New South Wales: Waratah Coal Company’s Incorporation Act 1863 27 Vic (NSW)

An Act to establish and incorporate a Company (,W¢A™.., to be called "The Waratah Coal Company" "= and to authorize the making of a Railway for the purposes of the said Company. [8th October, 1863. ] EREAS the several persons hereinafter mentioned being pos- Preamble. sessed of or entitled to certain large tracts of land situated in the Parish of Newcastie in the County of Northumberland in the Colony of New South Wales on which there are extensive fields of valuable coal have recently formed themselves into a Company for the purpose of working the same and have expended a large sum of money in making preparations for efficiently working the said coal fields and for conveniently and advantageously disposing of the coals to be obtained therefrom And whereas the said several persons are desirous of extending their operations and have agreed to form a Joint Stock Company under the name of "The Waratah Coal Company" having a capital of sixty thousand pounds in ten thousand shares of' six pounds each for the purpose of working the said coal fields and any other coal mines that the Company may hercafter acquire and they are desirous that the said Company should be established and incorporated under the provisions herein contained And whereas it has been further agrecd that the said lands shall be transferred to and become the property of the Company to be formed under this Act in considera- tion of the first five thousand shares of the capital of the said Company being allotted to and vested in the said several parties as paid-up shares in the proportion in which they are now respectively interested in the said lands And that the rolling stock machinery and all other property now belonging to the said several persons or which has been contracted for or ordered by them for the working of the said coal lields shall 4 27° VIC. 1863. Waratah Coal Company's Incorporation. shall be transferred to and taken by the said Company at or for the price or sums paid or contracted to be paid for the same respectively and that the amount thereof shall be paid out of the funds of the said Company to the said persons And whereas it is expedient that the said Company should be established and incorporated for the purpose aforesaid and that such powers rights and privileges should be granted to them as are hereinafter mentioned Be it therefore enacted by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled and by the authority of the same as follows :— 1. From and after the passing of this Act the following persons that is to say Thomas Sutcliffe Mort Thomas Ware Smart Charles Smith Benjamin Darley Thomas Grove Atkinson Alfred Patrick Tighe and William Steele and all other persons who shall become holders of shares in the said Company and their several and respective successors executors administrators and assigns shall be and hereby are united into a Company for the purpose of working certain coal mines situated at or near Waratah in the Parish of Newcastle in the County of Northum- berland in the Colony of New South Wales and any other mines of which the said Company may hereafter become possessed and for the disposal of the coal and any other minerals to be obtained therefrom and for the carrying on of such othcr business and doing such other matters and things in connection therewith as the said Company may deem expedient according to the rules orders : led by th and directions hereinafter mentioned and for that purpose shall be one neorporate ry 8 poco Porth body corporate by the name and style of "The Waratah Coal Company" "Waratah Coal and by that name shall have perpetual succession and a Common Scal gompany. and shall and may sue and be sued plead and be impleaded answer and be answered unto defend and be defended in all courts and places Power to suc and be whatsoever and shall have power and authority from and after the Hold lands. passing of this Act and at all times thereafter to purchase and hold lands to them and their successors and assigns for the use of the said undertaking and generaliy for the purpose of carrying the provisions of this Act into effect and also to sell and dispose of the said lands again without incurring any penalties or forfeitures. Capital to be sixty 2. The capital of the Company hereby established shall (until thousand pounds : r , : : : divided into ten. Increased as hereinafter provided) be sixty thousand pounds sterling thousand shares of nq shall be divided into ten thousand shares of six pounds each and #1x pounds each. : . . : such shares shall be numbered in regular or arithmetical progression beginning with number one and every such share shall be distinguished by its appropriate number And the said shares shall be and are hereby vested in the persons hereinbefore named and in such other persons as shall take shares in the said Company and their successors and their several and respective executors administrators and assigns. The first five thou- 3. The first five thousand shares in the said capital shall be sand sharcs to be . sand in the persons Vested in the several persons respectively abovenamed in the proportions named in Schedule mentioned in the Schedule A to this Act annexcd and such shares Aas paid up shares. shal] be deemed and taken to have been fully paid up by the holders thereof as if the said persons respectively had subscribed for and paid six pounds for every such share under the provisions of this Act and shall be entered in the Register of Shareholders accordingly. Shares to be personal 4, All shares in the capital of the Company shall be deemed : personal estate and shall be transferable and transmissible as such and shall not be of the nature of real estate. Sharcholders. 5. Every person who shall by virtue of this Act have subscribed for or shall otherwise have become entitled to a share in the said Company and whose name shall have been entered on the Register of Shareholders hereinafter mentioned shall be deemed a sharcholder of the Company and shall be entitled to participate in the profits and dividends Proprietors. 1863. 27° VIC. 5 Waratah Coal Company's Incorporation. dividends of the Company in proportion to the amount of capital which he shall have paid up subject to the provisions hereinafter contained. 6. The Directors of the Company shall cause the namcs additions Registry of share- and addresses of the several persons entitled to shares together with bel the number of shares to which they shall be respectively entitled distinguishing each share by its proper number and the amount of the subscriptions paid on such shares to be from time to time fairly and distinctly entered in a book to be kept in the office of the said Company for that purpose and to be called the " Register of Sharc- holders" and the surnames or corporate names of the said share- holders shall be placed in alphabetical order to the end that each shareholder for the time being and his interest in the Company may be known. 7. On demand by the holder of any shares the Directors of the Certificates of Company shall cause a certificate of the proprietorship of such shares Sars fp be issued . to be delivered to such sharcholder and such certificate shall have the common scal of the Company affixed thereto and shall specify the shares to which such shareholder is entitled and the same may be according to the form in the Schedule B to this Act annexed or to the like effect and for every such certificate the Directors may demand a sum not exceeding two shillings and sixpence and such certificate shall be Certificates to he admitted in all courts as primd fucie evidence of the title of such share- gvidence of property holder to the shares therein specified but the want of such certificate shall not prevent the holder of any share from disposing thereof or recciving his share of the profits in respect thercof. 