MEMORANDUM OF INCORPORATION THE FEDERATED EMPLOYERS MUTUAL ASSURANCE COMPANY PROPRIETARY LIMITED (RF) (Registration number 1936/008971/06)

Transcription

1 MEMORANDUM OF INCORPORATION OF THE FEDERATED EMPLOYERS MUTUAL ASSURANCE COMPANY PROPRIETARY LIMITED (RF) (Registration number 1936/008971/06) This Memorandum of Incorporation was adopted by a special resolution of shareholders passed on 10 April 2013, has been initialled by the chairman of that meeting for purposes of identification and replaces the previous Memorandum and Articles of Association in existence at the time of adoption of this Memorandum of Incorporation. 1

2 CONTENTS PART A STATUS AND POWERS OF THE COMPANY Interpretation Incorporation and nature of the Company Powers and capacity of the Company The making of rules Extended accountability Limitation of liability... 8 PART B CAPITALISATION AND SECURITIES OF THE COMPANY Debt instruments and other securities Share capital Rights of the ordinary shares Restrictions on ownership and transfer of shares Register and certificates PART C SHAREHOLDERS PROCEEDINGS Record dates Shareholders meetings Shareholders meetings by electronic communication Notice of shareholders meetings Shareholders resolutions Written resolutions by shareholders PART D DIRECTORS POWERS AND PROCEEDINGS Authority of the Board Composition of the Board Board committees Chairperson Directors meetings Written resolutions by directors Payments to directors Indemnification and insurance for directors Appointment of company secretary

3 PART E GENERAL PROVISIONS Financial assistance for subscription for or purchase of securities Financial assistance to directors, prescribed officers and related and inter related persons and entities Payments to policyholders Winding up and judicial management Notices Personal financial interests of directors and prescribed officers Loss of documents Compliance with the STI Act

4 PART A STATUS AND POWERS OF THE COMPANY 1. Interpretation In this MOI: 1.1. a reference to a clause by number refers to the corresponding clause of this MOI; 1.2. references to any statute or regulation shall be references to that statute (including regulations promulgated in terms thereof) or that regulation as modified, amended or substituted from time to time and for the time being in force; 1.3. words and expressions that are defined in the Companies Act but are not defined in this MOI shall bear the same meaning in this MOI as in that Act the headings are for reference purposes only and shall not affect the interpretation of this MOI; 1.4. words in the singular number shall include the plural and words in the plural number shall include the singular, words importing the masculine gender shall include the female gender and words importing persons shall include created entities (corporate or not); 1.5. if any term is defined within the context of any particular clause in the MOI, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this MOI, notwithstanding that the term has not been defined in clause 1.7; 1.6. unless the context otherwise requires: Board means the board of directors of the Company COID Act means the Compensation for Occupational Injuries and Diseases Act No. 130 of 1993; Companies Act means the Companies Act No. 71 of 2008; Company means The Federated Employers Mutual Assurance Company Proprietary Limited (RF) (Registration number 1936/008971/07); distribution bears the meaning set out in section 1 of the Companies Act and also includes policyholder payments; electronic address means, in regard to electronic communication, an e mail address furnished to the Company by a shareholder; FET means The Federated Employers Trust Proprietary Limited (Registration number 1960/001245/07) previously a public company named The Federated Employers Trust Limited (Registration number 1960/001245/06); 4

5 MOI means this Memorandum of Incorporation; monetary unit means the lowest whole monetary unit of the Republic of South Africa at the time in question, being R1 (one rand) as at the date of passing of the special resolution adopting this MOI; person means a person, including a trust, a partnership, any juristic person or any body of persons whether or not incorporated under any law of any country; policy means a policy of insurance issued by the Company; policyholder means a person who, or which, holds a policy that is current at the time in question or who, or which, holds a policy on the date that the Company ceases its insurance underwriting activities; policyholder payments means payments to policyholders, by way of premium refunds, policyholder bonuses, health and safety grants or analogous payments, as determined by the Board in accordance with the relevant provisions of clause 3.1; shareholder means a registered holder of ordinary shares issued by the Company (it being specifically recorded that, pursuant to clause 3.1, the Company is not permitted to issue any other form of securities); STI Act means the Short Term Insurance Act No. 53 of 1998; STI Registrar means the Registrar of Short Term Insurance; and writing includes electronic communication but as regards any shareholder entitled to vote, only to the extent that such shareholder has notified the Company of an electronic address; and 1.7. the rule of construction that a contract shall be interpreted against the party responsible for the drafting or preparation of the contract, shall not apply to this MOI. 2. Incorporation and nature of the Company 2.1. The Company is a short term insurer registered in terms of the STI Act and has as its main object the carrying on of insurance business in accordance with the STI Act. More specifically, the Company operates as a mutual association licensed in terms of the COID Act to carry on the business of insurance of certain classes of employers against their liabilities to employees in terms of that Act In accordance with its mutual status, the Company shall not offer any of its shares (or any other securities) to the public and the transferability of the Company s shares is restricted by clause 10. The Company is, accordingly, classified as a private company, in terms of section 8(2)(b) of the Companies Act Save to the extent that the provisions of the Companies Act and STI Act may permit this MOI to prevail, if the provisions of this MOI are in any way inconsistent with the provisions of the Companies Act or STI Act, then the provisions of the Companies Act or 5

