by the company
or the Directors be served on the Security holder's attorney at an address, or by
the electronic means, specified in the notice and the company may do so in its
discretion.
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(d) Notice to a Security holder whose address for notices is outside Australia may be
sent by airmail, air courier, fax, electronic mail or otherwise be sent or made
available electronically (including as contemplated by rule 72.(a)(v)).
(e) Any notice sent by post is considered to have been served at the expiration of
24 hours after the envelope containing the notice is posted and, in proving service,
it is sufficient to prove that the envelope containing the notice was properly
addressed and posted. Any notice served on a Security holder personally or left at
the Security holder’s registered address is considered to have been served when
delivered. Any notice served on a Security holder by facsimile or other electronic
transmission is considered to have been served when the transmission is sent.
Any document made available to a Security holder by electronic means as
contemplated by rule 72.(a)(v) is conclusively considered to have been served
when notification that the document is available for access by that means is sent.
(f) Every person who, by operation of law, transfer or any other means, becomes
entitled to be registered as the holder of any Securities is bound by every notice
which, prior to the person's name and address being entered in the Securities
register in respect of the Securities, was properly given to the person from whom
the person derived title to those Securities.
(g) A notice served in accordance with this Constitution is (despite the fact that the
Security holder is then dead and whether or not the company has notice of the
Security holder's death) considered to have been properly served in respect of any
registered Securities, whether held solely or jointly with other persons by the
Security holder, until some other person is registered in the Security holder's place
as the holder or joint holder. The service is sufficient service of the notice or
document on the Security holder's personal representative and any persons jointly
interested with the Security holder in the Securities.
(h) Where a Security holder does not have a registered address or where the
company has a reason in good faith to believe that a Security holder is not known
at the Security holder's registered address, a document is conclusively deemed to
be given to the Security holder if the document is exhibited in the registered office
of the company for a period of 24 hours (and is conclusively deemed to be duly
served at the commencement of that period) unless and until the Security holder
informs the company of a new registered address.
Winding Up
73. Winding Up
(a) If the company is wound up, whether voluntarily or otherwise, the liquidator may
divide among all or any of the contributories as the liquidator thinks fit in kind any
part of the assets of the company, and may vest any part of the assets of the
company in trustees on any trusts for the benefit of all or any of the contributories
as the liquidator thinks fit.
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(b) Any division may be otherwise than in accordance with the legal rights of the
contributories and, in particular, any class may be given preferential or special
rights or may be excluded altogether or in part, but if any division otherwise than in
accordance with the legal rights of the contributories is determined, any
contributory who would be prejudiced by the division has a right to dissent and
ancillary rights as if the determination were a special resolution passed under the
Corporations Act relating to the sale or transfer of the company's assets by a
liquidator in a voluntary winding up.
(c) If any shares to be divided in accordance with rule 73.(b) involve a liability to calls
or otherwise, any person entitled under the division to any of the shares may, by
notice in writing within 10 B usiness Days after the passing of the special resolution,
direct the liquidator to sell the person's proportion and pay the person the net
proceeds and the liquidator is to act accordingly, if practicable.
Indemnity
74. Indemnity of Officers, Insurance and Access
(a) The company is to indemnify each officer of the company out of the assets of the
company to the relevant extent against any liability incurred by the officer in or
arising out of the conduct of the business of the company or in or arising out of the
discharge of the duties of the officer
(b) Where the board considers it appropriate to do so, the company may indemnify an
officer of a subsidiary of the company to the relevant extent out of the assets of the
company against any liability incurred by the officer in or arising out of the conduct
of the business of the subsidiary, or in or arising out of the discharge of the duties
of the officer.
(c) Where the Directors consider it appropriate, the company may execute a
documentary indemnity in any form in favour of any officer of the company or a
subsidiary.
(d) Where the Directors consider it appropriate, the company may:
(i) make payments by way of premium in respect of any contract effecting
insurance on behalf or in respect of an officer of the company or a
subsidiary, against any liability incurred by the officer in or arising out of the
conduct of the business of the company or a subsidiary, or in or arising out
of the discharge of the duties of the officer; a nd
(ii) bind itself in any contract or deed with any officer of the company or a
subsidiary to make the payments.
(e) Where the Directors consider it appropriate, the company may:
(i) give a former Director access to certain papers, including documents
provided or available to the Directors and other papers referred to in those
documents; and
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(ii) bind itself in any contract with a Director or former Director to give the
access.
(f) In this rule 74:
(i) officer means:
(A) a Director, Secretary, executive officer or employee, or
(B) a person appointed as a trustee by, or acting as a trustee at the
request of, the company, or where applicable, the subsidiary of the
company,
and includes a former officer.
