Introduction and rationale

The memorandum of incorporation is the document that sets out the rights, duties and responsibilities of shareholders, directors and others within and in relation to a company. The Company’s existing Memorandum of Incorporation requires updating to ensure compliance with the current regulatory framework. This Schedule 1 sets out each of the proposed amendments, and details the reasons for and effects of the proposed changes.

Proposed amendment 1

The Memorandum of Incorporation of the Company is amended by the replacement of all references therein to the Securities Services Act 36 of 2004 with the Financial Markets Act 19 of 2012.

Reason for and effect of proposed amendment

The Financial Markets Act 19 of 2012 commenced on 3 June 2013 and replaced the Securities Services Act 36 of 2004 in its entirety.  The Memorandum of Incorporation is accordingly to be updated so as to refer to the new legislation.

Proposed amendment 2

The Memorandum of Incorporation of the Company is amended by the deletion of clause 8.1 and the replacement thereof with a new clause 8.1 which reads as follows:
“8.1 Pursuant to section 33(2) of the Financial Markets Act, the Company may only issue further listed Securities in uncertificated form. Except to the extent otherwise provided in the Act, the rights and obligations of Security holders shall not be different solely on the basis of their Securities being Certificated Securities or Uncertificated Securities and each provision of this Memorandum of Incorporation applies with respect to any Uncertificated Securities in the same manner as it applies to Certificated Securities, unless otherwise stated or indicated by the context.”

Reason for and effect of proposed amendment

The Financial Markets Act 19 of 2012 commenced on 3 June 2013. It provides in section 33(2) that listed securities may now only be issued in uncertificated (dematerialised) form.  This requirement will now be incorporated into the relevant provisions of the Memorandum of Incorporation of the Company concerning the issuance by the Company of certificated and uncertificated securities.

Proposed amendment 3

The Memorandum of Incorporation of the Company is amended by the insertion of a new clause 24.11 therein which reads as follows:
“24.11    All results of voting by the Shareholders on resolutions submitted to them shall be announced and disclosed by the Company as required by the JSE Listings Requirements. The announcement shall include the following:
    24.11.1    the resolutions proposed at the meeting;
    24.11.2    the Shares voted in person or by proxy disclosed as a number and a percentage (in relation to the total issued Share capital of that class of the Company);
    24.11.3    the Shares abstained disclosed as a percentage (in relation to the total issued Share capital of that class of the Company);
    24.11.4    the votes carried (i) for and (ii) against each resolution, disclosed as a percentage (in relation to the total number of Shares voted at the meeting in respect of clause 24.11.2); and
    24.11.5    to the extent that the number of Shares in clauses 24.11.2 and 24.11.3 differ for each resolution, details must be provided per resolution.”

Reason for and effect of proposed amendment

The JSE Listings Requirements were amended with effect from 30 September 2014 to include more detailed requirements on the disclosure and announcement of the voting processes undertaken at issuer companies’ general meetings. These requirements are now contained in section 3.91 of the JSE Listings Requirements, and are to be incorporated into the Memorandum of Incorporation of the Company for ease of reference and completeness.

Proposed amendment 4

The Memorandum of Incorporation of the Company is amended by the deletion of clause 27 thereof and replacing it with a new clause 27 which reads as follows:
“27    Restriction on shareholders acting other than at a meeting Despite section 60, only the following resolutions of Shareholders may be proposed as written resolutions in accordance with section 60 of the Act, as per the JSE Listings Requirements:
    27.1    a change of name of the Company;
    27.2    resolutions in respect of odd-lot offers as contemplated in clause 20;
    27.3    an increase in the number of authorised Shares; and
    27.4    approval of any amendment to this Memorandum of Incorporation,and apart from the above, all resolutions of Shareholders may only be passed at general meetings.”

Reason for and effect of proposed amendment

Schedule 10 of the JSE Listings Requirements, containing the requirements for issuers’ memoranda of incorporation, was amended to limit and regulate the passing of written resolutions of shareholders in respect of certain matters, under section 60 of the Act.  These matters are contained in item 10.11(h) of schedule 10 and are accordingly to be incorporated into the Company’s Memorandum of Incorporation in terms of the above proposed amendment.  Apart from these matters, all shareholder resolutions must be passed at duly convened meetings of the Company as per section 61 of the Act.