6 STI Act shall prevail, and this MOI shall be read in all respects subject to the Companies Act and STI Act. 3. Powers and capacity of the Company 3.1. Unless the prior written consent of all policyholders and the unanimous consent of shareholders (under a special resolution passed by 100% of the voting rights exercised on the resolution, in terms of section 65(10) of the Companies Act) have been obtained permitting otherwise, then, as contemplated in section 15(2)(b) of the Companies Act, the powers of the Company are subject to the following restrictive conditions (and accordingly the authority of the Board to act in terms of section 66(1) of the Companies Act is limited to such extent): The Company may not change the classification of nor change any of the preferences, rights, limitations or other terms of the authorised or issued ordinary shares of the Company, other than to convert the Company s par value shares into shares of no par value in terms of the Companies Act and the regulations promulgated thereunder, by way of resolution of the Board and a special resolution passed by 75% of the voting rights exercised on the resolution The Company may only authorise new shares and may only issue new shares of the Company if such shares have no par value and in all other respects are of the same class and have the same preferences, rights, limitations and other terms as the existing ordinary shares in issue by the Company as at the date of passing of the special resolution adopting this MOI (it being specifically recorded that the Company may not issue any other form of securities) The Company may not consolidate or sub divide any of the authorised or issued ordinary shares of the Company, whether the resulting shares have a par value (or nominal value) or not After the date of passing of the special resolution adopting this MOI, any new issues of ordinary shares or sales, disposals or other transfers of ordinary shares permitted by and in terms of this MOI, as well as any repurchases of ordinary shares by the Company, shall be transacted only for a consideration not exceeding one monetary unit per share; For purposes of section 37(3)(b)(ii) of the Companies Act, upon the liquidation of the Company (including by dissolution, deregistration or winding up), after paying (and making adequate provision for) all liabilities of the Company (actual and contingent and including the costs of such liquidation (including by way of dissolution, deregistration or winding up)), an amount equal to one monetary unit per ordinary share shall be reserved for payment to ordinary shareholders as constituting the net assets of the Company and shall be payable to ordinary shareholders as the net assets of the Company, and all other assets and amounts available for payment by the Company shall, prior to payment of the amount payable to ordinary shareholders as the net assets of the Company, be applied to and paid as 6

7 policyholder payments on the terms set out elsewhere in this clause 3.1. The same shall apply to the extent that a members voluntary winding up may constitute a liquidation of the Company Save as expressly set out in clause 3.1.5, the Board may not resolve that and accordingly the Company may not make any form of distribution to its shareholders in their capacity as shareholders. Accordingly, save as expressly set out in clause 3.1.5, all profits and assets of the Company are to be retained by the Company or applied to and paid as policyholder payments as determined by the Board in accordance with the relevant provisions of this clause 3.1. For the avoidance of doubt, the determination of the quantum of policyholder payments by the Board, whether in aggregate or in relation to any one or more policyholders, shall not have regard in any way to the number of shares held by policyholders in the Company Former policyholders shall not participate in policyholder payments and, subject to the provisions of clause 3.1.5, the Board may distribute all or part of any current or retained surplus to the current policyholders, whether such surplus arose from previous year's transactions or for any period concurrent with the existence of any policy held by any policyholder The Board shall in its sole and absolute discretion determine the specific measurement criteria and period of measurement to be applied to determine the requirements for policyholders to participate in policyholder payments (including, without limitation, the quantum and timing thereof) and the basis of allocation of the aggregate quantum of policyholder payments among and between the participating policyholders, provided that the period of measurement applied in the event of liquidation of the Company (including by way of dissolution, deregistration or winding up) shall not be less than the three years ending on the date that the Company ceases its underwriting activities. Such determination shall be made by the Board on each occasion that policyholder payments are to be made and may vary from time to time In exercising its discretion under clause 3.1.8, the Board shall consider the relative contributions of policyholders to the underwriting profits of the Company, as determined by the premium income and claims expenses recorded in the Company s accounts during the period of measurement determined by the Board, and the need to incentivise improved health and safety practices The decisions of the Board regarding policyholder payments shall be final and binding on each shareholder and policyholder. 3.2 As contemplated in section 15(2)(c) of the Companies Act, amendment of, or the deletion from this MOI of any of the restrictive conditions set out in clause 3.1 above is prohibited. Every other provision of this MOI is capable of amendment in accordance with sections 16 and 17 of the Companies Act, subject only to the prior approval of the STI Registrar. 7