8. If any such certificate be worn out or damaged then upon Certificate to be the same being produced at some mecting of the Directors such jrewed when Directors may order the same to be cancelled and another similar "°° certificate to be given to the party in whom the property of such certificate and of the shares therein mentioned shall be at the time vested or if such certificate be lost or destroyed then upon proof thereof to the satisfaction of the Directors a similar certificate shall be given to the party entitled to the certificate so lost or destroyed and to the shares therein mentioned and in either case a due entry of the substituted certificate shall be made by the Secretary in the Register of Sharcholders and for every such certificate so given or exchanged the Directors may demand a sum not excceding two shillings and sixpence. 9. It shall be lawful for any shareholder with the consent of shares may be sold. the Directors to sell and transfer all or any of his shares subject to the provisions herein contained Provided that every such txansier shall be by deed in which the consideration shall he truly stated and such decd may be according to the form in the Schedule C to this Act annexed or to the like effect And provided also that if any certificate of the proprietorship of the shares to be transferred shall have been issued the same shall upon such transfer be delivered up to the Directors to be cancelled or to be endorsed by the Secretary to the Company with a memorandum of the transfer unless it be shown to the satisfaction of the Directors that the same has been lost or destroyed. 10. The said Deed of 'Transfer (when duly exceuted) shall De qyranster of shares to delivered to the Secretary and be kept by him and he shall enter a be registered &. memorial thereof! in a book to be called the " Register of Transfers" and shall endorse such entry on the deed of transfer and shall on demand deliver 2 new certificate to the purchaser and for every such entry together with such endorsement and certificate the Directors may demand a sum not exceeding two shillings and sixpence and on the request of the purchaser of any shares an endorsement, of such ransfer Closing of transfer books. Transmission of shares by other means than transfer to be authenticated by a declaration. Proof of transmission by marriage will &c. Company not bound to see to execution of trusts in respect of shares. 27° VIC. 1863. Waratah Coal Company y's Incorporation. transfer shall be made on the existing certificate of such shares instead of a new certificate being granted and upon such endorsement being signed by the Secretary such certificate shall be considered in every respect the same as a new certificate and until such deed of transfer has been so delivered to the Secretary as aforesaid the vendor of the shares shall continue liable to the Company for any calls that may be made upon such shares and the purchaser shall not be entitled to receive any share of the profits of the Company or to vote in respect of such shares. 11. It shall be lawful for the Directors to close the register of transfers for a period not exceeding fourteen days previous to each half-yearly meeting and they may fix a day for the closing of the same of which seven days notice shall be given by advertisement in one or more newspapers and any transfer made during the time when the transfer books are so closed shall as between the Company and the party claiming under the same but not otherwise be considered as made subsequently to such half-yearly meeting. 12. If the interest in any shares have become transmitted in consequence of the death or bankruptcy or insolvency of any share- holder or in consequence of the marriage of a female shareholder or by any other lawful means than by a transfer according to the provi- sions of this Act such transmission shall be authenticated by a declara- tion in writing as hereinafter mentioned or in such other manner as the Directors shall require and every such declaration or other authen- tication shall state and show the manner in which and the party to whom such shares shall have been so transmitted and shall be made and signed by some credible person before a justice of the peace or notary public and such declaration or other authentication shall be left with the Secretary and upon the same being deemed satisfactory by the Directors he shall enter the name of the person entitled under such transmission in the Register of Shareholders and for every such entry and certificate the Directors may demand a sum not exceeding five shillings and until such transmission has been so authenticated and such entry made no person claiming by virtue of any such transmission shall be entitled to receive any share of the profits of the Company nor to vote in respect of any such share as the holder thereof. 13. If such transmission be by virtue of the marriage of a female shareholder the said declaration or other authentication shall contain a copy of the register of such marriage or other particulars of the celebration thereof and shall declare or show the identity of the wife with the holder of such shares and if such transmission have taken place by virtue of any testamentary instrument or by intestacy the probate of the will or the letters of administration or an official oxtract therefrom shall together with such declaration or other authen- tication be produced to the Secretary and upon such production in either of the cases aforesaid the Secretary shall make an entry of the declaration or other authentication in the said Register of Transfers. 14, The Company shall not be bound in any manner by any trusts or equitable interests or demands affecting any share standing in the name of any person as the ostensible proprietor thereof or be required to take any notice of such trusts or equitable interests or demands but the receipt of the person in whose name the shares shall stand in the books of the Company shall notwithstanding such trust or equitable interests or demands and notice thereof to 'the Company be a good valid and conclusive discharge to the Company for or in respect of any dividend or other money payable by the Company in respect of such shares and a transfer of the said shares by the person in whose name such shares shall so stand shall notwith- standing as aforesaid be binding and conclusive as far as may concern the 1863. 27° VIC. 7 Waratah Coal Company's Incorporation. the said Company against all persons claiming by virtue of such trusts or equitable interests or demands Provided always that it Directors, may with- shall be competent to the Directors of the Company if they shall jiisscte tentersn think fit so to do to withhold payment of the dividends on any such cases where they shares and to refuse to allow or recognize the transfer of such shares notice of trusts &. in any case in which the Company shall have had notice of any claims under an alleged trust or equitable interest or demand and when such claim shall appear to the Directors to be well founded And provided also that nothing herein contained shall be deemed or taken to interfere with or abridge the right and power of a Court of Equity to restrain the payment of any such dividend or other money payable by the Company in respect of any such shares or the transfer there- after of any such shares or to direct the payment of such dividends or other money not already paid by the Company or the transfer of such shares to such person as such Court may think fit. 15. The several persons who have accepted or who shall Subscriptions to be hereafter accept or hold shares in the Company shall pay the amount paid, of the said shares in manner following that is to say upon subscribing for or taking any share every subscriber shall forthwith pay to the Secretary or other proper officer of the Company the sum of two pounds sterling for every such share which shall be so taken and the remaining four pounds duc on every such share or such portions thereof as shall from time to time be called for at such times and places as shall be appointed by the Directors and with respect to the provisions in this Act contained for enforcing the payment of calls the word " Shareholder" shall extend to and include the legal rerm « Shareholder" personal representatives of the late holder of any share or any { inclede repre- other person to whom the interest therein shall have come by trans- mission as aforesaid. 