. \\ \3X S4><o q- pi. Australian Community Philanthropy Ltd. Constitution. A company limited by guarantee

Transcription

1 . \\ \3X S4><o q- pi Constitution Australian Community Philanthropy Ltd A company limited by guarantee September 2007

2 Contents Page 1 Name 2 2 Objects 2 3 Powers 2 4 Income and property 3 5 Liability of members 4 6 Guarantee by members 4 7 Membership 4 8 Cessation of membership 5 9 Calling of general meetings 5 10 Proceedings at general meetings 6 11 Directors 8 12 Qualifications of directors 9 13 Interested directors Powers and duties of directors Proceedings of directors Secretary Auditor Establishment ofthe Public Fund Rules ofthe Public Fund Indemnity and insurance Notices Winding up Alteration of constitution Application ofthe Act 16

3 Definitions and Interpretation In this Constitution: "Act" means the Corporations Act 2001; "Board" means the directors of the Company elected or appointed pursuant to this Constitution; "Community Foundation" means an incorporated body with the following characteristics: 1. it is not for profit; 2. Its objects are to raise funds, make grants and engage in community building activities, usually for a defined geographic region; 3. It is locally owned and managed; 4. It is able to support a broad range of charitable and community purposes; and 5. It is supported by a number of donors. "Company" means Australian Community Philanthropy; "member" means a member ofthe Company and includes the appointed body corporate representative of a member; "person" means an individual or a body corporate; "seal" means the Common Seal which a company may use to execute documents; "secretary" means any person appointed to perform the duties of secretary ofthe Company and includes an Honorary Secretary. In this Constitution: a) expressions referring to writing shall, unless the contrary intention appears, be construed as including references to printing, lithography, photography and other modes of representing or reproducing words in a visible form; b) words or expressions defined in the Act shall be interpreted in accordance with the provisions ofthe Act, unless the contrary intention appears; c) references to legislation include any amendment to that legislation, any consolidation or replacement of that legislation and any subordinate legislation made under it; d) the singular includes the plural and the plural includes the singular; and e) headings are used for convenience only and do not affect the interpretation of this Constitution.

4 1. Name The name ofthe Company is Community Philanthropy Initiative (hereinafter called "the Company"). 2. Objects The objects for which the Company is established are: 1. To build the capacity of community foundations within Australia through providing information resources, networking opportunities, training, fellowships, peer support opportunities and other services; 2. To help create the optimum operating environment for the growth of community foundations in Australia; and 3. To provide a focus point for consultation between the community foundation movement and external stakeholders, such as government, philanthropic donors and national and international partner organisations. 3. Powers Solely forthe purpose of carrying out the objects, the Company shall have the following powers: a) purchase, take on lease or in exchange, hire and otherwise acquire any lands, building, easement or property, real and personal, and any rights or privilege which may be required for the purposes of, or capable of being conveniently used in connection with, any of the objects of the Company. Provided that should the Company take or hold any property which may be subject to any trusts the Company shall only deal with the same in such manner as is allowed by law having regard to such trusts; b) appoint, employ, remove or suspend any chief executive officer or other employee, agent, professional adviser or contractor; c) enter into any arrangements with any government or authority that seem conducive to the Company's objects, obtain from such Government or authority any rights, privileges or concessions which the Company thinks it desirable to obtain, and carry out, exercise and comply with any of those arrangements, rights, privileges and concessions; d) construct, improve, maintain, develop, work, manage, alter, or control any real or personal property and enter into contracts or arrangements; e) sell, improve, manage, develop, exchange, lease, dispose of, turn to account, carry on any business, or otherwise deal with all or any part of the real and personal property and rights of the Company. f) invest and deal with and lend money of the Company not immediately required by it, including acquiring shares as in another company; g) borrow, raise or secure the payment of money and secure the repayment or performance of any debt, liability, contract, guarantee or other engagement incurred or entered into by the Company in any way and, in particular by the issue of debentures, perpetual or otherwise charged

