| 1. |
INTRODUCTION |
| 1.1 |
The Memorandum of Incorporation in the
prescribed form contemplated in section 13(1)(a)(i)
of the Act shall not apply to the company. |
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| 1.2 |
The company is a pre-existing company in terms of
the Act, is a public company, and, accordingly: |
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| 1.2.1 |
the company is not prohibited from offering its
securities to the public; and |
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| 1.2.2 |
the transfer of the company’s securities is
unrestricted. |
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| 1.3 |
This Memorandum does not contain any restrictive
conditions contemplated in section 15(2)(b) of the
Act and does not contain any requirement for the
amendment of any particular provision of this
Memorandum in addition to the requirements of
the Act. |
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| 2. |
INTERPRETATION |
| 2.1 |
In this Memorandum, including the introduction
above, and unless the context requires otherwise: |
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| 2.1.1 |
words importing any one gender shall include the
other two genders; |
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| 2.1.2 |
the singular shall include the plural and vice versa; |
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| 2.1.3 |
any word or expression which is defined in the Act
and is not defined in 2.1.4, shall bear that statutory
meaning in this Memorandum; |
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| 2.1.4 |
each of the following words and expressions shall
have the meaning stated opposite it and cognate
expressions shall have a corresponding meaning,
namely: |
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| 2.1.4.1 |
“the Act”
the Companies Act, 2008, together with its
Schedules and the Companies Regulations, 2011,
as amended or substituted from time to time; |
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| 2.1.4.2 |
“JSE”
JSE Limited, registration number 2005/022939/06,
or any other successor body licensed as an
exchange under the Securities Services Act, 2004,
as amended or substituted from time to time; |
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| 2.1.4.3 |
“Listings
Requirements”
the Listings Requirements of the JSE, as amended
or substituted from time to time; |
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| 2.1.4.4 |
“this Memorandum”
this Memorandum of Incorporation and includes
its Schedule, which forms part of it; and |
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| 2.1.4.5 |
“the Republic”
the Republic of South Africa. |
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| 2.2 |
Headings have been inserted for convenience only
and shall not be used for or assist or affect the
interpretation of this Memorandum. |
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| 2.3 |
If any provision of this Memorandum imposes any
obligation pursuant only to the Listings
Requirements, then insofar as the JSE exempts
compliance with such obligation, the obligation
shall be deemed to have been complied with. |
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| 2.4 |
If any provision of this Memorandum limits,
restricts or prohibits any power or authority of the
company or the board pursuant only to the Listings
Requirements, then insofar as such limitation,
restriction or prohibition is waived or relaxed by
the JSE, the power or authority shall be deemed
not to be subject to such limitation, restriction or
prohibition to the extent of such waiver or
relaxation. |
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| 3. |
GENERAL |
| 3.1 |
Liability of incorporators, shareholders or
directors |
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No person shall be liable for any liabilities or
obligations of the company solely by reason of
such person being an incorporator, shareholder or
director of the company. |
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| 3.2 |
Powers of the company |
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The legal powers and capacity of the company as
contemplated by the Act are not subject to any
restriction, limitation or qualification. |
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| 3.3 |
Memorandum of Incorporation and rules |
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| 3.3.1 |
This Memorandum does not provide any different
requirements than those set out in section 16(1)(c)
(i) of the Act regarding proposals for amendments
to this Memorandum. |
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| 3.3.2 |
Unless otherwise permitted by the JSE and the Act,
any amendment to this Memorandum is required
to be approved by a special resolution, save for an
amendment which is ordered by a court in terms
of section 16(1)(a) of the Act. |
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| 3.3.3 |
Unless otherwise permitted by the JSE, the board
shall not have the power to make, amend or repeal
any necessary or incidental rules contemplated in
section 15(3) of the Act relating to the governance
of the company in respect of matters that are not
addressed in the Act or this Memorandum. |
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| 3.3.4 |
If the board, or any individual authorised by the
board, alters this Memorandum in any manner
necessary to correct a patent error in spelling,
punctuation, reference, grammar or similar defect
on the face of the document, it must publish a
notice of such alteration on the company’s
website, and must file a notice of alteration in the
manner prescribed by the Act. |
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| 3.4 |
Financial assistance to related persons |
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The authority of the board to authorise the
company to provide direct or indirect financial
assistance to any person contemplated in section
45 of the Act is not limited, restricted or qualified. |
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| 3.5 |
Solvency and liquidity test |
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The solvency and liquidity test provided in section
4 of the Act applies without amendment. |
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| 4. |
SECURITIES OF THE COMPANY |
| 4.1 |
Authorisation for shares |
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| 4.1.1 |
The company is authorised to issue the shares
specified in Schedule 1, provided that, if required
by the Act or the Listings Requirements, the
company may only issue: |
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| 4.1.1.1 |
unissued shares to shareholders of a particular
class of shares, pro rata to the shareholders' existing shareholding, unless any such shares are
to issued for an acquisition of assets; |
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| 4.1.1.2 |
unissued shares or options otherwise than as
envisaged in 4.1.1.1 above, for cash, as the
directors in their discretion think fit, if approved by
shareholders in general meeting, subject to the
Listings Requirements; and |
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| 4.1.1.3 |
shares that are fully paid up. |
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| 4.2 |
Alteration of shares |
| 4.2.1 |
For so long as is required by the Listings
Requirements, any amendment to this
Memorandum to – |
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| 4.2.1.1 |
create any class of shares; |
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| 4.2.1.2 |
increase or decrease the number of authorised
shares of any class of shares; |
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| 4.2.1.3 |
reclassify any shares that have been authorised but
not issued; |
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| 4.2.1.4 |
classify any unclassified shares that have been
authorised but not issued; |
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| 4.2.1.5 |
convert one class of shares into one or more other
classes; |
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| 4.2.1.6 |
consolidate or sub-divide shares; |
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| 4.2.1.7 |
determine the preferences, rights, limitations or
other terms of any class of authorised shares or
amend any preferences, rights, limitations or other
terms so determined, |
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must be approved by a special resolution of the
ordinary shareholders, save where such an
amendment is ordered by a court in terms of
sections 16(1)(a) and 16(4) of the Act. |
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| 4.2.2 |
Whenever as a result of a consolidation or sub-division
of shares any shareholders would become
entitled to fractions of a share, the directors may,
on behalf of those shareholders, sell the shares
representing the fractions for the best price
reasonably obtainable to any person (including,
subject to the provisions of the Act, the company)
and distribute the net proceeds of sale in due
proportion among those shareholders. The