16. It shall be lawful for the Directors from time to time to make power to make calls. such calls of money upon the several shareholders in respect of the amount due upon or for their respective shares as the Directors shall deem necessary Provided that thirty days notice at least be given of cach call by a notice in one or more of the daily newspapers published in Sydney and that successive calls be not made at a less interval than three months and that no call exceed the sum of one pound for or in respect of any one share. 17. If before or on the day appointed tor payment any share- Interest to be paid holder shall not pay the amount of any call to which he is Hable he ° overdue calls, shall pay interest thereon at the rate of eight per centum per annum from the day appointed for the payment thereof to the time of the actual payment and no shareholder shall be entitled to transfer any of his shares after any call shall have been made in respect thereof until he shall have paid such call nor until he shall have paid all calls for the time being duc on every share held by him. 18. It shall be lawful for the Directors if they think fit to power to receive receive from any of the shareholders who shall be willing to advance advances from share- . . 4 . holders on interest. the same all or any part of the moneys due upon their respective shares beyond the sums actually called for and such shareholder shall thereupon be entitled to participate in the profits of the Company in proportion to the amount of capital they shall thereupon have paid up or if it shall be so arranged between the Directors and any such shareholder the Company may pay interest at such a rate not exceeding the rate aforesaid upon the amount of capital which such shareholder may have paid up in excess of the calls for the time being made upon his shares as the sharcholder paying such sum in advance and the Directors shall agree upon. 19. If at the time appointed for the payment of any call any Enforcement of calls shareholder shall fail to pay the amount of such call it shall be lawful by action. for the Company to sue such shareholder for the amount thereof in any + purchases of 8 . — 27° VIC. 1863. Waratah Coal Company's Incorporation. any Court of law or equity having competent jurisdiction and to recover the same with interest as aforesaid and in any action or suit for the recovery thereof it shall be sufficient for the Company to Declaration in suits declare that the defendant is the holder of so many shares (stating the torecover calls. — number) and is indebted to the Company in such sum of money as the calls in arrear shall amount to in respect thereof (stating the number and amount of each of such calls) whereby an action or suit Matter to be provea HAth accrued to the Company and on the trial or hearing of such in action for calls. action or suit it shall be sufficient to prove that the defendant at the time of making such call was a holder of so many shares in the Company and that such call was in fact made by persons acting as Directors of the Company and such notice thereof given as is directed by this Act and it shall not be necessary to prove the appointment of the Directors who made such call nor any other matter whatsoever and thereupon the Company shall be entitled to recover what shall be due upon such eall and interest thereon and the production of the Proof of promictor. 2eoister Of shareholders shall be prima facie evidence of such defen- ship, dant being a shareholder and of the number and amount of his shares. Shares in arrear may 20. If any shareholder shall fail to pay any call payable by him be declared forfeited. together with the interest due thereon the Directors at any time after the expiration of two months from the day appointed for payment of such call may if they shall think fit declare the shares in respect of which such call was payable forfeited and that whether the said Notice to be given of Company have sued for the amount of such call or not Provided that tention to deere efore declaring any share forfeited the Directors shall cause notice of their intention to declare such share to be forfeited to be left at or transmitted by the post to the usual or last place of abode of the person appearing by the Register of Shareholders to be the proprietor of such share and if the holder of any such share shall be beyond the limits of this Colony or if his or their usual or last place of abode be not known to the Directors by reason of its being imperfectly described in the Register of Shareholders or otherwise or if the interest in any such share shall be known by the Directors to have become transmitted otherwise than by transfer as hereinbefore mentioned but a declaration of such transmission shall not have been registered as aforesaid and so the address of the party to whom the said share may have been trans- mitted or may for the time being belong shall not be known to the Directors the Directors shall give public notice of such intention in one or more of the daily newspapers published in the City of Sydney and the several notices aforesaid shall be given twenty-one days at least before the Directors shall make such declaration of forfeiture. Forfeited shaves may 21. After such forfeiture it shall be lawful for the Directors to be sold. sell the forfeited share either by public auction or private contract and if there be more than one forfeited share then either separately or No more shares tobe together as to them shall seem fit Provided that the Company shall setter olf not sell or transfer more of the shares of any such defaulter than shall arrears andexpenses, be sufficient as nearly as can be ascertained at the time of such sale to pay the arrears then due from such defaulter on account of any calls together with the interest and the expenses attending or occasioned by such forfeiture and sale and if the money produced by the sale of any such forfeited share be more than sufficient to pay all such arrears of calls and interest and expenses the surplus shall on demand be paid On payment of to the defaulter And provided also that if payment of such arrears of arrears betore se calls and interest and expenses be made before any share so forteited the party. shall have been sold as aforesaid such share shall revert to the party to whom the same belonged before such forfeiture in such manner as if such call had been duly paid. Evidence of pro- 22. A solemn declaration in writing by some credible person prietorship in not interested in the matter made in conformity with the provisions forfeited shares. of the Act of Council the ninth Victoria number nine that the call in respect 1863. 