Computershare Standard Business Rules for General Meetings

Transcription

1 Computershare Standard Business Rules for General Meetings

2 PART 1 - ITEMS FOR YOUR INFORMATION Receipt of Proxy/Direct Voting forms Proxy/Direct Voting forms received from Corporations Multiple holdings in the one name Proxy forms appointing a Body Corporate Proxy other than the Chairman of the Meeting nominated Proxy appointments nominating the Chairman of the Meeting, the Chairman, the Chairman of the Company Effect of member s presence on proxy s authority and direct votes Minors Attorneys Electronic lodgement of Proxy nominations/direct Votes Appointment of proxy through InvestorVote Meetings where a restriction applies on voting by Key Management Personnel (KMP) and their closely related parties on remuneration arrangements Meetings where a tick box is used on a proxy/direct voting form to expressly authorise the Chairman of the Meeting to vote undirected votes on remuneration related motions Meetings where Direct Voting is applicable Proxy/Direct Voting close Proxy Over-Votes Time of receipt of Proxy/Direct Voting forms Corporate Representatives Voting by proxyholders Notification to ASX by listed companies of proxy/direct votes Retention of Proxy/Direct Voting Forms and Voting Papers APPENDIX - GENERAL MEETINGS: ITEMS FOR CONSIDERATION Proxy/Direct Voting Forms Received From Joint Holders Return of Invalid Proxy/Direct Voting Forms Later mailings of Notice of Meeting to new members Meetings where a voting exclusion statement applies COMMERCIAL IN CONFIDENCE 2

3 PART 1 - ITEMS FOR YOUR INFORMATION 1. Receipt of Proxy/Direct Voting forms Section 250B(1) of the Corporations Act 2001 ( the Act ) states: 250B(1) Documents to be received by a company before meeting. For an appointment of a proxy for a meeting of a company s members to be effective, the following documents must be received by the company at least 48 hours before the meeting: (a) (b) the proxy s appointment; if the appointment is signed, or otherwise authenticated in a manner prescribed by regulations made for the purposes of subsection 250A(1), by the appointer s attorney the authority under which the appointment was signed or authenticated or a certified copy of the authority. Section 250B (3) of the Act states: A company receives a document referred to in subsection (1): (a) when the document is received at any of the following: (i) (ii) (iii) the company s registered office; a fax number at the company s registered office; a place, fax number or electronic address specified for the purpose in the notice of meeting; and (b) if the notice of meeting specifies other electronic means by which a member may give the document when the document given by those means is received by the company as prescribed by the regulations. Additional Items for Listed Companies Only In addition section 250BA states: In a notice of meeting for a meeting of the members of a company, the company: (a) must specify a place and a fax number for the purposes of receipt of proxy appointments and proxy appointment authorities; and (b) may specify: (i) an electronic address for the purposes of receipt of proxy appointments and proxy appointment authorities; and (ii) other electronic means by which a member may give the company a proxy appointment or proxy appointment authority. 250BA(2) [Application] This section applies only to a company that is listed. 250BA(3) [Paramountcy] This section applies despite anything in the company s constitution. For the purposes of the above sections, listed means a company included in the official list of a prescribed financial market operated in this jurisdiction. Under Corporations Regulation , Australian Securities Exchange Limited is a prescribed financial market. COMMERCIAL IN CONFIDENCE 3

4 Normally, in the notice of meeting sent to members, the fax number specified for receipt of proxy/direct voting forms will be one which allows the proxy/direct voting forms to be transmitted directly to our office. If the above sections are treated as independent, in accord with the view expressed by many legal advisors, members can also legally send proxy/direct voting forms to any fax number at your registered office. If you agree with this view, we require you to make arrangements to ensure that any proxy/direct voting forms received in your office before the closing time for receipt are promptly forwarded to us for processing. 2. Proxy/Direct Voting forms received from Corporations This item relates to who may sign a proxy/direct voting form on behalf of a Corporation in order for it to be valid. Section 127(1) of the Act deals with documents to which a common seal has not been affixed and states: A company may execute a document without using a common seal if the document is signed by: (a) (b) 2 directors of the company; or a director and a company secretary of the company; or (c) for a proprietary company that has a sole director who is also the sole company secretary that director. Section 127(1) should be read in conjunction with section 129(5) which applies when a common seal is not used, and details when a document can be relied upon in those circumstances. Section 129(5) states: A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with subsection 127(1). For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to their signature that they are the sole director and sole company secretary of the company, occupies both offices. Section 127(2) deals with documents to which a common seal is affixed and states: A company with a common seal may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by: (a) (b) 2 directors of the company; or a director and a company secretary of the company; or (c) for a proprietary company that has a sole director who is also the sole company secretary that director. Section 127(2) should be read in conjunction with section 129(6) which applies when a common seal has been used and details when it can be relied upon in those circumstances. Section 129(6) states: A person may assume that a document has been duly executed by the company if: (a) (b) the company s common seal appears to have been fixed to the document in accordance with subsection 127(2); and the fixing of the common seal appears to have been witnessed in accordance with that subsection. COMMERCIAL IN CONFIDENCE 4

