英文公司章程(澳大利亞).doc

Corporations Act 2001 (Cth) A Company Limited by Shares THE CONSTITUTION ( 章 程 )of XXXX Pty Ltd ABN: XXXXXXXXXXXXX PART ONE - GENERAL 1 (Name). The name of the XXXXX (AUST) Pty Ltd. 2 (Limited Liability). The liability of members is limited. 3 (Replaceable Rules). The provisions of the Corporations Act 2001 (Cth) which operate as replaceable rules apply to the company where they have been expressly included herein. Where the replaceable rules have not been included they are expressly excluded. Where there is only one (1) director and that director is also the sole shareholder the replaceable rules do not apply. 4 (Interpretation). 1 (a)In this constitution unless the context otherwise requires the following words and phrases shall have the following meanings: ASIC means the Australian Securities and Investments Commission; Constitution means this constitution and all subsequent amendments to it; Corporations Act means the Corporations Act 2001 (Cth); general meeting means a meeting of the companys members; Members Register means the register of members to be kept pursuant to the Corporations Act; Office means the registered office for the time being of the company; replaceable rules means the replaceable rules referred to in the Corporations Act; Seal means the common seal (if any) of the company; Secretary means any person appointed to perform the duties of a secretary of the company; Section means a section of the Corporations Act. 2 (b)The dictionary in Part 12 Division 1 of the Corporations Act applies to this Constitution as if that dictionary were fully set out herein; 3 (c)Where in any Chapter of the Corporations Act there are particular definitions or dictionaries applying to that Chapter or any part of that Chapter then to the extent such definitions or dictionaries are applicable to this Constitution they are to apply as if they were fully set out herein; 4 (d)Where a Section is referred to in this Constitution it is a Section of the Corporations Act. PART TWO - GENERAL MEETINGS 5.Calling and notice of General Meetings 1 (a)(Calling General Meetings). Any director of the company or the company secretary on the written request of any director or of any shareholder holding not less than ten percent (10%) of the voting shares in the company may call a meeting of the companys members. 1 (b)(Service). A notice of general meeting must in writing and be served on each member entitled to attend and vote at the general meeting, on each director of the company and if the company has appointed an auditor on the auditor of the company. For a notice to be effectively served it must be either: 1 (i)posted to the member, director or auditor at his, her, its last known address; or 1 (ii)personally handed to the directors, auditor or member concerned. In the case of a member that is not a natural person by being left at its registered office or handed to a director of that corporate member. 1 (c)(Date of Service). A notice shall be deemed to have been served: 1 (i)in the case of a notice served by post two days after posting; 1 (ii)in the case of a notice served personally on the date it is handed to the recipient or left at the registered office or handed to a director of that corporate member. 1 (d)(Contents of a Notice Section 249L). A notice of a meeting of a companys members must: 1 (i)Set out the place date and time for the meeting (and, if the meeting is to be held in two or more places, the technology that will be used to facilitate this); and 1 (ii)State the general nature of the business; (iii)If a special resolution is to be proposed at the meeting, set out an intention to propose the special resolution and state the resolution; and (iv)If a member is entitled to appoint a proxy, the proxy must contain a statement setting out the following information: 1 (A)that a member has the right to appoint a proxy; 2 (B)whether or not the proxy needs to be a member of the company; and 3 (C)that a member who is entitled to cast two or more votes may appoint two proxies and may specify the proportion or number of votes each proxy is appointed to exercise. 6.Quorum 1 (a)(Quorum Section 249T a replaceable rule). The quorum for a meeting of the companys members is two members and the quorum must be present at all times during the meeting. 2 (b)(Determining whether quorum is present Section 249T(2) a replaceable rule). In determining whether a quorum is present, count individuals attending as proxies or body corporate representatives. However, if a member has appointed more than one proxy or representative, count only one of them. If an individual is attending both as a member and as a proxy or body corporate representative, count them only once. Note 1: For rights to appoint proxies, see section 249X.Note 2: For body corporate representatives, see section 250D.1 (c)(No quorum present Section 249T(3) a replaceable rule). A meeting of the companys members that does not have a quorum present within thirty (30) minutes after the time for the meeting set out in the notice of meeting is adjourned to the date, time and place the directors specify. If the directors do not specify one or more of those things, the meeting is adjourned to: 1 (i) if the date is not specified, the same day in the next week; and 1 (ii) if the time is not specified, the same time; and 1 (iii) if the place is not specified, the same place. 2 (d)(No quorum at resumed meetings Section 249T(4) a replaceable rule). If no quorum is present at the resumed meeting within thirty (30) minutes after the time for the meeting, the meeting is dissolved. 7.Chairperson 1 (a)(Election of Chairperson). The members shall elect an individual who is a member of the company (or a representative of a member of the company) to chair general meetings. 