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-