ADULT LEARNING AUSTRALIA INCORPORATED
Notice of General Meeting and Notice of Special
Resolutions Seeking Approval for Voluntary Transfer of Incorporation and Amendment of Constitution
Associations Incorporation Act 1991 (ACT)
Dear Member:
Notice of General Meeting.
In accordance with Clauses 16 and 17 of the Constitution, the Board of Adult Learning Australia Incorporated ( hereinafter ‘ALA’) has called a General Meeting to be held as follows:
Date: Monday, 17 September 2012
Place: Online using Blackboard Collaborate (Elluminate) via the following link: : http://sn.im/alaboard
Time: 4 PM (EST)
(Please not that staff will be available in the hour leading up to the meeting to help connect anyone who is not already connected to Blackboard Collaborate (Elluminate)
The purpose of the General Meeting is to consider the Special Resolutions set forth below authorising the voluntary transfer of ALA under section 82 of the Associations Incorporation Act 1991 (ACT) to incorporation as a Public Company Limited By Guarantee under the provisions of the Corporation Act 2001 (Cth.) and to amend the Constitution to increase the size of the Board.
As required by Section 70 of the Associations Incorporation Act 1991 (ACT) the Special Resolutions set forth below must be passed by a majority of at least 75% of the votes of those members who are entitled to vote and who vote in person at the General Meeting.
Agenda.
The Board proposes the following Special Resolutions be considered and passed:
1. “The Members authorise ALA to transfer its incorporation from the
Associations Incorporation Act 1991 (ACT) to the Corporations Act 2001
(Cth.).”
2. ‘The Members authorise the Board of ALA to submit Form A11
‘Application for S.82 Transfer Of Incorporation’ to the Register-General’s
Office for approval and pay all necessary fees.”
3. “The Members authorise the Board of ALA to register the new company
with ASIC as a Public Company Limited By Guarantee in the State of
Victoria as Adult Learning Australia.”
4. “The Members authorise the Board of ALA to submit Form 201 ‘Application
for registration as an Australian Company’ to ASIC and to pay all necessary
fees.”
5. “The Members authorise the Board of ALA to submit to ASIC Form 432
‘Application to approve registration of a company name without the word
“Limited” and to pay all necessary fees.”
6. “The members authorise the Board of ALA to register the new company
With ASIC using the current Constitution.”
7. “The Members authorise the following individuals to act as the initial Board
of ALA: Mr Allan Arnott, Dr Mark Brophy, Prof Barry Golding,
Ms Dorothy Lucardie, Ms Debra Parker, Ms Helen Schwencke,
Ms Catherine Dunn, Mr George Papallo, Mr Tony Dreise, and Ms Denise
O’Brien.”
Each resolution is proposed as a Special Resolution and must be passed by a vote of at least 75% of the Members present at the General Meeting and entitled to vote.
The Board proposes the following Special Resolutions be considered and passed:
1. That clause 23 of the Constitution be amended to read:
“ 23 Composition of the Board
The Board shall consist of not less than nine (9) or more than twelve
(12) members as determined by the Board.
Nine (9) members of the Board shall be elected for a three (3) year term subject to the provisions of clause 24. In addition, the Board will have the option to co-opt up to three (3) members at any given time for periods of up to two (2) years each.
The initial number of Board members and the names of the initial
Board members shall be determined in writing by the subscribers to
ASIC Form 201 “Application for registration of an Australian
Company.”
2. That clause 24 of the Constitution be amended to read:
“24 Election of Board
Nine (9) members of the Board shall be elected for a nominal three (3) year term on a staggered basis, with the members retiring, or seeking re-election, at the end of their term.”
3. That clause 25 of the Constitution be amended to read:
“25 Transition Clause
For the first election following the Association becoming a Public
Company Limited By Guarantee, the following transition provisions
shall apply:
(a) Nine (9) Board members shall be elected: three (3) for a three
year-term; three (3) for a two- year term and three (3) for a one- year term.
(b) The allocation of the elected Board members to the above mentioned terms
of office shall be determined on the following basis:
i. The three (3) who receive the greatest number of votes shall be
allocated to the three-year term;
ii. The three (3) who receive the next greatest number of votes shall be
allocated to the two-year term; and
iii. The three (3) who receive the next greatest number of votes shall be
allocated to the one-year term.
Thereafter the election of the Board shall be governed by clause 24.”
Each resolution is proposed as a Special Resolution and must be passed by a vote of at least 75% of the Members present at the General Meeting and entitled to vote.
Explanatory Statement.
This Explanatory Statement has been prepared for the information of the Members in connection with the business to be conducted at the General Meeting to be held on Monday 17 September 2012 online using Blackboard Collaborate (Elluminate) via the following link: : http://sn.im/alaboard
at 4 p.m. (EST).
The purpose of the Explanatory Statement is to provide information the Board believes to be material to Members in deciding whether or not to pass the Special Resolutions in the Notice of Meeting.
Transfer of Incorporation.
The Association has moved its offices from the ACT to Victoria. Associations are precluded by law from transferring their incorporation from one State to another. The provisions of the Association Acts of the two jurisdictions are significantly different. Consequently, ALA has two options.
Option One.
To continue in operation as an Association. Where this option pursued ALA would need to wind up the ACT Association and incorporate in Victoria. The disadvantage of this option is that ALA would be staring over from scratch. ALA would need to apply for registration as an Association, obtain a new ABN, obtain a new endorsement as a Tax Concession Charity, apply for the Payroll Tax and Stamp Duty Exemptions, etc. All contracts would need to be renegotiated, assets retitled in the new Association, new bank accounts opened, etc.
Associations can only operate in the jurisdiction where they are incorporated without going through the registration process in every State and Territory it wishes to conduct business or register with ASIC as a Registrable Australian Body.
Option Two.
Transfer of incorporation is a seamless process. Each person or entity who was a Member of the Association immediately before its registration under the Corporations Act 2001 as a company limited by guarantee is, for the purpose of the Association’s application for that registration, taken to be a subscriber to the memorandum of the proposed company. [Sec 82 Associations Incorporation Act 1991 (ACT)].
Any property or proprietary or other rights that were, immediately before the cancellation vested in the former Association are taken, to be vested in, and may be exercised or enforced by, the company. [Sec 86 Associations Incorporation Act 1991 (ACT).
All contracts, ABN, ATO endorsements, Payroll Tax and Stamp Duty Exemptions, etc. automatically carryover to the new company. Sec 601BM of the Corporations Act 2001 provides in part “(1) Registration under this part does not:
(a) create a new legal entity; or
(b) affect the body’s existing property, rights or obligations …; or
(c) render defective any legal proceedings by or against the body or its
members.”
A Public Company Limited By Guarantee can operate in every State and Territory in Australia without any further registration.
The Board believes that transferring the incorporation as an Association to a Public Company Limited By Guarantee is in the best interest of the ALA and its Members.
Amendment of Constitution.
There are many eminently qualified individuals who desire to serve the Association. The Board would like to have the authority to increase its size beyond its current limit of nine (9) when one or more of these individuals puts their hand up to serve as a Board member.
The Board believes the proposed Special Resolution serve the best interest of the Association and request the members to pass the Special Resolutions in their current form.
DATED: _____ September 2012 by order of the Board.
Alan Arnott
Adult Learning Australia Inc.
Secretary