CONSTITUTION OF KUAOTUNU CAMP GROUND (2008) LIMITED

Transcription

1 CONSTITUTION OF KUAOTUNU CAMP GROUND (2008) LIMITED

2 THE COMPANIES ACT 1993 CONSTITUTION OF KUAOTUNU CAMP GROUND (2008) LIMITED PART I PRELIMINARY 1 Definitions and Interpretation 1.1 In this constitution unless the context otherwise requires the following words and expressions have the meanings given to them in this clause: "Act" means the Companies Act "alternate director" means a director appointed pursuant to clause "amalgamation" means the completed act of the company and one or more other companies amalgamating pursuant to Part XIII of the Act and continuing as one company, which may be one of the amalgamating companies or may be a new company. "annual meeting" means a meeting of shareholders held pursuant to clause associated shareholder means, in relation to a shareholder ( Shareholder A ), any other shareholder which is also one or more of the following: (a) a holding company or subsidiary (as those terms are defined in the Act) of Shareholder A; a related company (as that term is defined in the Act) of Shareholder A; a company, partnership or other entity which is in common control with Shareholder A (that is having ownership of 50% or more of the shareholding, or otherwise involved in the governance or management of the company); a relative of Shareholder A, within two degrees of relationship, or any trust for the principal benefit of such a person, or any company in which such a person or persons holds 50% or more of the shares. "balance date" means the close of 31 March or such other date adopted by the board as the company's balance date. "board" means the directors numbering not less than the required quorum acting as the board of directors of the company and if the company has only one director, that director. camp ground means the property at Bluff Road, Kuaotunu, containing 6.22 hectares (more or less) being part Lot 7 Deposited Plan SA16976 and Lot 8 Deposited Plan SA9953 being the land comprised in Certificates of Title SA38B/577 and 5A/408. "call" means a resolution of the board pursuant to clause 8.1 requiring shareholders to pay all or part of the unpaid amount of the issue price of any shares held by the shareholder, and where the context requires means the obligation of a shareholder to meet the amount due pursuant to such a resolution. "chairperson" means the chairperson of the board elected or appointed pursuant to clause 19.1.

3 2 "class" or "class of shares" means a class of shares having attached to them identical rights, privileges, limitations, and conditions. common areas and facilities means any part of the camp ground and improvements thereon intended for common use by camp ground users including the shower and toilet blocks, the laundry and kitchen blocks, washroom, entertainment and recreation rooms, dump station, boat wash, barbeque area, all sealed and unsealed roads, driveways, footpaths and other facilities which are not subject to any lease, licence or other right of occupation or possession. "company" means KUAOTUNU CAMP GROUND (2008) LIMITED, except where the context requires otherwise. "constitution" means this constitution of the company (including the schedule) and all amendments made to it from time to time. "director" means a person appointed and continuing in office for the time being, in accordance with the constitution, as a director of the company. "distribution" means: (a) the direct or indirect transfer of money or property, other than shares, by the company to or for the benefit of a shareholder; or the incurring of a debt by the company to or for the benefit of a shareholder in relation to shares held by that shareholder, and whether by means of a purchase of property, the redemption or other acquisition of shares, a distribution of indebtedness, or by some other means. "dividend" means a distribution by the company other than a distribution to which section 59 (acquisition of company's own shares) or section 76 (financial assistance in acquisition of company's shares) of the Act applies. "general meeting" means any meeting of shareholders, other than an interest group meeting. "interest group", in relation to any action or proposal affecting rights attached to shares, means a group of shareholders: (a) whose affected rights are identical; and whose rights are affected by the action or proposal in the same way; and (subject to the proviso below) who comprise the holders of one or more classes of shares; provided that one or more interest groups may exist in relation to any action or proposal; and (e) if: (i) action is taken in relation to some holders of shares in a class and not others; or a proposal expressly distinguishes between some holders of shares in a class and other holders of shares of that class,

4 3 holders of shares in the same class may fall into 2 or more interest groups. "interests register" means a register kept by the company at its registered office pursuant to section 189(1) of the Act. "major transaction" means: (a) the acquisition of, or an agreement to acquire, whether contingent or not, assets the value of which is more than half the value of the company's assets before the acquisition; or the disposition of, or an agreement to dispose of, whether contingent or not, assets of the company the value of which is more than half the company's assets before the disposition; or a transaction which has or is likely to have the effect of the company acquiring rights or interests or incurring obligations or liabilities the value of which is more than half the value of the company's assets before the transaction. "maximum permitted shareholding means the maximum aggregate shareholding which a shareholder and any associated shareholder may have in the company pursuant to clause "month" means calendar month. occupation rights means those rights and obligations conferred (or which may in future be conferred) on shareholders as provided for in this constitution, and set out in more detail in the schedule. "ordinary resolution" means a resolution of shareholders approved by a simple majority of the votes of those shareholders entitled to vote and voting on the question. personal representative means: (a) the executor, administrator or trustee of a deceased individual shareholder; the assignee in bankruptcy of a bankrupt individual shareholder; a donee of an enduring power of attorney from an individual shareholder, or a person appointed under the Protection of Personal and Property Rights Act 1988 to administer or manage an individual shareholder s property. "register" means the register of shares required to be kept pursuant to clause 5. "Registrar" means the Registrar of Companies appointed pursuant to section 357(1) of the Act. "registration day" means a day on which the Registrar's office is open for business for the registration of documents in respect of the company. representative means a shareholder s proxy or personal representative (and includes, in the case of a corporate shareholder, that corporation s representative). "securities" has the same meaning as in the Securities Act "share" means a share in the capital of the company. "shareholder" means a person: (a) registered in the register as the owner of one or more shares; and