5 upon all or any ofthe Company's property (both present and future), or by mortgage, charge or overdraft, and to purchase, redeem or pay off those securities. h) make, draw, accept, endorse, discount, execute, issue promissory notes, bills of exchange, bills of lading, and other negotiable, or transferable instruments. i) take steps by personal or written appeals, public meetings or otherwise as the Company's deems expedient to raise funds byway of donations, annual subscriptions, contributions, loans, grants, sponsorship, gifts including bequests or otherwise. j) accept any gift of property, whether subject to any special trust or not, for any one or more ofthe objects ofthe Company, provided that if the gift is subject to a trust, the Company many only deal with that gift of property in the manner allowed by law with respect to that trust. k) print and publish any newsletters, periodicals, books or leaflets, develop a website, and otherwise disseminate information in hard copy or by electronic means for the promotion ofthe Company's objects. I) arrange conferences, meetings and other forums; m) make donations or grants to further the objects of the Company; n) appoint a patron ofthe company; o) take legal action in any jurisdiction to further the objects ofthe Company; and p) do all other things, including the powers set out in the Corporations Act, that are incidental or conducive to achieving the Company's objects. 4. Income and property The income and property ofthe Company shall be applied solely towards the promotion ofthe objects ofthe Company and no portion ofthe income and property shall be paid or transferred, directly or indirectly byway of dividend bonus or otherwise to the members ofthe Company except that this clause does not prevent payment in good faith which has been approved by the Board: a) to any member or director of the Company in return for services actually rendered or for goods supplied to the Company or in the ordinary and usual course of business and at a commercially reasonable price; b) to any member or director ofthe Company for payment of interest on money borrowed from any member ofthe Company at a rate not excee ding the lowest rate then being paid by the Commonwealth Bank in Melbourne on 30 day term deposits; c) to any member or director of the Company for reasonable and proper rent for premises demised or let by any member or the Company;

6 d) to a director ofthe Company for reasonable out of pocket expenses the director performing a duty as a director ofthe Company; incurred by e) to a director of the Company for a reasonable fee for performing his or her duties and responsibilities as a director ofthe Company, taking into account the charitable objects ofthe Company. 5. Liability of members The liability ofthe members is limited. 6. Guarantee by members Every member ofthe Company undertakes to contribute to the property ofthe Company in the event of the Company being wound up while he or she is a member or within one year after he or she ceases to be a member such amount as may be required but not exceeding $100 for the payment qf debts and liabilities of the Company contracted before he or she ceases to be a member, the costs, charges and expenses of winding up, and forthe adjustment ofthe rights ofthe contributories among themselves. 7. Membership a) The members ofthe Company are: 1) the initial members ofthe Company; and 2) any other incorporated community foundation that the Board may in its discretion admit to membership in accordance with this Constitution; and 3) any individual members with knowledge or expertise about community philanthropy that the Board may in its discretion admit to membership in accordance with this Constitution. b) All members shall be entitled to one vote. c) Every applicant for membership ofthe Company (other than the initial members) must be proposed by one member and seconded by another member ofthe Company. The application for membership must be made in writing in the form prescribed by the Board, signed by the applicant or the appointed representative ofthe applicant and his or her proposer and seconder. d) At this next meeting ofthe Board after the receipt of any application for membership, the Board shall consider the application and decide whether to admit of reject the applicant. The Board need not give any reasons for the rejection of an applicant. f) When an applicant has been accepted for membership, the Secretary shall send written notice of his acceptance to the applicant and request payment of his or her annual subscription. Upon payment ofthe annual subscription the applicant shall become a member of the Company. If payment is not made within two months ofthe date ofthe notice, the Board may in its discretion cancel its acceptance of the applicant for membership ofthe Company.

