Appendix 1 A COMPANY LIMITED BY SHARES CONSTITUTION OF BOC SUPERANNUATION PTY LTD ACN 080 598 921 (including amendments adopted on 10 August 2009) D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc
TABLE OF CONTENTS PART 1 - Preliminary... 1 1.1 Definitions and interpretation... 1 1.2 Application of the Corporations Act... 3 1.3 Exercise of powers... 3 1.4 Replaceable rules not to apply... 4 1.5 Proprietary company restrictions... 4 1.6 No distribution to members... 4 PART 2 - Share Capital... 5 2.1 Shares and Options... 5 2.2 Variation of class rights... 5 2.3 Power to buy back ordinary shares... 5 2.4 Power to alter share capital... 5 2.5 Power to reclassify share capital... 5 2.6 Power to reduce share capital... 5 2.7 Joint holders of shares... 5 2.8 Equitable and other claims... 6 PART 3 - Transfer of Shares... 7 3.1 Transfer of shares... 7 PART 4 - General Meetings... 8 4.1 Convening of general meetings... 8 4.2 Notice of general meetings... 8 4.3 Admission to general meetings... 8 4.4 Quorum at general meetings... 9 4.5 Chairperson of general meetings... 9 4.6 Adjournment of general meetings... 9 4.7 Decisions at general meetings... 10 4.8 Voting rights... 10 4.9 Representation at general meetings... 11 PART 5 - Directors... 13 5.1 Number and Appointment of Directors... 13 5.2 Appointment of Directors until the Director Change Date... 13 5.3 Appointment of Directors from the Director Change Date... 13 5.4 Appointment of alternate directors... 13 5.5 Period of Office... 15 5.6 Vacation of office... 15 5.7 Filling Vacancies... 16 5.8 Remuneration and Expenses... 16 5.9 Share qualification... 16 5.10 Interested directors... 17 5.11 Powers of directors... 17 5.12 Proceedings of Directors... 18 5.13 Convening of meetings of directors... 18 5.14 Quorum... 18 5.15 Chairperson... 18 5.16 Decisions of directors... 19 5.17 Circular resolutions... 19 5.18 Committees of directors... 19 5.19 Validity of acts... 19 PART 6 - Secretary... 21 6.1 Secretaries... 21 D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc
PART 7 - Seals... 22 7.1 Safe custody of seal... 22 7.2 Use of seal... 22 7.3 Official seal... 22 PART 8 - Reserves, Profits and Dividends... 23 8.1 Reserves... 23 8.2 Carry forward of profits... 23 8.3 Dividends... 23 PART 9 - Winding up... 24 9.1 Winding up... 24 PART 10 - Protection of certain officers... 25 10.1 Officers to whom part 10 applies... 25 10.2 Indemnity... 25 10.3 Insurance... 25 PART 11 - Notices... 26 11.1 Notices by the company to members... 26 11.2 Notices posted to addresses outside the Commonwealth... 26 11.3 Time of service... 26 11.4 Notice from Principal Employer... 26 11.5 Other communications and documents... 26 11.6 Notices in writing... 26 PART 12 - General... 27 12.1 Submission to jurisdiction... 27 12.2 Prohibition and enforceability... 27 PART 13 - Amendment of Constitution... 28 13.1 Amendment... 28 D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc
BOC SUPERANNUATION PTY LTD ACN 080 598 921 CONSTITUTION 1.1 Definitions and interpretation PART 1 - PRELIMINARY In this Constitution: Conflicts Policy means the conflicts of interest policy adopted by the directors from time to time. "Commonwealth" means the Commonwealth of Australia and its external territories; Constitution includes all alterations of and additions to this Constitution from time to time in force; "Director Change Date" means the date, determined by the members, upon which the board of directors shall comprise equal numbers of Member Directors and Employer Directors; "employer" has the same meaning as in the Superannuation Industry (Supervision) Act 1993; "Employer Directors" means directors appointed under clause 5.3(1); "Fund" means the superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993, in respect of which the company is appointed as the trustee. "Fund Member" means a member of the Fund; Governing Rules means the trust deed or any other document governing the Fund as amended from time to time; "Independent Director" means a director appointed under clause 5.3; "Member Directors" means directors appointed under clause 5.3(2); Oldest means the director being considered for a particular purpose whose date of appointment for his or her current term of office precedes that of the other directors being considered for the same particular purpose. If more than one director meets this definition, the Oldest will be determined by the age of the director; "Participating Employer" includes the Principal Employers and any other person who for the time being participates in the Fund as an employer under the governing rules for the Fund; "power" includes any function, duty, discretion, right and authority; "Principal Employers" means the company which is the principal, governing, or sole employer under the governing rules for the Fund; D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 1
"Relevant Law" means the Superannuation Entities (Taxation) Act 1987, the Superannuation Industry (Supervision) Act 1993 and the Income Tax Assessment Act 1936, and any other present or future law of the Commonwealth or any State or Territory of Australia which the company, the Fund, or a Participating Employer must comply with or satisfy in order to secure or better secure a concession in respect of taxation or in order to avoid a penalty, detriment or disadvantage; "representative", in relation to a body corporate, means a representative of the body corporate authorised under section 250M of the Corporations Act or a corresponding previous law; "seal" means any common seal, official seal, share seal or certificate seal of the company; and (d) (e) (f) A member is to be taken to be present at a general meeting if the member is present in person or by proxy, attorney or representative. Where a provision of this Constitution establishes an office of chairperson, the chairperson may be referred to as chairman or chairwoman, as the case requires. Where a provision of this Constitution establishes an office of deputy chairperson, the deputy chairperson may be referred to as deputy chairman or deputy chairwoman, as the case requires. A