Foundation

Constitution · Parts 12–13 · clauses 58–63

Winding up and the charity lock

What happens to everything if the foundation ever ends?

Even in death the lock holds: surplus assets cannot flow to members and must pass to an ACNC-registered charity with compatible purposes, capable of stewarding VirtEngine and DSEMA under the same public-benefit, privacy-preserving, anti-capture principles. Each member's liability is capped at $444.

01 Winding up and the charity lock

Winding up is possible — privatising is not

cl 60.1cl 61.1

Members may wind the company up voluntarily by special resolution, in compliance with the Corporations Act, the ACNC Act, and any court, regulator, or liquidator requirement. But clause 61.1 removes the incentive that corrupts most endgames: surplus assets must not be distributed to members or former members unless the recipient is itself a charity satisfying clause 62.

02 Winding up and the charity lock

Where the assets must go

cl 62.1cl 62.2cl 62.3

Surplus assets must be distributed to one or more ACNC-registered charities (or another charitable entity accepted by the ACNC) that satisfy three tests: purposes similar to, inclusive of, or compatible with the company's; a prohibition on member distributions at least as strict as the company's own; and legal capacity to steward the Transferred Assets for charitable public benefit.

Clause 62.2 goes further for the technology: the recipient of VirtEngine, DSEMA, and related Transferred Assets should, where reasonably possible and lawful, be capable of maintaining the public-benefit, privacy-preserving, and anti-private-capture principles of this constitution. The recipient is chosen by special resolution (a Reserved Matter requiring Founding Member Consent); failing that, by the directors; failing that, by application to the Supreme Court for directions.

03 Winding up and the charity lock

The guarantee, the indemnity, and the insurance

cl 63.1cl 63.2cl 58.1cl 59.1cl 59.2

As a company limited by guarantee, each member's total liability on winding up is capped at $444. The company indemnifies current and former officers against liabilities incurred in that capacity — except liabilities arising from conduct not in good faith — and may maintain directors-and-officers, cyber, professional, public-liability, and other insurance the directors consider appropriate and lawful.