8 3.3 Save as set out in clauses 3.1 and 3.2, the Company has the powers and capacity of an individual, except to the extent that a juristic person is incapable of exercising any such power, or having any such capacity. Notwithstanding the omission from this MOl of any provision to that effect, the Company may do anything which the Companies Act empowers a company to do if so authorised by its MOI and permitted by the STI Act. 3.4 The Board shall not propose any resolution to shareholders in terms of section 20(2) or 20(6)(b) of the Companies Act for the ratification of any matter as contemplated in terms of section 20(2) or 20(6)(b) of the Companies Act, as the case may be. 4. The making of rules 4.1. The Board may, as contemplated in sections 15(3) to (5) of the Companies Act, make, amend or repeal any necessary or incidental rules relating to the governance of the Company in respect of matters that are not addressed in the Companies Act or this MOI, and the authority of the Board in this regard is not limited or restricted in any manner by this MOI The Company shall publish a copy of those rules and a notice of any alteration to those rules in accordance with the requirements set out in clause Extended accountability 5.1. As contemplated in section 34(2) of the Companies Act, for as long as the Company is registered in terms of the STI Act, the Company elects to comply with the extended accountability requirements set out in the following sections of Chapter 3 of the Companies Act, namely sections 84(4) to 84(7), 85, 86(2), 86(4) and sections 87 to The Company shall maintain the necessary accounting records which shall be accessible from its registered office. The Company shall prepare its financial statements in accordance with International Financial Reporting Standards and, for as long as the Company is registered in terms of the STI Act or is otherwise required to do so in terms of the Companies Act, shall have its annual financial statements audited A copy of the annual financial statements shall be distributed to shareholders at least 10 (ten) business days before the date of the annual general meeting at which these will be considered To the extent permitted by the Companies Act, where the Company is required to provide a person with the annual financial statements of the Company, it shall be sufficient to provide a summarised version of such annual financial statements, provided that the notification also includes instructions as to how the person may obtain the complete version of such annual financial statements. 6. 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. 8

9 PART B CAPITALISATION AND SECURITIES OF THE COMPANY 7. Debt instruments and other securities The Company shall not (and accordingly the Board may not) issue any debt instruments or any other form of securities, save as provided for in clause 8 below. 8. Share capital Subject to the prior approval of the STI Registrar to the extent required and the restrictive conditions of clause 3.1 relating to shares: 8.1. the Company is authorised to issue and has issued 500,000 (five hundred thousand) shares of a single class, being ordinary shares of 2 (two) cents each; 8.2. the Company may increase the number of authorised ordinary shares by way of a special resolution of shareholders; and 8.3. the Board shall have the power to issue such authorised ordinary shares. 9. Rights of the ordinary shares 9.1. Each ordinary share in the issued capital of the Company ranks pari passu with each other ordinary share in all respects and entitles its holder to exercise one vote on any matter to be decided by shareholders of the Company, but as stipulated in clause does not entitle its holder to any form of distribution from the Company save as expressly set out in The shareholders of the Company shall not have any pre emptive right to be offered and subscribe for additional shares of the Company and accordingly the rights of shareholders in this respect are negated in their entirety in terms of section 39(3) of the Companies Act Each shareholder shall have the information rights set out in section 26(1) of the Companies Act The right of a shareholder to be represented by proxy set out in section 58 of the Companies Act is not limited, restricted or varied by this MOI, provided that the Company shall not permit shares to be voted upon by the holder of a beneficial interest who does not hold a proxy form from the shareholder (notwithstanding any agreement, between the shareholder and the holder of the beneficial interest, permitting the holder of the beneficial interest to vote the shares to the exclusion of the shareholder). 10. Restrictions on ownership and transfer of shares No transfer of shares in the Company, whether fully paid up or not, shall be effected or purported to be effected without the approval of the Board and shares in the Company shall only be capable of being held by or transferred to policyholders or FET. The Board shall be entitled to decline to register the transfer of any share contrary to this clause 10 9

