New South Wales Consolidated Acts

AUSTRALIAN JOCKEY AND SYDNEY TURF CLUBS MERGER ACT 2010 - SCHEDULE 1

SCHEDULE 1 – Mandatory corporate governance provisions

(Section 5)

1 Interpretation

(1) The following definitions apply in this Constitution, unless the context otherwise requires:

"AJC" has the same meaning as it has in the Merger Act.

"appointments selection panel" means an appointments selection panel constituted by the Minister under section 10 of the Merger Act to recommend to the Minister a person for appointment as an Independent Director.

"Australian Rules of Racing" has the same meaning as it has in the Thoroughbred Racing Act 1996 of New South Wales.

"Board" means the Directors for the time being of the Company.

"Chair" means a person elected to the office of the Chair of the Company in accordance with this Constitution.

"Chief Executive" means a person appointed as the Chief Executive in accordance with this Constitution.

"Club Appointed Director" means a Director appointed by the board of directors of the AJC or the board of directors of the STC under section 10 (1) of the Merger Act.

"Company" means * [insert name and ACN of company].

Incorporation instruction : Insert the name and ACN of the relevant company where indicated.

"Corporations Act" means the Corporations Act 2001 of the Commonwealth.

"Director" means a person appointed or elected to the office of director of the Company in accordance with the Merger Act and this Constitution.

"Elected Director" means a Director elected to office by the Members in accordance with this Constitution.

"eligible industry body" has the same meaning as it has in the Thoroughbred Racing Act 1996 of New South Wales.

"First Board" means the Board at the time that the initial 12-month period commences.

"Harness Racing Act" means the Harness Racing Act 2009 of New South Wales.

"HRNSW" means Harness Racing New South Wales constituted under the Harness Racing Act.

"Independent Director" means a Director appointed by the Minister on the recommendation of an appointments selection panel.

"initial 12-month period" means the period of 12 months commencing at the time that *the Company is registered/*the mandatory corporate governance provisions (within the meaning of the Merger Act) are included in this Constitution.

Incorporation instruction : The first alternative phrase indicated by an asterisk (*) is to be used if the mandatory corporate governance provisions are included in the company's constitution when it is registered as a company. The second alternative phrase indicated by an asterisk is to be used if the mandatory corporate governance provisions are included in the company's constitution after the registration of the company.

"Member" means any person who is admitted to the membership of the Company and whose name is entered in the Register.

"mentally incapacitated person" means a person who is an involuntary patient or a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007 of New South Wales, or a protected person within the meaning of the NSW Trustee and Guardian Act 2009 of New South Wales.

"Merger Act" means the Australian Jockey and Sydney Turf Clubs Merger Act 2010 of New South Wales.

"Minister" means the Minister administering the Merger Act from time to time.

"race club" has the same meaning as it has in the Thoroughbred Racing Act 1996 of New South Wales.

"racing association" has the same meaning as it has in the Thoroughbred Racing Act 1996 of New South Wales.

"Racing NSW" means Racing New South Wales established by the Thoroughbred Racing Act 1996 of New South Wales.

"Register" means the register of members maintained by the Company in accordance with the Corporations Act.

"Registered Clubs Act" means the Registered Clubs Act 1976 of New South Wales.

"Secretary" , in relation to the Company, means any person appointed to perform the duties of secretary of the Company, and includes an assistant secretary or any person appointed to act as secretary temporarily.

"Short-term Club Appointed Director" means a Club Appointed Director whose instrument of appointment, in accordance with section 10 (2) of the Merger Act, designates the Director to be the short-term appointment under that subsection of the board of directors of the AJC or STC.

"STC" has the same meaning as it has in the Merger Act.

"Vice-Chair" means a person elected to the office of the Vice-Chair of the Company in accordance with this Constitution.

(2) Headings in this Constitution are for convenience only and do not affect interpretation.

(3) The following rules of interpretation apply to this Constitution unless the context requires otherwise:

(a) a gender includes all genders,

(b) the singular includes the plural and conversely,

(c) if a word or phrase is defined, its other grammatical forms have a corresponding meaning,

(d) a reference to a person includes a reference to a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity,

(e) a reference to a clause, subclause, paragraph or subparagraph is a reference to a clause, subclause, paragraph or subparagraph of this Constitution,

(f) a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of it, any legislative provision substituted for it, and all regulations and statutory instruments made or issued under it,

(g) an expression has, in a provision of this Constitution that relates to a particular provision of the Corporations Act, the same meaning as in that provision of the Corporations Act,

(h) the words "includes" and "including" are not words of limitation, and do not and must not be taken as detracting from the generality of any provisions of this Constitution.

2 Board of Company

(1) The Board is to consist of:

(a) during the initial 12-month period--9 Directors, and

(b) after the expiry of that period--7 Directors.