5 4 until such time as his, her or its name is entered in the register, a person named as a shareholder in the application for registration of the constitution of the company at the time of the incorporation of the company; and until the person's name is entered in the register, a person who is entitled to have that person's name entered in the register under a registered amalgamation proposal as a shareholder in an amalgamated company. site means a site on the camp ground plan approved by the board from time to time pursuant to this constitution. "solvency test" means an examination to be applied to the financial state of the company which will be satisfied if: (a) the company is able to pay its debts as they become due in the normal course of business; and the value of the company's assets is greater than the value of its liabilities, including contingent liabilities, and in respect of which regard has been had to the matters referred to in section 4(2) of the Act. "special meeting" means any meeting called in accordance with section 121 of the Act. "special resolution" means a resolution of shareholders approved by 75 percent of the votes of those shareholders entitled to vote and voting on the question. "working day" means a day of the week other than: (a) Saturday, Sunday, Good Friday, Easter Monday, Anzac Day, the Sovereign's Birthday, Auckland Anniversary Day, Labour Day, and Waitangi Day; and a day in the period commencing with 24 December in any year and ending with 5 January in the following year. "writing" includes all modes of representing or reproducing words, figures or symbols in a visible form including reproduction by facsimile machine. 1.2 Words importing the singular number only include the plural number and vice versa. 1.3 A reference to a person includes any firm, company or other body corporate. 1.4 Subject to the above, expressions contained in this constitution bear the same meaning as in the Act at the date on which this constitution becomes binding on the company. 1.5 A reference to a clause means a clause of this constitution. 1.6 The clause headings, any cross references to the Act and footnotes are included for the purposes of convenience and do not affect the construction of this constitution. 1.7 The company is established as a flat-owning company for the purposes of section CD31(2) of the Income Tax Act 2007, or any legislation passed in substitution therefor with the intention that every registered shareholder is entitled to the use of (or may in future be entitled to the use of) a specific residential property in New Zealand which is owned by the company, pursuant and subject to the terms of this constitution.

6 5 1.8 In this constitution, every reference to an Act of Parliament includes reference to any amendment to that Act or any legislation passed in substitution for that Act. PART II CAPITAL, SHARES AND DIVIDENDS 2 Issue of Shares 2.1 Classes of Shares The classes of shares in the company will be of six kinds as follows: (a) (e) (f) (g) A Shares, having a subscription price of $38,000 per share. B Shares, having a subscription price of $43,000 per share. C Shares, having a subscription price of $63,000 per share. D Shares, having a subscription price of $113,000 per share. E Shares, having a subscription price of $133,000 per share. F Shares, having a subscription price of $33,000 per share. G Shares, having a subscription price as determined by the board at the time of issue The subscription price for shares will be payable as follows (unless otherwise determined by the directors): (a) An initial payment of $500 per share. A further payment of 10% of the total subscription price, payable on or before 19 July A final payment of the balance on or before 20 October All payments must be made in cleared funds to McCaw Lewis Chapman Trust Account, CR Kuaotunu Camp Ground (2008) Limited at the registered office of the company All classes of shares have attached to them: (a) the right to vote at meetings of shareholders and on a poll to cast one vote for each share held; and subject to the rights of any other class of shares, the right to an equal share in dividends and other distributions made by the company; but if the company is liquidated and its surplus assets distributed, any such distribution will be proportionate to the initial (and differential) share subscription cost of each shareholder s share.