27° VIC. 9 Waratah Coat Company's Incorporation. respect of a share was made and notice thereof given and that default in payment of the call was made and that the forfeiture of the share was declared in manner hereinbefore required shall be sufficient evidence of the facts therein stated and such declaration and the receipt. of the Treasurer or other officer of the Company authorized by the Directors to receive payment of the price of such share shall constitute a good title to such share and a certificate of proprietorship shall be delivered to such purchaser and thereupon he shall be deemed the holder of such share discharged from all calls due prior to such purchase and he shall not be Hound to see to the application of the purchase money nor shall his title to such share be affected by any irregularity in the proceedings in reference to such forfeiture or sale. 23. The first general meeting of the shareholders of the Com- pirst ana other pany shall be held at some convenient place within the City of Sydney general meetings. within one month aftcr the passing of this Act between the hours of ten in the forenoon and four in the afternoon and the future general meetings of the Company shall he held on the first 1 Monday i in the months of April and October or at such other stated periods as shall be appointed for that purpose by an order of a general meeting and the meetings so appointed shall be called * Halt- yearly General Meetings " "and all meetings whether half-yearly or extraor dinary shall be held at such place in Sydney as the shareholders shall at any general meeting direct and appoint and if no such direction be given then at such place i in Sydney as the Directors shail from time to time appoint. P 24. No matters except such as are appointed by this Act to be Business of half. done at a half-yearly general meeting shall be tr: ansacted at : any such yoary general meeting unless special notice of such matters have been given in the advertisement convening such meeting and no extraordinary Business at extra- meeting shall enter upon any business not set forth in the notice upon Ctmary meetings. which it shall have been convened. 25. Every general meeting of the shareholders other than a Extraordinary half-yearly meeting shall be called an « Extraordinary Meeting" and ™*tins such meetings may be convened by the Directors as they think | fit and Extraordinary any number 'of shareholders not being less than ten and ho ding in the meee the Com- aggregate one thousand shares may "by writing under their hands at required by share- any time require the Directors to call an extraordinary meeting of the 0! Company and such requisition shall fully express the o ject. of the meeting required to be called and shall 'be left at the office of the Company or given to at least three Directors or left at their last or usual places of abode and forthwith upon the receipt of such requisi- ' tion the Directors shall convene a meeting of the shareholders and if for fourteen days after such notice the Directors shall fail to call such meeting the number of shareholders aforesaid qualified as aforesaid may themselves call such meeting. 26. Ten days public notice at the least of all meetings whether Notice of meetings, half-yearly or extr 'ordinary shall be given by adv ertisement in one or more of the daily newspapers published i in the City of Sy dney which shall specify the place day and the hour of meeting and every notice of an extraordinary meeting or of a half-yearly meeting if any special business is to be done thereat: shall specify the purpose for which the meeting is called or the special business to be done thereat. 27. In order to constitute a general meeting there shall be Quorum of share: present tither personally or by proxy shareholders holding in the meeting. ora genera aggregate not less than one-tenth of the capital of the Company and being in number not less than ten and such shareholders shall be a quorum and if within one hour from the time appointed for such meeting the said quorum be not present no business shall be trans- acted at the meeting other than the declaring of a dividend in case b that 10 27° VIC. 1863. Waratah Coal Company' s Incorporation. that shall be one of the objects of the meeting but such meeting Shall except in respect of the election of Directors as hereinafter mentioned be held to be adjourned sine die. 28. At every general meeting one or other of the following persons shall preside as Chairman that is to say the Chairman of the Company or in his absence some one of the Directors of the Company to be chosen by the meeting or in the absence of the Chairman and of all the Directors any shareholder to be chosen for that purpose by the meeting and such Chairman shall be entitled to vote not only asa principal and proxy but also to give a casting vote if there be other- wise an equality of votes and every such "general meeting may be Business at adjoum- adjourned from time to time and from place to place and no business ments. shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which such adjournment took lace. Votes of shareholders P 29. At all general meetings every shareholder who shall be possessed of ten or more shares shall for the first ten shares be entitled to one vote for the next ten shares to one other vote and for every additional number of ten shares to one additional vote up to the number of one hundred shares and after the number of one hundred shares every shareholder shall be entitled to one vote for every additional twenty shares up to the number of two hundred shares and after the number of two hundred shares he shall be entitled to one vote for every additional fifty shares Provided always that no shareholder shall be entitled to more than twenty votes altogether. Manner of voting. 30. The votes of shareholders may be given at any general meeting either personally or by proxies being shareholders authorized in writing according to the form in the Schedule D to this Act annexed or in a form to the like effect under the hand of the shareholder nominating such proxy or of his agent duly empowered by letter of ; attorney or if such shareholder be a corporation then under their Regulations sto common seal and every proposition at any such mecting shall be determined by the majority of votes of the parties present including proxies but no person shall be entitled to vote as a proxy unless the instrument appointing such proxy shall have been transmitted to the Secretary of the Company not less than forty-eight hours before the time appointed for holding the meeting at which such proxy is to he used. Votes of joint share- 31. If several persons be jointly entitled to any shares the holders. person whose name stands first in the Register of Shareholders as one of the holders of such shares shall for the purpose of voting at any meeting be deemed the sole proprietor thereof unless such joint shareholders shall mutually agree that one or other of themselves shall so vote and shall so inform the Secretary of the Company by writing under their hands and on all occasions the vote of such first-named shareholder either in person or by proxy shall be allowed as the vote in respect of such shares without proof of the concurrence of the other holders thereof unless in case of such agreement and notice thereof Notes of lunatics as aforesaid and if any shareholder be a lunatic or idiot such lunatic , or idiot may vote by his Committee and if any shareholder be a minor he may vote by his guardian or any one of his guardians and every such vote may be given either in person or by proxy. Proof of a particular 32. Whenever in this Act the consent of any particular majority mony Geli ine Of Votes at any meeting of the Company is required in order to event of a poll being authorize any proceeding of the Company such particular majority demanded. shall only be required to be proved in the event of a poll being demanded at such meeting and if such poll be not demanded then a declaration by the Chairman that the resolution authorizing such proceeding has been carried and an entry to that effect in the book of Chairman at general meetings. 1863. 