(ii) duties of the officer includes, in any particular case where the Directors
consider it appropriate, duties arising by reason of the appointment,
nomination or secondment in any capacity of an officer by the company or,
where applicable, the subsidiary of the company to any other corporation.
(iii) to the relevant extent means:
(A) to the extent the company is not precluded by law from doing so;
(B) to the extent and for the amount that the officer is not otherwise
entitled to be indemnified and is not actually indemnified by
another person (including, but without limitation, a subsidiary or an
insurer under any insurance policy); and
(C) where the liability is incurred in or arising out of the conduct of the
business of another corporation or in the discharge of the duties of
the officer in relation to another corporation, to the extent and for
the amount that the officer is not entitled to be indemnified and is
not actually indemnified out of the assets of that corporation.
(iv) liability means all costs, charges, losses, damages, expenses, penalties
and liabilities of any kind including, in particular, legal costs incurred in
defending any proceedings (whether criminal, civil, administrative or
judicial) or appearing before any court, tribunal, government authority or
other body.
Divestment of Shareholdings
75. Sale of Small Holdings
(a) (i) In this rule unless the context otherwise requires:
Divestment Notice means a notice in writing stating or to the effect that
the company intends to sell or arrange the sale of the shares of a
shareholder unless within the Specified Period (which must be set out in
the notice):
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(A) the shareholding of the shareholder increases to at least a
Marketable Parcel and the shareholder notifies the company in
writing of the increase;
(B) the shares are sold by the shareholder; or
(C) except in respect of a Divestment Notice sent to a Prescribed New
Small Holder, the shareholder gives to the company a written
notice that the shareholder wishes to retain the shares.
Effective Date means the date on which this Constitution is adopted by the
company.
New Small Holder means a shareholder who holds less than a Marketable
Parcel of shares in the company where:
(A) the holding is a new holding created by the transfer of a parcel of
shares that was less than a Marketable Parcel at the time a proper
ASTC transfer was initiated or a paper based transfer was
lodged; and
(B) the transfer occurred after the Effective Date.
Notice Date means the date on which the company sends to a
shareholder a Divestment Notice.
Prescribed New Small Holder means a New Small Holder who the
company determines should be treated as a Prescribed New Small Holder
with the consequences set out in this rule and, accordingly, is a person to
whom the company determines to send a Divestment Notice specifying
seven days as the Specified Period.
Sale Period means the period of either seven days following the expiration
of the Specified Period or, where rule 75.(b)(iv) applies, seven days
following the date of receipt by the company of revocation of the notice
referred to in rule 75.(b)(iii)(C).
Small Holder means a shareholder who holds less than a Marketable
Parcel of shares in the company but does not include a Prescribed New
Small Holder.
Specified Period means either:
(A) a period of not less than six weeks after the Notice Date, as
determined by the company; or
(B) if the company in its discretion determines in the case of a
Prescribed New Small Holder, the period of seven days after the
Notice Date.
The terms Marketable Parcel and Takeover have the same meaning as
they are given in the Listing Rules and the terms CHESS Holding,
Holding Adjustment and Issuer Sponsored Holding have the same
meaning as they are given in the ASX Settlement Operating Rules.
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(ii) Where under this rule powers are conferred on the Secretary the powers
may be exercised either by the Secretary or by any person nominated by
the Secretary.
(b) (i) If the company determines that a shareholder is a Small Holder or a
Prescribed New Small Holder, the company may send (subject to
rule 75.(b)(ii)) a Divestment Notice to the shareholder.
(ii) Subject to rule 75.(e), the company may not give more than
one Divestment Notice to a particular shareholder in any 12 month period.
(iii) Where the company has sent to a shareholder a Divestment Notice then,
unless within the Specified Period:
(A) the shareholding of the shareholder increases to at least a
Marketable Parcel and the shareholder has notified the company in
writing of the increase;
(B) the relevant shares are sold by the shareholder;
(C) (save in respect of Prescribed New Small Holders who are not
entitled to give notice of a wish to retain the relevant shares) the
shareholder gives to the company a written notice that the
shareholder wishes to retain the relevant shares,
the shareholder is deemed to have irrevocably appointed the company as
the shareholder’s agent to sell the shares the subject of the Divestment
Notice during the Sale Period at the price and on the terms determined by
the Secretary in the Secretary’s sole discretion and to receive the proceeds
of sale on behalf of the shareholder. Nothing in this rule obliges the
company to sell the shares. For the purposes of the sale, the company
may initiate a Holding Adjustment to move all the shares from a CHESS
Holding to an Issuer Sponsored Holding or a certificated holding or to take
any other action the company considers necessary or desirable to effect
the sale.