7 f) The annual subscription payable by members ofthe Company shall be as decided by the Company in general meeting, however until the Company shall otherwise resolve, the annual subscription shall be $200. All annual subscriptions are due and payable on the 1 July in every year. g) The Company shall maintain a register of members which sets out the registered address or business address of members and directors and holds evidence of the valid appointment of body corporate representatives. 8. Cessation of membership A member ceases to be a member if the member: a) resigns by giving notice in writing to the secretary but shall continue to be liable for any annual subscription or arrears due and unpaid at the date ofthe resignation and the liability under clause 6; b) becomes insolvent or goes into liquidation or receivership or makes any arrangement or composition with creditors; or c) is expelled by resolution ofthe Board if, in the Board's absolute discretion, it is decided that it is not in the interest ofthe Company for a member to remain a member, provided that at least one week before the meeting at which the resolution is to be passed, the member is given notice ofthe meeting, the intended resolution and the grounds on which it is based, and is invited to attend the meeting and give any explanation either orally or in writing. 9. Calling of general meetings a) A director may call and arrange to hold a general meeting whenever he or she thinks fit. b) A general meeting ofthe Company may also be called and arranged to be held in accordance with Sections 2490, 249E, 249F and 249G ofthe Act. c) At least 21 days notice must be given of a general meeting to the Company's members and the auditor, unless the members may consent to short notice in accordance with Section 249H ofthe Act. d) Written notice of a general meeting must be given individually to each member entitled to vote at the meeting, to each director and to the auditor. A notice of general meeting must: 1) specify the date, time and place ofthe meeting; 2) state the general nature of the business to be transacted at the meeting; 3) state any special resolution which is to be proposed at the meeting; and 4) contain a statement setting out that a member has a right to appoint a proxy and that the proxy need not be a member ofthe company. e) Any act done or resolution passed at a general meeting is not invalidated due to notice not being provided to or received by a member, director or the auditor, provided that the failure to give notice was a result of an accident or administrative error or the person has waived notice of that meeting by notice in writing sent to the Company or has agreed to the act or resolution by notice in writing sent to the Company. Notice of a general meeting is also deemed to have been effected if the member, director or the auditor attends the meeting and does not make any objection in respect of notice at the beginning ofthe meeting.

8 10. Proceedings at general meetings a) No business may be transacted at any general meeting unless a quorum of members is present at the time when the meeting proceeds to business. A quorum consists of 3 of the members entitled to vote present at the meeting in person, by proxy or as representing a corporation. The members may alter the quorum at a general meeting. b) If a quorum is not present within half an hour from the time appointed for the meeting: 1) if convened on the requisition for members, the meeting is dissolved; 2) if otherwise convened, the meeting shall stand adjourned until the same day in the next week at the same time and place or the time, day and place as the Board determines. If at the adjourned meeting, a quorum is not present within half an hour from the time appointed for the meeting, the members present, being not less than three, shall be a quorum. c) The chairperson ofthe Board must preside as chairperson at each general meeting, or if there is no chairperson or if he or she is not present within fifteen minutes after the time appointed for the meeting or us unwilling to act, then the members must elect as chairperson for the meeting another director who is present and willing to act, or if no director present is willing to act, then a member who is present and willing to act may be elected chairperson for the meeting. d) The chairperson ofthe meeting may, and must do so if directed by the meeting, adjourn the meeting from time to time and place to place but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. It shall only be necessary to give fresh notice of an adjourned meeting as if it were an original meeting where a meeting is adjourned for thirty days or more. e) Except where by law a special resolution is required to be passed by a special majority, a resolution put to the vote of the meeting shall be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded - 1) by the chairperson; or 2) by at least three members present in person or by proxy. f) Where votes on a proposed resolution are equal, the chairperson does not have a second or casting vote and the proposed resolution is taken as lost. g) Unless a poll is demanded, a declaration by the chairperson 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 ofthe proceedings ofthe Company shall be conclusive evidence ofthe fact without proof of the number or proportion ofthe votes recorded in favour or against the resolution. h) At a general meeting an member, being an initial member, other Support Organisation member and Waterkeeper member may vote in person or by proxy, attorney or by duly appointed body corporate representative and on a show of hands and on a poll every person present shall have one vote.

