memorandum of incorporation of senwesbel limited
TRANSCRIPT
MEMORANDUM OF INCORPORATION
OF
SENWESBEL LIMITED
A PUBLIC COMPANY
(Registration Number 1996/017629/06)
Registration Date: 11 December 1996
TABLE OF CONTENTS
1 DEFINITIONS AND INTERPRETATION 1
2 JURISTIC PERSONALITY 4
3 POWERS OF THE COMPANY 4
4 LIMITATION OF LIABILITY 4
5 RESTRICTIVE CONDITIONS 5
6 ISSUE OF SHARES AND VARIATION OF RIGHTS 5
7 SHARE CERTIFICATES 8
8 TRANSFER OF SECURITIES 8
9 DECEASED ESTATES 9
10 FRACTIONS OF SHARES 10
11 JOINT HOLDERS OF SHARES 10
12 BENEFICIAL INTERESTS IN SECURITIES 11
13 FINANCIAL ASSISTANCE 11
14 CAPITALISATION SHARES 12
15 DEBT INSTRUMENTS 12
16 RECORD DATE FOR EXERCISE OF SHAREHOLDER RIGHTS 13
17 DISTRIBUTIONS 14
18 ACCESS TO COMPANY RECORDS 16
19 GENERAL MEETINGS OF SHAREHOLDERS 18
20 PROXIES 22
21 NOTICES AND ELECTRONIC COMMUNICATION 24
22 SHAREHOLDERS’ RESOLUTIONS 27
23 SHAREHOLDERS ACTING OTHER THAN AT A GENERAL MEETING 29
24 POWERS OF THE BOARD 29
25 COMPOSITION OF THE BOARD 30
26 ELECTION OF DIRECTORS 31
27 BOARD MEETINGS AND DECISIONS BY THE BOARD 35
28 DISCLOSURE OF DIRECTORS’ INTERESTS 37
29 DIRECTORS’ REMUNERATION 38
30 QUALIFYING SHARES 38
31 INDEMNIFICATION OF DIRECTORS 38
32 BORROWING POWERS 39
33 COMMITTEES OF THE BOARD 40
34 COMPANY RULES 44
35 COMPANY SECRETARY 44
36 BRANCH REGISTER 44
37 QUALIFICATION REQUIREMENTS FOR SHAREHOLDERS 44
38 NO LIEN AND PRE-EXISTING SECURITY IN FAVOUR OF SENWES 46
39 AMENDMENT OF MOI 47
1
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Memorandum of Incorporation, unless clearly inconsistent with or otherwise
indicated by the context, the following words shall bear the following meanings and
cognate expressions bear cognate meanings –
1.1.1 “Act” means the Companies Act, No. 71 of 2008, as amended;
1.1.2 “Board” means the board of directors from time to time of the Company;
1.1.3 “Company” means Senwesbel Limited, registration number 1996/017629/06,
duly incorporated;
1.1.4 “EFT” means electronic funds transfer;
1.1.5 “Electronic Communication” has the meaning set out in section 1 of the
Electronic Communications and Transactions Act, No. 25 of 2002, as
amended;
1.1.6 “General Meeting” means the annual general meeting, any general meeting
and any special general meeting of the Company, unless otherwise indicated
by the context;
1.1.7 “MOI” means this Memorandum of Incorporation;
1.1.8 “Regulations” means the regulations published in terms of the Act, from time
to time;
1.1.9 “Republic” means the Republic of South Africa;
1.1.10 “Securities” means –
1.1.10.1 any shares, notes, bonds, debentures or other instruments, irrespective
of their form or title, issued, or authorised to be issued, by the
Company; or
2
1.1.10.2 anything falling within the meaning of “Securities” as set out in section 1
of the Securities Services Act No. 36 of 2004 (as amended), and
includes shares held in a private company;
1.1.11 “Securities Register” means the register of issued Securities of the
Company required to be established in terms of section 50(1) of the Act;
1.1.12 “Senwes” means Senwes Limited (registration number 1997/005336/06);
1.1.13 “Senwes Shares” means the ordinary shares in the issued share capital of
Senwes from time to time and for the time being (including any further shares,
of any class, issued to holders of Senwes Shares); and
1.1.14 “Solvency and Liquidity Test” has the meaning attributed thereto in section
4 of the Act.
1.2 Interpretation
1.2.1 In this MOI, unless clearly inconsistent with or otherwise indicated by the
context –
1.2.1.1 words and expressions defined in the Act and which are not defined
herein, shall have the meanings given to them in the Act;
1.2.1.2 a reference to the Act shall include reference to all schedules thereto
and the Regulations;
1.2.1.3 a reference to a section by number refers to the corresponding section
of the Act;
1.2.1.4 a reference to a clause by number refers to a corresponding provision
of this MOI; and
1.2.1.5 any reference to the singular includes the plural and vice versa, any
reference to natural persons includes legal persons and vice versa and
any reference to a gender includes the other gender.
3
1.2.2 The headings in this MOI have been inserted for ease of reference only and
shall not be taken into account in its interpretation.
1.2.3 Where any term is defined within the context of any particular clause in this
MOI, the term so defined shall, unless it is clear from the clause in question
that the term so defined has limited application to that specific clause only,
bear the same meaning ascribed to it for all purposes in terms of this MOI,
notwithstanding that such term has not been defined in this clause 1.
1.2.4 Any reference to a notice shall be construed as a reference to a written
notice, and shall include a notice that is transmitted electronically in a manner
or form permitted in terms of the Act and/or the Regulations.
1.2.5 Any reference in this MOI to –
1.2.5.1 “days” means a calendar day, unless qualified by the word “business”,
in which instance a “business day” will be any day other than a
Saturday, Sunday or public holiday as gazetted by the government of
the Republic from time to time; and
1.2.5.2 “writing” means legible writing and in English and/or Afrikaans and
includes printing, typewriting, lithography or other mechanical process,
as well as any electronic communication in a manner and a form
permitted in terms of the Act and/or the Regulations.
1.2.6 The use of the words “include” and “including” in this MOI followed by a
specific example or examples shall not be construed or interpreted as limiting
the meaning of the general wording preceding it and the eiusdem generis rule
shall not be applied in the interpretation of such general wording and/or such
specific example or examples and the words “other” or “otherwise” shall not
be construed eiusdem generis with any preceding words where a wider
construction is possible.
4
2 JURISTIC PERSONALITY
2.1 The Company is a pre-existing company as defined in the Act and, as such,
continues to exist as a public company as if it had been incorporated and registered
in terms of the Act, as contemplated in Item 2 of the Fifth Schedule to the Act, and
this MOI replaces and supersedes the memorandum of incorporation and articles of
association of the Company applicable immediately prior to the filing hereof.
2.2 The Company is incorporated in accordance with and governed by –
2.2.1 the unalterable provisions of the Act;
2.2.2 the alterable provisions of the Act, subject to the limitations, extensions,
variations, alternations or substitutions set out in this MOI;
2.2.3 the provisions in this MOI imposing on the Company a higher standard,
greater restriction, longer period of time or any similarly more onerous
requirement, than would otherwise apply to the Company in terms of an
unalterable provision of the Act; and
2.2.4 the provisions of this MOI.
3 POWERS OF THE COMPANY
3.1 The Company has all of the legal powers and capacity contemplated in the Act, and
no provision contained in this MOI should be interpreted or construed as negating,
limiting, or restricting those powers or capacity in any way whatsoever.
3.2 The legal powers and capacity of the Company are not restricted, limited or
qualified by this MOI.
4 LIMITATION OF LIABILITY
No person shall, solely by reason of being an incorporator, shareholder or director of the
Company, be liable for any liabilities or obligations of the Company.
5
5 RESTRICTIVE CONDITIONS
This Memorandum of Incorporation does not contain any restrictive conditions applicable
to the Company nor is the amendment of any particular provision of this MOI prohibited.
6 ISSUE OF SHARES AND VARIATION OF RIGHTS
6.1 The Company is authorised to issue 160 000 000 ordinary shares with no par value.
Each ordinary share shall entitle the holder thereof to –
6.1.1 exercise voting rights on all matters submitted for a decision to shareholders
of the Company;
6.1.2 exercise one vote per ordinary share held or on a show of hands to one vote
in respect of all ordinary shares held;
6.1.3 participate in distributions of any kind, including but not limited to, distributions
of cash, or of a distribution in specie, as may be determined from time to time
by the Board; and
6.1.4 participate in the distribution of the residual value of the Company upon its
dissolution.
6.2 The Board shall have the power (subject to the limitations contained in this MOI),
to –
6.2.1 increase or decrease the number of authorised shares of any class of the
Company’s shares; or
6.2.2 consolidate and reduce the number of the Company’s issued and authorised
shares of any class;
6.2.3 subdivide the Company’s shares of any class by increasing the number of its
issued and authorised shares of that class, without an increase of its capital;
6.2.4 reclassify any classified shares that have been authorised but not issued;
6
6.2.5 classify any unclassified shares that have been authorised but not issued;
6.2.6 determine the preferences, rights, limitations or other terms of any shares.