5 For the purposes of making the assumption, a person may also assume that anyone who witnesses the fixing of the common seal and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices. The Act is permissive in the area of signatures on proxy/direct voting forms. Where the constitution of your company permits, you may impose rules that vary from the above. In accordance with the above, we shall only accept proxy/direct voting forms that are signed in strict accordance with the Act. Further as a result of section 204A of the Act which states: 204A Proprietary companies (1) A proprietary company is not required to have a secretary but, if it does have 1 or more secretaries, at least 1 of them must ordinarily reside in Australia. Public Companies (2) A public company must have at least 1 secretary. At least 1 of them must ordinarily reside in Australia. However, no recognition is given in sections 127 and 129 to section 204(A)1 and there are no comparable assumption provisions in respect to companies complying with section 204(A)1. As a result, it is not possible to insist on a sole director of a proprietary company signing as Sole Director and Sole Company Secretary, because a company secretary may not have been appointed. If two directors have been appointed (and there is no secretary) both can be asked to sign and, therefore, the assumption can be relied upon. If, however, a person claims to be the sole director of a company which has no secretary the assumption provisions cannot be relied upon. Where the assumptions in the Act do not apply, it is possible for us to: conduct a search of ASIC registers to validate the identity of any office holders (and therefore proxyholders) of a company; or require supporting documentation to show that the person has authority to bind the company (for example, evidence that a person is the sole director of the company and an extract from the constitution that the company has no company secretary). In the usual course, we do not consider that it will be reasonable to incur these expenses. We will request that a director of such a company signs in the appropriate place to warrant that they are a sole director. In the absence of specific instructions to the contrary, we will not conduct any ASIC searches or seek supporting documentation from a sole director (without a company secretary). In addition, some documents are executed for companies by persons appointed under a power of attorney or other form of agency. Among other things section 250B provides that the latest time for receipt of proxy/direct voting forms can be reduced to less than 48 hours if provided for in the company s constitution. The section further states that, if a proxy appointment is signed by the appointer's attorney, evidence of the authority under which the proxy appointment was signed (or a certified copy of the authority) must be given to the company at least 48 hours (or such lesser period as applies for the receipt of proxy documents) before the meeting or the appointment will not be effective. COMMERCIAL IN CONFIDENCE 5

6 The most common form of authority is a power of attorney executed by the member, but other forms of authority may suffice (e.g. an informal letter authorising the appointer to act in certain circumstances, a rule within the constitution of the company, a board resolution, service contract, etc.). The adequacy of any such authority will need to be assessed on a case-by-case basis and authorities outside the norm will be referred to you for this purpose. Where execution of a proxy appointment by a company cannot be assumed with the help of legislation, or the above mentioned declaration, please advise what steps you would like us to take (for example, conduct a search of ASIC records) in order to establish evidence of authority to sign. Please note that any administration expenses associated with ASIC searches, including but not limited to ASIC search fees and our associated time costs, will be to the account of your company. 3. Multiple holdings in the one name This item relates to the personalisation of securityholdings by the inclusion of account designations, and the consequences of this for proxy/direct vote recording and voter registration. It is generally accepted that account designations beneath a name (e.g. <SAM SMITH ACCOUNT>) do not affect the legal ownership of a security. Therefore, although there may be separate holdings which are identical apart from the account designation, for example: (i) SMITH FAMILY NOMINEES PTY LTD <SAM SMITH ACCOUNT>, and (ii) SMITH FAMILY NOMINEES PTY LTD <SALLY SMITH ACCOUNT> We would, on the face of it, have two separate holdings each of which could be regarded as only a single member. One view is that, although the securityholdings are separate, they relate to the same member and therefore a proxy/direct voting form signed by that member is valid for all holdings of that member. Another view is that a proxy/direct voting form signed in respect of a particular holding should be applied in regard to that holding only. We have received legal advice that would support both views. If personalised proxy/direct voting forms have been sent (detailing member number and name and address details), we will apply the instructions only to that particular holding. If non-personalised proxy/direct voting forms have been sent (requiring the member to fill in their name and address details) we will apply the instructions only to holdings matching the details completed by the member. 4. Proxy forms appointing a Body Corporate Section 249X (1A) of the Act states: 249X(1A) Appointee may be individual or body corporate. The person appointed as the member s proxy may be an individual or a body corporate. Any body corporate appointed as a proxy, will need to appoint a representative to attend the meeting on their behalf. The appointment of the representative should be in accordance with the provisions of section 250D of the Act, that being the section dealing with the appointment of corporate representatives. COMMERCIAL IN CONFIDENCE 6