2 (b)(Standing Chairperson). The members may elect a person to be a standing chairperson and that person shall chair all general meetings at which he or she is present. 3 (c)(Interim Chairperson). In the event that the elected standing chairperson is not in attendance within ten (10) minutes of the time when the general meeting is convened then the members present shall elect an individual who is a member of the company (or a representative member of the company) to chair that general meeting but only during the absence of the standing chairperson. If the standing chairperson joins the general meeting after the election of a chairperson for that general meeting then the standing chairperson shall take over as chairperson of the meeting. 8.(Chairpersons casting vote Section 250E(3) a replaceable rule). The chairperson has a casting vote, and also, if he or she is a member, any vote he or she has in his or her capacity as a member. Note 1: The chairperson may be precluded from voting, eg. by a conflict of interest. Note 2: For rights to appoint proxies, see Section 249X. 9.Adjournments 1 (a)(Chairperson must adjourn Section 249U(4) a replaceable rule). The chairperson must adjourn a general meeting if the members present with a majority of votes at the general meeting agree or direct that the chairperson must do so. 2 (b)(Business at adjourned general meetings Section 249W a replaceable rule). Only unfinished business is to be transacted at a general meeting resumed after an adjournment. 3 (c)(Notice of adjourned general meetings Section 249M a replaceable rule). When a general meeting is adjourned, a new notice of the resumed general meeting must be given if the general meeting is adjourned for one month or more. 10.Voting and Polls 1 (a)(Show of hands Section 250J(1) a replaceable rule). A resolution put to the vote at a general meeting must be decided on a show of hands unless a poll is demanded. 2 (b)(Proxy votes Section 250J(1A) a replaceable rule). Before a vote is taken the chairperson must inform the general meeting whether any proxy votes have been received and how the proxy votes are to be cast. 3 (c)(Result Section 250J(2) a replaceable rule). On a show of hands, a declaration by the chairperson is conclusive evidence of the result, provided that the declaration reflects the show of hands and the votes of the proxies received. Neither the chairperson nor the minutes of the general meeting need to state the number or proportion of the votes recorded in favour or against. 4 (d)(When a poll must be taken Section 250M(1) a replaceable rule). A poll demanded on a matter other than the election of a chairperson or the question of an adjournment must be taken when and in the manner the chairperson directs. 5 (e)(Election of chair or adjournment Section 250M(2) a replaceable rule). A poll on the election of a chairperson or on the question of an adjournment must be taken immediately. 5 (f)(Show of hands or poll Section 250E(1) a replaceable rule). Subject to any rights or restrictions attached to any class of shares, at a general meeting: 5 (i) on a show of hands, each member has one vote; and 5 (ii) on a poll, each member has one vote for each share they hold. 6 (g)(Jointly held shares). If a share is held jointly and more than one member votes in respect of that share, only the vote of the member whose name appears first in the register of members counts. 7 (h)(Mental Incapacity). If a member is of unsound mind or is a person whose estate is liable to be dealt with in any way under the laws relating to mental health, the members committee or trustee or such other person as may properly have the management of his or her estate may exercise any rights of the member in relation to a general meeting as if the committee, trustee or other person were the member. 8 (i)(Unpaid Calls). A member shall not be entitled to vote at a general meeting unless all calls and other sums presently payable by the member in respect of shares in the company have been paid. 8 (j)(Objections to right to vote). A challenge to a right to vote at a general meeting:8 (i) may only be made at the meeting; and 8 (ii) must be determined by the chair, whose decision is final. 11.Proxies 1 (a)(Appointment of Proxy Section 249X(1) a replaceable rule). A member who is entitled to attend and cast a vote at a general meeting may appoint a person as the members proxy to attend and vote for the member at that general meeting. 2 (b)(Proportion or number of votes Section 249X(2) a replaceable rule). The appointment may specify the proportion or number of votes that the proxy may exercise. (c)(Members entitlement to appoint more than one proxy Section 249X(3) a replaceable rule). If the member is entitled to cast two or more votes at the general meeting, that member may appoint two proxies. If the member appoints two proxies and the appointment does not specify the proportion or number of the members votes each proxy may exercise half of the votes. Where this results in fractions of votes then these fractions are to be disregarded. 3 (d)(Instrument of Proxy). An instrument appointing a proxy shall be in writing under the hand of the appointor or of the appointors attorney duly authorised in writing or, if the appointor is a corporation, either under seal or under the hand of an officer or attorney duly authorised. 4 (e)(Particular Resolution). An instrument appointing a proxy may specify the manner in which the proxy is to vote in respect of a particular resolution and, where an instrument of proxy so provides, the proxy shall not be entitled to vote on the resolution except as specified in the instrument. 