(2) The Directors may act as the Board despite a vacancy in their number. However, if their number is reduced below the minimum fixed for a quorum for a meeting of the Board, the continuing Directors may, except in an emergency, act only for the purpose of filling vacancies to the extent necessary to bring their number up to the number required for a quorum.

3 Board to manage Company

(1) The management and control of the business and affairs of the Company are vested in the Board.

(2) The Board may exercise all powers of the Company which are not, by the Corporations Act or this Constitution, required to be exercised by the Company in general meeting.

4 Constitution of First Board

(1) The 9 Directors of the First Board are those persons who at the time of the commencement of the initial 12-month period have:

(a) been appointed in accordance with section 10 (1) of the Merger Act, and

(b) consented in writing to be members of the Company (except in the case of persons appointed as Independent Directors), and

(c) consented in writing to act as Directors of the Company.

(2) Section 10 (1) of the Merger Act provides for:

(a) 3 of the Directors of the First Board to be appointed by the board of directors of the AJC, and

(b) 3 of the Directors of the First Board to be appointed by the board of directors of the STC, and

(c) 3 of the Directors of the First Board to be appointed by the Minister on the recommendation of an appointments selection panel.

(3) Each of the Directors of the First Board (other than a Short-term Club Appointed Director) holds office for a term of 4 years unless the Director vacates office before the expiry of the term.

(4) A Short-term Club Appointed Director holds office for a term of 12 months unless the Director vacates office before the expiry of that term.

(5) A Director of the First Board may not hold office as a Director for a term that exceeds 8 years in total.

5 Election and appointment of Directors to subsequent Boards

(1) The Company may at any time by resolution passed in general meeting elect a person to be a Director to replace:

(a) a Club Appointed Director who has vacated office, or

(b) an Elected Director who has vacated office.

(2) A person is eligible to be elected as a Director only if the person is:

(a) a Member, and

(b) not otherwise ineligible to be elected as a Director under subclause (3).

(3) A person is not eligible to be elected as a Director if the person:

(a) is an employee of a race club or racing association, or

(b) is a member of the governing body of another race club or eligible industry body (including a director of the AJC or STC), or

(c) holds a licence issued by Racing NSW or by a racing association, or

(d) is registered by or with the Greyhound Welfare and Integrity Commission under the Greyhound Racing Act 2017 or HRNSW under the Harness Racing Act, or

(e) is currently, or during the previous 10 years has been, warned off, disqualified or named on the Forfeit List under the Australian Rules of Racing, or

(f) during the previous 10 years has been convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or

(g) is an undischarged bankrupt or is taking advantage of the laws in force for the time being relating to bankruptcy, or

(h) is a mentally incapacitated person, or

(i) is prevented from holding office as a Director by clause 4 (5).

(4) Subject to subclause (7), an Elected Director holds office for a term of 4 years or until the Director sooner vacates office as a Director.

(5) Subject to clause 4 (3) and subclause (7), an Independent Director holds office for such term (not exceeding 4 years) as may be specified in the instrument of appointment for the Director unless the Director vacates office before the expiry of that term.

(6) An Independent Director who vacates office is to be replaced by a person appointed by the Minister under section 10 of the Merger Act.

(7) If a person is elected or appointed to fill a casual vacancy in the office of a Director, the person holds office as a Director for the balance of the term of the person's predecessor as Director unless the person vacates office as a Director before the expiry of the balance of that term.

6 Chair and Vice Chair of the Company

(1) The Board may elect a Director to hold office as Chair and another Director to hold office as Vice-Chair.

(2) The Chair or, in the Chair's absence, the Vice-Chair, is to chair any meeting of the Board.

(3) The Board may determine the period of time that a Director elected to the office of Chair or Vice-Chair may hold such office.

(4) No Director may hold the office of Chair or Vice-Chair for longer than a total aggregate period of 4 years.

(5) The Board may elect another Director to chair a meeting of the Board if at the time the meeting is held:

(a) neither a Chair nor a Vice-Chair has been elected, or

(b) the Chair and Vice-Chair are not present at the time appointed for the holding of the meeting.

7 Vacancies in office of Director

(1) In addition to the circumstances in which the office of a Director becomes vacant under the Corporations Act, the office of a Director becomes vacant if:

(a) the Director dies, or

(b) the Director becomes a mentally incapacitated person, or

(c) the Director resigns the office by notice in writing to the Company, or

(d) the Director's term of office expires and the Director is not re-elected or re-appointed to the office, or

(e) in the case of a Director other than an Independent Director--the Director ceases to be a Member, or

(f) the Director is not present personally at meetings of the Board for a continuous period of 3 months without leave of absence from the Board, or

(g) the Director becomes an employee of another race club or racing association, or

(h) the Director becomes a member of the governing body of another race club or eligible industry body (including a director of the AJC or STC), or

(i) the Director becomes the holder of a licence issued by Racing NSW or by a racing association, or

(j) the Director is registered by or with the Greyhound Welfare and Integrity Commission under the Greyhound Racing Act 2017 or HRNSW under the Harness Racing Act, or

(k) the Director is warned off, disqualified or named on the Forfeit List under the Australian Rules of Racing, or

(l) the Director is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more, or convicted elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence so punishable, or

(m) the Director becomes bankrupt or insolvent or takes advantage of the laws in force for the time being relating to bankruptcy, or

(n) the Director is removed from office under subclause (2).