reference in a clause in general terms to a person holding or occupying a particular office or position includes a reference to any person who occupies or performs the duties of that office or position for the time being. Unless the contrary intention appears, in this Constitution: (1) headings and underlinings are for convenience only and do not affect the interpretation of this Constitution; (2) words importing the singular include the plural and vice versa; (3) words importing a gender include every other gender; (4) words used to denote persons generally or importing a natural person include any company, corporation, body corporate, body politic, partnership, joint venture, association, board, group or other body (whether or not the body is incorporated); (5) a reference to a person includes that person's successors and legal personal representatives; (6) a reference to any statute, regulation, proclamation, ordinance or by-law includes any statute, regulation, proclamation, ordinance or by-law varying, consolidating or replacing it and a reference to a statute includes any regulation, proclamation, ordinance and by-law issued under that statute; and (7) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 2
1.2 Application of the Corporations Act Unless the contrary intention appears, an expression in a clause that deals with a matter dealt with by a provision of the Corporations Act has the same meaning as in that provision of the Corporations Act. Subject to clause 1.2, unless the contrary intention appears, an expression in a clause that is defined in section 9 of the Corporations Act has the same meaning as in that section. 1.3 Exercise of powers Where this Constitution provides that a person or body may do a particular act or thing and the word "may" is used, the act or thing may be done at the discretion of the person or body. Where this Constitution confers a power to do a particular act or thing, the power is, unless the contrary intention appears, to be taken as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary that act or thing. Where this Constitution confers a power to make appointments to any office or position, the power is, unless the contrary intention appears, to be taken to include a power: (1) to appoint a person to act in the office or position until a person is appointed to the office or position; (2) to remove or suspend any person appointed; and (3) to appoint another person temporarily in the place of any person so removed or suspended or in place of any sick or absent holder of such office or position. (d) where this Constitution confers power on a person or body to delegate a power: (1) the delegation may be concurrent with, or to the exclusion of, the performance or exercise of that power by the person or body; (2) the delegation may be either general or limited in any manner provided in the terms of delegation; (3) the delegation need not be to a specified person but may be to any person from time to time holding, occupying or performing the duties of, a specified office or position; (4) the delegation may include the power to delegate; (5) where the performance or exercise of that power is dependent upon the opinion, belief or state of mind of that person or body in relation to a matter, that power may be performed or exercised by the delegate upon the opinion, belief or state of mind of the delegate in relation to that matter; and (6) the power so delegated, when performed or exercised by the delegate, is to be taken to have been performed or exercised by the person or body. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 3
1.4 Replaceable rules not to apply The replaceable rules listed in section 141 of the Corporations Act do not apply to the company. 1.5 Proprietary company restrictions The company is a proprietary company and: (d) the right to transfer shares is restricted in the manner set out in this Constitution; the number of members (counting joint holders of shares as one member and not counting any person who is employed by the company or any of its subsidiaries or a person who was, while so employed, and thereafter has continued to be, a member of the company) must not exceed 50; any invitation to the public to subscribe for, and any offer to the public to accept subscriptions for, any shares in, or debentures of, the company is prohibited; and any invitation to the public to deposit money with, and any offer to the public to accept deposits of money with, the company for fixed periods or payable at call, whether bearing or not bearing interest, is prohibited. 1.6 No distribution to members The income and property of the company shall be applied solely towards the promotion of the object of the company set in the Constitution and no income or property of the company shall be paid or transferred directly or indirectly to a person in that person's capacity as a member. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 4
PART 2 - SHARE CAPITAL 2.1 Shares and Options Without prejudice to any special rights conferred on the holders of any shares or class of shares, the directors may issue, allot or grant options in respect of, or otherwise dispose of, shares to such persons, for such price, on such conditions, at such times and with such preferred, deferred or other special rights or special restrictions as the directors think fit. 2.2 Variation of class rights Unless otherwise provided by the terms of issue of a class of shares: all or any of the rights or privileges attached to the class may be varied, whether or not the company is being wound up, only with the consent in writing of the holders of three-quarters of the issued shares of that class, or with the sanction of a special resolution passed at a separate meeting of the holders of the issued shares of that class; the provisions of this Constitution relating to general meetings apply, so far as they can and with such changes as are necessary, to each separate meeting of the holders of the issued shares of that class; and the rights conferred upon the holders of the shares of that class are to be taken as not having been varied by the creation or issue of further shares ranking equally with them. 2.3 Power to buy back ordinary shares Subject to section 257A of the Corporations Act the company may buy ordinary shares in itself in any manner permitted by the Corporations Act. 2.4 Power to alter share capital The company may by resolution alter the provisions in its Constitution in any one or more of the ways mentioned in the Corporations Act. 2.5 Power to reclassify share capital The company may by resolution reclassify or convert shares from one class to another. 