(iv) Where a shareholder (not being a Prescribed New Small Holder) has given
to the company notice under rule 75.(b)(iii)(C) the shareholder may at any
time revoke the notice and on revocation the company is constituted the
shareholder’s agent as provided in rule 75.(b)(iii).
(v) The Secretary may execute on behalf of a shareholder a transfer of the
shares in respect of which the company is appointed agent under
rule 75.(b)(iii) in the manner and form the Secretary considers necessary
and to deliver the transfer to the purchaser. The Secretary may take any
other action on behalf of the shareholder as the Secretary considers
necessary to effect the sale and transfer of the shares.
(vi) The company may register a transfer of shares whether or not any
certificate for the shares has been delivered to the company.
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(vii) If the shares of two or more shareholders to whom this rule applies are
sold to one purchaser, the transfer may be effected by one transfer.
(viii) If shares are sold under this rule, the company must:
(A) within a reasonable time after completion of the sale, inform the
former shareholder of the sale and the total sale proceeds received
by the company; and
(B) if any certificate for the shares the subject of the transfer has been
received by the company (or the company is satisfied that the
certificate has been lost or destroyed or that its production is not
essential), within 60 days after completion of the sale, cause the
proceeds of sale to be sent to the former shareholder (or, in the
case of joint holders, to the holder whose name appeared first in
the register of members in respect of the joint holding). Payment
may be made in any manner and by means as determined by the
Directors and is at the risk of the former shareholder.
(ix) The company bears the costs of sale of the transferor of shares sold under
this rule (but is not liable for tax on income or capital gains of the former
shareholder).
(x) All money payable to former shareholders under this rule which is
unclaimed for one year after payment may be invested or otherwise made
use of by the Directors for the benefit of the company until claimed or
otherwise disposed of according to law. No money payable under this rule
by the company to former shareholders bears interest as against the
company.
(c) (i) A certificate signed by the Secretary stating that shares sold under this rule
have been properly sold discharges the purchaser of those shares from all
liability in respect of the purchase of those shares.
(ii) When a purchaser of shares is registered as the holder of the shares, the
purchaser:
(A) is not bound to see to the regularity of the actions and proceedings
of the company under this rule or to the application of the proceeds
of sale; and
(B) has title to the shares which is not affected by any irregularity or
invalidity in the actions and proceedings of the company.
(d) Any remedy of any shareholder to whom this rule applies in respect of the sale of
the shareholder’s shares is limited to a right of action in damages against the
company to the exclusion of any other right, remedy or relief against any other
person.
(e) On the date on which there is announced a Takeover, the operation of this rule is
suspended. Despite rule 75.(b)(ii), on the close of the offers under the Takeover
the company may invoke the procedures set out in this rule.
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Dividend Reinvestment Plans
76. Dividend Reinvestment Plans
(a) The Directors may:
(i) establish one or more plans under which some or all shareholders may
elect:
(A) that Dividends to be paid in respect of some or all of the shares
from time to time held by the shareholder are to be satisfied by the
issue or transfer of fully paid shares;
(B) that Dividends from the company not be determined or paid and
that instead a payment or distribution other than a Dividend
(including, without limitation, an issue of bonus shares, with no
amount credited to the share capital account in connection with the
issue of those shares) be made by the company;
(C) that cash Dividends from the company not be paid and that instead
a cash Dividend or payment or other distribution (including, without
limitation, an issue or transfer of Securities) be received from the
company, a related body corporate of the company or any other
entity determined by the Directors; and
(D) to participate in a Dividend selection plan, including but not limited
to a plan under which shareholders may elect to receive a Dividend
from the company or any related corporation which is less in
amount but franked to a greater extent than the ordinary cash
Dividend determined by the company or any related corporation or
to receive a Dividend from the company or any related body
corporate which is greater in amount but franked to a lesser extent
than the ordinary cash Dividend determined by the company or any
related corporation;
(ii) on or after establishment of any plan, extend participation in it, in whole or
in part, to some or all of the holders of debt obligations of the company in
respect of interest on those obligations as if that interest were
Dividends; and
(iii) vary, suspend or terminate the plan.
(b) Any plan takes effect in accordance with its terms and the Directors may do all
things necessary and convenient for the purpose of implementing the plan,
including the making of each necessary allotment or transfer of shares and of each
necessary appropriation, capitalisation, application, payment and distribution of
funds which may lawfully be appropriated, capitalised, applied, paid or distributed
for the purpose of the allotment or transfer.