6.3 Subject to the provisions of the Act and this MOI, authorised but unissued shares in
the share capital of the Company shall first be offered for subscription to existing
shareholders of the Company in proportion to their existing shareholding, except
where such shares are issued in consideration for the acquisition of assets. A
General Meeting, or the Board with the prior authorisation of a General Meeting
can, by means of a resolution –
6.3.1 issue any shares (with or without preference, deferred or other special rights
or limitations with regard to dividends, voting rights, the repayment of share
capital or otherwise);
6.3.2 issue redeemable preference shares that must be redeemed, or may be
redeemed at the instance of the Company;
6.3.3 grant options in respect of any such shares,
to such persons and subject to such provisions and conditions as determined by the
resolution, and may by means of a similar resolution, subject to the provisions of
this MOI, amend or supplement such provisions.
6.4 The Board may resolve to issue shares of the Company at any time, but –
6.4.1 only within the classes, and to the extent that those shares have been
authorised by, or in terms of, this MOI; and
6.4.2 only to the extent that such issue has been approved by the shareholders
during a General Meeting by means of an ordinary resolution, either by way of
a general authority (either conditional or unconditional) to issue shares in its
discretion, or a specific authority in respect of any particular issue of shares,
provided that, if such approval is granted to the Board in the form of a general
authorisation, it shall be valid only until the next annual general meeting of the
7
Company and it may be varied or revoked by any General Meeting, prior to
such annual general meeting.
6.5 Should there be any issued preference shares in the share capital of the Company,
the issue of further shares ranking in priority to, or pari passu with those preference
shares, shall be deemed to be a variation of the rights attached to those preference
shares, which will adversely affect those rights and no further shares of any class
ranking in priority to, or pari passu with, existing preference shares, shall be created
without a special resolution passed at a separate general meeting of such holders.
6.6 Notwithstanding anything to the contrary in this MOI, neither the Company, nor the
Board may without a special resolution of shareholders at a General Meeting or as
otherwise provided by this MOI –
6.6.1 grant special privileges regarding attending and voting at General Meetings
and the appointment of directors;
6.6.2 issue any preference shares convertible into ordinary shares; or
6.6.3 allot or issue any Securities of the Company, redeem any issued preference
shares, substitute preference shares for shares of the Company or acquire
any Securities which, in each case, may affect the rights attached to the
ordinary shares as contemplated in clause 6.1.
6.7 Subject to any preferences, rights or limitations under which any Securities are
held, the preferences, rights or limitations attached to all or any Securities of any
class may be amended, varied, cancelled or expanded by a special resolution of
shareholders at a General Meeting. Without limiting the generality of the foregoing,
the rights attaching to shares (unless the terms attaching to the shares specifically
provide otherwise) shall be deemed to be amended by the creation or issue of any
other shares ranking pari passu or in priority to any shares already issued by the
Company. No such amendment, variation, cancellation or expansion, which directly
or indirectly adversely affects those special rights or restrictions, shall be effected
without –
8
6.7.1 the written approval or ratification of the holders of at least 75% of the
relevant shares; or
6.7.2 the approval or ratification thereof by means of a special resolution passed at
a separate general meeting of the holders of the shares in question in the
same manner, mutatis mutandis, as a special resolution of the shareholders
of the Company, and the provisions of the Act and this MOI relating to
General Meetings shall apply to such separate general meeting, except that a
quorum at any such separate general meeting shall be three persons present
in person or by proxy, holding at least 25% in aggregate of the issued shares
of the relevant class.
7 SHARE CERTIFICATES
7.1 Securities of the Company are to be issued in either certificated or uncertificated
form, as the Board may determine.
7.2 If a share certificate is lost or destroyed, it may be replaced on such terms as the
Board may determine from time to time.
7.3 The Company may charge a holder of its Securities a reasonable fee to cover the
actual cost of issuing any certificate as contemplated in this clause 7.
8 TRANSFER OF SECURITIES
8.1 The instrument of transfer of any share shall be in the form as determined by the
Board from time to time, and shall be signed by the transferor.
8.2 Every instrument of transfer of a share shall be left at the registered office of the
Company or such other place as the Board may designate from time to time
(“office”).
8.3 Every instrument of transfer of a share shall be accompanied by –
8.3.1 the certificate issued in respect of the certificated Securities to be transferred;
and/or
9
8.3.2 such other proof as the Company may require to evidence the title of the
transferor of his right to transfer the shares.
8.4 Every warrant of authority given by a shareholder to authorise the signing of
instruments of transfer for the purpose of effecting a transfer of such shares will,
when submitted, produced or exhibited to or with the Company, be deemed to be
and remain in full force and effect, and the Company may permit action to be taken
on such authority until such time as written notice of the revocation thereof is
submitted to the office. Even after the submission of such notice of revocation, the
Company may give effect to any instrument of transfer signed under the authority to
sign and certified (before the lodging of such notice) by any officer of the Company,
as being in order.
8.5 The Board may suspend registration of transfer during the fourteen days
immediately preceding either a General Meeting of the Company or the date upon
which dividends are payable, and at any other time, provided that the periods of
suspension in one calendar year, shall not exceed sixty days in total.
8.6 The transferor shall be deemed to remain the holder of the share until the name of
the transferee is entered in the Securities Register in respect thereof.
9 DECEASED ESTATES
9.1 The executor of the estate of a deceased sole holder of a Security shall be the only
person recognised by the Company as having title to such Security. In the case of a
Security registered in the names of two or more holders, the survivor or survivors,
or the executor of the estate of any deceased shareholders, as determined by the
Board, shall be the person recognised by the Company as having title to the
Security.
9.2 Any person who submits proof of his appointment as the executor, administrator,
trustee, curator or guardian in respect of the estate of a deceased shareholder or
holder of other Securities (“Security Holder”) of the Company, or of a Security
Holder whose estate has been sequestrated or of a Security Holder who is
otherwise under a disability, or as the liquidator of any body corporate which is a
Security Holder, shall be entered in the Securities Register nomine officii, and shall
10
thereafter, for all purposes, be deemed to be a Security Holder.
9.3 Subject to the provisions of clauses 9.1 and 9.2, any person becoming entitled to
any Security by virtue of the death of a Security Holder shall, upon producing such
evidence that he has such title or rights as the Board deems sufficient, have the
right either to have such Security transferred to himself or to make such other
transfer of the Security as such Security Holder could have made, provided that in
respect of a transfer other than to himself –
9.3.1 the Board shall have the same right to refuse or suspend registration as it
would have had in the case of a proposed transfer of such Security by such
Security Holder before his death; and
9.3.2 a person becoming entitled to any Security shall not, unless and until he is
himself registered as a Security Holder in respect of such Security, be entitled
to exercise any voting or other right attaching to such Security or any other
right relating to General Meetings.
10 FRACTIONS OF SHARES
Unless provided for to the contrary in this MOI, if on any capitalisation issue or
consolidation of shares, shareholders become entitled, or are already entitled, to fractions
of shares, the Board shall be entitled to sell the shares resulting from the aggregation of
such fractions, subject to such terms and conditions as the Board considers to be in the
interest of the shareholders concerned, and any director shall be authorised to sign any
deed of transfer or other document necessary to give effect to such sale.
11 JOINT HOLDERS OF SHARES
Where two or more persons are registered as the holders of any share, they shall be
deemed to hold that share jointly, and –
11.1 notwithstanding anything to the contrary in this MOI, on the death, sequestration,
liquidation or legal incapacity of any one of such joint holders, the remaining joint
holders may be recognised, at the discretion of the Board, as the only persons
having title to such share;
11
11.2 any one of such joint holders may give valid receipts for any dividends, bonuses or
repayments of share capital or other payments or distributions payable to such joint
holders;
11.3 only the joint holder whose name has been entered first in the Securities Register
shall be entitled to delivery of a certificate relating to that share, or to receive any
notices from the Company (and each such notice shall be deemed to have been
given to such joint holders); and
11.4 any one of the joint holders of any share conferring a right to vote may vote either
personally or by proxy at any General Meeting in respect of such shares as if he
were solely entitled thereto, and if more than one of such joint holders are present
at the General Meeting, either in person or by proxy, the joint holder who tenders a
vote and whose name has been entered in the Securities Register before the other
joint holders who are present in person or by proxy, shall be entitled to vote in
respect of that share.
12 BENEFICIAL INTERESTS IN SECURITIES
The Company’s issued Securities may be held by, and registered in the name of, one
person for the beneficial interest of another person provided that –
12.1 the beneficial shareholders shall at all times qualify to hold shares as required in
terms of clause 37;
12.2 the Board may, prior to the registration of the Securities in the name of any person,
require a declaration by the transferee of the beneficial ownership of the Securities
to be transferred once transferred to the transferee; and
12.3 the Board may at any time require a shareholder to confirm the beneficial
ownership of the Securities held by him.