2.6 Power to reduce share capital The company may, by special resolution, reduce its share capital, any capital redemption reserve or any share premium account in any manner permitted by the Corporations Act. 2.7 Joint holders of shares Where 2 or more persons are registered as the holders of a share they hold it as joint tenants with rights of survivorship subject to the following provisions: they and their respective legal personal representatives are liable severally as well as jointly for all payments, including calls, which ought to be made in respect of the share; D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 5
the company is not bound to issue more than one certificate in respect of the share; and delivery of a certificate for the share to any one of them is sufficient delivery to all of them. 2.8 Equitable and other claims Except as otherwise required by law or provided by this Constitution, the company is entitled to treat the registered holder of a share as the absolute owner of that share and is not: (1) compelled in any way to recognise a person as holding a share upon any trust, even if the company has notice of that trust; or (2) compelled in any way to recognise, or bound by, any equitable, contingent, future or partial claim to or interest in a share on the part of any other person except an absolute right of ownership in the registered holder, even if the company has notice of that claim or interest. With the consent of the directors, shares held by a trustee may be marked in the register in such a way as to identify them as being held subject to the relevant trust, but this paragraph does not limit the operation of paragraph. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 6
3.1 Transfer of shares PART 3 - TRANSFER OF SHARES Subject to this Constitution, a member may transfer all or any of the member's shares by an instrument in writing in any usual form or in any other form that the directors approve. An instrument of transfer referred to in clause 3.1 must be signed by or on behalf of both the transferor and the transferee unless: (1) the instrument of transfer relates only to fully paid shares and signature by the transferee has been dispensed with by the directors; or (2) the transfer of the shares is effected by a document which is, or documents which together are, a sufficient transfer of those shares under Part 7.11 Division 2 of the Corporations Act. (d) (e) (f) A transferor of shares remains the holder of the shares transferred until the transfer is registered and the name of the transferee is entered in the register of members in respect of the shares. The directors may decline to register a transfer of shares. If a Participating Employer, director or Fund Member ("relevant person") ceases to be a Participating Employer, director or Fund Member (as the case may be) then the relevant person must transfer all the shares in the company held by that relevant person to any person nominated by the directors against payment to the relevant person of the par value of the shares. Each person, in consideration of the issue or transfer of a share or shares to the relevant person irrevocably appoints the secretary as the relevant person's attorney to do all things necessary, including but not limited to, the signing of a share transfer form, to give effect to the relevant transfer. The directors may, to the extent permitted by law, waive all or any of the requirements of this clause 3.1. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 7
4.1 Convening of general meetings PART 4 - GENERAL MEETINGS The directors may, whenever they think fit, convene a general meeting. A general meeting may be convened only as provided by this clause 4.1 or as provided by the Corporations Act. The directors may postpone, cancel or change the venue of a general meeting, but a general meeting convened as provided for by the Corporations Act may not be postponed beyond the date by which the Corporations Act requires it to be held and may not be cancelled without the consent of the requisitioning member or members. 4.2 Notice of general meetings Subject to the Corporations Act, this Constitution and any rights attached to any shares or class of shares, at least 14 days' notice of a general meeting (exclusive of the day on which the notice is served or deemed to be served but inclusive of the day appointed for the meeting) must be given to each person who is at the time of giving the notice: (1) a member; (2) a director; or (3) an auditor of the company. (d) A notice of a general meeting must specify the time and place of the meeting and state the general nature of the business to be transacted at the meeting. A person may waive notice of any general meeting by notice in writing to the company. Failure to give notice of a general meeting or a proxy form to any person entitled to receive notice of a general meeting under this clause 4.2 does not invalidate any act, matter or thing done or resolution passed at the general meeting if: (1) the failure occurred by accident or error; or (2) before or after the meeting, the person: (A) (B) has waived or waives notice of that meeting under clause 4.2; has notified or notifies the company of the person's agreement to that act, matter, thing or resolution by notice in writing to the company. 4.3 Admission to general meetings The chairperson of a general meeting may refuse admission to, or require to leave and remain out of, the meeting any person who is not a member, director or auditor of the company. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 8