7 Classes A, B, C, D and E all have attached to them the occupation rights set out in the schedule in relation to a particular site as determined by agreement between each shareholder and the board at the time of subscription. The initial share capital for these classes of shares is payable at the time of initial subscription for the relevant shares Class F shares have attached to them the right to take up an occupation right in relation to a site by written notice to the board. At the time of such notice, the board will determine the additional share capital that must be paid before the shareholder can take up such occupation rights, and from that date, the shares will have the same rights as A shares Class G shares will have such rights as determined at the date of issue, but such rights will in any event be subject to the terms of clause No shareholder may separate, deal with, transfer, mortgage or otherwise dispose of any interest in the occupation rights other than with that shareholder s corresponding share, except with the consent of the board The company has been incorporated with a total shareholding of 90 shares, issued for such consideration as determined by the directors, and with these shares having such additional capital due as determined by the directors. The board is expressly permitted to cancel the shares issued at the date of incorporation and re-issue these shares in accordance with clause above. 2.2 Board May Issue Shares (a) Subject to clause 2.1.8, shares (whether of the above classes or different classes) may only be issued by the board with the approval of a special resolution of shareholders. No pre-emptive rights will apply on any issue of shares. 2.3 Consideration for Issue of Shares (a) Subject to clause 2.3 (bonus issues to shareholders), and except in the case of an issue pursuant to clause 2.1.8, before the board issues shares it must: (i) decide the consideration for which the shares will be issued and the terms on which they will be issued; and (iii) (iv) if the shares are to be issued other than for cash determine the reasonable present cash value of the consideration for the issue; and resolve that, in its opinion, the consideration for the shares and their terms of issue are fair and reasonable to the company and to all existing shareholders; and if the shares are to be issued other than for cash resolve that, in its opinion, the present cash value of that consideration is not less than the amount by which the shares would be credited as paid up. Clause 2.3(a) does not apply to: (i) the issue of shares that are fully paid up from the reserves of the company to all shareholders of the same class in proportion to the number of shares held by each such shareholder; or (iii) the consolidation or subdivision of shares or any class of shares in proportion to the number of shares held by each shareholder; or the issue of shares on the conversion of any convertible securities or the exercise of any option to acquire shares in the company.

8 7 The consideration for which shares are issued or for the payment of shares already issued may take any form and may be cash, promissory notes, contracts for future services, real or personal property, or other securities of the company. 2.4 Directors' Certificate on Consideration for Issue (a) The directors who vote in favour of a resolution required under clause 2.3(a) to issue shares must sign a certificate: (i) stating the consideration for, and the terms of, the issue; and (iii) (iv) (v) describing the consideration in sufficient detail to identify it; and where a present cash value has been determined in accordance with clause 2.3(a)(iv), stating that value and the basis for assessing it; stating that, in their opinion, the consideration for and terms of issue are fair and reasonable to the company and to all existing shareholders; and if the shares are to be issued other than for cash payable on issue, stating that, in their opinion, the present cash value of the consideration is not less than the amount by which the shares would be credited as paid up. A copy of the directors' certificate given in respect of the consideration for the issue of shares must be filed with the Registrar within 10 registration days after the certificate is given. 2.5 Payment on Shares Already Issued Before shares that have already been issued are credited as fully or partly paid up other than for cash, the board must: (a) determine the reasonable present cash value of the consideration; and resolve that, in its opinion, the present cash value of the consideration is: (i) fair and reasonable to the company and all existing shareholders; and not less than the amount to be credited in respect of the shares. 2.6 Directors' Certificate on Payment of Shares Already Issued (a) The directors voting in favour of a resolution under clause 2.5 must sign a certificate: (i) describing the consideration in sufficient detail to identify it; and stating: (A) the present cash value of the consideration and the basis for assessing it; (B) (C) that the present cash value of the consideration is fair and reasonable to the company and to all existing shareholders; and that the present cash value of the consideration is not less than the amount to be credited in respect of the shares. The board must deliver a copy of a certificate that complies with clause 2.6(a) to the Registrar within 10 registration days after it is given. 2.7 Deemed Payment Other than for Cash For the purposes of clauses 2.3 or 2.5, shares that are or are to be credited as paid up whether wholly or partly, as part of an arrangement that involves the transfer of property or the provision of services and an exchange of cash or cheques or other negotiable

9 8 instruments, whether simultaneously or not, must be treated as paid up other than in cash to the value of the property or services. 2.8 Bonus Shares The board may authorise the allotment to shareholders of shares issued as fully or partly paid up from the assets of the company. 2.9 Company Paying Up Partly Paid Shares Subject to the company being able to meet the solvency test immediately after the distribution and subject to clause 2.5 the board may authorise the payment from the assets of the company any amount unpaid on shares already issued by the company Maximum Permitted Shareholding No person or shareholder: (a) May hold or be registered as holding more than 4 shares in the company in its own right; or May hold or be registered as holding more than 12 shares in the company, when it and all associated shareholders are taken into account; without the approval of a special resolution of shareholders, or an ordinary resolution of the board, which board resolution may be expressed to be revocable or irrevocable If this maximum permitted shareholding is exceeded for any reason without the approval referred to in clause , the shares of the holder and any associated shareholder will immediately cease to have voting rights in relation to its or their shares. The board may also, in its discretion, suspend all occupation rights of such shareholder and associated shareholders, and require the forfeiture or transfer to the board s nominee of such shares as are required to bring that shareholder and associated shareholders within the maximum permitted shareholding. The chairperson of the board is irrevocably appointed the shareholders and associated shareholders attorney to give effect to such transfer or forfeiture. 3 Purchase of Own Shares 3.1 Purchase by Company of its Shares The company may, in accordance with and subject to sections 52, 58 to 67, 107 and 110 to 112 of the Act, purchase or otherwise acquire its shares and, subject to section 60 of the Act, offer to acquire its shares. 3.2 Treasury Stock Shares acquired by the company under clause 3.1 may be held by the company in accordance with section 67A to 67C of the Act. 4 Transfer of Shares 4.1 Power to Transfer Shares may be transferred, subject to this constitution, by written transfer instrument. Any shareholder wishing to transfer a share or shares must first offer it or them to the board with notice in writing specifying the intended consideration for the sale. The board will have a right of first refusal at the intended price, which may be exercised by the board or the board s nominee. If the board (or nominee) does wish to exercise the right, the board must notify the intended seller in writing within 15 working days, or the board will be deemed to have declined to exercise this right. If the right is exercised, settlement of the purchase of the shares must be completed within a further 15 working days, or such other time as is agreed between the parties. Time is of the essence for the purposes of this clause. If the board does not exercise its right of first refusal, the shares may, subject to