9 i) No voting member shall be entitled to vote at any general meeting if the member's annual subscription shall be more than two months in arrears at the date of the meeting. j) A proxy, attorney or body corporate representative may be appointed for a particular general meeting, any number of general meetings or the appointment may be a standing appointment for all general meetings. k) An appointment of a proxy, attorney or body corporate representative is valid if it is signed by the member making the appointment and contains the following information: 1) the member's name and address; 2) the company's name 3) the proxy's, attorney's or representative's name or the name of his or her position; 4) the meetings at which the appointment may be used, including a meeting which is adjourned; 5) if required by the member, how the proxy, attorney or representative is to vote on a specific resolution; and the appointment form is received at least 24 hours before the meeting at the company's registered office, by fax at the Company's registered office or at the place, fax number or electronic address specified for the purpose in the notice of meeting. I) The appointment of a proxy or attorney is not revoked by the appointer member attending and taking part in the general meeting but, if the appointer votes on a resolution, the proxy or attorney is not entitled to vote and must not vote on that resolution. A body corporate member may appoint more than 1 representative but only 1 representative may exercise the member's powers, including the right to vote, at any time. m) A proxy, attorney or body corporate representative appointed to attend and vote for a member has the same rights as the member: 1) to speak at the meeting; and 2) to vote, but only to the extent allowed by the appointment; and 3) join in a demand for a poll; and 4) to consent to short notice. n) Where an instrument appointing proxy, attorney or representative refers to a specific resolution, the proxy, attorney or representative may vote on any amendments to the resolution and any procedural motions and may act generally at the meeting.

10 11. Directors a) There must be at least 3 directors and, subject to clause 110) not more than 9 directors. b) A majority ofthe directors must be a Director or Executive Officer of a community foundation. c) The first directors are the persons who have consented to act as proposed directors and who are named as proposed directors in the application for registration ofthe company. d) At the first and subsequent annual general meeting of the Company the directors of the Company shall be elected from the members and shall hold office for up to three years and then may offer themselves for re-election subject to clause 11(f). e) No director, however appointed, may hold office for more than 9 years continuously and will only become eligible for r -appointment after at least 12 months has elapsed since he or she ceased to be a director ofthe Company. f) At each annual general meeting ofthe Company; 1) each director appointed under clause 11(h) since the last annual meeting; and 2) one third ofthe directors, other than those appointed under clause 11(c), rounded down if necessary to the nearest whole number, must retire from office as directors. g) The retirement of a director from office and the re-election ofthe director or the election of another person to that office takes effect at the conclusion ofthe meeting at which the retirement, re-election or election take place. h) The Board may appoint a body corporate representative of a member as a director to fill a casual vacancy or as an addition to existing directors, but so that the total number of directors does not exceed the maximum number allowed under this Constitution. Any director appointed under this clause holds office only until the next annual general meeting. i) The Company may by resolution from time to time: 1) increase or reduce the minimum or maximum number of directors; and 2) remove a director if a special majority of directors agree that he or she is not acting in the best interests ofthe Company, including due to a demonstrated conflict of interest with the director's duty to the Company which cannot be resolved to the satisfaction of a majority ofthe directors. j) The office of a director becomes vacant if the director, in addition to the circumstances set out in the Act: 1) becomes insolvent under administration or makes any arrangement or composition with its creditors generally; 2) becomes prohibited from being a director of a company oy reason of an order made under the Act; 3) is convicted of an indictable offence and his or her appointment as a director ofthe Company is not confirmed by the Board within one month after that conviction;

11 4) is absent from Board meetings without permission ofthe Board for more than six months; 5) resigns by notice in writing to the Company. 12. Interested directors a) Subject to clause 4, a director may hold another position except as auditor in any related body corporate in conjunction with his or her directorship and may be appointed to that position on terms that the directors think fit. b) A director may be or become a director or other officer of, or otherwise interested in, any related body corporate or other body corporate promoted by the company or in which the company is interested as a shareholder or otherwise and the director is not accountable to the Company for any remuneration or other benefits he or she receives as a director or other officer of that body corporate. c) The directors may make regulations requiring the disclosure of interests that a director any person related to the director may have in any matter concerning the company or a related body corporate and these regulations bind all directors. 13. Powers and duties of directors a) The directors are responsible for managing the business of the Company and may exercise all powers ofthe Company, excluding those powers which must be exercised by the Company in general meeting either under the Act or this Constitution. b) The directors may pay all expenses incurred in promoting and registering the Company from the Company's funds. c) Subject to clause 14(a), the directors may exercise all the powers ofthe Company to: 1) borrow or otherwise raise money; 2) mortgage or charge its property or a part of its property; and 3) issue debentures and give other security for any debt, liability or obligation ofthe Company. d) All cheques, promissory notes, draft, bills of exchange and other negotiable instrument and all receipts for money paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as applicable by any two directors or in such other manner as the Board determines from time to time. e) The directors may appoint or employ a person to be an officer, agent or attorney ofthe Company forthe purposes, the period and with the powers and duties which the directors think fit. Subject to any contract between the Company and such officer, agent or attorney, the directors may remove or dismiss the officer, agent or attorney at any time at its discretion. Catherine J Brown. 2007