4.4 Quorum at general meetings No business may be transacted at any general meeting, except the election of a chairperson and the adjournment of the meeting, unless a quorum of members is present when the meeting proceeds to business. A quorum is 2 or more members present personally or by proxy or attorney. If a quorum is not present within 30 minutes after the time appointed for the general meeting: (1) where the meeting was convened upon the requisition of members, the meeting must be dissolved; or (2) in any other case: (A) (B) the meeting stands adjourned to such day, and at such time and place, as the directors determine or, if no determination is made by the directors, to the same day in the next week at the same time and place; and if, at the adjourned meeting, a quorum is not present within 30 minutes after the time appointed for the meeting, the meeting must be dissolved. 4.5 Chairperson of general meetings The chairperson of directors is entitled to (if present within 15 minutes after the time appointed for the meeting and willing to act) preside as chairperson at each general meeting. If at a general meeting: (1) there is no chairperson of directors; (2) the chairperson of directors is not present within 15 minutes after the time appointed for the meeting; or (3) the chairperson of directors is present within that time but is not willing to act as chairperson of the meeting, then the members present may elect one of their number to be chairperson of the meeting. 4.6 Adjournment of general meetings The chairperson of a general meeting may, and must if so directed by the meeting, adjourn the meeting from time to time and from place to place, but no business may be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. Where a meeting is adjourned for 30 days or more, notice of the adjourned meeting must be given as in the case of an original meeting, but otherwise it is not necessary to give notice of an adjournment or of the business to be transacted at an adjourned meeting. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 9
4.7 Decisions at general meetings Except in the case of any resolution which as a matter of law requires a special majority, questions arising at a general meeting are to be decided by a majority of votes cast by the members present at the meeting and any such decision is for all purposes a decision of the members. In the case of an equality of votes upon any proposed resolution the chairperson of the meeting will not have a second or casting vote and the proposed resolution is to be taken as having been lost. A resolution put to the vote of a general meeting must be decided on a show of hands unless a poll is demanded before or immediately after the declaration of the result of the show of hands: (1) by the chairperson of the meeting; or (2) by any member present at the meeting and having the right to vote on the resolution. (d) (e) (f) (g) (h) A demand for a poll does not prevent the continuance of a general meeting for the transaction of any business other than the question on which the poll has been demanded. Unless a poll is duly demanded, a declaration by the chairperson of a general meeting that a resolution has on a show of hands been carried or carried unanimously, or carried by a particular majority, or lost, and an entry to that effect in the book containing the minutes of the proceedings of the company, is conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution. If a poll is duly demanded at a general meeting, it will be taken in such manner and (subject to clause 4.7(g)) either at once or after an interval or adjournment or otherwise as the chairperson of the meeting directs, and the result of the poll will be the resolution of the meeting at which the poll was demanded. A poll demanded at a general meeting on the election of a chairperson of the meeting or on a question of adjournment must be taken immediately. The demand for a poll may be withdrawn. 4.8 Voting rights Subject to this Constitution and to any rights or restrictions attached to any shares or class of shares, at a general meeting: (1) on a show of hands, every member present has one vote; and (2) on a poll, every member present has one vote for each share held by the member and in respect of which the member is entitled to vote. In the case of joint holders the vote of the senior who tenders a vote, whether in person or by proxy, attorney or representative, must be accepted to the exclusion of the votes of the other joint holders and, for this purpose, seniority is to be determined by the order in which the names stand in the register of members (the member whose name appears first in the register being taken to be the senior to the other or others of them). D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 10
(d) (e) A member is not entitled to vote at a general meeting unless all calls and other sums presently payable by that member in respect of shares in the company have been paid. An objection to the qualification of a person to vote at a general meeting must be raised before or at the meeting at which the vote objected to is given or tendered, and must be referred to the chairperson of the meeting, whose decision is final. A vote not disallowed by the chairperson of a meeting under clause 4.8(d) is valid for all purposes. 