10 and any purported transferee thereof shall not be or become a shareholder or the holder of any beneficial interest in any share In accordance with clause 10.1, only policyholders and FET may acquire and continue to hold shares in the Company. Immediately upon ceasing to be a policyholder for any reason whatsoever, such former policyholder shall be obliged, without further notice, to transfer all shares held by them in the Company to FET for a consideration determined in accordance with clause 3.1.4, provided however, that should any such former policyholder fail to transfer any of their shares in the Company, the secretary of the Company (who is authorised by shareholders in terms of this MOI) may, without further notice, sign all documents in the name of and on behalf of such former policyholder to effect transfer of their shares in the Company in terms of the aforegoing against tender of payment of that amount, and such former policyholder shall be bound by such signature All persons who, or which, become policyholders after the date of passing of the special resolution adopting this MOI shall be entitled to acquire only one ordinary share in the issued share capital of the Company, whether by way of subscription for a share to be issued by the Company or the purchase of a share from FET, subject to and in terms of clause All existing policyholders as at the date of passing of the special resolution adopting this memorandum of incorporation shall be entitled, for so long as they continue to hold a policy, to continue to hold the number of shares held by them at the date of passing of the special resolution adopting this MOI, provided that FET shall be entitled to acquire and hold from time to time any number of shares in the issued share capital of the Company. 11. Register and certificates The ordinary shares issued by the Company may be issued in certificated form or uncertificated form, as determined by the Board from time to time The Company shall establish or cause to be established, and shall maintain, a securities register in accordance with the Companies Act and, to the extent that the form of and the manner of maintaining the securities register is not prescribed, the Board shall determine the form and manner thereof. PART C SHAREHOLDERS PROCEEDINGS 12. Record dates The Board may, in accordance with section 59 of the Companies Act, determine and publish a record date for the purposes of determining which shareholders are entitled to: receive a notice of a shareholders meeting; participate in and vote at a shareholders meeting; decide any matter by written consent or by electronic communication; or 10

11 12.4. be allotted or exercise any other rights; provided that if the Board does not determine a record date for any action or event, then the record date shall be as determined in accordance with section 59(3) of the Companies Act. 13. Shareholders meetings Subject to the provisions of section 60 of the Companies Act dealing with the passing of resolutions of shareholders otherwise than at a meeting of shareholders, the Company shall hold a shareholders meeting at any time required by the provisions of the Companies Act, STI Act or this MOI The Board may call a shareholders meeting at any time, but must call a shareholders meeting if 1 (one) or more written and signed demands by shareholders calling for such a meeting are delivered to the Company and: each such demand describes the specific purpose for which the meeting is proposed; and in aggregate, demands for substantially the same purpose are made and signed by the holders, as of the earliest time specified in any of those demands, of at least 10% (ten percent) of the voting rights entitled to be exercised in relation to the matter proposed to be considered at the meeting In addition to other meetings of the Company that may be convened from time to time, whether by the Board or otherwise in terms of the Companies Act, the Company shall convene an annual general meeting of its shareholders once in each calendar year, but no more than 15 (fifteen) months after the date of the previous annual general meeting Each annual general meeting of the Company contemplated in clause 13.3 shall provide for at least the following business to be transacted: the presentation of the directors' report, audited financial statements for the immediately preceding financial year of the Company and an audit committee report; the election of directors; the appointment of an auditor and an audit committee for the following financial year; and any matters raised by the shareholders, with or without advance notice to the Company The quorum for a shareholders' meeting to begin or for a matter to be considered, shall, save where a greater number is required by the Companies Act or STI Act, be at least 3 (three) shareholders present in person or represented by proxy, holding not less than 25% (twenty five percent) of the issued share capital of the Company. 11

12 13.6. The time periods specified in sections 64(4) and (5) of the Companies Act apply to the Company without variation and, accordingly, if within 1 (one) hour after the appointed time for a meeting to begin, the requirements: for that meeting to begin have not been satisfied, the meeting may be postponed, without any motion, vote or further notice, for 1 (one) week; for consideration of a particular matter to begin have not been satisfied: 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 any motion or vote; or if there is no other business on the agenda of the meeting, the meeting may be adjourned, without any motion or vote, for 1 (one) week The Company shall not be required to give further notice of a meeting that has been postponed or adjourned unless the location for the meeting is different from: the location of the postponed or adjourned meeting; or the location announced at the time of adjournment, in the case of an adjourned meeting If at the time appointed for a postponed meeting to begin, or for an adjourned meeting to resume, the requirements of clause 13.5 have not been satisfied, the shareholders present in person or by proxy will be deemed to constitute a quorum After a quorum has been established for a meeting, or for a matter to be considered at a meeting, all the shareholders forming part of the quorum must be present at the meeting for the matter to be considered at the meeting Voting at a shareholders meeting may either be by show of hands, or by polling. If voting is by show of hands, any person who is present at the meeting, whether as a shareholder or as proxy for a shareholder and entitled to exercise voting rights has one vote, irrespective of the number of voting rights that person would otherwise be entitled to exercise If voting on a particular matter is by polling, any person who is present at the meeting, whether as a shareholder or as proxy for a shareholder, has the number of votes determined in accordance with the voting rights associated with the shares held by that shareholder A polled vote must be held on any particular matter to be voted on at a meeting if a demand for such a vote is made by: at least five persons having the right to vote on that matter, either as a shareholder or a proxy representing a shareholder; or 12