10 9 clause 4.5 below, be sold or transferred to any other person, provided that no shares may be transferred to any party at less than the price notified to the board without the board s written consent. Nothing in this clause is to be read as placing the board under any obligation to purchase any share or shares. 4.2 No Pre-Emptive Rights Subject to the board s right of first refusal under clause 4.1 above, there are no rights of pre-emption conferred on shareholders. 4.3 Form of Transfer Any shares disposed of by an authorised transaction within the meaning of the Securities Transfer Act 1991 may be transferred by an instrument of transfer complying with that Act. Every other instrument of transfer shall be in any usual form or any other form which the board may approve and must be executed by or on behalf of the transferor and the transferee. 4.4 Transfer Administration Fee A transfer administration fee may be charged by the board before a transfer is effected, provided that no such fee will be payable where the board exercises its right of refusal under clause 4.1 above. 4.5 Approval All transfers of shares must be approved by the board, whether or not the board takes up its right of first refusal under clause 4.1 above. The board must not unreasonably or arbitrarily withhold consent if the intended transferee is a respectable and suitable person to hold the shares and the occupation rights (if any) attached to the shares. 4.6 Board may Refuse to Register Subject to section 84 of the Act the board may refuse to register a transfer of any shares if: (a) (e) (f) (g) Lien and Forfeiture The company has a lien on the shares or such shares have been forfeited; Required Documents The transfer has not been approved by the board under clause 4.1 or clause 4.5 (or both if required); Consent The board declines to give its consent to the transfer of the shares; Maximum Permitted Shareholding Registration of the transfer would result in the shareholding of the transferee shareholder or an associated shareholder singularly or together exceeding the maximum permitted shareholding; Evidence The board is not satisfied as to the respectability and suitability of a transferee under clause 4.5; Unpaid Amounts The shareholder has failed to pay an amount due to the company in respect of the shares or any other amount due and payable by the shareholder to the company; Best Interest of Company

11 10 The board considers it is not in the best interest of the company to register the transfer; (h) Transfer Administration Fee The transferor has not paid to the board the transfer administration fee determined by the board (if any) provided that the board must exercise its power under this clause within 30 days after receipt of the relevant transfer. 4.7 When Transfer Effective A transferor of the shares is deemed to remain the holder of the shares until the name of the transferee is entered in the share register in respect of the shares. 4.8 Company to Retain Transfer If the company registers a transfer it may retain the instrument of transfer. 4.9 Corporate Shareholders (a) Where a corporation is a shareholder then in the event of any one or more of the following events occurring whether by any one or by a series of transactions completed after the date at which the corporation shareholder was first entered in the register: (i) the transfer of the legal or beneficial ownership of or any interest in any shares in the corporation which in relation to the corporation shareholder or any holding company (as the term is defined in section 5 of the Act) of the corporation: (A) alters the beneficial ownership of 50 percent or more in nominal value of the shares in the capital of the corporation; or (B) (C) (D) (E) alters the beneficial ownership of 50 percent or more of the number of shares in the corporation; or alters the beneficial ownership of shares in the corporation carrying 50 percent or more of the voting rights at any general meeting of the corporation; or alters the beneficial ownership of shares in the corporation allowing the holder of them to appoint a director or directors having 50 percent or more of the voting rights at any directors' meeting; or alters the beneficial ownership of shares carrying an entitlement to receive 50 percent or more of any dividend or distribution declared by the corporation; or the happening of any event whereby the control of the corporation or any holding company (as defined in section 5 of the Act) of the corporation is altered, the corporation shall give to the company a transfer notice pursuant to clause 4.1 in respect of all the shares held by the corporation, and if the corporation fails to give such notice any director of the company may give a notice on its behalf and the provisions of clauses 4.1 to 4.8 shall apply mutatis mutandis to such transfer notice. The obligations imposed on corporation shareholders by this clause shall not be capable of being waived by lapse of time or by acquiescence or knowledge whether actual or constructive of any other shareholder.