4.9 Representation at general meetings Subject to this Constitution, each member entitled to vote at a meeting of members may vote: (1) in person; (2) by proxy; (3) by attorney; or (4) where the member is a body corporate, by its representative. (d) (e) (f) (g) (h) A proxy, attorney or representative may, but need not, be a member of the company. A proxy, attorney or representative may be appointed for all general meetings, or for any number of general meetings, or for a particular general meeting. An instrument appointing a proxy, attorney or representative may be in any usual form or any other form that the directors approve. Unless otherwise provided in the instrument, an instrument appointing a proxy, attorney or representative will be taken to confer authority to demand or join in demanding a poll on any resolution on which the proxy, attorney or representative may vote. Where a member appoints 2 proxies or attorneys to vote in respect of the member's shares at the same general meeting, the appointment is of no effect and neither of them may vote unless each proxy or attorney, as the case may be, is appointed to represent a specified proportion of the member's voting rights. An instrument appointing a proxy or attorney may direct the manner in which the proxy or attorney is to vote in respect of a particular resolution and, where an instrument so provides, the proxy or attorney is not entitled to vote on the proposed resolution except as directed in the instrument. A proxy or attorney may not vote at a general meeting unless the instrument appointing the proxy or attorney, and a copy of the power of attorney or other authority (if any) under which the instrument is signed, are deposited at the registered office of the company or at such other place specified for that purpose in the notice convening the meeting: (1) in the case of a meeting or an adjourned meeting, before the time for holding the meeting or adjourned meeting at which the person named in the instrument proposes to vote; or D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 11
(2) in the case of a poll, before the time appointed for the taking of the poll. (i) (j) The directors may waive all or any of the requirements of clause 4.9(h). A vote given in accordance with the terms of an instrument appointing a proxy or attorney is valid despite: (1) the previous death, unsoundness of mind or bankruptcy of the appointor; or (2) the revocation of the instrument or of the authority under which the instrument was executed. If no notice in writing of the death, unsoundness of mind, bankruptcy or revocation has been received by the company by the time and at one of the places at which the instrument appointing the proxy or attorney is required to be deposited under clause 4.9(h). D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 12
PART 5 - DIRECTORS 5.1 Number and Appointment of Directors Directors of the company shall only be appointed as provided in this Part and the number of directors must not be less than two. 5.2 Appointment of Directors until the Director Change Date Between the date of adoption of the Constitution and the Director Change Date, the directors may appoint and remove directors. 5.3 Appointment of Directors from the Director Change Date On and from the Director Change Date: subject to clause 5.3, the directors shall comprise an equal number of: (1) Employer Directors, being persons who are appointed (or, if holding office before the Director Change Date, whose appointments have not been revoked) by the Principal Employer; and (2) Member Directors, each of whom shall be a Fund Member who is appointed (or, if holding office before the Director Change Date, whose appointment is confirmed) in such manner, and in accordance with such rules and conditions, as may be determined by the directors from time to time either generally or in any particular case; by resolution passed in accordance with clause 5.16 or clause 5.17 (as if there was no Independent Director in office for the time being), the Member Directors and the Employer Directors may: (1) either indefinitely or for a fixed period appoint as an Independent Director a person who is eligible to hold that office in accordance with the Superannuation Industry (Supervision) Act 1993; and (2) remove an Independent Director from that office, but there shall only be one Independent Director at any particular time. 5.4 Appointment of alternate directors Until the Director Change Date, a director may appoint an alternate director in respect of that director with the approval of the directors. On and from the Director Change Date: (1) with the approval of the other Employer Directors in office at the time of the appointment, an Employer Director may by written notice to the secretary of the company appoint any person as an alternate director in respect of the Employer Director; and D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 13
(2) a person who satisfies the same conditions as must be satisfied by the Member Director in order to be qualified to hold the office of Member Director may be appointed as an alternate director in respect of a Member Director in such manner, and in accordance with such rules and conditions, as may be determined by the directors from time to time either generally or in any particular case. An alternate director is entitled to notice of meetings of directors, and of any committee or other group of which the director in respect of whom he or she is an alternate director ("Primary Director") is a member in his or her capacity as a director, and to attend and subject to clause 5.4(e) and 5.4(f), to vote and otherwise act as a director in place of the Primary Director at any such meeting at which the Primary Director is not present, but he or she will automatically vacate office as an alternate director on the earliest to occur of: (1) in the case of an alternate director appointed before the Director Change Date, the Director Change Date; (2) he or she dies; (3) he or she becomes prohibited from being an alternate director by reason of, or a disqualified person in terms of, any Relevant Act; (4) he or she resigns as an alternate director by notice in writing to the company; (5) he or she ceases to be qualified under this Constitution to hold the office of alternate director; (6) he or she no longer meets a condition of their appointment or no longer satisfies any eligibility criteria that had to be met for that person to be appointed as an alternate director; (7) he or she fails to meet the Company s criteria for fit and proper person from time to time for a continuous period of 90 days; (8) the Primary Director ceases to be a director; (9) he or she is removed from office by the same procedure as that by which he or she was appointed as an alternate director; (10) he or she suffers any mental or physical incapacity or is a person whose person or estate is liable to be dealt with in any way under the law relating to mental health, and in respect of whom the directors have passed a resolution declaring the office of that person to be vacant; or (11) in the case of an alternate director appointed by an Employer Director, he or she is removed from office by the Principal Employer, or by the other Employer Directors, by written notice given to the company. (d) An alternate director shall not be taken into account in reckoning the minimum or maximum number of directors allowed for the time being but shall be counted for the purpose of reckoning whether a quorum is present at any meeting of the directors attended by the alternate director at which he or she is entitled to vote. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 14