13 a person who is, or persons who together are, entitled, as a shareholder or proxy representing a shareholder, to exercise at least 10% of the voting rights entitled to be voted on that matter If any shareholder abstains from voting in respect of any resolution, that shareholder will, for the purposes of determining the number of votes exercised in respect of that resolution, be deemed not to have exercised a vote in respect of that resolution but shall be counted for purposes of determining whether or not there is a quorum The chairperson of the Board shall preside as chairperson at every shareholder's meeting. If the chairperson is not present at the time appointed for holding the meeting or is unwilling to act as chairperson, the directors present shall choose 1 (one) of their number to be chairperson. If no director is willing to act as chairperson or if no director is present within 15 (fifteen) minutes after the time appointed for commencement of the meeting, the shareholders present shall choose one of their number to be chairperson of the meeting The chairperson of the meeting shall not have a casting vote, so in the case of a tied vote on a resolution that resolution is not adopted Shareholders meetings shall be held at the registered office of the Company or at another appropriate venue in the same city or town as the registered office of the Company Any minutes of a meeting, or a resolution, signed by the chairperson of the shareholders meeting, or by the chairperson of the next shareholders meeting, are evidence of the proceedings of that meeting, or adoption of that resolution, as the case may be Any extract from such minutes or extract from any resolution in writing, if signed by the chairperson of the meeting or by the company secretary, or by any duly authorised person acting in the place of the company secretary, shall be receivable as evidence of the matters stated in such minutes or resolution. 14. Shareholders meetings by electronic communication The Company may conduct a shareholders' meeting entirely by electronic communication or provide for participation in a meeting by electronic communication, as set out in section 63 of the Companies Act, and the power of the Company to do so is not limited or restricted by this MOI. Accordingly: any shareholders' meeting may be conducted entirely by electronic communication; or one or more shareholders, or proxies for shareholders, may participate by electronic communication in all or part of any shareholders' meeting that is being held in person; 13

14 so long as the electronic communication employed ordinarily enables all persons participating in that meeting to communicate concurrently with each other and without an intermediary, and to participate reasonably effectively in the meeting Any notice of any meeting of shareholders at which it will be possible for shareholders to participate by way of electronic communication shall inform shareholders of the ability to so participate and shall provide any necessary information to enable shareholders or their proxies to access the available medium or means of electronic Communication, provided that such access shall be at the expense of the shareholder or proxy concerned. 15. Notice of shareholders meetings The Company must deliver notice of each shareholders meeting to all shareholders as of the record date for the meeting at least 10 (ten) business days before that shareholders meeting is to begin (or such shorter period as may be agreed to in writing by all of the persons who are shareholders at the time of that shareholders meeting) The notice of a shareholders meeting shall be in writing and shall include the items set out in section 62(3) of the Companies Act The notice of a shareholders meeting must be delivered in accordance with the provisions of clause The accidental omission to give notice of any meeting to any particular shareholder or shareholders shall not invalidate any resolution passed at any such meeting. 16. Shareholders resolutions At any meeting of shareholders, any person who is present at the meeting, whether as a shareholder or as a proxy for a shareholder, shall be entitled to exercise the number of voting rights associated with the number of ordinary shares held by such shareholder in terms of clause or clause In order for an ordinary resolution to be approved, it must be supported by a majority of the voting rights exercised on the ordinary resolution at a quorate meeting of shareholders which is quorate in relation to that ordinary resolution; provided that this clause shall not detract from the shareholders' ability to adopt ordinary resolutions by written vote as referred to in clause In order for a special resolution to be approved, it must be supported by at least 75% of the voting rights exercised on the special resolution at a quorate meeting of shareholders which is quorate in relation to that special resolution; provided that this clause shall not detract from the shareholders' ability to adopt special resolutions by written vote as referred to in clause Except for those matters which require the approval or authority of a special resolution in terms of section 65(11) of the Companies Act, any other section of the Companies Act 14