7 It can be expected that the main body corporate that will be appointed as proxy is the Australian Shareholders Association. While that organisation is known by many as the ASA, there are also many other organisations that have the same acronym and are colloquially known by those acronyms. We will accept proxy forms that identify a known body corporate by way of acronym such as ASA. One other item in relation to proxy forms where a body corporate is nominated relates to those proxy forms where the member simply writes the name of your company in the appropriate section on the form. Given that a body corporate can be appointed as a proxy that would be a valid proxy appointment. We will record proxy nominations as described above as appointing your company as the member s proxy. 5. Proxy other than the Chairman of the Meeting nominated This item relates to where a member has nominated a proxy other than the Chairman of the Meeting and the name on the proxy form appears to be that of the member or a fictitious name. We will process the proxy appointment recording the name written on the proxy form as the appointed proxy. 6. Proxy appointments nominating the Chairman of the Meeting, the Chairman, the Chairman of the Company Our standard proxy form allows a securityholder to tick a box to appoint the Chairman of the Meeting and then provides a second box where a shareholder can nominate another person or corporate body as their proxy by writing in the name/title of the proxy in that second box. We occasionally receive completed proxy forms where the securityholder has written in the second box the title Chairman or Chairman of the Company or the name of the Chairman of the Company. Our practice in these circumstances is to record the name/title specifically nominated by the securityholder. This can result in the Chairman receiving multiple separate appointments for a given meeting. We apply the following rules to motions where a tick box concept is adopted to expressly authorise remuneration related motions: - Undirected proxies in favour of the Chairman of the Meeting are treated as open usable if the tick box is marked and open unusable if the tick box is not marked. - Undirected proxies in favour of the Chairman or the Chairman of the Company or where the Chairman of the Company s name has been used are not assumed to have appointed the Chairman of the Meeting and as such are treated as a separate proxy appointment. For these appointments we would therefore apply the Non Chairman of the Meeting appointment rules as highlighted in the section of this document Meetings where a tick box is used on a proxy/direct voting form to expressly authorise the Chairman of the Meeting to vote undirected votes on remuneration related motions. If you wish to apply a different rule such that the Chairman and/or the Chairman of the Company appointments are combined with the Chairman of the Meeting, please advise us accordingly. COMMERCIAL IN CONFIDENCE 7

8 7. Effect of member s presence on proxy s authority and direct votes Section 249Y(3) of the Act states: A company s constitution (if any) may provide for the effect that a member s presence at a meeting has on the authority of a proxy appointed to attend and vote for the member. However, if the constitution does not deal with this, a proxy s authority to speak and vote for a member at a meeting is suspended while the member is present at the meeting. If a company has lodged a proxy/direct voting form and a corporate representative attends the meeting to vote, all previous proxy/direct voting instructions will be revoked. If a member has lodged a proxy/direct voting form and then attends in person, the proxy/direct voting instruction will either be revoked at the instruction of the member or if they wish to let the proxy or direct votes stand, then the member will be admitted as a visitor. 8. Minors Persons commonly acquire securities in the names of children. This can give rise to difficult questions as to powers of attorney and the capacity of minors, the outcome of which varies between jurisdictions. As we are unaware when processing proxy/direct voting forms whether a member is a minor or not, we cannot restrict minors from voting. At a meeting it will also not always be possible to determine whether a member is a minor; this is a rare occurrence and where we believe the member to be a minor we will ask for proof of age. 9. Attorneys In the past it has been our procedure to admit into the meeting, on behalf of a member, a person who produced to us at any time up until registration (into the meeting) a power of attorney authorising that person to act on behalf of the member. The form of the appointment document accepted has usually been in the normal form of a power of attorney, but we would have been liberal in our interpretation of the form of the authority. However, on 5 April 2001 the Equity Division of The Supreme Court of New South Wales handed down a decision (5963/01) in the matter The Henry George Foundation Limited v John Francis Booth & Others. In this case, having regard to the Corporations Law (as it was then known) and the constitution of The Henry George Foundation, it was held that a person could not be admitted into a meeting to vote as an attorney for a member unless the authority under which the appointment was signed was lodged at least 48 hours before the commencement of the meeting which, in this case, was the latest time for receipt of proxy forms. In light of the above case, we will only admit into the meeting a person as an attorney for a member (and therefore, effectively, the member) persons who have provided to us the authority under which they have been appointed (or an appropriate copy thereof) before the closing time for receipt of proxy/direct voting forms. COMMERCIAL IN CONFIDENCE 8