directors may appoint a person to sell and transfer
those shares. The transferee shall not be bound tosee to the application of the purchase money nor
shall his title to the shares be affected by any
irregularity in or invalidity of the proceedings
relating to the sale. |
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| 4.3 |
Amendment of class, preferences, rights,
limitations or other terms |
| 4.3.1 |
If any proposed amendment to this Memorandum
relates to the variation of any preferences, rights,
limitations or other terms attaching to any other
class of shares already in issue other than the
ordinary shares, such amendment shall be subject
to the prior approval of the holders of that other
class passed at a separate class meeting of the
holders of that class in the same manner, mutatis
mutandis, as a special resolution. The holders of
such other class may be allowed to vote at the
meeting of ordinary shareholders convened for the
purposes of considering such proposal, subject to
the Listings Requirements. |
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| 4.3.2 |
The provisions of this Memorandum and the Act
relating to shareholders meetings of the company
shall, mutatis mutandis, apply to any such separate
class meeting except that, subject to the Act, the
necessary quorum shall be 2 (two) persons (unless
all the shares of that class are held by 1 (one)
person) holding or representing by proxy not less
than one-third of the issued shares of the class
(provided that if at any adjourned meeting of such
holders a quorum is not present, those shareholders
who are present in person or by proxy shall be a
quorum). |
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| 4.3.3 |
The special rights attached to the shares of any
class shall not, unless otherwise expressly provided
by the conditions of issue of such shares, be
deemed to be varied by the creation or issue of
further shares, ranking pari passu with, or enjoying
lesser rights, and which do not have preference
over the first-mentioned shares. |
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| 4.3.4 |
For so long as is required by the Listings
Requirements, the preferences, rights, limitations
or other terms of any class of shares may not be
varied, and no resolution may be proposed to
shareholders for rights to include any variation, in
response to any objectively ascertainable external
fact or facts as provided for in sections 37(6) and
(7) of the Act. The aforegoing provision does not
apply to the 6% (six percent) cumulative preference
shares, whose existing rights as set out in 9 below
are preserved. |
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| 4.4 |
Financial assistance for the subscription or
purchase of securities or options |
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This Memorandum does not limit, restrict or
qualify the authority of the board to authorise the
company to provide financial assistance to any
person for the purpose of, or in connection with,
the subscription of any option, or any securities,
issued or to be issued by the company or a related
or inter-related company, or for the purchase of
any securities of the company or any related or
inter-related company, in accordance with the Act. |
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| 4.5 |
Capitalisation shares |
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Subject to 4.1.1, this Memorandum does not limit,
restrict or qualify the authority of the board, in
terms of section 47 of the Act, to: |
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| 4.5.1 |
approve the issue of any authorised shares of the
company as capitalisation shares, on a pro rata
basis to the shareholders of one or more classes of
shares; |
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| 4.5.2 |
approve the issue of shares of one class as
capitalisation shares in respect of shares of another
class; or |
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| 4.5.3 |
permit shareholders to elect to receive a cash
payment in lieu of a capitalisation share, at a value
determined by the board, subject to the provisions
of section 47(2) of the Act. |
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| 4.6 |
Company or subsidiary acquiring company’s
shares |
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Any acquisition by the company or a subsidiary
company of the company’s shares will be subject
to the provisions of the Act and the Listings
Requirements. |
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| 4.7 |
Debt instruments |
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This Memorandum does not limit, restrict or
qualify the authority of the board to authorise the
company to issue secured or unsecured debt
instruments, provided that the board may not
grant special privileges regarding the attending
and voting at general meetings of the company or
the appointment of directors in respect of such
debt instruments except as may otherwise be
permitted by the JSE. |
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| 4.8 |
Registration of beneficial interests |
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This Memorandum does not limit or restrict the
holding of the company’s issued securities by, or
the registration of the company’s issued securities
in the name of, one person for the beneficial
interest of another. |
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| 4.9 |
Commission |
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The company may pay commission to any person
in consideration of such person subscribing or
agreeing to subscribe for any securities of the
company or of such person procuring, or agreeing
to procure, subscriptions for securities, provided
that such commission shall be subject to any
limitations in the Act or the Listings Requirements. |
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| 4.10 |
Transfer of certificated securities |
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In the case of the transfer of certificated shares,
the instrument of transfer must be accompanied
by – |
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| 4.10.1 |
the certificate of the shares to be transferred; and/or |
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| 4.10.2 |
such other evidence (if any) as the directors or
other persons in charge of the securities register in
respect of the shares to which the instrument of
transfer relates, may require to prove the title or
capacity of the intending transferor or transferee. |
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| 4.11 |
Right to refuse registration |
| 4.11.1 |
The directors may decline to register any transfer
of certificated shares where – |
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| 4.11.1.1 |
the instrument of transfer has not been lodged at
any of the company's transfer offices; |
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| 4.11.1.2 |
the requirements of any law affecting transfer
have not been complied with; or |
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| 4.11.1.3 |
the instrument of transfer is not in respect of only
1 (one) class of shares. |
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| 4.11.2 |
Any instrument of transfer in respect of any
transfer of certificated shares which the directors
decline to register shall, unless the directors resolve
otherwise, be returned on demand to the person
who lodged it. |
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| 4.11.3 |
If the directors refuse to register a transfer, a notice
of the refusal shall, within 30 (thirty) days after the
date on which the instrument of transfer was
lodged, be sent to the transferor and transferee. |
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| 4.12 |
Authority to sign transfer deeds |
| 4.12.1 |
All authorities to sign transfer deeds granted by
holders of securities for the purpose of transferring
securities that may be lodged, produced or
exhibited with or to the company at any of its
transfer offices shall, as between the company and
the grantor of such authorities, be taken and
deemed to continue and remain in full force and
effect, and the company may allow the same to be
acted upon until such time as express notice in
writing of the revocation of the same shall have
been given and lodged at the company’s transfer
offices at which the authority was lodged,
produced or exhibited. |
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| 4.12.2 |
Even after the giving and lodging of such notices,
the company shall be entitled to give effect to any
instrument signed under the authority to sign, and
certified by any officer of the company, as being in
order before the giving and lodging of such notice. |
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| 4.13 |
Replacement of lost share certificates |
| 4.13.1 |
In the case of certificated shares, subject to the
Listings Requirements – |
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| 4.13.1.1 |
any two or more certificates representing shares of
any one class held by any shareholder may at his
request be cancelled and a single new share