27° VIC. 11 Waratah Coal Company's Incorporation. of proceedings of the Company shall be sufficient authority for such proceeding without proof of the number or proportion of votes recorded in favor of or against the same. 33. There shall be five Directors of the Company and Thomas Five Directors. Sutcliffe Mort Joseph Scaife Willis Benjamin Darley Charles Smith and Thomas Grove shall be the first Directors and shall continue in office until they shall have retired or ceased to be Directors in manner hereinafter mentioned and at the half-yearly general meeting to be held in pursuance of this Act in the month of October in the year one thousand eight hundred and sixty-three and at the half- yearly meeting which shall be held in October in every subsequent year one of such Directors shall retire from office such retirement Retirement of to be decided by lot between themselves until all the first set of Pitectors. Directors hereby, appointed shall have retired and then at the half- yearly meeting to be held in October in every year thereafter the Director who shall have been longest in office shall retire and every such retiring Director shall be immediately re-eligible and at every such half-yearly mecting in October in every year the shareholders then present personally or by proxy shall elect a new Director in the place of the Director then retiring from office agreeably to the provision herein contained and the persons hereby appointed or who shall be elected at any such meeting being neither removed nor disqualified nor having resigned shall continue to be Directors until others are clected in their stead as hereinafter mentioned 34. If at any meeting at which an election of Directors ought Existing) Directors continued on failure to take place the pr eseribed quorum of shareholders shall not "be of meeting for elec- present within one hour from the time appointed for the mecting no tion of Directors. election of Directors shall be made but such meeting shall stand adjourned to the following day at the same time and place and if at the mecting so adjourned the prescribed quorum be not present within one hour from the time appointed for the meeting or if from any cause there shall not in fact be an election of a Director in the place of the retiring Director either at such meeting or such adjournment thereof the existing Directors shall continue to act and retain their powers until new Directors be appointed at the first half-yearly meeting of the following yeay. 35. No person shall be capable of being a Director unless he Qualification of be a shareholder and possessed of one hundred shares and no person * holding an office or place of trust or profit under the Company or interested in any contract with the Company or who shall be a partner with any person being a Director in any other Company carrying on a similar business shall be eapable of being ¢ a Director and no Director shall be capable of accepting any other office or place of trust or profit under the Company or of being interested in any contract with the Company during the time he shall be a Director Provided always that nothing in this Act contained shall prevent the Directors from accepting from the Company such remuneration for their services as such Directors as shall be awarded at any general meeting. 36. If any of the Directors at any time subsequently to his Cases in which office election accept or continue to hold any other office or place of trust or {eam tenet profit under the Company or be either directly or indirectly concerned in any contract with the Company or participate in any manner in the profits of any work to be done for the Company or if such Director at any time cease to be a holder of the prescribed number of shares in the Company then in any of the cases aforesaid the office of such Director shall become vacant and thenceforth he shall cease from voting or acting as a Director. 37. Provided always that no person being a shareholder of any Sharcholders of an Incorporated Joint Joint Stock Company shall be disqualified or prevented from acting stock Company not as 120 27° VIC. 1863, Waratah Coal Company's Incorporation. disqualified byreason ag a Director by reason of any contract entered into between such : Joint Stock Company and the Company hereby incorporated but no such Director being a shareholder of such Joint Stock Company shall vote on any question as to any contract therewith or in relation thereto. Former to remove 388. In case the conduct or position of any Director shall be : such that his continuance in office shall appear to the Board of Direc- tors to be prejudicial to the interests of the Company it shall be lawful for the Board of Directors at a special meeting called for that purpose by a resolution in which not less than three Directors shall concur to suspend such Director from his office until the next general meeting and the shareholders present at such meeting may if they think fit confirm such suspension and remove such Director or may annul such suspension and reinstate such Director in his office. Supply of occasional 39. Ifany Director die or resign or becorfe disqualified or Dicancies in office of incompetent to act as a Director or be removed or cease to be a Director by any other cause than that of going out of office by rotation as aforesaid the remaining Directors if they think proper so to do may elect in his place some other shareholder duly qualified to be a Director and the shareholder so elected shall continue in office until the next half-yearly meeting when a Director shall be elected by the share- holders present in person or by proxy in the place of the Director so having died resigned or been removed or become disqualified or incom- petent to be a Director or having ceased to be a Director. Powers of the Com- 40. The Directors shall have the management and superin- Pere Directors tendence of the affairs of the Company and may appoint all officers and servants required for conducting the undertaking of the Company and may purchase or rent lands houses or offices or mines or veins of coals or other minerals machinery boats and all other property that may be requisite for any of the purposes for which the Company is hereby incorporated and shall exercise all other the powers of the Company except as to such matters as are directed by this Act to be transacted by a general meeting of the shareholders but all the powers so to be exercised shall be exercised in accordance with and subject to the provisions of this Act and the exercise of all such powers shall be subject also to the control and regulation of any general meeting specially convened for the purpose but not so as to render invalid any act done by the Directors prior to any resolution passed Quorum of Directors. by such general meeting and any three of such Directors being present at a duly convened Board meeting shall form a quorum and shall $c competent to exercise the powers hereby given to the Directors generally. Certain powors of 41. Except as otherwise provided by this Act the following Ie exeraed by tie powers of the Company (that is to say) the choice and removal of the Directors. Directors the choice of Auditors the determination as to the amount of remuncration to be paid to the Directors the determination as to the amount of money to be borrowed on mortgage the determination as to the augmentation of capital and the declaration of dividends shall be exercised only at a general meeting of the shareholders. Meetings of 42. The Directors shall hold their meetings in the City of Directors. Sydney at such times as they shall appoint for the purpose and they ' may meet and adjourn as they think proper from time to time and from place to place and at any time any two of the Directors may require the Secretary to call a meeting of the Directors and all questions at any such meeting shall be determined by the majority of votes of the Directors present and in case of an equal division of votes the Chairman shall have a casting vote in addition to his vote as one of the Directors. Appointment of 43. At the first meeting of Directors held after the passing of weanen of Com- this Act and at the first or some other early meeting of the Directors e 1863. 