12 11 5 Share Register 5.1 Maintain Register (a) The company must maintain a register in accordance with section 87 of the Act. The company may appoint an agent to maintain the register. 5.2 Contents of Register The register must state, with respect to each class of shares: (a) the names, and the last known address of each person who is, and each person who has within the last 10 years been, a shareholder; the number of shares of each class of shares held by each shareholder within the last 10 years; and the date of any: (i) issue of shares to; (iii) repurchase or redemption of shares from; or transfer of shares by or to, each shareholder within the last 10 years, and in relation to the transfer, the name of the person to or from whom the shares were transferred. 5.3 Directors' Duty to Supervise Register It is the duty of each director to take reasonable steps to ensure that the register is properly kept and that share transfers are promptly entered on it in accordance with clause Register Prima Facie Evidence Subject to section 91 of the Act (power of Court to rectify register), the entry of the name of a person in the register as holder of a share is prima facie evidence that the legal title to the share is vested in that person. 5.5 Register Evidence of Rights The company may treat the registered holder of a share (or, in the case of jointly held shares, the first named holder on the register) as the only person entitled to: (a) exercise the right to vote attaching to the share; receive notices in respect of the share; receive a distribution in respect of the share; and exercise the other rights and powers attaching to the share. 5.6 Trust not to be Registered or Recognised (a) No notice of trust, whether express, implied, or constructive may be entered on the register. Except as required by law, no person will be recognised by the company as holding any share upon trust or holding any interest in a share whether equitable, contingent, future or partial except the absolute legal right to the entirety of the share vested in the registered holder. A personal representative of a deceased holder of shares is entitled to be entered in the register as the holder of such shares as a personal representative.

13 12 provided that, subject to any statute or rule of law or equity, the board may settle a trust to hold shares as provided for in clause 18.1 and the share register may take notice of such trust. 6 Registration of a Trustee, Executor or Administrator The registration of a trustee, executor or administrator as a personal representative of a deceased shareholder does not constitute notice of a trust. 7 Transmission of Shares 7.1 Recognition of Interest in Shares. In the case of the death of a shareholder, the survivor, where the deceased was a joint holder, and the legal personal representative of the deceased, where the deceased was a sole holder, will be the only persons recognised by the company as having any title to the deceased's interest in the shares. Nothing contained in this clause 7.1 will release the estate of a deceased joint holder from any liability in respect of any share which had been jointly held by the deceased with other persons. 7.2 Recognition of Assignee. Notwithstanding clause 5.6 the assignee of the property of a bankrupt shareholder is entitled to be registered as the holder of the shares held by the bankrupt. 8 Calls on Shares 8.1 Board may Make Calls Subject to the terms of issue of any shares the board may resolve to require the holders of unpaid or partly paid shares to pay all or part of the amount unpaid on the shares. The terms of the resolution of the board will constitute the terms of the obligation to pay the call including payment by instalments. The call may be revoked or postponed at any time by the board. 8.2 Notice of Calls (a) Subject to the terms of issue of any class of shares and to clause 8.4, a call or the postponement or revocation of a call will apply to all the holders of shares of the class equally. Notice of the call must be given to the holder of the shares at the time of the call or to a subsequent holder. Failure to give notice to a shareholder will not invalidate a call but it will not be payable by that shareholder until the notice has been served on the shareholder. Notice of a call sent by post to a shareholder to the address recorded in the register as the address of the shareholder will be deemed to have been received by the shareholder the day following the date of the posting of the notice to the shareholder. 8.3 Liability for Calls (a) The joint holders of shares are jointly and severally liable to pay all calls in respect of the shares. If a call is not paid before or on the day appointed for payment the person from whom the sum is due will be liable to pay interest on the sum, from the day appointed for payment to the time of actual payment, at such rate as the board determines either at the time of the call or subsequently. The liability for a call which has become due and payable attaches to the holder of the shares for the time being recorded in the register and not a prior holder of the

14 13 shares notwithstanding that at the date of the call, or the date the call fell due for payment another person was the holder of the shares or that the notice of the call was served on the then shareholder and not the current holder of the shares. Following the registration in the register of a change of ownership of shares in respect of which a call has been made a notice of the call is not required to be served on the new holder of the shares. 8.4 Agreement to Differentiate Calls The board may, on the issue of shares, by agreement with the shareholders concerned, differentiate between the holders of the same class as to the amount to be paid on the shares and the times of payment. 9. Lien and Forfeiture of Shares 9.1 Lien on Shares The company shall have a first and paramount lien over the shares registered in the name of each shareholder (whether solely or jointly) and on the distributions declared on such shares for: (a) unpaid calls and instalments and any interest payable on such amounts, in respect of those shares; and such amounts as the company may be called upon by law to pay in respect of those shares, including withholding and other taxes; and all debts, liabilities and obligations of whatever nature of the shareholder to the company, whether solely or jointly with any other person. 9.2 Sale of Shares (a) The company may sell any shares on which it has a lien if: (i) a sum in respect of which the lien exists is payable; and 30 working days has passed since notice in writing demanding payment of such sum has been given to the shareholder. (e) (f) To give effect to any such sale a director may execute a transfer of the shares to the transferee, and may receive the consideration from such transfer. Upon registration of such transfer the transferee shall be the shareholder of such shares discharged from all calls due prior to sale. The transferee shall not be bound to see to the application of the purchase money nor shall the transferee s title to the shares be affected by any irregularity or invalidity on the sale. The remedy of the former shareholder, and of any person claiming under or through the former shareholder, shall be against the company exclusively and in damages. If the shares are sold to enforce a lien the proceeds of sale shall first be applied in payment of all costs and expenses of such sale and any attempted sale including without limitation the transfer administration fee and then in satisfaction of any debts, liability or any other amounts due and payable to the company. Any residue shall be paid to the former shareholder.