15 or any provision of the STI Act or this MOI, no other matters which the Company may undertake require the approval or authority of a special resolution of the shareholders. 17. Written resolutions by shareholders A resolution that could be voted on at a shareholders meeting may instead be adopted by written vote of the shareholders, as contemplated in section 60 of the Companies Act, 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 shareholders meeting Unless the contrary is stated in the resolution, any such resolution shall be deemed to have been adopted on the date on which the Company received the written vote of the shareholder or the proxy of the shareholder whose vote resulted in the resolution being supported by sufficient votes for its adoption. PART D DIRECTORS POWERS AND PROCEEDINGS 18. Authority of the Board The business and affairs of the Company shall be managed by or under the direction of the Board, which shall have the authority to exercise all of the powers and perform all of the functions of the Company, except to the extent that the STI Act, Companies Act or this MOI provides otherwise The Board may delegate to any one or more persons all such powers and delegate to any one or more persons the doing of all such acts (including the right to sub delegate). 19. Composition of the Board The Board shall comprise of a minimum of 5 (five) and a maximum of 15 (fifteen) directors, with a majority of non executive directors The Managing Director of the Company shall be appointed by the Board and shall be an ex officio director of the Company for so long as he or she remains in the full time employ of the Company (and who shall automatically cease to be a director upon cessation of his or her employment). The Board may appoint a maximum of four additional executive directors based on the recommendations of the Managing Director, provided that there shall always be a majority of non executive directors appointed to the Board. All other directors shall be elected by an ordinary resolution of the shareholders, provided that the Board may appoint a person to fill a vacancy on a temporary basis. Directors appointed by the Board to fill a vacancy shall be subject to confirmation by shareholders at the next annual general meeting Each elected director of the Company shall serve for an indefinite term, provided that one third of the elected directors (rounded to the nearest whole number) shall retire from office at each annual general meeting, but may offer themselves for re election. The directors required to retire in each year shall be those in office for the longest 15

16 period since their previous election. The executive directors shall not be taken into account in determining the identity and number of directors required to retire in terms of this clause Executive directors shall automatically retire from office and shall automatically cease to be directors upon cessation of their employment by the Company The provisions of section 68(2) of the Companies Act shall apply to the election of directors, provided that directors may be elected by written vote in accordance with clause The Company may not permit a person to serve as a director if that person is ineligible or disqualified in terms of the Companies Act or the STI Act. In addition to these grounds of ineligibility and disqualification, a director shall cease to be eligible to continue to act as a director if so determined by a majority vote of the Board A retiring director shall act as a director throughout the meeting at which they retire Directors shall not be entitled to appoint alternate directors. 20. Board committees In addition to those committees which the Company is obliged to have in terms of the Companies Act or the STI Act, the Board may: appoint any number of committees of directors; and delegate to any committee any of the authority of the Board (including the authority to sub delegate); include any person who is not a director of the Company in such committees; and, accordingly, the authority of the Board in this regard is not limited or restricted by this MOI The authority and power of any committees established by the Board, as contemplated in section 72(2) of the Companies Act, is not limited or restricted by this MOI, but may be restricted by the Board when establishing the committee or by subsequent resolution A director may be appointed to more than one Board committee Meetings and other proceedings of a committee of the Board consisting of more than 1 (one) member shall be governed by the provisions of this MOI regulating the meetings and proceedings of directors. 21. Chairperson The Board shall be entitled, from time to time, to appoint a non executive director to act as the chairperson of the Board and to determine their term of office. The Board may 16

17 remove the chairperson from their post as chairperson during their term of office, with or without nominating a replacement and without affecting the status of such person as a director The chairperson of the Board shall preside as the chairperson of each meeting of the Board; provided that, if no chairperson is present and willing to act, the Board present shall elect one of the directors to be the chairperson of that meeting of the Board The chairperson shall, subject to the Companies Act and this MOI and any decision of the Board, determine the procedure to be followed at all meetings of the Board and of the shareholders The chairperson shall not have a second or casting vote, so in the case of a tied vote on a resolution, that resolution is not adopted. 22. Directors meetings The Board may: meet, adjourn and otherwise regulate its meetings as it thinks fit; provided that the chairperson may convene a meeting at any time and must convene a meeting if required to do so by at least 25% of the directors; and determine the form and time of the notice that shall be given of its meetings and the means of giving that notice provided that, subject to clause 22.2, no meeting may be convened without notice to all of the directors If, in relation to a meeting of directors, all of the directors of the Company: acknowledge actual receipt of the notice and agree that the meeting should proceed; are present at a meeting; or waive notice of the meeting, the meeting may proceed even if the Company failed to give the required notice of that meeting, or there was a defect in the giving of the notice The Board: may provide for a meeting of the Board to be conducted in whole or in part by electronic communication; and must always make provision for any director to participate by electronic communication in every Board meeting that is held at any place other than the registered office of the Company; and any electronic communication facility so employed must ordinarily enable all persons participating in that meeting to at least speak and hear each other at 17