27° VIC. 13 Woratah Coal Company's Inco 'poration. held after the half-yearly general mecting held in October of cach year the Directors present "at such meeting shall choose one of the Directors to be Chairman of the Company and to act as Chairman of the Directors for the year following such choice and if the Chairman die or resign or cease to be a Director or otherwise become disqualified to act the Directors present at the meeting next after the occurrence of such vacancy or some other early meeting thereafter shall choose some other of the Directors to fill such vacancy during the residue of the current year and such Chairman if present shall. preside at all Chairmanship at mectings of the Directors hut if the Chairman he absent the Directors mectings of present shall choose some one of theiv number to be Chairman of such meeting. "4h. The power of' the Directors to make contracts on behalf of Contracts by the Company may lawfully be exercised as follows (that is to say)— Directors how to With respect to any contract which if made between private persons would be by law required to he in writing and under seal the Directors may make such contract on behalf of the Company in writing and under the common seal of the Company and in the same manner may vary or dis- charge the same. With respect to any contract which if made between private persons would be by law required to be in writing and signed by the parties to be charged therewith the Directors may make such contract on behalf of the Company in writing siened by any two of the Directors and in the same manner may vary or discharge the same. With respect to any contract which if made between private persons would by law be valid although made by parol only and not reduced into writing the Directors may make such contract on behalf of the Company by parol only without writing and in the same manner may vary or dis- charge the same. And all contracts made according to the provisions herein contained shall be effectual in law and shall be binding upon the Company and their successors and all other parties thercto their heirs executors or administrators as the case may be and on any default in the execution of any such contract either by the Company or any other party thereto such action or suit may be brought cither by or against the Company as might be brought had the same contracts been made between private parties only. 45. The Directors shall cause notes minutes or copics as the Proceedings to be case may require of all appointments made or contracts entered into entered in a book by them and of the orders and proceedings of all mectings of the share- holders and of the Directors and Committees of Directors to be duly entered in books to be from time to time provided tor the purpose which shall be kept under the superintendence of the Directors and every such entry shall be signed by the Chairman of the mecting at which such appointments and contracts were made or entered into or authorized or at which such proceedings and orders were respectively had or made and such entry so signed shall be received as evidence in all Courts and before all judges justices and others without proof of such respective meetings having been duly convened or held or of the persons making or entering such orders or proceedings heing share- holders or Directors or of the signature of the Chairman or of the fact of his having heen Chairman all of which last mentioned matters shall be presumed until the contrary be proved. 46. All acts done by any meeting of the Directors or by any tnformalities in ap- person acting as a Director shall notwithstanding it may be afterwards pointment of Direc: tors not to invalidate discovered that there was some defect in the appointment of any such. proceedings. Directors 14 27° VIC. 1863. Waratah Coal Company's Incorporation. Directors or persons acting as aforesaid or that they or any of them were or was disqualified be as valid as if every such person had been duly appointed and was qualified to be a Director. Directors not to be 47. No Director by being party to or executing in his capacity personally liable. of a Director any contract or other instrument on behalf of the Com- pany or otherwise lawfully executing any of the powers given to the Directors shall be subject to be sued or prosecuted individually by any person whomsoever and the bodies or goods or lands of the Directors shall not be liable to execution by any legal process by reason of any contract or other instrument so entered into signed or executed by them or by reason of any other lawful act done by them in the execu- tion of any of their powers as Directors and the Directors their heirs executors and administrators shall be indemnified out of the capital of the Company for all payments made or liability incurred in respect of any act done by them and for all losses costs and damages which they may incur in the execution of the powers granted to them and the Directors for the time being of the Company may apply the existing funds and capital of the Company for the purposes of such indemnity and may if necessary for that purpose make calls of the capital remaining unpaid (if any). Election of auditors. 48. At the first general meeting of the Company to be held after the passing of this Act the shareholders then present either personally or by proxy shall elect two auditors and at the half-yearly meeting in October in each year thereafter the shareholders shall in like manner elect an auditor to supply the place of the auditor then retiring from office according to the provision hereinafter contained and every auditor elected as hereinbefore provided being neither removed nor disqualified nor having resigned shall continue to be an auditor until another be elected in his stead and every auditor shall Qualification of have at least ten shares in the Company and he shall not hold any : other office in the Company nor be in any other manner interested in its concerns except as a shareholder. ' Rotation of auditors, 49. One of such auditors (to be determined in the first instance by lot between themselves unless they shall otherwise agree and after- wards by seniority) shall go out of office at the half-yearly meeting in October in each year but the auditor so going out shall be immediately re-eligible. Vacancies in the 50. If any vacancy take place among the auditors in the course office of auditor. of the current year then at any general meeting the vacancy may be Failure to elect = Supplied by election and the provision in this Act contained respecting auditor. the failure of a half-yearly meeting at which Directors ought to be chosen shall apply mutatis mutandis to any meeting at which an auditor ought to be appointed. Power of auditors 51. The auditors shall have full authority at all reasonable for examination of times to examine the accounts and affairs of the Company and to as inspect the books and to call for the production to them at the principal office of the Company of all books vouchers writings and documents concerning the same and to call in the aid of the officers clerks and servants of the Company or any other person competent to give information as to the Company's affairs. Delivery of balance- 52. The Directors shall deliver to such auditors the half-yearly sheet &e. by Directors oy other periodical accounts and balance-shect fourteen days at the ' least before the ensuing half-yearly meeting at which the same are required to be produced to the sharcholders as hereinafter provided Duty of auditors. and such auditors shall receive and examine the same and shall examine into the state of the Company's affairs and shall be at liberty to employ such accountants and other persons in such examinations as they may think proper at the expense of the Company and they shall make a just true and faithful report on the said accounts and affairs an Indemnity of Directors. Powers of auditors. 1863. 27° VIC. 15 Waratah Coal Company's Incorporation. and such report shall be read together with the report of the Directors at the half-yearly mecting. 53. If it shall appear to such half-yearly meeting desirable Further audit may that the Company's affairs should be more fully investigated or if at oe ial suitors may any other general meeting it shall appear desirable to 'have a special be appointed. examination into the state of the Company's affairs it shall be lawful for such meeting either to direct the said auditors to enquire into and report on the affairs of the Company generally or in their discretion to appoint any two or more shareholders as special auditors for that purpose. 