13 FINANCIAL ASSISTANCE
The Board may authorise the Company to provide financial assistance by way of loan,
guarantee, the provision of security, or otherwise to any person for the purpose of, or in
12
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 such
Securities of the Company, subject always to the provisions of section 44 of the Act, and
the powers of the Board in this regard, are not limited or restricted by this MOI.
14 CAPITALISATION SHARES
14.1 The Board shall have the power and authority, in terms of section 47 of the Act, to –
14.1.1 approve the issuing of any authorised shares, as capitalisation shares;
14.1.2 issue shares of one class as capitalisation shares in respect of shares of
another class; or
14.1.3 resolve to permit shareholders to elect to receive a cash payment in lieu of a
capitalisation share.
14.2 The Board may not resolve to offer a cash payment in lieu of a capitalisation share,
unless the Board –
14.2.1 has considered the Solvency and Liquidity Test on the assumption that every
shareholder would elect to receive cash; and
14.2.2 is satisfied that the Company would satisfy the Solvency and Liquidity Test
immediately after the completion of the proposed distribution.
15 DEBT INSTRUMENTS
15.1 The authority of the Board to authorise the Company to issue secured or unsecured
debt instruments is not limited or restricted by this MOI.
15.2 Without a special resolution, the Board shall not be entitled to grant special
privileges associated with any debt instruments to be issued by the Company
regarding –
15.2.1 attending and voting at General Meetings and the appointment of directors; or
13
15.2.2 allotment of Securities, redemption by the Company, or substitution of the
debt instrument for shares of the Company.
16 RECORD DATE FOR EXERCISE OF SHAREHOLDER RIGHTS
16.1 The record date for the purpose of determining which shareholders are entitled to –
16.1.1 receive notice of a General Meeting;
16.1.2 participate and vote at a General Meeting;
16.1.3 decide any matter by written consent or by Electronic Communication;
16.1.4 receive a distribution; or
16.1.5 be allotted or exercise other rights,
shall be determined by the Board.
16.2 Such record date must be published to the Shareholders in a form determined by
the Board and –
16.2.1 such notice must be delivered to each registered holder of the Company’s
Securities;
16.2.2 a conspicuous copy of such notice must be posted –
16.2.2.1 at the Company’s principal office; and
16.2.2.2 on the Company’s website, if it has one.
16.3 If at any time the Board fails to determine a record date, the record date for the
relevant matter is –
16.3.1 in the case of a meeting, the latest date by which the Company is required to
give shareholders notice of that meeting; or
14
16.3.2 the date of the action or event, in any other case.
17 DISTRIBUTIONS
17.1 Subject to the provisions of the Act and this MOI, the Company may make a
proposed distribution if such distribution –
17.1.1 is pursuant to an existing legal obligation of the Company or a court order; or
17.1.2 is authorised by resolution of the Board.
17.2 No distribution shall bear interest, except as otherwise provided under the
conditions of issue of the shares in respect of which such distribution is payable.
17.3 Distributions may be declared either free of or subject to the deduction of any tax or
duty in respect of which the Company may be chargeable or be obliged to withhold
or deduct on behalf of shareholders.
17.4 The Board may from time to time declare and pay to the shareholders such interim
distributions as it considers to be appropriate.
17.5 No larger distribution shall be declared by the Company in General Meeting than is
recommended by the Board, but the Company in General Meeting may declare a
smaller distribution.
17.6 All unclaimed distributions may be invested or otherwise made use of by the Board
for the benefit of the Company until claimed, provided that unclaimed distributions
cannot be so invested or otherwise made use of by the Board for the benefit of the
Company for a period of three years from the date on which they were declared,
whereafter such unclaimed distributions may be declared forfeited by the Board for
the benefit of the Company. The Board may at any time annul such forfeiture upon
such conditions (if any) as it deems fit.
17.7 Any distribution, interest or other sum payable in cash to the holder of a share may
be paid by cheque, EFT or sent by post and addressed to –
17.7.1 the holder at his registered address; or
15
17.7.2 in the case of joint holders, the holder whose name appears first in the
Securities Register in respect of the share, at his registered address; or
17.7.3 such person and at such address as the holder or joint holders may in writing
direct.
17.8 Every such cheque or EFT shall –
17.8.1 be made payable to the order of the person to whom it is addressed; and
17.8.2 be sent at the risk of the holder or joint holders.
17.9 The Company shall not be responsible for the loss in transmission of any cheque or
EFT or of any document (whether similar to a cheque or not) sent by means of any
of the aforesaid methods.
17.10 A holder or any one of two or more joint holders, or his or their agent duly appointed
in writing, may give valid receipts for any distributions or other moneys paid in
respect of a share held by such holder or joint holders.
17.11 When such cheque or EFT is paid, it shall discharge the Company of any further
liability in respect of the amount concerned.
17.12 A distribution may also be paid in any other way determined by the Board, and if the
directives of the Board in that regard are complied with, the Company shall not be
liable for any loss or damage which a shareholder may suffer as a result thereof.
17.13 Without detracting from the ability of the Company to issue capitalisation shares,
any distribution may be paid wholly or in part –
17.13.1 by the distribution of specific assets; or
17.13.2 by the issue of Securities or of shares, debentures or securities of any other
company; or
17.13.3 in cash; or
16
17.13.4 in any other way which the Board or the Company in General Meeting may at
the time of declaring the distribution determine.
17.14 Where any difficulty arises in regard to such distribution, the Board may settle that
difficulty as it deems expedient, and in particular may fix the value that shall be
placed on such specific assets upon distribution.
17.15 The Board may –
17.15.1 determine that cash payments shall be made to any shareholder on the basis of
the value so fixed in order to secure equality of distribution; and
17.15.2 vest any such assets in trustees upon such trusts for the benefit of the persons
entitled to the distribution as the Board deems expedient.
17.16 Any distribution must be made payable to shareholders registered as at a date
subsequent to the date of declaration thereof or the date of confirmation thereof,
whichever is the later date.
18 ACCESS TO COMPANY RECORDS
18.1 Each person who holds or has a beneficial interest in any Securities issued by the
Company is entitled to inspect and copy, without any charge for such inspection or
upon payment of no more than the prescribed maximum fee for any such copy –
18.1.1 this MOI, and any amendments or alterations thereof;
18.1.2 a record of the directors, including the details of any person who has served as
a director for a period of seven years after that person has ceased to serve as a
director, which record shall include the following information –
18.1.2.1 full name and any former names;
18.1.2.2 identity number or, if the person does not have an identity number, the
person’s date of birth;
17
18.1.2.3 nationality and passport number, if the person is not a South African
citizen;
18.1.2.4 occupation;
18.1.2.5 date of most recent election or appointment as director of the Company;
18.1.2.6 name and registration number of every other company or foreign company
of which the person is a director, and in the case of a foreign company,
the nationality of that company; and
18.1.2.7 any other prescribed information;
18.1.3 all –
18.1.3.1 reports presented at the annual general meeting of the Company, for a
period of seven years after the date of any such annual general meeting;
and
18.1.3.2 annual financial statements required by the Act, for a period of seven
years after the date on which each particular statement was issued;
18.1.4 notices and minutes of all General Meetings, including –
18.1.4.1 all resolutions adopted by shareholders, for seven years after the date
each such resolution was adopted; and
18.1.4.2 any document that was made available by the Company to shareholders
in relation to each such resolution;
18.1.5 any written communications sent generally by the Company to all holders of
any class of the Company’s Securities, for a period of seven years after the
date on which each of such communications were issued;
18.1.6 the Securities Register; and
18
18.1.7 a record of the Company’s company secretaries and auditors, including, in
respect of each person appointed as company secretary or auditor of the
Company –
18.1.7.1 the name, including any former name, of each such person; and
18.1.7.2 the date of every such appointment; and
18.1.7.3 if a firm or juristic person is appointed –
18.1.7.3.1 the name, registration number and registered office address of that
firm or juristic person; and
18.1.7.3.2 the name of any individual designated by that firm, in terms of
section 44(1) of the Auditing Profession Act, to be responsible for
performing the functions of auditor; and
18.1.7.4 any changes in the particulars referred to in clauses 18.1.7.1, 18.1.7.2 or
18.1.7.3, as they occur, with the date and nature of each such change.
18.2 Other than the rights to access information as set out above, a shareholder has no
further rights to information pertaining to the Company.