9 10. Electronic lodgement of Proxy nominations/direct Votes This addresses whether lodgement of proxy appointment/direct votes by electronic means is to be made available to members. Section 250A(1) of the Act states: 250A(1) Requirements for a valid appointment. An appointment of a proxy is valid if it is signed, or otherwise authenticated in a manner prescribed by the regulations, by the member of the company making the appointment and contains the following information: (a) (b) (c) (d) the member s name and address; the company s name; the proxy s name or the name of the office held by the proxy; the meetings at which the appointment may be used. The appointment may be a standing one. Section 250B(1) of the Act states: 250B(1) Documents to be received by a company before meeting. For an appointment of a proxy for a meeting of a company s members to be effective, the following documents must be received by the company at least 48 hours before the meeting: (a) (b) the proxy s appointment; if the appointment is signed or otherwise authenticated in a manner prescribed by regulations made for the purposes of subsection 250A(1), by the appointer s attorney the authority under which the appointment was signed or authenticated or a certified copy of the authority. For completeness, Corporations Regulation 2G.2.01 states: 2G.2.01 (1) For subsection 250A(1) of the Act, an electronic authentication of an appointment of a proxy must include: (a) (b) a method of identifying the member; and an indication of the member s approval of the information communicated. 2G.2.01 (2) If a member appoints a proxy by or Internet-based voting: (a) (b) the member must be identified by personal details (for example the member s name, address and date of birth); and the member s approval of the information communicated must be communicated by a form of security protection (for example, the entering of a confidential number such as a securityholder reference number or holder identification number). A number of the CLERP 9 amendments to the Act were said to have the aim of encouraging member participation, and included in these amendments were changes to facilitate greater use of electronic lodgement of proxy appointments. Whilst specification of an electronic address (for example and internet addresses) for lodgement of proxy appointments is not mandatory, given the Federal Government s stated aim to encourage member participation, members will increasingly expect issuers to provide such a facility. COMMERCIAL IN CONFIDENCE 9

10 Additional items for Listed Companies only One amendment made as a result of CLERP 9 relates to proxy appointment authorities. The amendment made to section 250BA includes a requirement that a listed company specify a place and a facsimile number for receipt of proxy appointments and proxy appointment authorities. This requirement in relation to proxy appointment authorities is new. In section 250B(1) of the Act it is stated that there are two documents that must be received by the company at least 48 hours before the meeting in order for the appointment of the proxy to be valid. These are the proxy appointment itself and if the proxy appointment is signed or otherwise authenticated by the appointer s attorney, the authority under which the appointment was signed or otherwise authenticated, or a certified copy of the authority. In section 250B(2) when dealing with the receipt of documents where a meeting has been adjourned, the provision is that an appointment and any authority received by the company at least 48 hours prior to the resumed part of the meeting, is valid for that resumed part of the meeting. It would seem clear that in both cases the authority, under which the proxy appointment is signed or authenticated, is what is now being described as the proxy appointment authority. Additional items for Listed Companies only That being the case, listed companies will now have to accept a fax of a power of attorney or a fax of a certified copy of the power of attorney, rather than insisting on receipt of an original or originally certified copy. This applies where the proxy appointment is received by fax. We will accept faxed copies of powers of attorney under which faxed proxy/direct voting forms are signed. Where an electronic address (for example an address) is specified as being able to be used for the lodgement of proxy appointments, it will be possible for proxy appointment authorities to be sent to the same address. This could, for example, be by way of image (scanned or in PDF format) being sent as part of the . We will accept copies of powers of attorney sent to the same electronic address that the proxy/direct vote form is sent. Where another electronic means of providing the proxy appointment is specified, there is no complementary requirement that proxy appointment authorities be given by the same means. Therefore, we need to be mindful of the situation where a website will be used to allow proxy appointments to be submitted, but any proxy appointment authorities (such as a power of attorney) will still need to be provided by another method, possibly hard copy. However, given the authentication requirements specified in Corporations Regulation 2G.2.01, we should be able to assume that a proxy appointment received via the specified electronic means, has been sent by the member and hence there should be no requirement for a proxy appointment authority to be received. We will assume proxy appointments/direct votes received via an internet based lodgement system as being sent by the member. COMMERCIAL IN CONFIDENCE 10