18 approximately the same time, and to participate reasonably effectively in the meeting, with or without an intermediary. The authority of the Board in this regard is not limited or restricted by this MOI As set out in section 73(5)(b) of the Companies Act, the quorum for meetings of the Board shall be a majority in number of the directors then in office; provided that: if a quorum is not present within thirty minutes after the time appointed for the commencement of any meeting of the Board, that meeting shall automatically be postponed without motion or vote to the same day in the following week (or if that day is not a business day, the next business day), at the same time and place. The postponed meeting may only deal with the matters that were on the agenda of the meeting that was postponed; and if at any such postponed meeting a quorum is not present within thirty minutes after the time appointed for the commencement of that meeting, then, notwithstanding the provisions of section 73(5)(b) of the Companies Act, the directors present shall be deemed to constitute a quorum and shall be sufficient to vote on any resolution which is tabled at that meeting At any meeting of the Board: each director has one vote on every matter to be decided by the Board; and a resolution of the Board shall be passed by a majority of the votes cast at a quorate meeting of the Board and there is no casting vote, so in the case of a tied vote on a resolution, that resolution is not adopted. This clause shall not detract from the Board's ability to adopt resolutions as set out in clause The Company shall keep minutes of the meetings of the Board, and any of its committees, and include in those minutes: any declaration given by notice or made by a director, as required by section 75 of the Companies Act; and every resolution adopted by the Board Resolutions adopted by the Board: must be dated and sequentially numbered; and are effective as of the date of the resolution, unless the resolution states otherwise Any minutes of a meeting, or a resolution, signed by the chairperson of the meeting, or by the chairperson of the next meeting of the Board, is evidence of the proceedings of that meeting, or adoption of that resolution, as the case may be The directors may determine what period of notice shall be given of meetings of directors and may determine the means of giving such notice, which may include telephone, telefax or electronic communication. It shall be necessary to give notice of a 18

19 meeting of directors to all directors even those for the time being absent from South Africa. 23. Written resolutions by directors A decision that could be voted on at a meeting of the Board may instead be adopted by a written resolution that has been submitted to and received (including by e mail) by all of the directors and signed by at least that number of the directors having a majority of the voting rights that could be exercised upon that resolution if it were considered by a meeting of the Board Any such resolution shall be as valid and effective as if it had been adopted by a duly convened and constituted meeting of Directors Unless the contrary is stated in the resolution, any such resolution shall be deemed to have been passed on the date on which it was signed by or on behalf of the director who signed it last The resolution may consist of one or more counterpart documents, each signed by one or more directors. 24. Payments to directors The Company may pay remuneration to its directors for their services as such; provided that such remuneration must be approved by a special resolution passed by the shareholders within the previous two years and the authority of the Board in this regard is not restricted or limited by this MOI A director may be employed in any other capacity in the Company and in that event, their appointment and remuneration in respect of such other office shall be determined by a disinterested quorum of directors Each director shall be paid all travelling, subsistence and other expenses properly incurred by him in the execution of his duties as a director; provided that such expenses shall first have been authorised or ratified by the directors or have been incurred in terms of any policy determined for same by the Board. 25. Indemnification and insurance for directors For the purposes of this clause 25, a director includes: a former director; a prescribed officer; and a person who is a member of a committee of the Board; irrespective of whether or not the person is also a member of the Board. 19

20 25.2. The Board may, on behalf of the Company, as contemplated in sections 78(4), 78(5) and 78(7) of the Companies Act: advance expenses to a director to defend litigation in any proceedings arising out of the director s service to the Company; and directly or indirectly indemnify a director for expenses contemplated in clause , irrespective of whether or not it has advanced those expenses, if the proceedings: are abandoned or exculpate that director; or arise in respect of any liability for which the Company may indemnify the Director in terms of clause ; indemnify a director against any liability arising from the conduct of that director, other than a liability set out in section 78(6) of the Companies Act; purchase insurance to protect: a director against any liability or expense for which the Company is permitted to indemnify the Director in accordance with ; the Company against any contingency, including: any expenses that the Company is permitted to advance in accordance with clause or for which the Company is permitted to indemnify a director in accordance with clause ; or any liability for which the Company is permitted to indemnify a Director in accordance with ; and the authority of the Board in this regard is not limited or restricted by this MOI The Company shall and is hereby obliged to indemnify each director against (and pay to each director, on demand by that director, the amount of) any loss, liability, damage, cost (including all legal costs reasonably incurred by the director in dealing with or defending any claim) or expense ("Loss") which that director may suffer as a result of any act or omission of that director in his capacity as a director; provided that: this indemnity shall not extend to any matter contemplated in section 78(2) of the Companies Act or to any Loss: against which the Company is not permitted to indemnify a director by section 78(6) of the Companies Act; arising from any gross negligence or recklessness on the part of that director or any loss of or damage to reputation; or 20