19 GENERAL MEETINGS OF SHAREHOLDERS
19.1 Subject to the provisions of clause 23, the Company shall hold a General Meeting –
19.1.1 at any time that the Board is required by the Act or this MOI to refer a matter to
shareholders for decision;
19.1.2 whenever required in terms of the Act to fill a vacancy on the Board;
19.1.3 when one or more written and signed demands for such a meeting are
delivered to the Company, and
19.1.3.1 each such demand describes the specific purpose for which the
meeting is proposed; and
19
19.1.3.2 in aggregate, demands for substantially the same purpose are made
and signed by the holders, at the earliest date specified in any of those
demands, of at least 10% of the voting rights entitled to be exercised in
relation to the matter proposed to be considered at the meeting; and/or
19.1.4 once in every calendar year, but no more than 15 months after the date of the
previous annual general meeting, or within an extended time allowed by the
Companies Tribunal, on good cause shown.
19.2 The minimum number of days for the Company to deliver a notice of a General
Meeting to shareholders is fifteen business days.
19.3 The Board shall determine the location of any General Meeting, and the Company
may hold any such General Meeting in the Republic.
19.4 Every General Meeting shall be reasonably accessible for electronic participation by
shareholders within the Republic.
19.5 The quorum for a General Meeting to begin or for a matter to be considered shall
be at least three shareholders entitled to attend and vote and present in person or
by proxy. In addition –
19.5.1 a General Meeting may not begin until sufficient persons are present at the
General Meeting to exercise, in aggregate, at least 25% of the voting rights
that are entitled to be exercised in respect of at least one matter to be decided
at the General Meeting; and
19.5.2 a matter to be decided at a General Meeting may not begin to be considered
unless sufficient persons are present at the General Meeting to exercise, in
aggregate, 25% of all of the voting rights that are entitled to be exercised in
respect of that matter at the time the matter is called on the agenda.
19.6 If, within 30 minutes after the appointed time for a meeting to begin the
requirements of clause 19.5.1 have not been satisfied, the meeting is postponed
without motion, vote or further notice, for one week.
20
19.7 If, within 30 minutes after the appointed time for a meeting to begin the
requirements set out in clause 19.5.2 for consideration of a particular matter to
begin have not been satisfied, then –
19.7.1 if there is other business on the agenda of the meeting, consideration of that
matter may be postponed to a later time in the meeting without motion or
vote; or
19.7.2 if there is no other business on the agenda of the meeting, the meeting is
adjourned for one week, without motion or vote.
19.8 After a quorum has been established for a meeting, or for a particular matter, the
meeting may continue, or the matter may be considered, so long as at least three
shareholders entitled to vote, representing not less than 25% of the voting rights
entitled to be exercised at the meeting, or on that matter, are present at the
meeting.
19.9 The person intended to preside at a meeting, where the quorum requirements in
clauses 19.5.1, or 19.5.2 if applicable, are not satisfied, may extend the 30 minute
limit allowed for a reasonable period on the grounds that –
19.9.1 exceptional circumstances affecting weather, transportation or electronic
communication have impeded, or are impeding, the ability of shareholders to
be present at the meeting; or
19.9.2 one or more delayed shareholders have communicated an intention to attend
the meeting, and such shareholder/s, together with others in attendance,
would satisfy the quorum requirements.
19.10 If the quorum requirements in clauses 19.5.1, or 19.5.2 if applicable, have not been
satisfied at the time appointed for a postponed meeting to begin, or for an
adjourned meeting to resume, the shareholders present in person or by proxy shall
constitute a quorum.
19.11 The accidental omission to give notice of any General Meeting to any particular
shareholder or shareholders shall not invalidate any resolution passed at any such
21
General Meeting.
19.12 The maximum period allowable for an adjournment of a General Meeting is not
limited in terms of this MOI.
19.13 The chairperson of the Board or, in his absence, the deputy chairperson of the
Board or, in his absence, the director who has served the longest continued period
on the Board (to the exclusion of retirement by rotation) at that point in time, shall
act as the chairperson of every General Meeting, provided that if no chairperson or
most senior director is present and willing to act, the shareholders present shall
elect one of the directors or, if no director is present and willing to act, one of the
shareholders present, to be the chairperson of that General Meeting.
19.14 In the case of an equality of votes, the chairperson of the General Meeting shall be
entitled to a second or casting vote.
19.15 No business shall be transacted at the resumption of any adjourned meeting other
than the business left unfinished at the General Meeting from which the
adjournment took place.
19.16 Subject to any restriction as to voting to which any shareholder or share may be
subject, a shareholder who is present in person or by authorised representative or
proxy shall have one vote for every share in respect of which that shareholder is the
registered holder.
19.17 At any General Meeting, a resolution put to vote shall be decided as provided for in
clause 22 and –
19.17.1 if for the election of a chairperson or an adjournment, the voting shall take
place immediately and in such manner as the General Meeting determines
and, if for any other matter, the voting shall take place at such time and in
such manner as the chairperson of the General Meeting indicates; and
19.17.2 the result of the poll shall be deemed to be the resolution of the General
Meeting.
22
19.18 No objection shall be made to the acceptance or rejection of any vote except at the
General Meeting at which the disputed vote was cast, or, if it is adjourned, at the
resumption thereof. The chairperson of that General Meeting or the resumed
General Meeting shall decide any disputes arising from such objection and his
decision shall be final and binding.
20 PROXIES
20.1 A proxy form, power of attorney or other authorisation relating to a General Meeting
must be in writing, and must be signed by or on behalf of the grantor.
20.2 A shareholder of the Company may appoint two or more persons concurrently as
proxies.
20.3 A proxy may delegate the proxy’s authority to act on behalf of the shareholder to
another person, subject to any restriction set out in the instrument appointing the
proxy.
20.4 A copy of the instrument appointing a proxy must be delivered to the Company or to
any other person on behalf of the Company, before the proxy exercises any rights
of the shareholder at a shareholders meeting.
20.5 A proxy may not delegate or transfer any authority to act on behalf of a shareholder
to another person, other than the chairperson of the General Meeting.
20.6 Subject to the provisions of the Act, a proxy form –
20.6.1 must be in such form as approved or accepted by the Board;
20.6.2 must be submitted at the registered office of the Company no later than 48
hours before the time determined for the holding of the General Meeting
(excluding Saturdays, Sundays and public holidays) or for the resumption of
the adjourned meeting at which the nominated person intends to vote;
20.6.3 is deemed, in addition to the authority granted by the Act and save to the
extent that the proxy form may provide otherwise, to give the authority to act
23
generally at the General Meeting in question, subject however to any specific
direction concerning the manner in which the proxy must exercise his votes
unless such proxy has been granted to the chairperson of the General
Meeting;
20.6.4 may not be used at the resumption of an adjourned general meeting if it could
not be used at the General Meeting that was adjourned, for a reason other
than that it was not submitted in time for the latter meeting;
20.6.5 remains valid for one year after the date on which it was signed or any longer
or shorter period expressly set out in the appointment unless –
20.6.5.1 the shareholders who gave the proxy choose to act directly and in
person, in which instance the proxy is suspended; or
20.6.5.2 the proxy is revoked, unless the proxy appointment expressly states
otherwise; or
20.6.5.3 expires earlier as contemplated in section 58(8)(d) of the Act.
20.7 If the appointment is revocable, a shareholder may revoke the proxy appointment
by –
20.7.1 cancelling it in writing, or making a later inconsistent appointment of a proxy;
and
20.7.2 delivering a copy of the revocation instrument to the proxy, and to the
Company.
20.8 A vote cast or an act performed in accordance with the provisions of a form of
proxy, is deemed to be valid, notwithstanding –
20.8.1 the earlier death, mental incapacity, or other legal incapacity of the person
who appointed the proxy; or
20.8.2 the revocation of the proxy; or
24
20.8.3 the transfer of a share in respect of which the proxy was given,
unless notice regarding any of the abovementioned matters was received by the
Company at the offices, or notice was received by the chairperson of the General
Meeting at the venue of the General Meeting (if not held at the offices) before the
start or resumption (if adjourned) of the General Meeting at which the vote was cast
or the act was performed, or before the vote by a poll where the vote was cast.
20.9 Every instrument of proxy shall, as far as circumstances permit, be substantially in
the following form, or in such other form as the Directors may approve from time to
time:
“I/We ____________________________________
Member number: _________________________
being a shareholder of Senwesbel Limited do hereby appoint
_______________________________________
or failing him/her
_______________________________________
or failing him/her, the chairperson of the meeting as my/our proxy to vote or abstain from voting on my/our
behalf at the meeting of the shareholders of the Company to be held at on and at any
adjournment thereof as follows: –
In favour of Against Abstain
Special Resolution 1 ………........ ………........ ………........
Ordinary Resolution 1 ………........ ………........ ………........
(Indicate the instruction to proxy by way of a cross in the appropriate space). Except as instructed above or
if no instructions are inserted above, my/our proxy may vote as he/she deems fit.
SIGNED this day of in the year of .
SHAREHOLDER’S SIGNATURE
(Note – A shareholder entitled to attend, speak and vote is entitled to appoint a proxy to attend, speak and
vote in his/her stead, and such proxy need not be a shareholder of the Company).”