11 11. Appointment of proxy through InvestorVote This item relates to the appointment of a proxy electronically through Investor Vote. We currently have 2 templates available. Template 1 allows the appointment of the Chairman of the Meeting or other appointee as set out in the paper voting form. Template 2 allows an extra appointment selection which allows regular appointees (e.g. Australian Shareholder Assoc) to be added into a drop down list for easy selection. Unless advised to the contrary, we will always be setting Template 1 as the default for general meetings. 12. Meetings where a restriction applies on voting by Key Management Personnel (KMP) and their closely related parties on remuneration arrangements. The Corporations Amendment (Improving Accountability on Director and Executive Remuneration) Act 2011 introduced new rules applicable to companies on the voting by KMPs and their closely related parties of undirected proxies in relation to resolutions on remuneration matters. The following provisions apply from 1 August Section 250BD of the Act states: 250BD Proxy voting by key management personnel or closely related parties (1) A person appointed as a proxy must not vote, on the basis of that appointment, on a resolution connected directly or indirectly with the remuneration of a member of the key management personnel for the company or, if the company is part of a consolidated entity, for the entity if: (a) the person is either: (i) a member of the key management personnel for the company or, if the company is part of a consolidated entity, for the entity; or (ii) a closely related party of a member of the key management personnel for the company or, if the company is part of a consolidated entity, for the entity; and (b) the appointment does not specify the way the proxy is to vote on the resolution. Note 1: Examples of resolutions connected directly or indirectly with the remuneration of a member of the key management personnel for the company or entity include: (a) resolutions that must be put to the vote under subsection 250R(2) (about a resolution that the remuneration report for a listed company be adopted); and (b) resolutions that must be put to the vote under subsection 250V(1) (about fresh elections for directors at meetings arising from concerns about remuneration reports); and (c) resolutions determining directors remuneration as mentioned in section 202A; and (d) resolutions for the purposes of Chapter 2E (about public companies and entities they control giving financial benefits to related parties of public companies) affecting directors remuneration. Note 2: Subsections 250R(4) and 250V(2) also prevent the person from voting on the resolution if it is a resolution that must be put to the vote under subsection 250R(2) or 250V(1). COMMERCIAL IN CONFIDENCE 11

12 Note 3: Section 224 may also prohibit the person from voting on the resolution if it is a resolution for the purposes of Chapter 2E. Note 4: Failure to comply with this subsection is an offence: see subsection 1311(1). (2) Subsection (1) does not apply if: (a) the person is the chair of the meeting at which the resolution is voted on; and (b) the appointment expressly authorises the chair to exercise the proxy even if the resolution is connected directly or indirectly with the remuneration of a member of the key management personnel for the company or, if the company is part of a consolidated entity, for the entity. Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code. (3) ASIC may by writing declare that: (a) subsection (1) does not apply to a specified resolution; or (b) subsection (1) does not prevent the casting of a vote, on a specified resolution, by or on behalf of a specified entity; but may do so only if satisfied that the declaration will not cause unfair prejudice to the interests of any member of the company. The declaration has effect accordingly. The declaration is not a legislative instrument. Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code. (4) A vote cast in contravention of subsection (1) is taken not to have been cast. This subsection has effect for the purposes of this Act except subsection (1) and subsections 250R(4) and (7), and section 1311 and Schedule 3 so far as they relate to any of those subsections. Note: This means the vote is not counted in working out a percentage of votes cast or whether the resolution is passed, and does not affect the validity of the resolution. Section 250R of the Act states: Voting on advisory resolution by key management personnel or closely related parties (4) A vote on the resolution must not be cast (in any capacity) by or on behalf of either of the following persons: (a) a member of the key management personnel details of whose remuneration are included in the remuneration report; (b) a closely related party of such a member. (5) However, a person described in subsection (4) may cast a vote on the resolution if: (a) the person does so as a proxy appointed by writing that specifies how the proxy is to vote on the proposed resolution; and COMMERCIAL IN CONFIDENCE 12

13 (b) the vote is not cast on behalf of a person described in subsection (4). (6) ASIC may by writing declare that: (a) subsection (4) does not apply to a specified resolution; or (b) subsection (4) does not prevent the casting of a vote, on a specified resolution, by or on behalf of a specified entity; but may do so only if satisfied that the declaration will not cause unfair prejudice to the interests of any member of the listed company. The declaration has effect accordingly. The declaration is not a legislative instrument. (7) A person described in subsection (4) contravenes this subsection if a vote on the resolution is cast by or on behalf of the person in contravention of that subsection (whether or not the resolution is passed). Note: A contravention of this subsection is an offence: see subsection 1311(1). (8) A vote cast in contravention of subsection (4) is taken not to have been cast. This subsection has effect for the purposes of this Act except subsections (4) and (7) and subsection 250BD(1), and section 1311 and Schedule 3 so far as they relate to any of those subsections. Note: This means the vote is not counted in working out a percentage of votes cast or whether the resolution is passed, and does not affect the validity of the resolution. (9) For the purposes of this section, a vote is cast on behalf of a person if, and only if, it is cast: (a) as proxy for the person; or (b) otherwise on behalf of the person; or (c) in respect of a share in respect of which the person has: (i) power to vote; or (ii) power to exercise, or control the exercise of, a right to vote. (10) Subject to Part 1.1A, subsections (4), (5), (6), (7), (8) and (9) have effect despite: (a) anything else in: (i) this Act; or (ii) any other law (including the general law) of a State or Territory; and (b) anything in the company s constitution. Section 9 of the Act confirms that KMP is an accounting term, it comprises: those persons having authority and responsibility for planning, directing and controlling the activities of the entity, directly or indirectly, including any director (whether executive or otherwise) of that entity. COMMERCIAL IN CONFIDENCE 13