21 in the event and to the extent that the director has recovered or is entitled and able to recover the amount of that Loss in terms of any insurance policy (whether taken out or paid for by the Company or otherwise); and directors shall not be entitled to recover the Losses referred to in this clause from the Company. All losses other than those referred to in this clause are referred to herein as "Indemnified Losses"; each director's right to be indemnified by the Company in terms of this indemnity shall exist automatically upon their becoming a director and shall endure even after they cease to be a director until they can no longer suffer or incur any Indemnified Loss; for purposes of this clause 25.3: if any claim is made against a director in respect of any Indemnified Loss, the director shall not admit any liability in respect thereof and the director shall notify the Company of any such claim within a reasonable time after the director becomes aware of such claim, in order to enable the Company to contest such claim. Notwithstanding the aforegoing provisions of this clause , the Company's liability in terms of this indemnity shall not be affected by any failure of the director to comply with this clause , save in the event and to the extent that the Company proves that such failure has resulted in the Indemnified Loss being greater than it would have been had the director complied with this clause ; the Company shall, at its own expense and with the assistance of its own legal advisers, be entitled to contest any such claim in the name of the director until finally determined by the highest court to which appeal may be made (or which may review any decision or judgment made or given in relation thereto) or to settle any such claim and shall be entitled to control the proceedings in regard thereto; provided that: the director shall (at the expense of the Company and, if the director so requires, with the involvement of the director's own legal advisers) render to the Company such assistance as the Company may reasonably require of the director in order to contest such claim; the Company shall regularly, and in any event on demand by the director, inform the director fully of the status of the contested claim and furnish the director with all documents and information relating thereto which may reasonably be requested by the director; the Company shall consult with the director prior to taking any major steps in relation to or settling such contested claim and, in particular, before making or agreeing to any announcement or other publicity in relation to such claim; 21

22 to the extent permitted in terms of the Companies Act and to the extent that any Loss consists of or arises from a claim or potential claim that the Company might otherwise have had against the director, then the effect of this indemnity shall be to prevent the Company from making such claim against the director, who shall be immune to such claim, and such claim shall therefore be deemed not to arise; if this clause 25 is amended at any time, no such amendment shall detract from the rights of the directors in terms of this clause in respect of any period prior to the date on which the special resolution effecting such amendment is adopted by the shareholders; all provisions of this clause 25.3 are, notwithstanding the manner in which they have been grouped together or linked grammatically, severable from each other. Any provision of this clause 25.3 which is or becomes unenforceable, whether due to voidness, invalidity, illegality, unlawfulness or for any other reason whatever, shall, only to the extent that it is so unenforceable, be treated as pro non scripto and the remaining provisions of this agreement shall remain of full force and effect; this indemnity shall not detract from any separate indemnity that the Company may sign in favour of the director. 26. Appointment of company secretary The directors must appoint the company secretary from time to time, who must comply with the requirements of the Companies Act. PART E GENERAL PROVISIONS 27. Financial assistance for subscription for or purchase of securities The Board may, as contemplated in section 44 of the Companies Act and subject to the requirements of that section, authorise the Company to provide financial assistance by way of a loan or otherwise, for the purpose of the subscription for ordinary shares, issued or to be issued by the Company or (for so long as it is a related or inter related company in relation to the Company) FET, to any person authorised to hold such shares in the Company or FET, but may not otherwise provide any form of financial assistance for the subscription for or purchase of securities in the Company or any related or inter related entity. The authority of the Board in this regard is accordingly, limited and restricted by this MOI. 28. Financial assistance to directors, prescribed officers and related and inter related persons and entities The Board may, as contemplated in section 45 of the Companies Act and subject to the requirements of that section, authorise the Company to provide financial assistance to FET (for so long as it is a related or inter related company in relation to the Company) or its controlling entity (for so long as it is a related or inter related company in relation to the Company), or to an executive director or prescribed officer as part of their normal employment benefits, but may not otherwise provide any form of direct or indirect financial assistance to a director or 22