21 NOTICES AND ELECTRONIC COMMUNICATION
21.1 All notices shall be given by the Company to each shareholder of the Company and
shall be given in writing in any manner authorised by the Act and the Regulations,
and particularly Table CR3 annexed to the Regulations.
25
21.2 Each shareholder of the Company –
21.2.1 shall notify the Company in writing of an address, which address shall be his
registered address for the purposes of receiving written notices from the
Company by post and, if he has not named such an address, he shall be
deemed to have waived his right to be so served with notices; and/or
21.2.2 may notify the Company in writing of an e-mail address, which address shall
be his address for the purposes of receiving notices by way of Electronic
Communication and, having done so shall be deemed to have agreed to
receiving by Electronic Communication, notices and other documents from
the Company at his e-mail address, and the Company may satisfy its
obligation to send him any notice or other document by –
21.2.2.1 publishing such notice or other document on the Company’s website; and
21.2.2.2 notifying him by e-mail to that e-mail address that such notice or document
has been so published, specifying the address of the website on which it
has been published, the place on the website where such notice may be
accessed, how it may be accessed and, if the notice relates to a General
Meeting, stating –
21.2.2.2.1 that the notice concerns a notice of a General Meeting served in
accordance with the Act;
21.2.2.2.2 the place, date and time of the General Meeting;
21.2.2.2.3 whether the General Meeting is to be an annual general meeting
or other General Meeting;
21.2.2.2.4 the agenda for the General Meeting; and
21.2.2.2.5 such other information as the Act may prescribe.
21.3 Any amendment or revocation of a notification given to the Company under
clause 21.2 shall only be valid if in writing, signed by the shareholder and on actual
26
receipt by the Company thereof.
21.4 An Electronic Communication shall not be regarded as having been received by the
Company if it is rejected by computer virus protection measures.
21.5 A document is regarded as having been sent to a shareholder where the Company
and the shareholder have agreed to the shareholder having access to documents
on a website and the shareholder has been notified of the publication of the
documents on a website, the address of that website and the place on the website
where the documents may be accessed.
21.6 A document is regarded as having been sent to a shareholder not less than fifteen
business days before the date of a General Meeting if the documents have been
published on a website throughout the period commencing not less than fifteen
business days before the General Meeting and ending with the conclusion of the
General Meeting and notification of that publication on the website has been sent to
the shareholder not less than fifteen business days before the date of the General
Meeting. The provisions of this clause 21 shall apply, mutatis mutandis, to any other
time period specified in the Act.
21.7 Proceedings at a General Meeting will not be invalidated if documents have not
been published for the entire period stated in clause 21.6 and where failure to
publish the documents throughout the entire period is attributable to circumstances
the Company could not have reasonably been expected to avoid.
21.8 A shareholder may give notice to the Company of the appointment of a proxy by
Electronic Communication sent to such address as notified by the Company for that
purpose.
21.9 Notice of annual general meetings and other General Meetings shall be delivered to
each person entitled to vote at such meetings and who have elected to receive
such documents.
21.10 Any shareholder whose address in the Securities Register, is an address not within
the Republic, shall be entitled to have notices served upon him at such address.
27
21.11 In the case of joint holders of Securities, all notices shall, unless such holders
request otherwise in writing, and the Board agrees, be given to that shareholder
whose name appears first in the Securities Register and a notice so given shall be
deemed sufficient notice to all the joint holders.
21.12 Any notice sent by any means permitted in Table CR3 annexed to the Regulations,
shall be deemed to have been delivered as provided for in that method of delivery
in such Table.
21.13 Any person, who by operation of law, transfer or other means whatsoever, becomes
entitled to any Security, shall be bound by every notice in respect of that Security
which, prior to his name and address being entered in the Securities Register, was
given to the person from whom he derives his title to such Security.
21.14 Any notice or document delivered or sent by post to, or left at, the registered
address of any shareholder pursuant to this MOI shall, notwithstanding that such
shareholder was then deceased, and whether or not the Company has notice of his
death, be deemed to have been duly served in respect of any Securities, whether
held solely or jointly with other persons by such shareholder, until some other
person is registered in his stead as the sole or joint holder of such Security, and
such service shall, for all purposes of this MOI, be deemed a sufficient service of
such notice or document on his heirs, executors or administrators and all persons (if
any) jointly interested with him in any such Securities.
22 SHAREHOLDERS’ RESOLUTIONS
22.1 An ordinary resolution shall be adopted at a General Meeting if supported by more
than 50% of the voting rights exercised on the resolution.
22.2 A special resolution shall be adopted at a General Meeting if supported by at least
75% of the voting rights exercised on the resolution.
22.3 A special resolution adopted at a General Meeting is required for the following
matters –
22.3.1 an amendment of this MOI as provided for in clause 39;
28
22.3.2 approval of the voluntary winding-up of the Company;
22.3.3 approval of any proposed fundamental transaction, to the extent required by
Part A of Chapter 5 of the Act, being –
22.3.3.1 a proposal to dispose of all or the greater part of the assets or undertaking of the
Company as contemplated by section 112 of the Act;
22.3.3.2 the amalgamation or merger of the Company with any other company as
contemplated by section 113 of the Act;
22.3.3.3 any scheme of arrangement between the Company and holders of any class of its
securities as contemplated by section 114 of the Act;
22.3.4 the entering into or undertaking of any of the following transactions –
22.3.4.1 the disposal or transfer of Senwes Shares (or any rights attaching thereto)
owned by the Company, to the extent that such disposal or transfer will result
in the Company’s voting rights as a holder of Senwes Shares falling below
35% of all of the voting rights exercisable in respect of all of the Senwes
Shares;
22.3.4.2 the creation of any encumbrance whatsoever of any of the Senwes Shares (or
any rights attaching thereto) owned by the Company, to the extent that such
encumbrance could result in the Company’s voting rights as a holder of
Senwes Shares falling below 35% of all of the voting rights exercisable in
respect of all of the Senwes Shares;
22.3.4.3 the exercise by the Company of its voting rights in respect of Senwes Shares
owned by the Company in favour of any transaction undertaken by Senwes in
respect of its authorised and/or issued share capital, which could result, in the
circumstances where the Company is unwilling or unable to follow its rights
attached to the Senwes Shares held by it, in the Company’s voting rights as a
holder of Senwes Shares falling below 35% of all of the voting rights
exercisable in respect of all of the Senwes Shares; or
29
22.3.5 as elsewhere specifically provided for in this MOI or required by the Act.
23 SHAREHOLDERS ACTING OTHER THAN AT A GENERAL MEETING
23.1 Subject to clause 23.4, a resolution that could be voted on at a General Meeting
(other than in respect of the election of directors) may instead be –
23.1.1 submitted by the Board in writing for consideration to the shareholders entitled
to exercise the voting rights in relation to the resolution;
23.1.2 voted on in writing by such shareholders within a period of twenty business
days after the resolution was submitted to them.
23.2 A resolution contemplated in clause 23.1 –
23.2.1 will be regarded to have been adopted if it is supported by persons entitled to
exercise sufficient voting rights for it to have been adopted as an ordinary or
special resolution, as the case may be, at a properly constituted General
Meeting; and
23.2.2 if adopted, will have the same effect as if it had been approved by voting at a
General Meeting.
23.3 Within ten business days after adopting a resolution in accordance with the
procedures provided in this clause 23, the Company shall deliver a statement, in
such format as determined by the Board from time to time, describing the results of
the vote, consent process or election to every shareholder who was entitled to vote
on or consent to the resolution.
23.4 The provisions of this clause 23 shall not apply to any General Meetings that are
called for the passing of any resolution for the election of directors or to any annual
general meeting of the Company.
24 POWERS OF THE BOARD
24.1 The management of the Company’s business and affairs and the control of the
Company vests in the Board which has the authority to exercise all of the powers
30
and perform any of the functions of the Company without any limitation except to
the extent that the Act or this MOI provides otherwise.
24.2 The Board may exercise or delegate to one or more persons all such powers and
may perform all such acts or delegate such acts to one or more persons to be
performed (including the right to delegate) as may be exercised by the Company
and which do not in terms of an express provision of the Act or this MOI have to be
performed by a General Meeting, provided that the management of the Company’s
business and the control of the Company –
24.2.1 is not irreconcilable with; and
24.2.2 corresponds with,
all resolutions passed by a General Meeting.
24.3 No resolution of a General Meeting shall, however, invalidate any prior act of the
Board or any of its delegates.
25 COMPOSITION OF THE BOARD
25.1 The Board must comprise at least four directors and the shareholders shall be
entitled, by ordinary resolution, to determine such other minimum number of
directors as they from time to time shall consider appropriate.
25.2 The Company shall not –
25.2.1 have any directors who are appointed or removed by a person named in, or
determined in terms of this MOI; or
25.2.2 appoint any ex officio directors; or
25.2.3 appoint any alternate directors.