(c) For the purpose of giving effect to a plan, appropriations, capitalisations,
applications, payments and distributions as referred to in this rule may be made
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and the powers of the Directors under this rule apply and may be exercised (with
any adjustments as may be required) even if only some of the shareholders or
holders of shares of any class participate in the appropriations, capitalisation,
application, payment or distribution.
(d) In offering opportunities to shareholders to participate in a plan, the Directors may
give information which in their opinion may be useful to assist shareholders in
assessing the opportunity and making requests to their best advantage. The
Directors, the company and its officers are not responsible for, nor are they obliged
to provide, any legal, taxation or financial advice in respect of the choices available
to shareholders.
(e) The Directors are under no obligation:
(i) to admit any shareholder as a participant in any plan; nor
(ii) to comply with any request made by a shareholder who is not admitted as
a participant in a plan.
(f) In establishing and maintaining a plan, the Directors may exercise the powers
conferred on them by the terms of the plan, by this Constitution or by the
Corporations Act.
Employee Share Plans
77. Employee Share Plans
The Directors may, subject to the Listing Rules:
(a) implement an employee share plan (on the terms they determine) under which
Securities of the company or of a related body corporate may be issued or
otherwise provided to or for the benefit of any officer (including any Director) or
employee of the company or of a related body corporate or affiliate of the company
or to a relative of that officer or employee or to a company, trust or other entity or
arrangement in which that officer or employee or a relative of that officer or
employee has an interest;
(b) amend, suspend or terminate any employee share plan implemented by them; and
(c) give financial assistance in connection with the acquisition of Securities of the
company or of a related body corporate under any employee share plan in any
manner permitted by the Corporations Act.
(d) Rule 77.(a) does not limit the Directors’ powers to establish an employee share
plan or limit the scope or structure of a plan.
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Restricted Securities
78. Restricted Securities
(a) The holder of Restricted Securities must not dispose of, or agree or offer to
dispose of, those Restricted Securities during the Escrow Period, except as
permitted by the Listing Rules or the Exchange.
(b) If the Restricted Securities are in the same class as quoted securities, the holder
will be taken to have agreed in writing that the Restricted Securities are to be kept
on the entity's issuer sponsored sub-register and are to have a holding lock applied
for the duration of the Escrow Period applicable to those securities.
(c) The company must refuse to acknowledge a disposal (including registering a
transfer) of Restricted Securities during the Escrow Period, except as permitted by
the Listing Rules or the Exchange.
(d) A holder of Restricted Securities will not be entitled to participate in any return of
capital on those Restricted Securities during the Escrow Period applicable to those
Restricted Securities except as permitted by the Listing Rules or the Exchange.
(e) If a holder of Restricted Securities breaches a Restriction Agreement or a provision
of this Constitution restricting a disposal of those Restricted Securities, the holder
of the Restricted Securities is not entitled to any dividend or distribution or to
exercise any voting rights in respect of the Restricted Securities for so long as the
breach continues.
(f) In this rule 78 unless the context requires otherwise:
(i) dispose has the meaning given in the Listing Rules.
(ii) Escrow Period means, in relation to Restricted Securities, the escrow
period applicable to those Restricted Securities under the Listing Rules.
(iii) Restricted Securities has the meaning given in the Listing Rules.
(iv) Restriction Agreement means, in relation to Restricted Securities, a
restriction agreement applicable to those Restricted Securities, in a form
set out in the Listing Rules or otherwise approved by the Exchange.
Partial Takeover Approval Provisions
79. Restriction on Registration
Subject to the Corporations Act and the Listing Rules, the registration of any transfer of
shares giving effect to a takeover contract under a proportional takeover bid in respect of
shares in a class of shares in the company is prohibited unless and until a resolution to
approve the takeover bid is passed in accordance with rule 80.
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80. Procedures
(a) Subject to rule 80.(b), the only persons entitled to vote on a resolution to approve a
proportional takeover bid are those persons who, as at the end of the day on which
the first offer under the takeover bid was made, held shares included in the bid
class in respect of which the offer was made. Each person entitled to vote has
one vote for each share in the relevant class held by the person at that time.
(b) Neither the bidder under the takeover bid nor any associate of the bidder is entitled
to vote on the resolution.
(c) The resolution is to be considered at a meeting convened and conducted by the
company of the persons entitled to vote on the resolutions. The provisions of this
Constitution relating to general meetings apply to the meeting with any
modifications the Directors decide are required in the circumstances.
(d) The resolution is taken to have been passed only if the proportion that the number
of votes in favour of the resolution bears to the total number of votes on the
resolution is greater than 50%.
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.