14 Definition of a closely related party is contained in section 9 of the Act: Closely related party of a member of the key management personnel for an entity means: (a) a spouse or child of the member; or (b) a child of the member s spouse; or (c) a dependant of the member or of the member s spouse; or (d) anyone else who is one of the member s family and may be expected to influence the member, or be influenced by the member, in the member s dealings with the entity; or (e) a company the member controls; or (f) a person prescribed by the regulations for the purposes of this paragraph. Our policy is to rely on the information you provide us to identify securityholdings that belong to your KMPs and their closely related parties. It is important that we are provided with a current list ahead of your Meeting to ensure voting exclusions are flagged on relevant resolutions. We will maintain a spreadsheet with an outline of the information we require to correctly identify your KMPs and their closely related parties. The details of your KMPs and their closely related parties are to be provided as they are recorded on the company's register of members. We will keep these details on record and re-confirm these with you for future meetings. Due to the sensitivity of information included, we recommend you upload the file via Issuer Online Fileshare. 13. Meetings where a tick box is used on a proxy/direct voting form to expressly authorise the Chairman of the Meeting to vote undirected votes on remuneration related motions This item relates to where a tick box is being utilised on a proxy/direct voting form to expressly authorise the Chairman of the Meeting to vote undirected votes on remuneration related business items (including on the remuneration report). It applies to undirected votes cast by the Chairman of the Meeting irrespective of whether the Chairman of the meeting is a first appointed proxy or becomes default proxy by reason of the or failing clause of the proxy/direct voting form. In respect of a remuneration related business item when the appointed proxy has not been instructed to vote either in favour or against the resolution or abstain from voting on the resolution, we will process the proxy as follows: if the Chairman of the Meeting is the first appointed proxy, and the box has been marked, - as Open - usable votes (ie, the votes are available to be voted). if the Chairman of the Meeting is the first appointed proxy, and the box is not marked, as Open - Unusable votes (ie, the votes are not available to be voted). if a person other than the Chairman of the Meeting is the first appointed proxy and that person appointed as the proxy is not a member of the Key Management Personnel or a Closely Related Party of the Key Management Personnel and the box has not been marked as Open Conditional votes. The condition in this case is that whilst the appointed proxy can vote the votes, those votes will COMMERCIAL IN CONFIDENCE 14

15 not fail to the Chairman of the Meeting to be voted in the event that the appointed proxy does not attend the meeting (because the box has not been marked). if a person other than the Chairman of the Meeting is the first appointed proxy and that person appointed as the proxy is a member of the Key Management Personnel or a Closely Related Party of the Key Management Personnel and the box has been marked as Open Conditional votes. The condition in this case is that whilst the appointed proxy cannot vote the votes, those votes will fail to the Chairman of the Meeting to vote in the event that the appointed proxy does not attend the meeting (because the box has been marked). For the purposes of section 251AA(1) of the Act we regard both Open Usable and Open Conditional proxy votes as being votes which the proxy may vote at the proxy s discretion. 14. Meetings where Direct Voting is applicable This item relates to meetings where direct voting is an option provided to members. To allow for direct voting as an option companies are required to implement provisions in their constitution that will enable their members to exercise their voting rights through direct voting, in addition to exercising their existing right to appoint a proxy. The two voting options of direct voting and proxy appointment will be processed in accordance with the following guidelines. COMMERCIAL IN CONFIDENCE 15

16 Voting Form Valid Direct Voting and Valid Proxy Options on the one form 1. Direct voting only allows For, Against or Abstain votes. 2. If a member marks the Direct Voting box but does not mark any voting boxes, then the Voting Form is deemed invalid and will not be counted in computing required majorities. 3. If a member marks the Direct Voting box but only marks boxes on some (not all) resolutions then the direct votes are valid but votes on those items where the corresponding box has not been marked will be treated as no instruction and will not be counted in computing any required majorities. 4. If both the Direct Voting and Chairman of the Meeting boxes are marked and some or all resolution voting boxes are marked then the Direct Voting vote is deemed to override the appointment of a proxy. 5. If both the Direct Voting and Chairman of the Meeting boxes are marked and no resolution voting boxes are marked then this is to default to an open vote to the Chairman of Meeting (as proxy). Voting Form Valid Direct Voting and Valid Proxy Options on separate forms 1. Direct Voting only allows For, Against or Abstain votes. 2. If no mark is placed against a particular item on the direct voting form the vote on that item only will be considered to be given as no instruction and will not be counted in computing any required majorities. 3. If a member submits both a valid direct voting form and a valid proxy form and both forms are deemed to have been dated on the same day the direct voting form will prevail. We will process all valid direct voting forms following these directions. 15. Proxy/Direct Voting close Section 250B(1) of the Act provides that proxy/direct voting forms must be received at least 48 hours prior to the meeting. We have relevant procedures to ensure all proxy/direct voting forms received prior to the closing time are processed. Please ensure that mail deliveries and relevant facsimile machines in your registered office are checked and that any valid proxy appointment documents and direct voting forms are forwarded to us no later than 2 hours after the proxy close. Please note we cannot and do not process any proxy/direct voting forms received after the proxy close time. 16. Proxy Over-Votes Over-voting occurs when more securities are instructed to be voted than the actual number of securities held by a registered securityholder. The over-vote position is most likely to transpire when there is an imbalance between the perceived voting entitlements of individual investors whose securities are pooled with other investors within a nominee and the actual (lesser) securities/voting entitlements held by the nominee on the register. If an over-vote position exists after the vote entitlement cut off time, we will do one of the following:- COMMERCIAL IN CONFIDENCE 16