certificate for such shares issued without payment; |
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| 4.13.1.2 |
if any shareholder surrenders for cancellation a
share certificate representing shares held by him
and requests the company to issue two or more
certificates representing such shares in any
specified proportions, the directors may, if they
think fit, comply with such request; |
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| 4.13.1.3 |
if a share certificate is damaged or defaced or
alleged to have been lost, stolen or destroyed, a
new certificate representing the same shares may
be issued to the holder upon request subject to
delivery of the old certificate to the company, or (if
alleged to have been lost, stolen or destroyed) compliance with such condition as to evidence and
indemnity and payment of out-of-pocket expenses
of the company in connection with the request as
the directors think fit. |
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| 4.13.2 |
In the case of joint holders, any such request may
be made by any one of the joint holders. |
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| 4.14 |
Renunciation of shares |
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Nothing contained in this Memorandum shall
preclude the company from recognising a
renunciation of the allotment of any share by the
allottee in favour of some other person. |
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| 4.15 |
Limitation of voting rights |
| 4.15.1 |
The holders of any securities other than ordinary
shares shall not be entitled to vote on any
resolution taken by the company save as expressly
provided for in this Memorandum. For so long as
this is required by the Listings Requirements, but
subject to 4.15.2 below, in instances that such
shareholders are allowed to vote at general or
annual general meetings, their votes may not carry
any special rights or privileges and they shall be
entitled to one vote for each share that they hold,
provided their total voting rights at a general or
annual general meeting may never be more than
25% (twenty five percent) minus one vote of the
total voting rights of all shareholders at such
meeting. |
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| 4.15.2 |
The provisions of 4.15.1 above shall not apply to
the holders of the 6% (six percent) cumulative
preference shares, whose existing rights as set out
in 9 below are preserved. |
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| 4.16 |
Fully paid up shares not subject to lien |
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Fully paid shares shall not be subject to any lien in
favour of the company and shall be freely
transferable. |
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| 5. |
SHAREHOLDER RIGHTS AND PROXY FORMS |
| 5.1 |
Information rights of persons holding a
beneficial interest in securities |
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This Memorandum does not establish any
information rights of any person in addition to the
information rights provided in sections 26(1) and
(2) of the Act. |
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| 5.2 |
Representation by concurrent proxies |
| 5.2.1 |
This Memorandum does not limit or restrict the
right of a shareholder to appoint two or more
persons concurrently as proxies ("concurrent
proxies"); provided that the instrument appointing
the concurrent proxies clearly states the order in
which the concurrent proxies’ votes are to take
precedence in the event that both or all of the
concurrent proxies are present, and vote, at the
relevant meeting. |
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| 5.2.2 |
This Memorandum does not limit or restrict the
rights of a shareholder to appoint more than
one proxy to exercise voting rights attached to
different securities held by that shareholder. |
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| 5.3 |
Authority of proxy to delegate |
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A proxy is prohibited from delegating his authority
to act on behalf of the shareholder appointing him
to another person. |
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| 5.4 |
Requirement to deliver proxy instrument to
the company |
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A copy of the instrument appointing a proxy must
be delivered to the office of the company, or to
any other person specified by the company as
acting on its behalf, not less than 48 (forty eight)
hours ((excluding Saturdays, Sundays and public
holidays) or such lesser period as the directors may
determine in relation to a particular meeting)
before the time appointed for the holding of the
meeting (including an adjourned meeting) at
which the person(s) named in the proxy form
proposes to vote; and if the instrument of proxy is
not so delivered, the form of proxy shall not be
treated as valid unless the chairman of the meeting
decides otherwise. |
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| 5.5 |
Proxy without direction |
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This Memorandum does not limit or restrict the
right of a proxy to exercise, or abstain from
exercising, any voting right of the shareholder
appointing him without direction, except to the
extent that the instrument of proxy provides
otherwise. |
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| 5.6 |
Revocation of proxy |
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Subject to the Act, a vote by virtue of a power of
attorney or an instrument appointing a proxy shall
be valid notwithstanding the previous incapacity
of the principal or revocation of the power of
attorney or instrument appointing a proxy or the
transfer of the share in respect of which the vote is
cast, unless notification in writing of such legal
incapacity, revocation or transfer is received by the
company at the registered office or transfer office
of the company at which such power or instrument
is registered not less than 24 (twenty four) hours
before the commencement of the shareholders
meeting or the taking of the poll at which the
instrument of proxy is to be used. |
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| 5.7 |
Record date for exercise of shareholder
rights |
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The record date for any action or event shall be
determined in accordance with the Act and the
Listings Requirements. |
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| 6. |
SHAREHOLDERS MEETINGS |
| 6.1 |
Convening of shareholders meetings |
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The board or any person authorised by the board
may call a shareholders meeting. |
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| 6.2 |
Shareholders’ right to requisition a meeting |
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This Memorandum does not specify a lower
percentage of voting rights than the percentage
specified in section 61(3) of the Act required for
the requisition by shareholders of a shareholder’s
meeting. |
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| 6.3 |
Location of shareholders meetings |
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The board may determine the location of any
shareholders meeting, which may be in the
Republic or in any foreign country. |
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| 6.4 |
Notice of shareholders meetings |
| 6.4.1 |
The period of notice of shareholders’ meetings
shall be at least 15 (fifteen) business days. |
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| 6.4.2 |
Notice of shareholders meetings shall be delivered
to each shareholder entitled to vote at such
meeting and who has elected to receive such
notice. |
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| 6.5 |
Shareholders meetings conducted by
electronic communication |
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Unless authorised by the board for a particular
shareholders meeting, shareholders meetings may
not be conducted by electronic communication,
nor may one or more shareholders, or proxies for
shareholders, participate in any shareholders
meeting by electronic communication. |
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| 6.6 |
Quorum for shareholders meetings |
| 6.6.1 |
The percentage of voting rights in terms of section
64(1) of the Act and the number of shareholders
specified in section 64(3) of the Act are required
for: |
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| 6.6.1.1 |
a shareholders meeting to begin; |
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| 6.6.1.2 |
the continuation of that shareholders meeting;
and |
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| 6.6.1.3 |
the consideration of any matter to be decided at
any shareholders meeting. |
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| 6.6.2 |
This Memorandum specifies 10 (ten) minutes (or
such longer or shorter period as the chairman of
the shareholders meeting may determine) in
substitution for the time period specified in
sections 64(4) and 64(5) of the Act for a quorum