(2) The Company may at any time by resolution passed in general meeting remove any Director from office.

8 Proceedings of Board

(1) Subject to the requirements of the Registered Clubs Act to the extent applicable to the Company, the Board may meet as often as it deems necessary.

(2) The quorum for a meeting of the Board is:

(a) during the initial 12-month period--5 Directors, and

(b) at any time after the expiry of that period--4 Directors.

(3) The Chief Executive may at any time, and on the request of the Chair or any 3 Directors must, convene a meeting of the Board.

(4) Reasonable notice must be given to every Director of the place, date and time of every meeting of the Board. If any Director is for the time being outside of Australia, notice need only be given to that Director if contact details have been provided to the Secretary by the Director.

(5) Questions arising at a meeting of the Board are decided by a majority of votes of Directors present and voting and any such decision is for all purposes taken to be a decision of the Board.

(6) In the case of an equality of votes, the Chair of the meeting has a casting vote in addition to any deliberative vote.

(7) For the purposes of the Corporations Act, each Director, on becoming a Director (or on the adoption of this Constitution), consents to the use of the following technology for calling or holding a meeting of the Board:

(a) video,

(b) telephone,

(c) electronic mail,

(d) any other technology that permits each Director to communicate with every other Director,

(e) any combination of the technologies described in the above paragraphs.

(8) A Director may withdraw the consent given under subclause (7) in accordance with the Corporations Act.

(9) If the Directors are not all in attendance at one place and are holding a meeting using technology that permits each Director to communicate with other Directors:

(a) the participating Directors are, for the purpose of every provision of this Constitution concerning meetings of Directors, taken to be assembled together at a meeting and to be present at that meeting, and

(b) all proceedings of those Directors conducted in that manner are as valid and effective as if conducted at a meeting at which all of them were present.

9 Disclosure of interests by Directors

(1) A Director who has a material personal interest in a matter that relates to the affairs of the Company must give the Board notice of the interest in accordance with the Corporations Act.

(2) A contract or arrangement made by the Company with a Director or in which a Director is in any way directly or indirectly interested is not avoided merely because the Director is a party to or interested in it.

(3) A Director is not liable to account to the Company for any profit derived in respect of a matter in which the Director has a material interest, merely because of the Director's office or the fiduciary relationship it entails, if the Director has:

(a) declared the Director's interest in the matter as soon as practicable after the relevant facts have come to the Director's knowledge, and

(b) not contravened this Constitution or the Corporations Act in relation to the matter.

(4) A general notice giving details of the nature and the extent of the interest and the relation of the interest to the affairs of the Company is a sufficient declaration of the Director's interest, provided the extent of that interest is no greater at the time of first consideration of the relevant matter by the Board than was stated in the notice.

(5) A Director may not be present during deliberations or vote on a contract or matter in which the Director has a personal interest unless the Board, when considering the particular contract or matter, resolves that the interested Director may be present and may vote on that particular contract or matter because the Board is satisfied that the interest ought not disqualify the Director from being present and voting on it.

(6) A Director must not hold any office of employment in the Company in addition to holding office as a Director.

10 Chief Executive

(1) The Board may appoint a Chief Executive on such terms and conditions, as to remuneration and otherwise, as the Board decides.

(2) The Board may at any time terminate the appointment of the Chief Executive.

(3) The Chief Executive must not be appointed as a Director.

(4) The Board may, on the terms and conditions and with any restrictions as the Board thinks fit, confer on the Chief Executive any of the powers exercisable by the Board.

(5) Any powers so conferred may be concurrent with the powers of the Board.

(6) The Board may at any time withdraw or vary any of the powers conferred on the Chief Executive.

(7) Unless the Board appoints a Secretary, the Chief Executive is to act as Secretary of the Company for the purposes of the Corporations Act.

11 Other officers

(1) The Board may from time to time:

(a) create any other position or positions in the Company with such powers and responsibilities as the Board may from time to time confer, and

(b) appoint any person to any position or positions so created.

(2) Without limiting subclause (1), the Board may create any one or more of the following positions:

(a) a secretary (in addition to the position of Secretary of the Company) to carry out the functions of an approved secretary of a registered club under the Registered Clubs Act to the extent that Act applies to the Company,

(b) an Honorary Race Day Committee Director for the purpose of carrying out official or representative functions on behalf of the Board.

(3) Any person appointed to a position created under this clause must not also be a Director.

(4) The Board may at any time terminate the appointment of a person holding a position created under this clause and may abolish the position.