15 14 (g) The registration of a transfer of shares shall operate as a waiver of the lien by the company but not as a release of any outstanding liability owed by any previous shareholder. 10 Distributions 10.1 Solvency Test (a) Subject to clause 10.2 the board may, if it is satisfied on reasonable grounds that the company will, immediately after the distribution, satisfy the solvency test, authorise a distribution by the company to shareholders of an amount and to any shareholder as it thinks fit. The directors who vote in favour of a distribution must sign a certificate stating that in their opinion the company will, immediately after the distribution, satisfy the solvency test and stating the grounds for that opinion. For the purpose of this clause in applying the solvency test "debts" and "liabilities" have the meaning given to them in section 52(4) of the Act Dividends Payable Pari Passu (a) Subject to clause 10.2 the board may not authorise a dividend: (i) in respect of some but not all the shares in a class; or that is of a greater value per share in respect of some shares of a class than in respect of other shares of that class, unless the amount of the dividend in respect of a share of that class is in proportion to the amount paid to the company in satisfaction of the liability of the holder of the shares under this constitution or under the terms of issue of the shares. A shareholder may, by notice in writing signed by or on behalf of the shareholder, and given to the company, waive his or her entitlement to receive a dividend. If all the shareholders of the same class concur in writing in respect of each proposed dividend the company may pay a dividend which is distributed other than in accordance with clause 10.2(a) Financial Assistance on Acquisition of Shares The company may, subject to and in accordance with sections 52, 76 to 81, 107(1)(e) and 108 of the Act, give financial assistance to a person for the purpose of, or in connection with, the purchase of shares issued, or to be issued by the company, or by its holding company, whether directly or indirectly. PART III SHAREHOLDERS' RIGHTS AND OBLIGATIONS 11 Statement of Shareholder Rights 11.1 Issue of Statement of Rights to Shareholder The company must issue to a shareholder, on request, a statement that sets out: (a) the class of shares held by the shareholder, the total number of shares of that class issued by the company, and the number of shares of that class held by the shareholder; and

16 15 the rights, privileges, conditions, and limitations, including restrictions on transfer, attaching to the shares held by the shareholder Company not Obliged to Issue Statement The company is not obliged to provide a shareholder with a statement, pursuant to clause 11.1, if: (a) a statement has been provided within the previous 6 months; the shareholder has not acquired or disposed of shares since the previous statement was provided; the rights attached to the shares have not been altered since the previous statement was provided; and there are no special circumstances which would make it unreasonable for the company to refuse the request Statement not Evidence A statement issued pursuant to clause 11.1 is not evidence of title to the shares or of the matters set out in it. 12 Exercise of Powers Reserved to Shareholders 12.1 Powers Reserved to Shareholders (a) Powers reserved to shareholders of the company by the Act or by this constitution may be exercised: (i) at an annual meeting or a special meeting; or by a resolution in lieu of a meeting pursuant to clause Unless otherwise specified in the Act or this constitution, a power reserved to shareholders may be exercised by an ordinary resolution Special Resolutions When shareholders exercise a power to approve any of the following, that power may only be exercised by a special resolution: (a) an alteration to or revocation of this constitution or the adoption of a new constitution; a major transaction; an amalgamation; the liquidation of the company. Any decision made by special resolution pursuant to this clause may be rescinded only by a special resolution, provided that a resolution to put the company into liquidation cannot be rescinded Management Review by Shareholders (a) A shareholder may question, discuss, and comment on the management of the company at a meeting of shareholders. A meeting of shareholders may pass a resolution relating to the management of the company. Notwithstanding section 128 of the Act (management of company by board) or any other clause of this constitution, a resolution relating to the management of the