(e) (f) (g) The same person may act as alternate director in respect of more than one director and while a person is so acting that person's presence shall for voting purposes be counted as the presence of only one of the Primary Directors, being the Oldest of the Primary Directors who is absent and who has appointed the alternate director to act on his or her behalf. If more than one alternate director has been appointed in respect of a Primary Director and more than one of those alternate directors is present in person at a meeting from which the Primary Director is absent, only the Oldest of those alternate directors present shall be entitled to vote for the Primary Director or to be counted in respect of the Primary Director for the purpose of reckoning whether a quorum is present at the meeting, and the other or others of them shall not remain at the meeting unless they are invited to do so by the other directors unanimously. An alternate director, whilst acting as a director, is responsible to the Company for the alternate director s own acts and defaults and the Primary Director for whom the alternate director is appointed is not responsible for them. 5.5 Period of Office A director (other than an Independent Director) will hold office for a maximum period of three years or any other period as unanimously determined by the directors from time to time either generally or in any particular case. At the end of the period of office, a director will cease to be a director but, subject to this Constitution, will be eligible for re-appointment or re-election, as the case may be. 5.6 Vacation of office In addition to the circumstances in which the office of a director becomes vacant by virtue of the Corporations Act, the office of a director becomes vacant if he or she: dies; becomes prohibited from being a director by reason of, or a disqualified person in terms of, any Relevant Law; suffers any mental or physical incapacity or is a person whose person or estate is liable to be dealt with in any way under the law relating to mental health, and in respect of whom the directors have passed a resolution declaring the office of that person to become vacant; (d) is removed from office under clause 5.2; (e) (f) (g) (h) resigns his or her office by notice in writing to the company; no longer meets a condition of their appointment or no longer satisfies any eligibility criteria that had to be met for that person to be appointed as a Director; fails to meet the Company s criteria for fit and proper person from time to time for a continuous period of 90 days. in the case of a Member Director: (1) unless the directors unanimously agree otherwise, he or she ceases to be a Fund Member; D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 15
(2) ceases to hold office as a result of the period of office determined under clause 5.5 expiring; or (3) is removed from office by the same procedure as that by which he or she was appointed; (i) in the case of an Employer Director: (1) after the Director Change Date, is removed by the Principal Employer; or (2) ceases to hold office as a result of the period of office determined under clause 5.5 expiring; or (j) in the case of an Independent Director: (1) is removed from office under clause 5.3; or (2) having been appointed for a fixed period, that period expires, whichever first occurs. 5.7 Filling Vacancies If the office of a director becomes vacant after the Director Change Date, a director must, within 90 days, be appointed in accordance with clause 5.3 to fill the vacancy. Unless the directors determine otherwise, a person appointed to fill a vacancy in the office of director will hold office for the unexpired portion of the term of office of, and otherwise on the same conditions as, the director whose office became vacant. 5.8 Remuneration and Expenses The directors may be paid remuneration as may be determined by agreement between the Principal Employer and the directors from time to time. The directors may resolve that a director shall be paid reasonable travelling and other expenses properly incurred by in attending and returning from meetings of the directors, or any committee of the directors, or general meetings of the company, or otherwise in connection with the business of the company including any insurance premiums incurred by the director. 5.9 Share qualification A director is not required to hold any shares in the company to be eligible to hold office. A director who is not a member of the company is nevertheless entitled to attend and speak at general meetings. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 16