12 14. Proceedings of directors a) The directors may meet together and adjourn and otherwise regulate its meetings as the directors think fit. A director may convene a meeting of directors by giving reasonable notice individually to every other director; such notice may be given using any technology consented to by all the directors. b) A secretary must, on the requisition of a director, convene a meeting ofthe directors by giving reasonable notice individually to every director; such notice may be given using any technology consented to by all the directors. c) A notice of meeting of directors must be given to each director and must specify: 1) the time and place ofthe meeting; 2) the general nature ofthe business to be transacted at the meeting; 3) may be given in person or by post, telephone, fax or other electronic means at least three business days before the meeting; and 4) is taken as given to an alternate director if it is given to the director who appointed the alternate director. d) A meeting of directors may take place via telephone link up or other electronic means provided that a quorum is present at the meeting. The place ofthe meeting will be the place decided by the chairperson provided that at least one director is at that place for the entire meeting e) The directors may pass a resolution without a meeting of directors being held if all the directors entitled to vote on the resolution sign a document containing a statement that they are in favour of the resolution set out in the document. Separate copies may be used for signing by directors if the wording ofthe resolution and statement is identical in each copy. The resolution is passed when the last director signs. f) The directors shall elect a director to act as chairperson of their meetings for such period as the directors determine. g) Unless the directors determine otherwise, the quorum for a meeting of directors is 3 directors and the quorum must be present at all times during the meeting in person or by telephone. If there is a vacancy in the office of director then the remaining directors may act to increase the number of directors by appointing additional directors or by convening a general meeting for that purpose. h) A resolution of the directors must be passed by a majority of votes cast by directors entitled to vote on the resolution. The chairperson has a casting vote if necessary in addition to their vote in his or her capacity as a director. f) The directors shall cause minutes of meetings and resolutions passed without a meeting to be made in accordance with the Act and to be signed by the chairperson ofthe meeting or by the chairman ofthe next succeeding meeting within a reasonable time ofthe meeting or the resolution being passed. g) A director appointed pursuant to clause 11{e) may, with the approval ofthe other directors, appoint a person as his or her alternate director for the period the director thinks fit. An alternate director must be a member or director ofthe Company. In the absence ofthe appointer director, the alternate director may exercise any power that the appointer may exercise. The appointer may

13 terminate the appointment of an alternate director at any time and the appointment ofthe alternate director ceases when the appointor director vacates office as director. An alternate director while acting as a director is responsible to the Company for his or her own acts and defaults and has the duties and responsibilities of a director. i) The Board may delegate any of its powers and functions, except for duties imposed upon directors under the Act, to one or more committees consisting of such directors as the Board thinks fit. Any committee shall comply with any regulations and directions given by the Board and shall keep the Board regularly informed of its deliberations and activities. Each member of a Board committee shall have one vote and the chairperson of that committee shall have a second or casting vote. j) The Board may also appoint one or more advisory committees consisting of such directors and members ofthe Company as the Board thinks fit. Any committee shall comply with any regulations and directions given by the Board and may act only in an advisory capacity. Each member of an advisory committee shall have one vote and the chairperson of that committee shall have a second or casting vote. k) All acts done by any meeting ofthe Board, of a committee or by any director are valid as if every director or committee members were duly appointed, even if it afterwards discovered that there was some defect in the appointment or disqualification of any such committee member or director. I) Any act done or resolution passed at a meeting of directors is not invalidated due to notice not being provided to or received by a director, provided that the failure to give notice was a result of an accident or administrative error or the person has waived notice of that meeting by notice in writing sent to the Company or has agreed to the act or resolution by notice in writing sent to the Company. Notice of a meeting of directors is also deemed to have been effected if a director attends the meeting and does not make any objection in respect of notice at the beginning ofthe meeting. 15. Secretary The directors must appoint at least one secretary. 16. Auditor a) Within 1 month after the day on which the Company is incorporated, the directors ofthe Company shall appoint a person or firm as auditor ofthe Company. Subject to the Act, the person of firm appointed holds office until the first annual general meeting ofthe company. At its first annual general meeting and all subsequent annual general meetings the Company shall appoint a person or firm as auditor in accordance with the Act. b) The auditor must be qualified to act as auditor in accordance witn section 324 of the Act and must carry out his her or its duties in accordance with the Act.