17 16 company and passed at a meeting of shareholders, in accordance with clause 12.3 is not binding on the board Shareholder Proposals (a) A shareholder may give written notice to the board of a matter the shareholder proposes to raise for discussion or resolution at the next meeting of the shareholders at which the shareholder is entitled to vote. (e) (f) (g) If the notice is received by the board not less than 20 working days before the last day on which notice of the relevant meeting of shareholders is required to be given by the board, the board must at the expense of the company, give notice of the shareholder proposal and the text of a proposed resolution to shareholders entitled to receive notice of the meeting. If the notice is received by the board not less than 5 working days and not more than 20 working days before the last day on which notice of the relevant meeting of shareholders is required to be given by the board, the board must, at the expense of the shareholder, give notice of the shareholder proposal and the text of any proposed resolution to all shareholders entitled to receive notice of the meeting. If the notice is received by the board less than 5 working days before the last day on which notice of the relevant meeting of shareholders is required to be given by the board, the board may, if practicable, and at the expense of the shareholder, give notice of the shareholder proposal and the text of any proposed resolution to all shareholders entitled to receive notice of the meeting. If the directors intend that shareholders may vote on the proposal by proxy or by postal vote, they must give the proposing shareholder the right to include in or with the notice given by the board a statement of not more than 1000 words prepared by the proposing shareholder in support of the proposal, together with the name and address of the proposing shareholder. The board is not required to include in or with the notice given by the board a statement prepared by a shareholder which the directors consider to be defamatory, frivolous, or vexatious. Where the costs of giving notice of the shareholder proposal and the text of any proposed resolution are required to be met by the proposing shareholder, the proposing shareholder must, on giving notice to the board, deposit with the company or tender to the company a sum sufficient to meet those costs. 13 Meetings of Shareholders 13.1 Annual Meeting (a) The board must, in accordance with section 120 of the Act (annual meetings of shareholders), call an annual meeting of shareholders to be held: (i) once in each calendar year (other than in the year of its incorporation); (iii) not later than 6 months after the balance date of the company (other than in the year of its incorporation); and not later than 15 months after the previous annual meeting, or in respect of its first annual meeting not later than 18 months after its date of incorporation. The company must hold the annual meeting on the date on which it is called to be held (provided that no business may be transacted unless a quorum is present, in accordance with clause 14.1).

18 Special Meetings A special meeting of shareholders entitled to vote on an issue: (a) may be called at any time by the board or a person who is authorised by the constitution to call the meeting; and must be called by the board on the written request of shareholders holding not less than 5 percent of the votes entitled to be cast on the issue Resolution in Lieu of Meeting (a) Subject to clause 13.3 a resolution in writing signed by not less than 75 percent of the shareholders who would be entitled to vote on that resolution at a meeting of shareholders who together hold not less than 75 percent of the votes entitled to be cast on that resolution, is as valid as if it had been passed at a meeting of those shareholders. Such a resolution may consist of several documents in like form, each signed by one or more shareholders. A facsimile of such signed resolution is as valid and effectual as the original document. A resolution pursuant to section 196(2) of the Act to not appoint an auditor may be passed as provided in clause 13.3(a) provided that the resolution must be signed by all the shareholders entitled to vote on the resolution. Within 5 working days of a resolution being passed under this clause the company must send a copy of the resolution to every shareholder who did not sign the resolution or on whose behalf the resolution was not signed Chairperson of Meetings of Shareholders (a) If the directors have elected a chairperson and that chairperson is present at a meeting of shareholders he or she must chair the meeting. If no chairperson has been elected or if, at any meeting of shareholders, the chairperson is not present within 15 minutes of the time appointed for the commencement of the meeting, the shareholders present may choose one of their number to chair the meeting Shareholders Entitled to Notice of Meeting (a) The shareholders entitled to receive notice of a meeting of shareholders are the shareholders of all classes: (i) if the board has fixed a date for the purpose of establishing an entitlement to receive notice, those shareholders whose names are registered in the register on that date; or if the board does not fix a date for the purpose of establishing an entitlement to receive the notice of meeting, those shareholders whose names are registered in the register at the close of business on the day immediately preceding the day on which the notice is given. A date fixed by the board under clause 13.5(a)(i) must not precede by more than 30 working days nor less than 10 working days the date on which the meeting is to be held Notice of Meeting Written notice of the time and place of a meeting of shareholders must be sent to every shareholder entitled to receive notice of the meeting, and to every director and the auditor of the company, not less than 10 working days before the meeting Contents of Notice

19 18 The notice referred to in clause 13.6 must state: (a) the nature of the business to be transacted at the meeting in sufficient detail to enable a shareholder to form a reasoned judgment in relation to it; and the text of any resolution to be submitted to the meeting; the postal address to which postal votes may be sent and the name or office of the person to whom they may be sent; and that the postal vote must be received by the person referred to in paragraph at least 48 hours prior to the time of the meeting Irregularities in Notice (a) The accidental omission to give notice of a meeting to, or the failure to receive notice of a meeting by, a shareholder does not invalidate the proceeding at that meeting. Irrespective of clause 13.8(a), irregularity in a notice of a meeting is waived if all the shareholders entitled to attend and vote at the meeting, attend the meeting without protest as to the irregularity, or if all such shareholders agree to the waiver Method of Holding Meeting A meeting of shareholders may be held either: (a) by a number of shareholders, who constitute a quorum, being assembled together at the place, date and time appointed for the meeting; or by means of audio, or audio and visual, communication by which all shareholders participating and constituting a quorum, can simultaneously hear each other throughout the meeting Adjournments If a meeting of shareholders is adjourned for less than 30 days it is not necessary to give notice of the time and place of the adjourned meeting other than by announcement at the meeting which is adjourned Minutes (a) The board must ensure that minutes are kept of all proceedings at meetings of shareholders. Minutes which have been signed correct by the chairperson of the meeting are prima facie evidence of the proceedings Shareholders Deadlock If at any general meeting of the Company there is a deadlock between the members of the Company such as to create a complete or temporary deadlock in the management of the affairs of the Company then the difference or dispute causing the deadlock shall be referred to arbitration under the Arbitration Act Voting at Meetings 14.1 Quorum (a) A quorum for a meeting of shareholders is present if those able to exercise a majority of votes on a matter are present, whether personally or by proxy. No business may be transacted at a meeting of shareholders if a quorum is not present.