5.10 Interested directors (d) (e) (f) A director may hold any other office or place of profit (other than auditor) in the company or any related body corporate in conjunction with his or her directorship and may be appointed to that office or place upon such terms as to remuneration, tenure of office and otherwise as the directors think fit. A director may be or become a director or other officer of, or otherwise interested in, any related body corporate or any other body corporate promoted by the company or in which the company may be interested as a shareholder or otherwise and is not accountable to the company for any remuneration or other benefits received by the director as a director or officer of, or from having an interest in, that body corporate. A director is not disqualified from contracting with the company either as vendor, purchaser or otherwise merely because of being a director or because of the fiduciary obligations arising out of that office. No contract made by a director with the company and no contract or arrangement entered into by or on behalf of the company in which any director may be in any way interested is avoided or rendered voidable merely because of the director holding office as a director or because of the fiduciary obligations arising out of that office. No director contracting with or being interested in any arrangement involving the company is liable to account to the company for any profit realised by or under any such contract or arrangement merely because of the director holding office as a director or because of the fiduciary obligations arising out of that office. A director who is in any way interested in any contract or arrangement or proposed contract or arrangement may, despite that interest, vote, be present and be counted in a quorum at the meeting unless that is prohibited by the Corporations Act. (g) No act of the company is invalidated due to a contravention of this clause 5.10. (h) Despite clauses 5.10-(g), a director is bound by, and must comply with, the Company s Conflicts Policy. 5.11 Powers of directors The directors are responsible for managing the business of the company and may exercise to the exclusion of the company in general meeting all the powers of the company which are not required, by the Corporations Act or by this Constitution, to be exercised by the company in general meeting. Without limiting the generality of clause 5.11, the directors may exercise all the powers of the company to borrow or otherwise raise money, to charge any property or business of the company or all or any of its uncalled capital and to issue debentures or give any other security for a debt, liability or obligation of the company or of any other person. The directors may in any manner they see fit appoint or employ any person to be an officer, agent or attorney of the company for such purposes with such powers, for such period and upon such conditions as they think fit. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 17
5.12 Proceedings of Directors The directors may meet together for the dispatch of business and adjourn and otherwise regulate their meetings as they think fit. The contemporaneous linking together by telephone or other method of audio or audio visual communication of a number of the directors sufficient to constitute a quorum, constitutes a meeting of the directors and all the provisions in this Constitution relating to meetings of the directors apply, so far as they can and with such changes as are necessary, to meetings of the directors by telephone or audio or audio visual communication. A director participating in a meeting by telephone or audio or audio visual communication is to be taken to be present in person at the meeting. 5.13 Convening of meetings of directors A director may, whenever the director thinks fit, convene a meeting of the directors. A secretary must, on the requisition of a director, convene a meeting of the directors. 5.14 Quorum A quorum for a meeting of directors is the greater of: (1) two directors; and (2) two-thirds of the number of directors in office. In the event of a vacancy in the office of a director or vacancies in the offices of directors, the remaining director or directors may act but, if the number of remaining directors is not sufficient to constitute a quorum at a meeting of directors, the remaining director or directors may act only for the purpose of implementing an increase in the number of directors to a number sufficient to constitute a quorum or of convening a general meeting of the company. 5.15 Chairperson The directors must elect a director to the office of chairperson of directors who will hold office as chairperson of directors until that office is vacated in accordance with clause 5.15. If the chairperson of directors: (1) resigns as chairperson of directors by notice in writing to the directors; (2) ceases to be a director; or (3) is removed as chairperson of directors by a resolution of the directors, his or her office as chairperson of directors will be vacated and the directors must elect one of their number to be chairperson of directors who will hold office as chairperson of directors until his or her office is vacated in accordance with this clause 5.15. The chairperson of directors shall not have a second or casting vote. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 18
5.16 Decisions of directors (d) (e) A meeting of directors at which a quorum is present is competent to exercise all or any of the powers vested in or exercisable by the directors under this Constitution. A resolution in a meeting of the directors is only valid if not less than two-thirds of the total number of directors in office vote in favour of it. Subject to clauses 5.4(e) and 5.4(f), at any meeting of directors, each director present (other than the Independent Director) has one vote only and no director has a second or casting vote. At any meeting of directors, the Independent Director may vote unless the Independent Director's vote, if counted, would be a casting vote. The chairperson (or such other person determined by the directors) shall sign all minutes of directors' meetings which minutes shall be taken to be a true and correct record. 5.17 Circular resolutions A resolution assented to by all directors (being at least the number of directors who would at a meeting duly convened constitute a quorum) is as valid and effectual as if it had been passed at a meeting of directors duly held. A director may assent to a resolution by signing a document containing the resolution (or a counterpart of that document) or by notifying the company in person, by notice in writing or by telephone or other method of audio or audio visual communication. For the purpose of clause 5.17, two or more counterparts of the document containing the resolution constitute, when taken together, one document. The resolution is regarded as passed at time which the resolution was signed by the last director required for the purposes of clause 5.16. 