5 (f)(Abstention). An instrument appointing a proxy may specify that the proxy is to abstain from voting in respect of a particular resolution and, where an instrument of proxy so provides, the proxy shall not vote in respect of the resolution. 6 (g)(Demand for Poll). An instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll. 7 (h)(Form of Proxy). An instrument appointing a proxy shall be in the following form or in a form that is as similar to the following form as the circumstances allow: FORM APPOINTMENT OF PROXY I/We, _, of _, being a member/members of the abovenamed company, hereby appoint _ of _ or, failing him/her, _ of _ or, failing him/her, the chairperson of the meeting as my/our proxy to vote for me/us and on my/our behalf* at all general meetings of the company until further notice/* at the *annual general/*general meeting of the company to be held on the _ day of _ 20_ and at any adjournment of that meeting. *My/our proxy is entitled to vote with respect to *_% of my/our shares/*_ shares. This form is to be used in accordance with the directions below. Unless the proxy is directed, he/she may vote or abstain as he/she thinks fit. For Against Abstain Description of resolution *Strike out whichever is not desired. (Signature) INSTRUCTIONS FOR EXECUTION OF FORM OF PROXY 1 (i)To direct the appointee to cast all votes covered by this instrument in respect of an item of business in a particular manner either on a show of hands or on a poll, place a sufficient indication (including, without limitation, a tick or a cross) in the relevant box in respect of that item of business. 2 (ii)To direct the appointee to cast some only of the votes covered by this instrument in respect of an item of business in a particular manner, place in the relevant box in respect of that item of business either the number of votes to be cast in that manner on a poll or the percentage of the total votes covered by this instrument to be so cast on a poll. This direction, if given, is also an instruction to the appointee to vote according to the appointees discretion on a show of hands. 1 (i)(Receipt of Proxy). An instrument appointing a proxy shall not be treated as valid unless the instrument of proxy, and the power of attorney or other authority (if any) under which the instrument is signed or a notarially certified copy of that power or authority, is or are: 1 (i)deposited, not less than 48 hours before the time for holding the general meeting or adjourned general meeting at which the person named in the instrument proposes to vote at the office or at such other place in Australia is specified for that purpose in the notice convening the general meeting; or 1 (ii)in the case of a poll, deposited not less than 24 hours before the time appointed for the taking of the poll, at the office or at such other place in Australia as is specified for that purpose in the notice convening the general meeting; or 1 (iii)in any case, handed to the Chairperson of the general meeting prior to the commencement of the general meeting. 2 (j)(Standing Proxy). Notwithstanding anything elsewhere contained the appointment of a proxy may be a standing one. 2 (k)(Validity if death incapacity or revocation). Unless the company has received written notice of the death of the member before the start or resumption of the general meeting at which a proxy votes, a vote cast by the proxy will be valid even if died before the proxy votes: 2 (i)the appointing member dies; or 2 (ii)the member is mentally incapacitated; or 2 (iii)the member revokes the proxys appointment; or 2 (iv)the member revokes the authority under which the proxy was appointed by a third party; or 2 (v)the member transfers the share in respect of which the proxy was given. 3 (l)(Proxy and member present). A proxys authority to vote is suspended while the member is present at the general meeting. 12.Convening of General Meetings 1 (a)(Several locations). The company may hold a general meeting at two or more venues using any form of technology that gives the members as a whole a reasonable opportunity to participate. 2 (b)(General meetings in Australia). Notwithstanding anything elsewhere contained unless all members entitled to attend and vote at general meetings agree in writing to the contrary all general meetings of members must be held in Australia and in a State in which the majority of members reside or have their place of business. If there is no such State then the State in which the greatest number of members reside or have their place of business. 13.Resolutions of Members without a General Meeting 1 (a)(Signed minute of resolution). Subject to section 249A the company may pass a resolution without a general meeting being held if all the members entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document. 2 (b)(Several counterparts). A minute of resolution passed pursuant to paragraph (a) may be signed in separate copies provided the resolution and the statement are identical in all copies. 3 (c)(Time passed). A resolution passed pursuant to paragraph (a) or (b) shall for all the purposes of this Constitution be passed when the last member signs the document or counterpart. 4 (d)(One Member). Where the Company has only one member, a document recording the resolution and the date and time and signed by the member shall for all purposes be a validly passed resolution. Where the one member is a company, a corporate representative approved for that company under Section 250D of the Corporations Act may sign such resolution. 5 (e)(Notification). Where under the Corporations Act there is a requirement that information or documents be given to members then that requirement shall be satisfied if such information or documents are given to the members with the document to be signed. 6