20 19 If a quorum is not present within 30 minutes after the time appointed for the meeting: (i) in the case of a meeting called pursuant to a request of shareholders under clause 13.2 the meeting is dissolved; in the case of any other meeting, the meeting is adjourned to the same day in the following week at the same time and place, or to such other date, time, and place as the directors may appoint, and if at the adjourned meeting a quorum is not present within 30 minutes after the time appointed for the meeting, the shareholders present or their proxies are a quorum Voting (a) In the case of a meeting of shareholders held under clause 13.9(a) unless a poll is demanded, voting at the meeting shall be by whichever of the following methods is determined by the chairperson of the meeting: (i) voting by voice; or voting by show of hands In the case of a meeting of shareholders held under clause 13.9 unless a poll is demanded, voting at the meeting shall be by the shareholders signifying individually their assent or dissent by voice. A declaration by the chairperson of the meeting that a resolution is carried by the requisite majority is conclusive evidence of that fact unless a poll is demanded in accordance with clause At a meeting of shareholders a poll may be demanded by: (i) not less than 5 shareholders having the right to vote at the meeting; or (iii) a shareholder or shareholders representing not less than 10 percent of the total voting rights of all shareholders having the right to vote at the meeting; or by a shareholder or shareholders holding shares that confer a right to vote at the meeting and on which the aggregate amount paid up is not less than 10 percent of the total amount paid up on all shares that confer that right. (e) (f) (g) A poll may be demanded either before or after the vote is taken on a resolution. If a poll is taken, votes must be counted according to the votes attached to the shares of each shareholder present in person or by proxy and voting. The chairperson of a shareholders' meeting is not entitled to a casting vote Proxies and Representatives (a) A shareholder may exercise the right to vote either by being present or by proxy. A proxy for a shareholder is entitled to attend and be heard and vote at a meeting of shareholders as if the proxy were the shareholder. A proxy must be appointed by notice in such form as is specified by the board, which form must be in writing signed by the shareholder, and must state whether the appointment is for a particular meeting or a specified term not exceeding 12 months.

21 20 (e) No proxy is effective in relation to a meeting unless a copy of the notice of appointment is produced before the start of the meeting. A body corporate which is a shareholder may appoint a representative to attend a meeting of shareholders on its behalf in the same manner as that in which it could appoint a proxy Postal Votes (a) A shareholder may exercise the right to vote at a meeting by casting a postal vote in accordance with the provisions of this clause (e) The notice of a meeting at which shareholders are entitled to cast a postal vote must state the name of the person authorised by the board to receive and count postal votes at that meeting. If no person has been authorised to receive and count postal votes at a meeting, or if no person is named as being so authorised in the notice of the meeting, every director is deemed to be so authorised. A shareholder may cast a postal vote on all or any of the matters to be voted on at the meeting by sending a notice of the manner in which his or her shares are to be voted to a person authorised to receive and count postal votes at that meeting. The notice must reach that person not less than 48 hours before the start of the meeting. It is the duty of the person authorised to receive and count postal votes at a meeting: (i) to collect together all postal votes received by him or her, or by any other authorised person, or by the company; and in relation to each resolution to be voted on at the meeting, to count: (A) the number of shareholders voting in favour of the resolution and the number of votes cast by each shareholder in favour of the resolution; and (B) the number of shareholders voting against the resolution, and the number of votes cast by each shareholder against the resolution; (iii) (iv) to sign a certificate that he or she has carried out the duties set out in paragraphs (i) to of this clause and which sets out the results of the counts required by paragraph of this clause; and to ensure that the certificate required by paragraph (iii) of this clause is presented to the chairperson of the meeting. (f) If a vote is taken at a meeting on a resolution on which postal votes have been cast, the chairperson of the meeting must: (i) on a vote by show of hands, count each shareholder who has submitted a postal vote for or against the resolution; on a poll, count the votes cast by each shareholder who has submitted a postal vote for or against the resolution. (g) The chairperson of a meeting must call for a poll on a resolution on which the chairperson holds sufficient postal votes that if a poll were taken the result could differ from that obtained on a show of hands.