5.18 Committees of directors Subject to clause 5.18, the directors may delegate any of their powers to a committee or committees comprising such directors as the directors think fit. A committee to which any powers have been so delegated must exercise the powers delegated in accordance with any directions of the directors. The provisions of this Constitution applying to meetings and resolutions of directors apply, so far as they can and with such changes as are necessary, to meetings and resolutions of a committee of directors and subject to any direction of the directors and so that clauses 5.14(2) and 5.16 shall be construed as though the words "directors in office" wherever appearing were "directors comprising the committee". 5.19 Validity of acts All acts done by any person acting as a director are, even if it is discovered afterwards that there was a defect in the person's appointment as a director or that the person was disqualified to be a director, as valid as if the person had been duly appointed as, and was qualified to be, a director. All acts done by a meeting of directors or a committee of directors are, even if it is discovered afterwards that there was a defect in the appointment of a person as a D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 19
director or that a person appointed as a director was disqualified to be a director, as valid as if the person had been duly appointed as, and was qualified to be, a director. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 20
PART 6 - SECRETARY 6.1 Secretaries The directors must appoint at least one secretary and may appoint additional secretaries. A secretary holds office on such terms and conditions (including remuneration) as the directors determine. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 21
PART 7 - SEALS 7.1 Safe custody of seal The directors must provide for the safe custody of the seal in such manner as they think fit. 7.2 Use of seal The seal must be used only by the authority of the directors or of a committee of the directors authorised by the directors to authorise the use of the seal. The authority to use the seal may be given before or after the seal is used. Every document to which the seal is affixed must be signed by a director and countersigned by another director, a secretary or another person appointed by the directors to countersign that document or a class of documents in which that document is included. 7.3 Official seal The company may have an official seal for use in place of its common seal outside the state or territory where its common seal is kept, which is a facsimile of the common seal of the company with the addition on its face of the name of every place where it is to be used. A document sealed with an official seal is to be taken as having been sealed with the common seal of the company. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 22
PART 8 - RESERVES, PROFITS AND DIVIDENDS 8.1 Reserves Subject to this Constitution, the directors may keep such reserves or provisions for such purposes as they think fit. The directors may appropriate to the profits of the company any amount previously set aside as a reserve or provision. The setting aside of any amount as a reserve or provision does not require the directors to keep the amount separate from the other assets of the company or prevent the amount being used in the business of the company or being invested in such investments as the directors think fit. 8.2 Carry forward of profits The directors must carry forward so much of the profits remaining as is not transferred to a reserve or provision. 8.3 Dividends The directors do not have the power to declare dividends or pay dividends. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 23
PART 9 - WINDING UP 9.1 Winding up If upon the winding-up or dissolution of the company there remains after satisfaction of all its debts and liabilities any property whatsoever the same shall not be paid to or distributed amongst the members of the company but shall be given or transferred to some other company, fund, authority or institution which has objects similar to the object of the company and which prohibits the distribution of its income and property among its members to an extent at least as great as is imposed on the company under Article 1.6, such fund, authority or institution to be determined by the members of the company at or before the time of dissolution or, in default, by such Judge of the Supreme Court of the State or Territory in which the company has its registered office as may have or acquire jurisdiction in the matter. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 24
PART 10 - PROTECTION OF CERTAIN OFFICERS 10.1 Officers to whom part 10 applies This part 10 applies to each person who is, or has been, a director, alternate director or secretary of the company and to such other officers of the company both past and present as the directors determine. 10.2 Indemnity The company may indemnify, to the full extent permitted by law, each officer to whom this part 10 applies for all losses or liabilities incurred by the officer in the performance of the officer's powers. 10.3 Insurance Without limiting the generality of clause 5.11, the company may pay a premium in respect of a contract insuring each officer to whom this part 10 applies against all liability incurred by such officer in connection with the performance of the officer's powers and duties except for a liability arising out of conduct involving a wilful breach of duty in relation to the company or a contravention of section 232(5) or (6) of the Corporations Act. In the case of a director any such premium shall not be considered remuneration paid to that director for the purposes of clause 5.8. D:\My Documents\From G Drive\Trustee\Trustee Company\BOC Super Pty Ltd Constitution 10-8-2009.doc 25