54. Before any person entrusted with the custody or control Security to be taken of moneys belonging to the Company whether treasurer collector or trusted with money. other officer of the Company shall enter upon his office the Directors shall take sufficient security from him for the faithful execution of his office. 55. Every officer employed by the Company shall from time to Officers to secount time when required by the Directors make out and deliver to them or . to any person appointed by them for that purpose a true and perfect account in writing under his hand of all moneys received by him on behalf of the Company and such account shall state how and to whom and for what purpose such moneys shall have been disposed of and together with such account such officer shall deliver the vouchers und receipts for such payments and every such officer shall pay to the Directors or to any person appointed by them to receive the same all moneys which shall appear to be owing from him on the balance of such accounts. 56. If any such officer fail to render such account or to pro- Summary remedy duce and deliver up all the vouchers and receipts relating to the same ing to account, in his possession or power or to pay the balance thereof when there- unto required or if for three days after being thereunto required he fail to deliver up to the Directors or to any person appointed by them to receive the same all papers and writings property effects matters and things in his possession or power relating to the execution of this Act or belonging to the Company then on complaint thereof being made to a Justice such Justice shall summon such officer to appear before two or more Justices at a time and place to be set forth in such summons to answer such charge and upon the appearance of such officer or in his absence upon proof that such summons was personally served upon him or left at his last known place of abode such Justices may hear and determine the matter in a summary way and may adjust. and declare the balance owing by such officer and if it appear either upon the confession of such officer or upon evidence or upon inspec- tion of the account that any moneys of the Company are in the hands of such officer or owing by him to the Company such Justices may order such officer to pay the same and if he fail to pay the amount it shall be lawful for such Justices to grant a warrant to levy the same by distress or in default thercof to commit the offender to gaol for a period not exceeding three months unless the said amount be sooner paid. 57. If any such officer refuse to make out such account in Officers refusing to writing or to pr oduce and deliver to the Justices the several vouchers and 43iyenuh documents &c. to be imprisoned. receipts relating thereto or to deliver up any books papers or writings . property effects matters or things in his possession or power belonging to the Company such Justices may lawfully commit such offender to gaol there to remain until he shall have delivered up all the vouchers and receipts (if any) in his possession or power relating to such accounts and have delivered up all books papers writings property effects matters things (if any) in his possession or power belonging to the Company. 58. Where officers about to abscond a warrant may be issued in the first instance. Sureties not to be discharged. Accounts to be kept. Books to be balanced. Balance-sheet tu be produced at the meeting. Previously to decla- ration of dividend a scheme to he pre- pared. Dividend not to be made so as to reduce capital. 27° VIC. 1863. War atah Coal Company' s Incorporation. 58. If any Director or other person acting on behalf of the Company shall make oath that he has good reason to believe upon grounds to be stated in his deposition and does believe that it is the intention of any such officer as aforesaid to abscond or that he has absconded it shall be lawful for the justice before whom the complaint is made if he shall think fit to issue a warrant in the first instance for the bringing such officer before such two justices as aforesaid but no person executing such warrants shall keep such officer in custody longer than tw enty-four hours or such longer period as may be rendered necessary by the distance of the place of apprehension from the residence of the nearest or most convenient magistrate without bringing him before some justice and it shall be lawful for the justice before whom such officer may be brought either to discharge such officer if he think there is no sufficient ground for his detention or to order such officer to be detained in custody so as to be brought before two justices ata time and place to be named in such order unless such officer give bail to the satisfaction of such justice for his appearance before such justices to answer the complaint of the Company Provided never- theless that no such proceeding against or dealing with any such officer as aforesaid shall deprive the Company of any remedy which they might otherwise have against such officer or any surety of such officer. 59. The Directors shall cause full and true accounts to be kept of all sums of money received or expended on account of the Company by them and all persons employed by or under them and of the matters and things for which such sums of money shall have been received or disbursed or paid. 60. The books of the Company shall be balanced fifteen days at least before each half-yearly general meeting of shareholders and forthwith on the books heing so balanced an exact balance sheet shall be made up which shall exhibit a true statement of the capital stock credits and property of every description belonging to the Company and the debts due by the Company at the date of making such balance- sheet and a distinct view of the profit or loss which shall have arisen on the transactions of the Company in the course of the preceding half-year and previously to each half-yearly meeting such balance sheet shall be examined by the Directors or any three of their number and shall be signed by the Chairman of the Directors. 61. The Directors shall produce to the shareholders assembled at such half-vearly meeting the said balance-sheet applicable to the period immediately preceding such meeting together with the report of the auditors thereon as hereinbefore provided. 62. Previously to every half-yearly meeting at which a dividend is intended to he declared the Directors shall cause a scheme to be prepared showing the profits (if any) of the Company for a period current since the preceding half-yearly meeting at which a dividend was declared and apportioning the same and any surplus remaining undivided from any former period or so much thereof as they may consider applicable to the purposes of dividend among the share- holders according to the shares held by them respectively the amount paid thereon and the periods during which the same may have been paid and shall exhibit such scheme at such half-yearly meeting and at such meeting a dividend may be declared according to such "scheme or of any such less amount as the meeting shall think fit but the Company shall not make any dividend whereby their capital stock will be in any degrec reduced Provided always that the word « dividend " shall not be construed to apply to a return of any portion of the capital stock. 63. 1863. 27° VIC. 17 Waratah Coal 'Company' 8 Incorporation. 