25.3 If the number of directors falls below the prescribed minimum, the remaining
director(s) may act, but if and for so long as the number of directors is less than the
31
prescribed minimum, the remaining directors may, in the meantime continue to act
as such, but only to perform the following acts –
25.3.1 to increase the number of directors to the prescribed minimum; or
25.3.2 to convene a General Meeting for that purpose, bearing in mind that if no
director is able or willing to do it, any shareholder may convene a General
Meeting for that purpose.
25.4 The failure by the Company to have the minimum number of directors does not limit
or negate the authority of the Board.
25.5 If, at any time, the Company has only one director, such director has the authority
to act on behalf of the Company without notice or compliance with any other
formalities and such powers are not limited or restricted by this MOI.
26 ELECTION OF DIRECTORS
26.1 A director shall cease to hold office if he –
26.1.1 is prohibited by a court from being a director, or declared by a court to be
delinquent or on probation in terms of section 162 of the Act, or in terms of
section 47 of the Close Corporations Act, 1984 (Act No. 69 of 1984);
26.1.2 is an un-rehabilitated insolvent;
26.1.3 is prohibited in terms of any public regulation to be a director of the Company;
26.1.4 has, at any time within the preceding five years or such longer period as
determined by the court from time to time, been removed from an office of
trust, on the grounds of misconduct involving dishonesty;
26.1.5 has, at any time within the preceding five years or such longer period as
determined by the court from time to time, been convicted in the Republic or
elsewhere, and imprisoned without the option of a fine, or fined more than the
prescribed amount, for theft, fraud, forgery, perjury or an offence –
32
26.1.5.1 involving fraud, misrepresentation or dishonesty; or
26.1.5.2 in connection with the promotion, formation or management of a
company, or in connection with the appointment of a director in a
company who does not qualify to act as an director in terms of the Act;
or
26.1.5.3 under this Act, the Insolvency Act, 1936 (Act No. 24 of 1936), the Close
Corporations Act, 1984 (Act No. 69 of 1984), the Competition Act, 1998
(Act No. 89 of 1998), the Financial Intelligence Centre Act, 2001 (Act
No. 38 of 2001), the Securities Services Act, 2004 (Act No. 36 of 2004),
or Chapter 2 of the Prevention and Combating of Corruption Activities
Act, 2004 (Act No. 12 of 2004); or
26.1.6 gives notice to the Company of his resignation as director, with effect from the
date of such notice or with effect from a later date specified in the notice; or
26.1.7 is absent from Board Meetings for four consecutive Board Meetings without
the Board’s permission and the Board decides that he should be discharged
from his office; or
26.1.8 receives a notice that his appointment as director is terminated, signed by
directors who in total represent more than 50% of the Board (to the exclusion
of such director); or
26.1.9 receives a notice that his appointment as director is terminated, signed by
shareholders who in total represent more than 50% of the total votes which
can then be exercised on a poll at a General Meeting; or
26.1.10 is required to retire as provided for in clause 26.2.
26.2 At each annual general meeting of the Company, with effect from the first annual
general meeting of the Company following the adoption of this MOI and subject to
the provisions relating to the disqualification of directors, the directors then holding
that position for a period of three years or more, shall retire.
33
26.3 Should, at any time prior to the expiry of his term as a director, a person cease to
be a director for any reason whatsoever other than the retirement provided for in
clause 26.2, including but not limited to death, resignation or disqualification to act
as director, the term of the person elected to fill such vacancy shall be limited to the
remainder of the term of the person that he replaces and the rotation and retirement
of the remainder of the directors shall not be affected thereby and shall continue on
the same basis as if such vacancy did not arise.
26.4 Should more than two persons at any time simultaneously cease to be directors
prior to the expiry of their terms as directors for any reason set out in clause 26.3
above, the vacancy to be filled by the persons elected and the concomitant period
of service of each shall be determined by a draw by the persons elected, unless
otherwise agreed amongst themselves.
26.5 A retiring director shall be eligible for re-election and, if re-elected, he shall be
deemed not to have vacated his office, provided that he shall again become subject
to retirement in accordance with clause 26.2 as if his appointment commenced at
the date of such re-election.
26.6 The election of directors shall occur as follows:
26.6.1 The Board shall give, at least forty five days prior to a general meeting of the
Company at which a vacancy of the Board is to be filled, notice to the
shareholders calling for nominations for the vacancy on the Board that needs
to be filled.
26.6.2 The notice referred to in clause 26.6.1 shall be given by means of publication
in a daily newspaper with circulation in the area in which the majority of the
shareholders reside. The notice must set out the following –
26.6.2.1 the number of vacancies for which nominations are called for;
26.6.2.2 the closing date for the submission of nominations;
26.6.2.3 that nomination must be made on the form prescribed by the Board at
that specific time;
34
26.6.2.4 that each nomination be signed by the proposer (who has to be a
shareholder and who may not be the nominee) and eight seconders (all
of whom has to be shareholders) who are entitled to attend and vote at
the General Meeting where the election is to take place; and
26.6.2.5 that each proposer and seconder may only propose and second such
number of persons for which vacancies exist.
26.6.3 After the closing of nominations –
26.6.3.1 should an equal number of nominations to the number of vacancies be
received and provided that the nominees qualify to act as directors, the
nominees shall be deemed to have been appointed as directors of the
Company with effect from the general meeting referred to in
clause 26.6.1; or
26.6.3.2 should more persons be nominated than the number of vacancies, the
Board will give notice of an extraordinary general meeting for the
purpose of electing directors to fill the vacancies by means of a
shareholders’ resolution. The notice must include –
26.6.3.2.1 the name or names of the nominated candidates;
26.6.3.2.2 the number of vacancies to be filled;
26.6.3.2.3 that each shareholder is entitled to vote for such number of
candidates as the number of vacancies;
26.6.3.2.4 that should a shareholder not be able to attend the general
meeting, he may appoint any proxy to attend, speak and vote at
the general meeting on his behalf, which proxy must be in the
form and subject to such instructions as contained in the proxy
attached to the notice.
26.6.4 At the extraordinary general meeting convened in terms of clause 26.6.3.2 the
shareholders shall elect the directors from the candidates listed in terms of
35
clause 26.6.3.2.1. The appointment of the directors elected shall be with
effect from the General Meeting referred to in clause 26.6.1.
26.6.5 The directors elected in terms of this clause 26.6 will, in accordance with
clause 26.9, automatically be the candidates of the Company for the
corresponding directors’ vacancies at Senwes.
26.7 Should no nominations be received by the Company as provided for in clause
26.6.2, the Company may, at the meeting at which such director is to retire, fill the
vacancy by electing a person as director and should the Company fail to elect a
director, the retiring director (should he be willing to continue as director) shall be
deemed to have been re-elected unless –
26.7.1 at such meeting it specifically be decided not to fill the vacancy; or
26.7.2 a decision for the re-election of such director be proposed but not approved
by the meeting.
26.8 The authority of the Board to fill a vacancy on the Board on a temporary basis is not
limited or restricted by this MOI provided that the shareholders at the next annual
general meeting of the Company must confirm such appointment.
26.9 Notwithstanding any other provisions contained in this MOI, the Board shall be
obliged to exercise the voting rights and other shareholder rights accorded to the
shares held by the Company in Senwes in such a manner, or to ensure, that the
persons that are elected as directors of the Company from time to time are
nominated, in accordance with the statutes of Senwes, for appointment as directors
of Senwes and that the Company votes for the appointment of the nominees at the
general meeting of Senwes at which the nominees stand for election as directors of
Senwes.
27 BOARD MEETINGS AND DECISIONS BY THE BOARD
27.1 The directors may elect a chairperson and deputy chairperson of the Board and
determine the period for which each is to hold office. At any Board Meeting, the
chairperson of the Board, or failing him the deputy chairperson of the Board, or if
36
both the chairperson and the deputy chairperson are not present or willing to act as
such, the most senior director present and willing to act as such, shall act as
chairperson, failing which, the directors present at any Board Meeting shall choose
one of their number to be chairperson of the Board Meeting.
27.2 The Board may determine the form and time for giving notice of its meetings,
provided that –
27.2.1 no meeting of the Board may be convened without notice to all of the
directors; and
27.2.2 such notice shall be given not less than seven days prior to the meeting being
held,
unless all the directors have waived the condition of notice of the meeting.
27.3 The chairperson of the Board, or failing him any director authorised by the Board,
may call a meeting of the Board at any time and must call such a meeting if
required to do so by at least two directors.
27.4 Except to the extent that the Act provides otherwise, a meeting of the Board may be
conducted by Electronic Communication, or provide for one or more directors to
participate in a Board Meeting by Electronic Communication.
27.5 The Board may proceed with a Board Meeting despite failure or defect in giving
notice of the Board Meeting, provided that all the directors of the Company –
27.5.1 acknowledge actual receipt of the notice;
27.5.2 are present at the meeting; or
27.5.3 waive notice as a condition of the meeting.