to be established before a shareholders meeting
may be adjourned. |
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| 6.6.3 |
This Memorandum does not specify a different
period than the period of one week provided in
section 64(4) of the Act for the adjournment of a
shareholders meeting but the chairman of a
particular shareholders meeting may determine
otherwise in respect of that meeting. |
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|
| 6.7 |
Chairman |
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The chairman (if any) of the board, or in his
absence, the deputy or vice chairman (if any), shall
preside as chairman at every general meeting of
the company. If there is no such chairman or
deputy chairman or vice chairman, or at any
general meeting neither is present within 10 (ten)
minutes after the time appointed for holding the
meeting and willing to act, the directors present
shall choose one of their number (or, if no director
is present or if all of the directors present decline to
take the chair, the shareholders present and
entitled to vote shall choose one of their number)
to be the chairman of the meeting. |
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|
| 6.8 |
Voting at shareholders meetings |
| 6.8.1 |
Subject to any special terms as to voting upon
which any share may be issued or which may from
time to time attach to a share, on a show of hands,
every shareholder present in person or by proxy
and entitled to vote on a resolution shall have one
vote, and on a poll, every shareholder present in
person or by proxy and entitled to vote on a
resolution shall have one vote for each share held
by it. |
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|
| 6.8.2 |
A person who is entitled to more than 1 (one) vote
need not cast all his votes, nor cast them in the
same manner. |
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| 6.8.3 |
The parent or guardian of a minor, the curator
bonis of a lunatic shareholder and any person
entitled under 8.2 below to transfer any shares,
may vote at any general meeting in respect thereof
in the same manner as if he were the registered
holder of those shares, provided that at least 48
(forty eight) hours before the time of holding the
shareholders meeting at which he proposes to
vote, he satisfies the directors that he is such
parent, guardian or curator or that he is entitled
under 8.2 below to transfer those shares, or that
the directors have previously admitted his right to
vote in respect of those shares. |
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| 6.8.4 |
Where two or more persons are registered as joint
holders of a share, any one of them, whether in
person or by proxy, may vote as if he is the sole
holder thereof, provided that if more than one of
such joint holders are present at a shareholders
meeting in person or by proxy, only that holder
who is present and whose name appears first in
the securities register in respect of the share, shall
be entitled to vote. |
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|
| 6.8.5 |
At a general meeting a resolution put to the vote
of the general meeting shall be decided by a show
of hands, unless a poll is demanded – |
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|
| 6.8.5.1 |
by the chairman of the general meeting; |
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|
| 6.8.5.2 |
by at least 5 (five) persons having the right to vote
on that resolution, either as a shareholder or a
proxy representing a shareholder; or |
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|
| 6.8.5.3 |
a person who is, or persons who together are,
entitled to exercise at least 10% (ten per centum)
of the voting rights entitled to be exercised on that
resolution. |
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|
| 6.8.6 |
A demand for a poll may, before the poll is taken,
be withdrawn but only with the consent of the
chairman of the general meeting. A demand so
withdrawn shall not be taken to have invalidated
the result on a show of hands declared before the
demand was made. |
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|
| 6.8.7 |
A poll shall be taken in such manner and at such
time as the chairman of the general meeting may
direct, and the result of the poll shall be deemed to
be the resolution of the meeting in which the poll
was demanded. |
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|
| 6.8.8 |
The chairman of the general meeting may – |
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|
| 6.8.8.1 |
appoint any firm or persons to act as scrutineers
for the purpose of checking the powers of
attorney/proxies received and for counting the
votes at the general meeting; |
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|
| 6.8.8.2 |
act on a certificate given by any such scrutineers
without requiring production at the general
meeting of the forms of proxy or himself counting
the votes. |
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|
| 6.8.9 |
Any objection to the admissibility of any vote
(whether on a show of hands or on a poll) shall be
raised – |
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|
| 6.8.9.1 |
at the general meeting or adjourned general
meeting at which the vote objected to was
recorded; or |
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|
| 6.8.9.2 |
at the general meeting or adjourned general
meeting at which the result of the poll was
announced, |
| |
|
| |
and every vote not then disallowed shall be valid
for all purposes. Any objection made timeously
shall be referred to the chairman of the general
meeting for adjudication, whose decision shall be
final and conclusive. |
| |
|
| 6.8.10 |
Even if he is not a shareholder, any director or the
company’s attorney or auditor (or where the
company’s attorneys or auditors are a firm, any
partner or director thereof), may attend and speak
at any general meeting, but may not vote, unless
he is also a shareholder or the proxy of a
shareholder. |
| |
|
| 6.9 |
Adjournment of shareholders meetings |
| |
This Memorandum does not provide different
maximum periods for adjournment than those
specified in section 64(12) of the Act. |
| |
|
| 6.10 |
Shareholders’ resolutions |
| 6.10.1 |
This Memorandum does not require a higher
percentage of voting rights to approve an ordinary
resolution than the percentage voting rights
specified in the Act. |
| |
|
| 6.10.2 |
This Memorandum does not require a different
percentage of voting rights to approve a special
resolution than the percentage voting rights
specified in the Act. |
| |
|
| 6.10.3 |
Subject to the Listings Requirements, no matters
other than those contemplated in section 65(11)
of the Act require a special resolution. |
| |
|
| 6.10.4 |
No shareholders resolution in terms of section
20(2) of the Act may be proposed if such resolution
would result in the ratification of any act that is
contrary to the Listings Requirements, unless
otherwise permitted by the JSE. |
| |
|
| 6.11 |
Shareholders meetings in terms of the
Listings Requirements |
| |
Shareholders meetings that are called for the
purpose of passing any resolution required in
terms of the Listings Requirements may not be
voted on in writing as provided for in section 60 of
the Act, unless permitted by the JSE. |
| |
|
| 6.12 |
Notice of shareholders meetings to the JSE |
| 6.12.1 |
If required in terms of the Listings Requirements, a
copy of all notices of shareholders meetings must
be sent to the JSE at the same time as notices are
sent to shareholders. |
| |
|
| 6.12.2 |
All notices of shareholders meetings must also be
announced through the official news service of the
JSE at the same time as notices are sent to
shareholders, or as soon thereafter as is practicable. |
| |
|
| 7. |
DIRECTORS AND OFFICERS |
| 7.1 |
Composition of the board of directors |
| 7.1.1 |
The number of directors shall not be less than 6
(six) comprising the chief executive officer, the
chief financial officer, the chairman and 3 (three)
other non-executive directors. The maximum
number of directors shall be 30 (thirty). |
| |
|
| 7.1.2 |
Subject to 7.2, the shareholders shall elect the
directors, and shall be entitled to elect one or more
alternate directors, in accordance with the
provisions of section 68(1) of the Act. |
| |
|
| 7.1.3 |
Subject to 7.2, this Memorandum does not provide
for: |
| |
|
| 7.1.3.1 |
the direct appointment or removal of any director
or alternate director by any particular person; or |
| |
|
| 7.1.3.2 |
the appointment of any person as an ex officio
director of the company. |
| |
|
| 7.1.4 |
This Memorandum does not stipulate any
additional qualifications or eligibility requirements
than those set out in the Act for a person to
become or remain a director or a prescribed officer
of the company, provided that, for as long as the
Listings Requirements require it, the board,
through its nominations committee, should
recommend eligibility of directors, taking into
account past performance and contributions. |
| |
|
| 7.1.5 |
At every annual general meeting of the company,
one third of the directors for the time being or, if
their number is not a multiple of 3 (three), then the