63. Before apportioning the profits to be divided among the Power to Directors shareholders the Directors may if they think fit set aside thereout for conthacencies such sum as they may think proper to meet contingencies or for enlarging repairing or improving the works connected with the Com- pany's s undertakings or any part. "thereof and may divide the balance only among the shareholders Provided always that if for any half-year Preference to holders the divisible profits of the Company after making such reserve as afore- foe FOOL te To ee. said shall not be sufficient to pay a dividend at the rate of five pounds per centum per annum upon the entire paid-up capital the holders of the shares numbered respectively from five thousand and one to ten thousand which shall have been subscribed for under the provisions of this Act shall be entitled to receive out of the divisible profits of the Company for such half-year a dividend at the rate of five per centum per annum or at such less rate as the divisible profits after such reserve as aforesaid shall amount to on the capital paid up on their said shares respectively before any dividend shall be paid to the holders of the shares mentioned in the Schedule A to this Act annexed and the residue of such divisible profits (if any) after paying such dividend shall be paid to the holders of the last mentioned shares according to the number of shares held by them respectively. G4, Any summons or notice or any writ or other procecding at Service of notice on law or in equity requiring to he served upon the Company may be Company. served by the same being left at or transmitted through the post directed to the principal officer of the Company or being given per- sonally to the Secretary or in case there be no Secretary then by being given to any one Director of the Company. 65. Notices requiring to he served by the Company upon. the Service by Company shareholders may unless expressly required to be served personally be "hele. served by the same being transmitted through the post directed according to the registered address or other known address of the share- holder within such period as to admit of its being delivered in the due course of delivery within the period (if any) prescribed for the giving of such notice and in proving such service it shall be sufficient to prove that such notice was properly directed and that it was so put into the post office. Provided that this cnactment as to the time of transmis- sion shall not apply to shareholders resident out of the Colony but in every such case such notice may be given to anv person who may be the duly authorized agent of any stich shareholiler as last mentioned and shall have been recognized as such by the Directors or such notice may be given by fourteen days notice by advertisement in one or more daily newspapers published in the City of Sydney. 66. All notices directed to be given to the sharcholders shall Netice to joint pro- with respect. to any shave to which persons are jointly entitled be! given to whichever of the said persons shall be named first in the Register of Shareholders and notice so given shall be sufficient notice to all the proprictors of such share. 67. Every summons notice or other such document requiring Authentication of authentication by the Company may be signed by two Directors or by the Secretary of the Company and need not be under the common seal of the Company. 68. If any person against whom the Company shall have any Proof of debts in claim or demand' become bankr upt or take the benefit of any Act for" rupley. the relief of insolvent debtors it shall be lawful for the Secretary or Treasurer of the Company in all proceedings against the estate of such bankrupt or insolvent or under any fiat sequestration or act of insol- vency against such bankrupt or insolvent to represent the Company and act in their behalf in all respects. 69. For the purpose of regulating the conduct of the officers Power te make and and servants of the Company and for providing for the due manage- "7" c ment 18 27° VIC. 1863. Waratah Coal Company's Incorporation. ment of the affairs of the Company in all respects whatsoever it shall be lawful for the Company subject to the provisions herein mentioned from time to time to make such by-laws and regulations as they think fit Provided that such by-laws be not repugnant to the laws of the Colony or to the provisions of this Act or to any resolution of any general meeting of shareholders and such by-laws shall be reduced into writing and shall have affixed thereto the common seal of the Company and a copy of such by-laws shall be given to every officer and servant of the Company affected thereby. By-laws to be so 70. It shall be lawful for the Company by such by-laws to bausitica eye ~—- Mpose such reasonable penalties upon all persons being officers and mitigated, servants of the Company offending against such by-laws as the Com- pany think fit not exceeding five pounds for any one offence Provided that the same shall be so framed as to allow the justice or justices before whom any penalties imposed thereby may be sought to be recovered to order a part only of such penalty to be paid if such justice think fit. Evidence of by-laws. 71. The production of a printed or written copy of the by-laws of the Company having the common seal of the Company affixed thereto shall be sufficient evidence of such by-laws in all proceedings under the same. Power to raise a 72. It shall be lawful for the Company by the order of any shareholders or he general meeting to increase the capital of the said Company to any the admissionofnew amount not exceeding altogether one hundred thousand pounds and subscribers, the Company are hereby authorized and empowered to raise any such further sum or sums as may be required in addition to the present capital of sixty thousand pounds by creating and issuing new shares of six pounds each. New shares to be 73. The capital so to be raised by the creation of new shares considered as part of Shall be considered as part of the general capital and shall be subject the general capital. + the same provisions in all respects whether with reference to the payments of calls or the forfeiture of shares on the non-payment of calls or otherwise as if it had been part of the original capital except as to the times of making calls for such additional capital and the amount of such calls which respectively it shall be lawful for the Com- pany from time to time to fix as they shall think fit. Pre-emption to pro- 74. Provided always that when the Company shall determine Prictors of original 0 issue new shares under the provisions of this Act the Directors shall saree by a circular letter to be sent by post or otherwise and addressed to each of the then proprietors signify the number of new shares to be issued and the price thereof and the said proprietors shall within a period to be stated in such circular letter but not less than thirty days from the sending thereof be entitled to the option of taking all or any of such new shares in preference to any other persons and such of the said proprietors who within such period may signify in writing to the Directors their desire to partake in the distribution of such new shares shall as between themselves be entitled to have so many of such new shares as shall be in proportion to the number of their then present shares. After pre-emption 75. In case any person who shall agrec to take any new shares had by original shall not: within the period to be fixed for such purpose by the Directors Shares to be disposed (and which shall not be less than thirty days) pay the price or deposit of by the Directors. to be required on any new shares allotted to him then and without prejudice to the remedies of the Company against him for enforcing such payment it shall be lawful for the Directors to allot any such shares to any other proprietor or person whomsoever at such price for each share as they may think proper but not less than six pounds for the same respectively. 76. 1863. 27° VIC. 19 Waratah Coal Company's Incorporation. 76. In case at any time it shall be thought expedient by the Proprietors may Company to raise any sum or sums of money by way of loan it shall 78° it noccnaey by be lawful for the Company by any order of any general meeting of mortgage. the Company to borrow and take up at interest any sum or sums not exceeding in the whole at any one time one-third of the amount of the capital of the Company then actually paid up and the Company after an order shall have been made for that purpose by any general meeting are hereby empowered to mortgage or assign the property of the Company or any part thercof as a security { for any such sum with interest to such person as shall advance the same all which