27.6 A majority of the directors must be present at a Board Meeting before a vote may
be called at a Board Meeting.
37
27.7 Each director has one vote on a matter to be decided on by the Board at a Board
Meeting.
27.8 A majority of the votes cast by the directors on a resolution is sufficient to adopt the
resolution tabled at a Board Meeting.
27.9 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, given in person, or by
means of Electronic Communication, provided that each director has received
notice of the matter to be decided, and any such resolution signed by the majority of
the directors and inserted in the minute book is as valid and effective as though it
had been passed at a Board Meeting. Any such resolution may consist of several
documents and shall be deemed to have been passed on the date on which it was
signed by the last director who signed it (unless a statement to the contrary is made
in that resolution).
27.10 Save where otherwise provided, in the case of a tied vote, the chairperson does not
have a second or deciding vote, and the resolution being voted on shall not be
adopted.
28 DISCLOSURE OF DIRECTORS’ INTERESTS
28.1 Save to the extent necessary to comply with the provisions of the Act, a director is
not obliged (except if otherwise agreed) to account to the Company for any profit or
benefit that flows from any contract entered into by the Company and in which he
has an interest, whether directly or indirectly.
28.2 A director who, in accordance with the Act, declared his interest (if material) in the
relevant contract or intended contract or arrangement –
28.2.1 is counted for the purpose of a quorum at a Board Meeting at which he is
present to consider any matter; and
28.2.2 is not entitled to vote with regard to any matter,
38
that relates to any existing or intended contract or arrangement in which he has an
interest.
29 DIRECTORS’ REMUNERATION
29.1 The authority of the Company to pay remuneration to the directors, in accordance
with a special resolution approved by the shareholders within the previous two
years, is not limited or restricted by this MOI.
29.2 Directors should be compensated for all travel expenses, maintenance costs and
other expenses duly incurred by them in their duties in connection with the business
of the Company and which are authorised or approved by the Board.
30 QUALIFYING SHARES
No director shall be obliged to hold any qualifying shares.
31 INDEMNIFICATION OF DIRECTORS
31.1 The Company may –
31.1.1 advance expenses to a director, directly or indirectly, to indemnify a director in
respect of the defence of legal proceedings arising out of the director’s
service to the Company or from any indemnity as provided for in
clause 31.1.2;
31.1.2 indemnify a director in respect of any liability other than for any loss, damages
or costs sustained by the Company as a direct or indirect consequence of the
director having –
31.1.2.1 acted in the name of the Company, signed anything on behalf of the
Company, or purported to bind the Company or authorise the taking of
any action by or on behalf of the Company, despite knowing that the
director lacked the authority to do so;
31.1.2.2 acquiesced in the carrying on of the Company’s business despite
knowing that it was being conducted recklessly, with gross negligence,
39
with intent to defraud any person or for any fraudulent purpose or
trading under insolvent circumstances;
31.1.2.3 been a party to an act or omission by the Company despite knowing
that the act or omission was calculated to defraud a creditor, employee
or shareholder of the Company, or had another fraudulent purpose;
and/or
31.1.3 purchase insurance to protect the Company or a director against any liability
provided for in terms of clauses 31.1.1 and/or 31.1.2,
and the power of the Company in this regard is not limited, restricted or extended
by this MOI.
31.2 The provisions of clause 31.1 shall apply mutatis mutandis in respect of any former
director, prescribed officer, manager, company secretary or member of any
committee of the Board, including the audit committee and any alternate director.
32 BORROWING POWERS
32.1 The Board may, subject to the other provisions of this MOI, exercise all powers of
the Company to borrow money and to encumber its business and property or any
part thereof by means of a mortgage or otherwise and, subject to the other
provisions of this MOI, to issue debentures, debenture securities, and other
securities (with such special rights, if any, in respect of the allotment of shares or
securities, attendance of and voting at General Meetings, appointment of directors
or otherwise that may be approved by a General Meeting), whether outright or as
security for any debt, liability or obligation of the Company or any third party.
32.2 Notwithstanding the provisions of clause 32.1, no debt incurred or security given
contrary to the provisions of clause 32.1 is invalid or unenforceable, unless at the
time when the debt was incurred or the security given, notice was expressly given
to the creditor or the receiver of security that the provisions of clause 32.1 were or
were being violated.
40
33 COMMITTEES OF THE BOARD
33.1 The Board may appoint any number of committees of directors, and may delegate
to any such committee any of the authority of the Board and include in any such
committee, persons who are not directors, provided that such a person is not
ineligible or disqualified to be a director in terms of this MOI or the Act, provided
further that no such person has a vote on a matter to be decided by the committee.
33.2 Any committee appointed by the Board shall be entitled to consult with or receive
advice from any person and has the full authority of the Board in respect of a matter
referred to it.
33.3 At each annual general meeting of the Company, it must elect an audit committee
consisting of, and the composition, powers and functions of which shall be as
follows:
33.3.1 The audit committee shall consist of at least three members. Each member of
the audit committee must –
33.3.1.1 be a director of the Company, who satisfies any applicable qualification
requirements prescribed in terms of clause 33.3.1.3;
33.3.1.2 not be –
33.3.1.2.1 involved in the day-to-day management of the Company’s
business or have been so involved at any time during the previous
financial year;
33.3.1.2.2 a prescribed officer, or fulltime employee, of the Company or
another related or inter-related company, or have been such an
officer or employee at any time during the previous three financial
years;
33.3.1.2.3 a material supplier or customer of the Company, such that a
reasonable and informed third party would conclude in the
41
circumstances that the integrity, impartiality or objectivity of that
director is compromised by that relationship; or
33.3.1.2.4 related to any person who falls within any of the criteria set out in
clause 33.3.1.2;
33.3.1.3 comply with the minimum qualification requirements for members of an
audit committee as prescribed by the Minister of Trade and Industry from
time to time in terms of the Act.
33.3.2 The Board must appoint a person to fill any vacancy on the audit committee
within forty business days after the vacancy arises.
33.3.3 It is the duty of the Company’s audit committee to –
33.3.3.1 nominate, for appointment as auditor of the Company a registered
auditor who, in the opinion of the audit committee, is independent of the
Company;
33.3.3.2 determine the fees to be paid to the auditor and the auditor’s terms of
engagement;
33.3.3.3 ensure that the appointment of the auditor complies with the provisions
of this Act and any other legislation relating to the appointment of
auditors;
33.3.3.4 determine the nature and extent of any non-audit services that the
auditor may provide to the Company, or that the auditor must not
provide to the Company, or a related company;
33.3.3.5 pre-approve any proposed agreement with the auditor for the provision
of non-audit services to the Company;
33.3.3.6 prepare a report, to be included in the annual financial statements for
that financial year –
33.3.3.6.1 describing how the audit committee carried out its functions;
42
33.3.3.6.2 stating whether the audit committee is satisfied that the auditor
was independent of the Company; and
33.3.3.6.3 commenting in any way the committee considers appropriate on
the financial statements, the accounting practices and the internal
financial control of the Company;
33.3.3.7 receive and deal appropriately with any concerns or complaints,
whether from within or outside the Company, or on its own initiative,
relating to –
33.3.3.7.1 the accounting practices and internal audit of the Company;
33.3.3.7.2 the content or auditing of the Company’s financial statements;
33.3.3.7.3 the internal financial controls of the Company; or
33.3.3.7.4 any related matter;
33.3.3.8 make submissions to the Board on any matter concerning the
Company’s accounting policies, financial control, records and reporting;
and
33.3.3.9 perform other functions determined by the Board, including the
development and implementation of a policy and plan for a systematic,
disciplined approach to evaluate and improve the effectiveness of risk
management, control, and governance processes within the Company.
33.3.4 In considering whether a registered auditor is independent of the Company,
the audit committee must –
33.3.4.1 ascertain that the auditor does not receive any direct or indirect
remuneration or other benefit from the Company, except –
33.3.4.1.1 as auditor; or
43
33.3.4.1.2 for rendering other services to the Company, to the extent permitted
in terms of clause 33.3.3.4;
33.3.4.2 consider whether the auditor’s independence may have been
prejudiced –
33.3.4.2.1 as a result of any previous appointment as auditor; or
33.3.4.2.2 having regard to the extent of any consultancy, advisory or other
work undertaken by the auditor for the Company; and
33.3.4.3 consider compliance with other criteria relating to independence or
conflict of interest as prescribed by the Independent Regulatory Board
for Auditors established by the Auditing Profession Act, 2005 (Act No.
26 of 2005), in relation to the Company, and if the Company is a
member of a group of companies, any other Company within that group.
33.3.5 Nothing in this clause 33 precludes the appointment by the Company at its
annual general meeting of an auditor other than one nominated by the audit
committee, but if such an auditor is appointed, the appointment is valid only if
the audit committee is satisfied that the proposed auditor is independent of
the Company.