17 1. If all the votes cast for a resolution are directed under a single voting intention i.e. either For or Against or Open or Abstain we will reduce the votes to equal the securityholder s registered holding. 2. If however, the votes cast for a resolution are split between multiple voting intentions e.g. some votes For and some Against the resolution, then we will endeavour to contact the proxy lodging agent to resolve the over-vote position by requesting the lodging of an amended proxy up to the time of the provision of final proxy results. At that time we will advise you of any unresolved over-vote positions. Note: All votes cast by a securityholder will not be counted for any of the resolutions which have an unresolved over-vote position. Their votes will not be included in any indicative, preliminary or final proxy totals reports provided by us or viewed via Proxy Watch. Whilst we will endeavour to resolve any over-vote position as set out above, it is ultimately the responsibility of the proxy lodging agent to ensure that the number of votes cast is equal to the actual number of securities held by a registered securityholder and we will not be responsible for any unresolved over-vote position. 17. Time of receipt of Proxy/Direct Voting forms This item relates to the time-frame for lodgement of a valid proxy/direct voting forms prior to the meeting and the effect on a proxy/direct voting forms where the meeting is adjourned. Section 250B(2) of the Act states: 250B(2) Documents received following adjournment of meeting. If a meeting of a company s members has been adjourned, an appointment and any authority received by the company at least 48 hours before the resumption of the meeting are effective for the resumed part of the meeting. The above section should be read in conjunction with section 250B(5) which states: 250B(5) Constitution or notice of meeting may provide for different notification period. The company s constitution (if any) or the notice of meeting may reduce the period of 48 hours referred to in subsection (1) or (2). There are many circumstances in which it may be appropriate to adjourn a meeting. Under section 250B(2), whenever a meeting is adjourned, the latest time for receipt of proxy/direct voting form is refreshed by reference to the time of resumption of the meeting. Depending on the circumstances, this can make proxy/direct vote processing for the resumed meeting somewhat complex as some proxy/direct voting forms previously regarded as being late should now be regarded as having been received within time. On our part, to minimise any potential difficulties, we will: continue to receive proxy appointment documents/direct voting forms delivered by Australia Post in the normal manner and date and time stamp late forms when received into our office; use our fax listings to date and time record late proxy appointment documents/direct voting forms received by fax; and date and time record late proxy appointment documents/direct voting forms received by hand at our offices. COMMERCIAL IN CONFIDENCE 17

18 On your part, you should: adopt similar procedures to those above to ensure that the date and time of any proxy appointment documents/direct voting forms received at your registered office are properly recorded; ensure all late proxy appointment documents/direct voting forms are forwarded to our office as they may become valid for an adjournment to the meeting; and request the Chairman of the meeting to consider whether, rather than declaring a formal adjournment, it may be more appropriate to have the proceedings 'stood over' or some other similar expression. Where proceedings are 'stood over' (as opposed to formally adjourned) the time for receipt of proxy appointment documents/direct voting forms are not refreshed. 18. Corporate Representatives A body corporate may appoint an individual as a representative to exercise all or any of the powers the body corporate may exercise at (amongst other things) meetings of a company's members. Our usual practice is to require an instrument appointing a corporate representative to have been executed by an (apparent) authorised signatory of the company, as detailed in section 2 of this document (proxy/direct voting forms received from corporations) and not to admit a representative of a corporation unless such a form has been received. In the absence of specific instructions to the contrary, we shall continue to apply this policy. 19. Voting by proxyholders Section 250BB(1) of the Corporations Act states An appointment of a proxy may specify the way the proxy is to vote on a particular resolution. If it does; (a) the proxy need not vote on a show of hands, but if the proxy does so, the proxy must vote that way. Where directions are given on the proxy form, monitoring of votes on a poll is straightforward. However, there is no practical method of ensuring that a proxy votes as directed on a show of hands. Additionally, where the proxy has been given oral instructions which contradict instructions on the proxy form there is no practical method of ensuring the integrity of the votes cast on a poll. Our policy is to look solely to the instructions contained in the proxy form previously lodged. This is reinforced by the wording on our voting paper that defaults to voting in accordance with the directions on the appointment. In the absence of specific instructions to the contrary, we shall apply this policy. COMMERCIAL IN CONFIDENCE 18