number nearest to but not less than one third, or if
there are less than three directors, then all of the
directors, shall retire from office, provided that the
directors appointed in terms of 7.2 shall not be
taken into account in determining which directors
are to retire by rotation at the annual general
meeting immediately following their appointment. |
| |
|
| 7.1.6 |
The directors so to retire at every annual general
meeting shall be those who have been longest in
office since their last election. In the case of
persons who became directors on the same day,
those to retire shall (unless they otherwise agree
among themselves) be determined by lot. The
length of time a director has been in office shall be
computed from his last election, appointment or
date upon which he was deemed re-elected. |
| |
|
| 7.1.7 |
A director retiring at a general meeting shall retain
office until the election of directors at that general
meeting has been completed. |
| |
|
| 7.1.8 |
A retiring director may be re-elected, provided
that, for as long as the Listings Requirements
require it, the board, through its nominations
committee, has recommended his eligibility, taking
into account past performance and contribution
made. |
| |
|
| 7.1.9 |
No person other than a director retiring at the
meeting, shall, unless recommended by the
nominations committee, be eligible for election to
the office of director at any general meeting,
unless – |
| |
|
| 7.1.9.1 |
not more than 14 (fourteen), but at least 7 (seven)
clear days before the day appointed for the general
meeting, there shall have been delivered at the
registered office of the company a notice in writing
by a shareholder (who may also be the proposed
director) duly qualified to be present and vote at
the general meeting for which such notice was
given; |
| |
|
| 7.1.9.2 |
such notice sets out the shareholder’s intention to
propose a specific person for election as director;
and |
| |
|
| 7.1.9.3 |
notice in writing by the proposed person of his
willingness to be elected is attached thereto
(except where the proposer is the same person as
the proposed). |
| |
|
| 7.1.10 |
Without derogation from 7.1.5 or any provision of
the Act, the office of a director shall be vacated
upon the happening of any of the following
events: |
| |
|
| 7.1.10.1 |
if his estate is sequestrated (whether provisionally
or finally) or he surrenders his estate or enters into
a general compromise with his creditors; |
| |
|
| 7.1.10.2 |
if he is found to be or becomes of unsound mind; |
| |
|
| 7.1.10.3 |
if a majority of his co-directors sign and deposit at
the registered office a written notice wherein he is
requested to vacate his office (which shall become
operative on deposit at the registered office) but
without prejudice to any claim for damages; |
| |
|
| 7.1.10.4 |
if a written notice to that effect signed by
shareholders holding more than 50% (fifty
percent) of the issued shares is delivered at the
registered office of the company, with effect from the date stated in such notice (but without
prejudice to any claim for damages); |
| |
|
| 7.1.10.5 |
if he be removed by a resolution of the company
of which proper notice has been given in terms of
the Act (but without prejudice to any claim for
damages); |
| |
|
| 7.1.10.6 |
if he is, pursuant to the provisions of the Act or any
order made in terms of the Act or the Listings
Requirements, prohibited from acting as a director; |
| |
|
| 7.1.10.7 |
if he resigns his office by notice in writing to the
company; |
| |
|
| 7.1.10.8 |
if he is absent from meetings of directors for more
than 6 (six) consecutive months, without leave of
the directors and the directors resolve that his
office be, by reason of his absence, vacated. The
directors shall have the power to grant any
directors not resident in the Republic leave of
absence for a definite or indefinite period. |
| |
|
| 7.1.11 |
Subject to the Act, all acts performed by the
directors or by a committee of directors or by any
person acting as a director or a member of a
committee shall, notwithstanding that it shall
afterwards be discovered that there was some
defect in the appointment of the directors or
persons acting as aforesaid, or that any of them
were disqualified from or had vacated office, be as
valid as if every such person had been duly
appointed and was qualified and had continued to
be a director or member of such committee. |
| |
|
| 7.2 |
Vacancies |
| 7.2.1 |
The board may appoint any person who satisfies
the requirements for election as a director to fill
any vacancy and serve as a director on a temporary
basis until the vacancy is filled by election in
accordance with section 68(1) of the Act. |
| |
|
| 7.2.2 |
In addition, the chairman of the board shall be
entitled to appoint any person who satisfies the
requirements for election as a director and who is
approved by the board, as an additional director,
to serve on a temporary basis until the appointment
is confirmed at the next annual general meeting. |
| |
|
| 7.2.3 |
If the number of directors falls below the minimum
provided for in this Memorandum, the remaining
directors must as soon as possible and in any event
not later than three months from the date that the
number of directors falls below the minimum, fill
the vacancies or call a general meeting for the
purpose of filling the vacancies |
| |
|
| 7.2.4 |
If required by the Listings Requirements: |
| |
|
| 7.2.4.1 |
the appointment of a director to fill a vacancy or as
an addition to the board must be confirmed by
shareholders at the next annual general meeting;
and |
| |
|
| 7.2.4.2 |
after the expiry of the three month period the
remaining directors shall only be permitted to act for the purpose of filling vacancies or calling
general meetings of shareholders. |
| |
|
| 7.3 |
Authority of the board of directors |
| |
The business and affairs of the company shall be
managed by or under the direction of the board,
which has the authority to exercise all of the
powers and perform any of the functions of the
company, except as expressly provided for in this
Memorandum. |
| |
|
| 7.4 |
Directors’ meetings |
| 7.4.1 |
A decision that could be voted on at a meeting of
the board may instead be adopted by written
consent of a majority of the directors (or their
alternate directors, if applicable), given in person,
or by electronic communication, provided that
each director (or their alternate directors, if
applicable) has received notice of the matter to be
decided. A resolution passed in the aforementioned
way shall be as valid and effective as if it had been
passed at a board meeting. Any such resolution
may consist of several documents, each of which
may be signed by one or more directors (or their
alternate directors, if applicable) and shall be
deemed to have been passed on the date on
which it was signed by the last director required to
constitute a majority of the directors (unless a
statement to the contrary is made in that
resolution). A resolution passed in the
aforementioned manner shall be inserted in the
minute book. |
| |
|
| 7.4.2 |
The percentage or number of directors upon
whose request a meeting of the board must be
called in terms of section 73(1) of the Act is not
amended by this Memorandum. |
| |
|
| 7.4.3 |
This Memorandum does not restrict the board
from conducting meetings, or directors from
participating in meetings, by electronic
communication, as contemplated in section 73(3)
of the Act. |
| |
|
| 7.4.4 |
This Memorandum does not limit, restrict or
qualify the authority of the board to determine the
manner and form of giving notice of its meetings. |
| |
|
| 7.4.5 |
This Memorandum does not limit, restrict or
qualify the authority of the board to proceed with
a board meeting in accordance with the
requirements of section 73(5)(a) of the Act, despite
a failure or defect in giving notice of the meeting. |
| |
|
| 7.4.6 |
The quorum requirement for a directors’ meeting
to begin shall be 5 (five) directors, one of whom
must be a non-executive director. |
| |
|
| 7.4.7 |
The voting rights at a directors’ meeting, and the
requirements for approval of a resolution at such a
meeting, as set out in section 73(5) of the Act, are
not varied by this Memorandum. |
| |
|
| 7.5 |
Chairman |
| 7.5.1 |
The directors may elect from their number a
chairman and a deputy or vice chairman (to act in
the absence of the chairman) of their meetings and determine the period for which each is to hold
office. The directors may also remove any of them
from such office at any time. |
| |
|
| 7.5.2 |
If no chairman or deputy or vice chairman is
elected, or if at any meeting of the directors, the
chairman or deputy or vice chairman is not present
within 15 (fifteen) minutes after the time appointed
for holding the meeting, the directors present shall
choose 1 (one) of their number to be chairman at
such meeting. |
| |
|
| 7.5.3 |
Subject to the Listings Requirements, in the case of
an equality of votes at any meeting of the directors,
the chairman shall have a second or casting vote. |
| |
|
| 7.6 |
Director may be employed in the company or
subsidiary |
| 7.6.1 |