33.3.6 Neither the appointment nor the duties of an audit committee reduce the
functions and duties of the Board, except with respect to the appointment,
fees and terms of engagement of the auditor.
33.3.7 The Company must pay all expenses reasonably incurred by its audit
committee, including, if the audit committee considers it appropriate, the fees
of any consultant or specialist engaged by the audit committee to assist it in
the performance of its functions.
33.4 If and for so long as it is required to do so in terms of the Act or the Regulations, the
Board must appoint a social and ethics committee having the powers and functions
as required in terms of the Act.
44
34 COMPANY RULES
The Board is prohibited from making any rules relating to the governance of the Company
in respect of matters that are not addressed in the Act or this MOI and the Board’s
capacity to make such rules is hereby excluded.
35 COMPANY SECRETARY
35.1 The Company must appoint a company secretary.
35.2 The company secretary must have the requisite knowledge of, and experience with,
relevant laws and be a permanent resident of the Republic.
35.3 The Board must fill any vacancy in the office of company secretary within eighty
business days after such vacancy arises by a person whom the Directors consider
to have the requisite knowledge and experience.
36 BRANCH REGISTER
The Company shall be entitled to cause a branch securities register to be kept anywhere
abroad and the Board may make such provisions as it deems fit in respect of such branch
securities register.
37 QUALIFICATION REQUIREMENTS FOR SHAREHOLDERS
37.1 Notwithstanding any of the other provisions of this MOI, Securities may only be
transferred to a transferee who, in each instance and at the date of such transfer, is
a qualifying person as provided for in clause 37.2 below (“qualifying person”)
provided that the Board or a subcommittee of the Board to whom the authority to do
so has been delegated by the Board, shall determine, in its sole and absolute
discretion at the written request of the intended transferor, whether a person is a
qualifying person and, if a person is not a qualifying person, whether any transfer
may be authorised to a person who is not a qualifying person. All transfers or issue
of shares should in all circumstances be accepted by the transferee as principal
and for his own benefit.
45
37.2 For purposes of clause 37.1 above, “qualifying person” means a person who, as
at the date of the transfer or the date of the relevant written request contemplated in
clause 37.1 –
37.2.1 conducts a bona fide farming enterprise as his principal business activity; or
37.2.2 in the case of a company, a close corporation or another association of
persons, is effectively controlled, directly and indirectly, by a person or
persons who comply with the requirement set out in clause 37.2.1; or
37.2.3 in the case of a trust, the main business of the trust complies with the
requirement set out in clause 37.2.1 or held by trustees for the benefit of a
person or persons who, at that stage, in family relations or otherwise, in
essence meet the requirement set out in clause 37.2.1; or
37.2.4 is an heir of shares in the Company from a shareholder; or
37.2.5 becomes a transferee of Securities held by a person who complies with the
requirement set out in clause 37.2.1 as a direct consequence of the
restructuring of such person’s farming enterprise or such person’s estate for
estate planning purposes; or
37.2.6 becomes a transferee of Securities in his capacity as a beneficiary of a trust
who holds such Security for the benefit of such transferee.
37.3 Notwithstanding the provisions of clause 37.2 but subject to the requirements of the
Act, the Board is authorised but not obliged to, in circumstances where the Board
determines that it is in the best strategic interest of the Company to do so, –
37.3.1 issue and allot Securities to directors of the Company who are not qualifying
persons or who are directors of Senwes as part of a general issue of
securities by the Company to its shareholders; or
37.3.2 to permit the transfer of Securities by an existing shareholder to directors of
the Company who are not qualifying persons or to directors of Senwes,
46
on terms and conditions as the Board may deem appropriate and, in each instance,
subject thereto that all rights attached to such Securities become vested in such
person as principal and for his own benefit and subject further to the provisions of
clause 37.4 below.
37.4 A person who becomes the holder of Securities pursuant to clause 37.3, including
his successors-in-title, shall not be entitled to transfer such Securities or any rights
attached thereto, without first offering such Securities or rights to the Company (or
its nominee/s) to be accepted or rejected in the Company’s sole discretion, subject
to the obtaining of the requisite regulatory and shareholder approval (if any). Should
the Company not accept such offer in accordance with its terms, the relevant
Securities and/or rights may only be transferred to a qualifying person. The
aforesaid offer must –
37.4.1 be addressed, in writing, to the Company’s company secretary at the
Company’s registered address and must set out in detail the proposed terms
and conditions of the offer;
37.4.2 be open for acceptance in accordance with its terms by the Company (and/or
its nominee/s) within a period of fifteen business days from receipt thereof by
the company secretary; and
37.4.3 determine that, should the offer not be accepted in accordance with its terms,
the offer will fall away and the relevant Securities may then only be
transferred to a qualifying person on the same terms and conditions as set out
in the offer.
38 NO LIEN AND PRE-EXISTING SECURITY IN FAVOUR OF SENWES
38.1 Subject to clause 38.2, it is recorded for the avoidance of any doubt that fully paid
Securities shall not be subject to any lien in favour of the Company and shall be
freely transferable.
38.2 The Securities, together with all rights attaching thereto, including the right to
dividends, and share certificates initially issued by the Company to its first
shareholders who were issued such Shares in terms of a scheme of arrangement
47
implemented in respect of Senwes during 1997 (in this clause referred to as the
“Shareholders”), were ceded and pledged to Senwes as continuing covering
security (notwithstanding any fluctuation in or settlement of the secured debt) for
the due performance of all existing and future debt obligations of those
Shareholders to Senwes and, in terms of this MOI, will remain so ceded and
pledged, which cession and pledge have been accepted by Senwes.
38.3 Should a Shareholders’ debt position to Senwes warrant it at any stage in terms of
the prevailing credit norms of Senwes as determined by the Board of Senwes to be
advised by them to the Company in writing, the Company may release a
Shareholder from such security in respect of the appropriate Shares and may
surrender the relevant share certificates to such Shareholder at his written request
or will send it by registered mail to such Shareholder at his risk.
38.4 Where Senwes does not of its own accord release portions of a Shareholder’s
shares from the security referred to in clause 38.2 and the Shareholder concerned
wishes to have a portion of his shares released, such Shareholder should approach
his credit manager concerned at Senwes in order to make arrangements for
alternative security for his existing and future obligations, which security must be
acceptable to Senwes, whereafter the Company will, at the written instruction of
Senwes, surrender the applicable share certificates to the Shareholder, or will post
it by registered mail to the Shareholder at his risk.
38.5 Each Shareholder whose shares are subject to the security referred to in
clause 38.2, will be deemed to have authorised irrevocably and in rem suam any
director (whose appointment or capacity need not be proved) to perform all legal
acts on behalf of the Shareholder during the realisation of the security for the
transfer of the Shares and otherwise to give effect to such realisation.
38.6 The provisions of this clause 38 constitute a stipulatio alteri in favour of Senwes, the
benefit of which has been accepted by Senwes as at the date of the adoption of this
MOI.
39 AMENDMENT OF MOI
39.1 This MOI may be altered or amended under the following circumstances –
48
39.1.1 in compliance with a court order in the manner contemplated in clause 39.2;
39.1.2 by the Board in order to –
39.1.2.1 increase or decrease the number of authorised shares of any class of
shares;
39.1.2.2 reclassify any classified shares that have been authorised but not
issued;
39.1.2.3 classify any unclassified shares that have been authorised by this MOI,
but are not issued;
39.1.2.4 determine the preferences, rights, limitations or other terms of shares in
a class contemplated in clause 6.2;
39.1.3 at any other time if a special resolution to amend it –
39.1.3.1 is proposed by –
39.1.3.1.1 the Board; or
39.1.3.1.2 shareholders entitled to exercise at least 10% of the voting rights
that may be exercised on such a resolution,
and is adopted at a shareholders meeting, or in accordance with
clause 23.
39.2 An amendment to this MOI required by any court order –
39.2.1 must be effected by a resolution of the Board; and
39.2.2 does not require a special resolution as contemplated in clause 39.1.3.
39.3 Subject to clauses 39.1 and 39.4 any amendment to this MOI must be approved by
a special resolution of the ordinary shareholders as provided for in clause 39.1.3.
49
An amendment, for the avoidance of any doubt shall include, but not be limited to
the –
39.3.1 creation of any class of shares;
39.3.2 variation of any preferences, rights, limitations and other share terms
attaching to any class of shares;
39.3.3 conversion of one class of shares into one or more other classes;
39.3.4 increase of the number of Securities;
39.3.5 consolidation of Securities;
39.3.6 subdivision of Securities;
39.3.7 change of the name of the Company; or
39.3.8 conversion of shares from par value to no par value.
39.4 The Board, or an individual authorised by the Board, may alter the MOI, in any
manner necessary to correct a patent error in spelling, punctuation, reference,
grammar or similar defect on the face of the document, by –
39.4.1 publishing a notice of the alteration in accordance with the provisions of
clause 21; and
39.4.2 filing a notice of the alteration as required by the Act.