14 17. Indemnity and insurance a) The Company must indemnify on a full indemnity basis and to the full extent permitted by law, each person being a director, alternate director, secretary or other officer or former officer ofthe Company or its related bodies corporate for all losses or liabilities incurred by the person as an officer the Company or of a related body corporate including, but not limited to, a liability for negligence orfor reasonable costs and expenses incurred in defending civil or criminal legal proceedings in which judgment is given in favour ofthe officer or in which the officer is acquitted, or in connection with an application in relation to those legal proceedings in which the court grants relief to the officer under the Act. b) The indemnity in clause 20(a) is a continuing obligation and is enforceable by a person to whom clause 20(a) applies even though that person has eased to be an officer ofthe Company or a related body corporate and the indemnity operates only to the extent that the loss or liability is not covered by insurance. c) The Company will to the extent permitted by law purchase and maintain insurance or pay a premium for insurance for any person to whom clause 20(a) applies against any liability incurred by the person as an officer ofthe Company or a related body corporate, including but limited to, a liability for negligence or for reasonable costs and expenses incurred in defending civil or criminal legal proceedings and whatever the outcome of those proceedings. d) The Company may indemnify or provide insurance for any person to whom clause 20(a) does not apply. e) Clauses 20(a), (b) and (c) do not affect any other right or remedy that a person to whom clauses 20(a)) applies may have in respect of any loss or liability referred to in those clauses. 18. Notices A notice to a member, the auditor or to a director may be given: a) personally; b) by sending it by post to the address for the member in the register of members or the alternative address, if any, nominated by the member; or c) by sending it to the fax number or electronic address, if any, nominated by the member. A notice sent by post is taken to be given 3 days after it is posted. A notice sent by fax or other electronic means, is taken to be given on the business day after it is sent.

15 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 nor distributed among the members of the Company but shall be given or transferred to some other institution or company which has objects similar to the objects of the Company, which is endorsed as a Tax Concession Charity and whose Constitution prohibits the distribution of its income and property among its members to an extent at least as set out in clause 4 of this Constitution. The institution or company which will receive the Company's remaining property shall be determined by the members by an ordinary resolution or, if the members cannot decide, by the Supreme Court of Victoria, and must be approved by the Deputy Commissioner of Taxation, at or before the winding up or dissolution of the Company. 20. Alteration of Constitution No addition, alteration or amendment shall be made to or in this Constitution except by special resolution of members and any addition, al eration or amendment, except in respect of clause 11(1) or to enable the Company to comply with state or territory fundraising or collections legislation, may not be made without the approval in writing by the Deputy Commissioner of Taxation and the Commonwealth Minister responsible for the environment. 21. Application of the Act a) Section 110C of the Act applies in relation to this Constitution as if the provisions of the constitution were an instrument made under the Act. b) The provisions of this Constitution displace each provision of a section or subsection of the Act that would apply but for this clause to the Company. The replaceable rules under the Act do not apply to the Company except those which operate as mandatory rules for public companies under the Act. The initial members of the Company (whose consents are set out below) adopt, on registration of the Company, the above constitution as the Company constitution in accordance with section 136(1) ofthe Corporations Act. Names and addresses of Signatures consenting Witnesses to initial members to be a member L /h V iative ?

16 * 15 Dated 14th day of September 2007