A director may be employed in any other capacity
in the company or as a director or employee of a
subsidiary of the company and, in such event, his
appointment and remuneration in respect of such
other office must be determined by a disinterested
quorum of directors. |
| |
|
| 7.6.2 |
Without derogation from 7.6.1, the board may
from time to time – |
| |
|
| 7.6.2.1 |
appoint from their number managing and other
executive directors (with or without specific
designation) of the company; |
| |
|
| 7.6.2.2 |
confer such powers for such time and to be
exercised for such objects and purposes and upon
such terms and conditions and with such
restrictions, as they think expedient; |
| |
|
| 7.6.2.3 |
from time to time revoke, withdraw or vary such
powers. |
| |
|
| 7.7 |
Committees and delegation |
| 7.7.1 |
Without derogation from any of the provisions of
the Act, nothing in this Memorandum (including
this 7.7.1) limits, restricts or qualifies the authority
of the board to appoint any number of committees
of directors, or to delegate to any such committee
or to any person any of the authority of the board. |
| |
|
| 7.7.2 |
Except to the extent that a board resolution
establishing a committee provides otherwise, the
members of the committee: |
| |
|
| 7.7.2.1 |
may include persons who are not directors of the
company but any such person must not be
ineligible or disqualified to be a director in terms of
section 69 of the Act. Any such persons shall not
have a vote on any matter to be decided by the
committee; |
| |
|
| 7.7.2.2 |
may be remunerated for their services as such; |
| |
|
| 7.7.2.3 |
may consult with or receive advice from any
person; |
| |
|
| 7.7.2.4 |
provided that the committee is duly constituted,
have the full authority of the board in respect of
any matter referred to it. |
| |
|
| 7.7.3 |
Without derogation from any provisions of the
Act, the board may from time to time, where it has
established a committee or delegated any authority
of the board to any person in terms of 7.7.1 and
7.7.2 above include in any such delegation the
power to sub-delegate the powers referred to in
7.7.1 and 7.7.2 above to such person or persons
as the committee or the person, as the case may
be, thinks fit, subject to such terms and conditions
as the committee or person may think fit, and may
from time to time revoke, withdraw, alter or vary
all or any such powers. |
| |
|
| 7.8 |
Local boards and agencies |
| 7.8.1 |
The directors may establish any local boards or
divisional boards or agencies to manage any of the
affairs of the company, either in South Africa or
elsewhere, and may: |
| |
|
| 7.8.1.1 |
appoint persons to be members of such local or
divisional boards or agencies, and may fix their
remuneration; |
| |
|
| 7.8.1.2 |
delegate to any local or divisional board or agency
any of the powers, authorities and discretions
vested in the directors (with or without the power
to sub-delegate); |
| |
|
| 7.8.1.3 |
authorise the members of any local or divisional
board or agency, or any of them, to fill any vacancy,
and to act despite any vacancy; |
| |
|
| 7.8.1.4 |
remove any person so appointed, and annul or
vary any such delegation; |
| |
|
| |
subject to such terms and conditions as the
directors may think fit. |
| |
|
| 7.9 |
Directors compensation and financial
assistance to directors |
| 7.9.1 |
This Memorandum does not limit, restrict or
qualify the power of the company to pay
remuneration to its directors for their service as
directors in accordance with section 66(9) of the
Act. |
| |
|
| 7.9.2 |
Subject to the provisions of the Act, any director
who – |
| |
|
| 7.9.2.1 |
serves on any executive committee or other
committee; or |
| |
|
| 7.9.2.2 |
devotes special attention to the business of the
company; or |
| |
|
| 7.9.2.3 |
goes or resides outside the Republic for the
purpose of the company; or |
| |
|
| 7.9.2.4 |
otherwise performs or binds himself to perform
services which, in the opinion of the directors, are
outside the scope of the ordinary duties of a
director; |
| |
|
| |
may be paid such extra remuneration or allowances
in addition to or in substitution for any other
remuneration to which he may be entitled as a
director, as a disinterested quorum of directors
may from time to time determine. |
| |
|
| 7.9.3 |
The directors shall also be paid all their travelling,
hotel and other expenses properly and necessarily
expended by them – |
| |
|
| 7.9.3.1 |
in and about the business of the company; and |
| |
|
| 7.9.3.2 |
in attending general meetings of the directors or
of committees of the directors of the company. |
| |
|
| 7.9.4 |
This Memorandum does not limit, restrict or
qualify the authority of the board to authorise the
company to provide direct or indirect financial
assistance to directors or persons related to
directors contemplated in section 45 of the Act. |
| |
|
| 7.10 |
Indemnification of directors |
| 7.10.1 |
For the purposes of this 7.10, ‘director’ shall have
the meaning ascribed to that term in section 78(1)
of the Act. |
| |
|
| 7.10.2 |
This Memorandum does not limit, restrict or
qualify the ability of the company to advance
expenses to a director to defend any legal
proceedings arising from his service to the
company, or to indemnify a director against such
expenses if the proceedings are abandoned or
exculpate the director or arise in respect of any
liability for which the company may indemnify the
director in terms of sections 78(5) and 78(6) of the
Act. |
| |
|
| 7.10.3 |
This Memorandum does not limit, restrict or
qualify the power of the company to indemnify a
director in respect of any liability arising out of the
director’s service to the company to the fullest
extent permitted by the Act. |
| |
|
| 7.10.4 |
This Memorandum does not limit, restrict or
qualify the ability of the company to purchase
insurance to protect a director against any liability
or expenses for which the company is permitted to
indemnify a director in terms of the Act and this
Memorandum, or to protect the company against
any contingency including, but not limited to: |
| |
|
| 7.10.4.1 |
any expenses that the company is permitted to
advance or for which the company is permitted to
indemnify a director in terms of the Act; or |
| |
|
| 7.10.4.2 |
any liability for which the company is permitted to
indemnify a director in terms of the Act. |
| |
|
| 8. |
GENERAL PROVISIONS |
| 8.1 |
Director’s interests |
| 8.1.1 |
For the purposes of this 8.1, ‘director’ shall have
the meaning ascribed to that term in section 78(1)
of the Act. |
| |
|
| 8.1.2 |
A director who has any interest in a contract or
arrangement or proposed contract or arrangement
with the company shall declare the nature of his
interest in accordance with the provisions of
section 75. |
| |
|
| 8.1.3 |
Subject to the Act and the Listings Requirements,
a director may be or become a director or other
officer of, or otherwise interested in, any company
in which the company may be interested as a
shareholder or otherwise and (except insofar as
otherwise decided by the directors) he shall not be
accountable to the company for any remuneration
or other benefits received by him as a director or
officer of or from his interest in such other
company. |
| |
|
| 8.1.4 |
A director may act, or any firm of which he is a
member may act, in a professional capacity (other
than that of auditor) for the company and he (or
his firm) shall be entitled to remuneration for those
professional services. |
| |
|
| 8.1.5 |
Subject to the Act, no director or intending director
shall be disqualified by his office from contracting
with the company with regard to – |
| |
|
| 8.1.5.1 |
his tenure of any other office or place of profit
under the company or in any company in which
the company is interested; |
| |
|
| 8.1.5.2 |
professional services rendered or to be rendered by
such director; |
| |
|
| 8.1.5.3 |
any transaction with the company. |
| |
|
| 8.1.6 |
No such contract entered into by or on behalf of
the company in which any director is interested is
in any way voidable, except as otherwise provided
by the Act. |
| |
|
| 8.1.7 |
No director so contracting shall be liable to account
to the company for any profit realised by any such
appointment or contract by reason of such director
holding office or of the fiduciary relationship
thereby established, except as otherwise provided
by the Act. |
| |
|
| 8.1.8 |
The directors may exercise the voting powers
conferred by the shares held or owned by the
company in any other company in such manner in
all respects as they think fit, including the exercise
thereof in favour of any resolution appointing
themselves or any of them to be directors or
officers of such other company or for determining
any payment of or remuneration to the directors
or officers of such other company. |
| |
|
| 8.1.9 |
A director may vote in favour of a resolution
referred to in 8.1.5 for the exercise of the voting
rights in the manner described in 8.1.5
notwithstanding that he may be, or is about to
become, a director or other officer of such other
company and for that or any other reason may be
interested in the exercise of such voting rights in