19 20. Notification to ASX by listed companies of proxy/direct votes Additional Items for Listed Companies Only Section 251AA (2) of the Act provides that a company must notify the operator of each market on which the financial products of the company are listed, of a resolution passed by members at a meeting of the company. At a minimum that will mean the company will need to notify Australian Securities Exchange ('ASX') as the operator of the market on which the financial products (e.g. shares) issued by the company, are listed. At the same time, the company must give ASX information about the exercise of proxy votes in accordance with section 251AA(1). ASX Listing Rule also provides that an entity must notify ASX of the outcome of each resolution to be put to a meeting of securityholders immediately after the meeting has been held. The duty imposed by section 251AA and the Listing Rules is a duty imposed on the company convening the meeting. We will provide the outcome of each resolution to you in our standard form and it is the company s responsibility to lodge this information whether in our standard format, or a format of your own choosing, with the ASX as appropriate. 21. Retention of Proxy/Direct Voting Forms and Voting Papers The Act is silent on the matter of the retention period for proxy/direct voting forms, and voting papers. Being unable to retain hard copies of these documents on our premises for any substantial period of time after the meeting, our standard retention policy is to retain proxy/direct voting forms and voting papers for a period of 12 months after the meeting date, irrespective of the nature of the meeting (eg AGM or Court Ordered meeting, etc) and whether the resolutions put to the meeting were decided on a show of hands or a poll. The above policy is subject to the proviso that, in the event we become aware of any challenge to a declared outcome of the meeting, we would not destroy the proxy/direct voting forms, and voting papers, until three months after the outcome to the challenge had been determined and the period to appeal that outcome had expired. We would then only arrange for destruction of proxy/direct voting forms, and voting papers, on written authority from you. Documents not held in our offices will be stored off site in accordance with our standard policy. Storage costs, and destruction costs at the conclusion of the storage period, will be charged to you as a disbursement. In the absence of specific instructions to the contrary, we shall continue to apply this policy. Please note should you require proxy/direct voting forms to be destroyed earlier than 12 months after the date of the meeting we must be instructed before proxy/direct voting forms are issued. COMMERCIAL IN CONFIDENCE 19

20 APPENDIX - GENERAL MEETINGS: ITEMS FOR CONSIDERATION 1. Proxy/Direct Voting Forms Received From Joint Holders This item relates to who may sign a proxy/direct voting form on behalf of joint holders in order for the proxy/direct vote to be valid. The Act, and many constitutions, are silent on the requirements for signatures by joint holders for a valid proxy appointment/direct vote. However, some constitutions have a clause similar to the former Table A in the Corporations Law which provides (Article 50) In the case of joint holders the vote of the senior who tenders a vote, whether in person or by proxy or by attorney, shall be accepted to the exclusion of the votes of the other joint holders. Generally, constitutions (and the Act ) provide that the senior of joint holders (being the first or earlier named on the register) has the right to attend a meeting and vote to the exclusion of later named holders. This being the case, it may be that any of the joint holders could have the right to attend the meeting and revoke a proxy/vote notwithstanding that the proxy/direct vote may have been signed by all joint holders. Taking into account the fact that generally any one of joint holders can attend and vote, it could seem somewhat excessive in the absence of a legal requirement in your constitution, to require all joint holders to sign a proxy/direct voting form in order for it to be accepted. Unless instructed by you via our questionnaire, we will only process forms signed by all joint holders. At registration into the meeting, unless you specifically instruct us otherwise, we will allow any joint holder who attends to revoke a proxy appointment/direct votes and enter the meeting as a voting member and if more than one such joint holder attends, we shall record the earliest named on the register as the voting member. 2. Return of Invalid Proxy/Direct Voting Forms We usually receive a number of proxy/direct voting forms that have not been completed properly (i.e. not signed or otherwise completed incorrectly). For the top 20 members by voting entitlement at the time mailing data is created, we will endeavour to contact the securityholder or the lodging agent of the form to resolve the invalid position. Unless instructed by you via our questionnaire, we will not send invalid proxy/direct voting forms back to members, with the exception of the top 20 members as mentioned above. Please note that if you do require us to send invalid proxy/direct voting forms back to members for completion, fees will apply. 3. Later mailings of Notice of Meeting to new members In order to meet the timeframe required for the mailing processes and the amount of notice that must be given to members as required by the Act, it may have been necessary that the file of your members used for mailing purposes be cut approximately 4 to 6 weeks prior to the meeting date. COMMERCIAL IN CONFIDENCE 20