the manner aforesaid. |
| |
|
| 8.2 |
Transmission of Shares |
| 8.2.1 |
Persons entitled on death of holder |
| |
|
| 8.2.1.1 |
Subject to any law relating to securities transfer tax
or estate duty, the executor or administrator of the
estate of a deceased shareholder (not being one of
several joint holders) shall be the only person recognised by the company as having any right to
a share registered in the name of such deceased
shareholder. |
| |
|
| 8.2.1.2 |
In the case of the death of any 1(one) or more joint
holders of any share, the survivor or survivors, or
the executor or administrator of the estate of the
deceased joint holder, shall be the only person or
persons recognised by the company as having any
title to or interest in such share. |
| |
|
| 8.2.2 |
Rights of persons entitled by transmission |
| |
|
| 8.2.2.1 |
Any person becoming entitled to a share in
consequence of the legal incapacity of a
shareholder, or by any lawful means otherwise
than by transfer in accordance with this
Memorandum – |
| |
|
| 8.2.2.1.1 |
may, on production of such evidence of his right,
with the consent of the directors (which they shall
not be obliged to give) either be registered himself
as a shareholder in respect of such shares or elect
to have some person nominated by him registered
as the transferee thereof; |
| |
|
| 8.2.2.1.2 |
shall be entitled to the same distribution and other
advantages to which he would be entitled if he
were the registered holder of the share, except
that he shall not be entitled in respect thereof to
exercise any right conferred by his shareholding in
relation to meetings of the company until he shall
have been registered as a shareholder in respect of
the share. |
| |
|
| 8.2.3 |
Election by persons entitled by transmission |
| |
|
| 8.2.3.1 |
If the person becoming entitled as referred to in
8.2.2 shall elect to – |
| |
|
| 8.2.3.1.1 |
be registered himself, he shall notify the company
accordingly in writing; or |
| |
|
| 8.2.3.1.2 |
have his nominee registered, he shall testify his
election by executing an instrument of transfer for
such share in favour of his nominee. |
| |
|
| 8.2.3.2 |
A person who submits proof of his appointment as
the executor, administrator, trustee, curator or
guardian in respect of the estate of a deceased
shareholder of the company or the estate of a
shareholder whose estate has been sequestrated,
or who is otherwise under a disability, or as the
liquidator of any body corporate which is a
shareholder of the company, shall be entered in
the securities register of the company nominee
officii, and shall thereafter for all purposes be
deemed to be a shareholder of the company. |
| |
|
| 8.2.4 |
All the limitations, restrictions and provisions of
this Memorandum relating to the right to transfer
and the registration of shares, shall be applicable
to any such notice of transfer or registration under
8.2.1 and 8.2.2 as if the legal incapacity or other
means had not occurred and the notice or transfer
was a transfer executed. |
| |
|
| 8.3 |
Joint Holders |
| 8.3.1 |
Subject to the Act, the certificates evidencing any
certificated shares shall, in the case of shares
registered in the names of 2 (two) or more persons,
be delivered to the person first named in the
register in respect thereof, or to his authorised
agent, and such delivery shall be a sufficient
delivery to all joint holders of the share. |
| |
|
| 8.3.2 |
In the case of the legal incapacity of any 1 (one) or
more of the joint holders of any shares held in
certificated form, the survivor then first named in
the securities register shall be the only person
recognised by the company as being entitled to
such certificate, or any new certificate which may
be issued in place thereof. |
| |
|
| 8.3.3 |
Where 2 (two) or more persons are entitled to a
share by transmission, they shall be deemed to be
joint holders of the share. |
| |
|
| 8.3.4 |
Co-executors of a deceased shareholder in whose
name shares stand in the securities register shall be
deemed to be joint holders of those shares. |
| |
|
| 8.3.5 |
All notices shall, unless the joint holders otherwise
in writing request and the directors agree, be given
to that holder whose names stands first in the
securities register. A notice so given shall be
deemed sufficient notice to all the joint holders. |
| |
|
| 8.4 |
Notices to legally incapacitated holder |
| |
Any notice or other document delivered or sent by
post to the registered address of the shareholder,
notwithstanding that such shareholder be then
under legal incapacity and the company had notice
of his legal incapacity, be deemed, subject to the
Act, to have been duly served in respect of any
share registered in the name of such shareholder
as sole or joint holder unless his name, at the time
of the service or despatch of the notice or
document, has been removed from the securities
register. |
| |
|
| 8.5 |
Distributions |
| 8.5.1 |
The board, alone, shall have the authority to make
distributions, in accordance with the Act and the
Listings Requirements. |
| |
|
| 8.5.2 |
Manner of payment |
| |
|
| 8.5.2.1 |
Any distribution, interest or other sum payable in
cash to the holder of a share may be paid by – |
| |
|
| 8.5.2.1.1 |
cheque sent through the post addressed to – |
| |
|
| 8.5.2.1.1.1 |
the holder at his registered address; |
| |
|
| 8.5.2.1.1.2 |
in the case of joint holders, the holder whose
name stands first in the securities register in
respect of the share, at his registered address; or |
| |
|
| 8.5.2.1.1.3 |
such person and at such address as the holder or
joint holders may in writing direct, |
| |
|
| 8.5.2.1.2 |
by electronic bank transfer to – |
| |
|
| 8.5.2.1.2.1 |
the holder into such bank account as the holder
may direct in writing; |
| |
|
| 8.5.2.1.2.2 |
in the case of joint holders, the holder whose
name stands first in the securities register in
respect of the share, into such bank account as he
may direct in writing. |
| |
|
| 8.5.2.2 |
Every such payment shall be at the risk of the
person or persons entitled to the money
represented thereby. |
| |
|
| 8.5.2.3 |
A payment by electronic bank transfer in
accordance with the bank account details given by
the holder shall be a good discharge by the
company. |
| |
|
| 8.5.2.4 |
A payment of a cheque by the banker upon whom
it is drawn, and any transfer or payment in terms
of this shall be a good discharge by the company. |
| |
|
| 8.5.2.5 |
Every such cheque shall be made payable to the
order of the person to whom it is addressed, and
be sent at the risk of the holder or joint holders. |
| |
|
| 8.5.2.6 |
The company shall not be responsible for the loss
in transmission of any cheque or of any document
(whether similar to a cheque or not) sent by post
as aforesaid. |
| |
|
| 8.5.2.7 |
A holder or any 1 (one) of 2 (two) or more joint
holders, or his or their agent duly appointed in
writing, may give valid receipts for any monies
paid in respect of a share held by such holder or
joint holders. |
| |
|
| 8.5.2.8 |
A distribution may also be paid in any other way
determined by the directors, and if the directives
of the directors are complied with, the company
shall not be liable for any loss or damage which a
shareholder may suffer as a result thereof. |
| |
|
| 8.5.2.9 |
Subject to the provisions of this Memorandum and
to the rights attaching to any shares, any
distribution payable on or in respect of a share
may be paid in such currency as the directors may
determine, using such exchange rate for currency
conversions as the directors may select. |
| |
|
| 8.5.2.10 |
The company may cease to send any cheque by post for any distribution on any shares which is
normally paid in that manner if in respect of at
least two consecutive distributions payable on
those shares the cheque has been returned
undelivered or remains uncashed but, subject to
the provisions of this Memorandum, shall
commence sending cheques in respect of the
distributions payable on those shares if the holder
or person entitled by transmission claims the
arrears of dividend and does not instruct the
company to pay future distributions in some other
way. |
| |
|
| 8.5.2.11 |
Without derogation from any other provision of
this 8.5, the directors may from time to time make
such regulations as they think fit regarding the payment of distributions to shareholders having
registered addresses outside the Republic. Such
regulations may provide for the payment of such
distributions in any foreign currency and the rate
of exchange at which such payment shall be made. |
| |
|
| 8.5.2.12 |
Where any difficulty arises in regard to any
distribution involving a specific asset or assets, the
directors may settle that difficulty as they think
expedient and in particular may fix the value which
shall be placed on such specific assets or asset on
distribution. |
| |
|
| 8.5.3 |
Capitalisation |
| 8.5.3.1 |
Without derogation from the powers of the board,
the board may – |
| |
|
| 8.5.3.1.1 |
capitalise any amount (or part thereof) standing to
the credit of any of the company’s reserves, any
share premium account or capital redemption
reserve fund or income statement, otherwise
available for distribution and not required for
the payment of the fixed dividends on any
preference share; |
| |
|
| 8.5.3.1.2 |
resolve that such amount be appropriated for
distribution among the shareholders or any class
of shareholders in the same ratio as they would be
entitled thereto if distributed by way of dividend
on the basis that the same be not paid in cash but
be applied in paying up in full unissued securities
then to be issued, credited as fully paid-up to such
shareholders; |
| |
|
| 8.5.3.1.3 |
resolve that any surplus monies in the hands of the
company representing capital profits arising from
the realisation of any capital assets and not
required for the payment of any fixed preferential
dividend, shall be distributed among the ordinary
shareholders. |
| |
|
| 8.5.3.2 |
If any difficulty arises in regard to any distribution
under 8.5.3.1, the directors may settle the same as
they deem fit. |
| |
|
| 8.5.3.3 |
The directors may make all appropriations and
applications of undivided profits or the sum
capitalised and all allotments and issues of fully
paid up securities, if any, and are generally
authorised to do all acts and things required to
give effect thereto, whether by – |
| |
|
| 8.5.3.3.1 |
the consolidation of any fraction of a share with
any other fraction, and the making of arrangements
for the allotment or sale of the consolidated share; |
| |
|
| 8.5.3.3.2 |
the appointment of any person to sell and transfer
the consolidated share; or |
| |
|
| 8.5.3.3.3 |
the payment of such portion of the proceeds of
such sale as is attributable to any fraction so
consolidated to the person who could otherwise have been entitled to such fraction or otherwise
deal therewith in such manner as they deem fit; |
| |
|
| 8.5.3.3.4 |
providing that fractions shall be ignored altogether; |
| |
|
| 8.5.3.3.5 |
payment in cash or otherwise, as the directors
deem fit, in the case of shares or debentures
distributable in fractions. |
| |
|
| 8.5.3.4 |
The directors may also appoint any person to
enter, on behalf of all shareholders entitled to the
benefit of such appropriations and applications or
to participate in such distributions, into any
contract requisite for giving effect thereto, and
such appointment and contract shall be binding
on all such shareholders. |
| |
|
| 8.5.4 |
No interest |
| |
No distribution shall bear interest against the
company, except as otherwise provided under the
conditions of issue of the shares in respect of
which such distribution is payable. |
| |
|
| 8.5.5 |
Unclaimed distributions |
| 8.5.5.1 |
For so long as is required by the Listings
Requirements, any unclaimed distributions due to
shareholders must be held by the company for the
benefit of those shareholders, provided that
distributions unclaimed for a period of 3 (three)
years from the date on which they were made may
be declared forfeited by the directors for the
benefit of the company. |
| |
|
| 8.5.5.2 |
Notwithstanding 8.5.5.1 above, any distribution,
other than a dividend, made on or in respect of a
security prior to the adoption of this Memorandum,
must be held by the company for the benefit of
the holder of that security, provided that
distributions unclaimed for a period of not less
than five years from the date on which such
distributions were made may be declared to be
forfeited by the directors for the benefit of the
company. |
| |
|
| 8.6 |
Odd lot offer |
| |
If, upon the implementation of any odd-lot offer
made by the company, or pursuant to or following
any odd-lot offer made by the company which is
unconditional, in accordance with the Listings
Requirements, there are shareholders holding less
than 100 ordinary shares or shareholders holding
less than 100 ordinary shares on behalf of a person
who owns the beneficial interest in such shares
(“odd-lot holdings”), then, unless such
shareholders have elected to retain their odd-lot
holdings, the directors shall, with the approval of
an ordinary resolution, be entitled to cause the
odd-lot holdings to be sold on such basis as the
directors may determine and the company shall
account to such shareholders for the proceeds
attributable to them pursuant to the sale of such
odd-lot holdings. |
| |
|
| 9. |
6% CUMULATIVE PREFERENCE SHARES |
| 9.1 |
The 500 000 (five hundred thousand) 6%
cumulative preference shares of R2 (two Rand)
each (each of which is referred to as a "preference
share") shall carry the following special rights and
privileges and be subject to the following special
conditions and restrictions: |
| |
|
| 9.1.1 |
the right to receive out of the profits of the
company which it shall from time to time be
determined to distribute a fixed cumulative
preferential dividend at the rate of six per centum
(6%) per annum, calculated on the capital from
time to time, paid up or deemed to be paid up
thereon, payable half-yearly on the 30th of April
and 31st October in each year in respect of the
half-yearly period ending on the previous 31st
March and 30th September; |
| |
|
| 9.1.2 |
the said preference shares, after having received
the said fixed preferential dividend, shall not
participate further in the company’s profits in
any year; |
| |
|
| 9.1.3 |
in the case of a winding-up of the company, the
said preference shares shall be entitled in priority
to the ordinary shares to repayment of the nominal
amount of the capital paid up or deemed to be
paid up thereon and any arrears of cumulative
preferential dividend, whether declared or not, up
to the date of commencement of the winding-up,
but they shall not be entitled to any further
participation in the capital or profits of the
company; |
| |
|
| 9.1.4 |
no new shares ranking prior to or ranking pari
passu with the said preference shares shall be
created or issued save with the consent in writing
of the holders of three-quarters of the said
preference shares, or with the sanction of a
resolution passed, in the same manner, mutatis
mutandis, as a special resolution of the company,
at a separate general meeting of the holders of the
said preference shares. |
| |
|
| 9.2 |
The holders of preference shares shall be entitled
to receive notice of and to attend general meetings
but shall not be entitled to vote upon any
resolution at any general meeting other than a
resolution – |
| |
|
| 9.2.1 |
for the winding up the company; |
| |
|
| 9.2.2 |
to reduce the share capital of the company; |
| |
|
| 9.2.3 |
adversely affecting the class rights or privileges of
such preference shares; |
| |
|
| 9.2.4 |
ratifying or confirming any provisional contract
made by the directors for or otherwise – |
| |
|
| 9.2.4.1 |
sanctioning the sale or abandonment of – |
| |
|
| 9.2.4.1.1 |
the undertaking of the company; or |
| |
|
| 9.2.4.1.2 |
of all or the major portion of the property and
assets of the company, or |
| |
|
| 9.2.4.2 |
the absolute alienation of the whole or major
portion of the property and assets of the company
and the rights belonging thereto or connected
therewith,
unless at the date of the notice convening the general
meeting in question, the fixed cumulative
preferential dividend on such shares in respect of
any half year is in arrear for more than 12 (twelve)
months and so that for this purpose the dividend
shall be deemed to be payable half-yearly on the
dates mentioned in 9.1.1 in respect of the periods
mentioned in that article. In that event any holder
of such 6% (six percent) cumulative preference
shares who (being an individual) is present in
person, or (being a company) is present by a
representative or proxy, not being himself a
shareholder, who is entitled to vote at a general
meeting, shall, on a show of hands, have one vote
on the resolution on which he is entitled to vote,
and being present in person or by proxy shall, on a
poll on any such resolution, have that proportion
of the total votes in the company which the
aggregate amount of the nominal value of the 6%
(six percent) cumulative preference shares held by
him bears to the aggregate amount of the nominal
value of all the shares issued by the company. |
| |
SCHEDULE 1 – AUTHORISED SHARES |
| A. |
Classified shares |
| 1. |
400 000 000 (four hundred million) ordinary par
value shares of R0.05 (five cents) each, each of
which shall entitle the holder, subject to any
preferences, rights or other share terms of any
class of shares in the company ranking prior to the
ordinary shares: |
| |
|
| (i) |
to vote on any matter to be decided by
shareholders; |
| |
|
| (ii) |
to receive any distribution in accordance with the
holder’s voting power; |
| |
|
| (iii) |
on a liquidation of the company, to receive the net
assets of the company in accordance with the
holder’s voting power; |
| |
|
| (iv) |
to all of the preferences, rights or other terms set
out in the Act or this Memorandum; |
| |
|
| (v) |
to any other rights at common law insofar as such
rights are not inconsistent with this Memorandum
or the Act. |
| |
|
| 2. |
The 500 000 (five hundred thousand) 6%
cumulative preference shares of R2 (two Rand)
each, each of which shall entitle the holder to all of
the preferences, rights or other terms set out in 9. |
| |
|
| B. |
Unclassified shares |
| |
None. |
