GUIDE TO THE MEMORANDUM OF INCORPORATION
GUIDE TO THE MEMORANDUM OF INCORPORATION GUIDE TO THE MEMORANDUM OF INCORPORATION
The MOI may incorporate different time periods allowed for adjournment inthe Act which states:The period of one hour contemplated in S64(4) and (5) orThe period of one week contemplated in S64(4);The MOI may also incorporate the provisions of Section 64(9) which statesthat after a quorum to begin a meeting has been established, or a matterto be considered – so long as at least one shareholder with voting rightsentitled to be exercised at the meeting or on that matter is present at themeeting, the meeting may continue or the matter considered OR the MOI(or rules) may limit or restrict this authority to continue with the meeting.Section 64(12) states that a meeting cannot be adjourned beyond theearlier of –a) A date that is 120 business days after the record date determined inaccordance with section 59 orb) The date that is 60 business days after the date on which theadjournment occurredSection 64(13) states that the MOI may provide for different maximumperiods of adjournment of meetings or unlimited adjournment of meetingsin Part E of Schedule 4.4.8 Shareholders resolutions(1) For an ordinary resolution to be adopted at a shareholders meeting, itmust be supported by the holders of at least –................. 50% of the voting rights exercised on the resolution, asprovided in section 65(7);................. % of the voting rights exercised on the resolution, despitesection 65(7);................. the minimum percentage of the voting rights exercised on theresolution, as set out in Part F of Schedule 4;The company may thus insert in the Schedule any provision establishingdifferent requirements for adoption of ordinary resolution for differentmatters;(2) For a special resolution to be adopted at a shareholders meeting, it mustbe supported by the holders of at least –................. 75% of the voting rights exercised on the resolution, asprovided in section 65(9);................. % of the voting rights exercised on the resolution, despitesection 65(9);................. the minimum percentage of voting rights exercised on theresolution, as set out in Part F of Schedule 4;(3) A special resolution adopted at a shareholders meeting is –................. not required for a matter to be determined by the Company,except those matters set out in section 65(11), or elsewhere in the Act;................. required, in addition to the matters set out in section 65(11),for the matters set out in Part G of Schedule 4. (The appropriate box to beticked).28
Note: the minimum % of 50% will however still apply in the removal of adirector under S 71;In other words, the MOI could either incorporate the default provisionsset out in the Act as per Section 65 OR insert any provision establishingdifferent requirements for adoption of an ordinary resolution for differentmatters and for the adoption of a special resolution for different matters –as long as there is a margin of at least 10% points between the two;The MOI may also adopt the provisions of Section 65(11) wholly whichsets out the scenario’s where a special resolution is required, and maystate that a special resolution is only required for those matters or mayimpose additional maters which will also require a special resolutionin Part G of Schedule 4 of the MOI. [see Table I page 46 for matterslisted in Section 65(11), and also page 39 which sets out Section 65requirements in more detail regarding special and ordinary resolutions].ARTICLE 5 – DIRECTORS AND OFFICERS5.1 Composition of the Board of Directors(1) The Board of Directors of the company comprises of ................. directors,and ................. alternate directors, to be elected by holders of thecompanies securities entitled to exercise voting rights, as contemplated inSection 68;Section 66(2) states that the board of a company must comprise –a) In the case of a for profit company (private or personal liabilitycompany), one or more directors are to be appointed;b) and in the case of a public or non-profit company, at least threedirectors,in addition to the minimum number of directors that the company musthave to satisfy any requirement whether in terms of the Act or the MOI,to appoint an audit committee or a social and ethics committee ascontemplated in section 72(4);S66(3) – Unless the MOI specifies a higher minimum requirement. TheMOI may therefore increase the minimum number of directors (andalternate directors) per category of company,●●Note: Decisions of the Board shall be valid even if the number ofdirectors is below the minimum set out by the Act or the MOI;Section 66(12): inserted by the Amendment Act: Any particular directormay be appointed to more than one committee and when calculating theminimum number of directors required for a company, any such directorwho has been appointed to more than one committee must be countedonly once;The MOI may name a specific person or persons in Part A of Schedule 5who shall have a right to appoint a director;(2) In addition to the elected directors –................. there are no appointed or ex officio directors of the company,as contemplated in section 66(4);................. there are ................. appointed, and ................. ex officiodirectors of the company, as contemplated in section 68, to bedesignated in the manner specified in Part A of Schedule 5;29
- Page 3 and 4: CONTENTSNotes on the guide to draft
- Page 5 and 6: 1. OVERVIEW OF LEGISLATIONThe Act w
- Page 7 and 8: SHAREHOLDER AGREEMENTS[Schedule 5,
- Page 9 and 10: Regulation 31(3):Form CoR 31 (Notic
- Page 11 and 12: Any order of court in terms of the
- Page 13 and 14: ●●It may thus incorporate “re
- Page 15 and 16: ●●●●●●If a rule has bee
- Page 17 and 18: ●●Form CoR 15.1E - Long Standar
- Page 19 and 20: It may state that such authority is
- Page 21 and 22: Applicable sections in the Act:Sect
- Page 23 and 24: ................. does not apply wi
- Page 25 and 26: For example, the MOI might set out
- Page 27 and 28: 3.7 Record date for exercise of sha
- Page 29: The Notice of meeting to shareholde
- Page 33 and 34: NOTE: Section 66(4)(b) - A profit c
- Page 35 and 36: (5) Conduct of meetings:The authori
- Page 37 and 38: (ii) for wilful misconduct or breac
- Page 39 and 40: ●●A shareholder (and any other
- Page 41 and 42: pre-existing company means a jurist
- Page 43 and 44: Table BRELATED AND INTER-RELATED PE
- Page 45 and 46: Table DSOLVENCY AND LIQUIDITY TESTS
- Page 47 and 48: Table GLENIENCY RE GOVERNANCE FOR C
- Page 49 and 50: g) approve a decision of the board
- Page 51: CONTACT DETAILS:National:Gauteng (C
The MOI may incorporate different time periods allowed for adjournment inthe Act which states:The period of one hour contemplated in S64(4) and (5) orThe period of one week contemplated in S64(4);The MOI may also incorporate the provisions of Section 64(9) which statesthat after a quorum to begin a meeting has been established, or a matterto be considered – so long as at least one shareholder with voting rightsentitled to be exercised at the meeting or on that matter is present at themeeting, the meeting may continue or the matter considered OR the MOI(or rules) may limit or restrict this authority to continue with the meeting.Section 64(12) states that a meeting cannot be adjourned beyond theearlier of –a) A date that is 120 business days after the record date determined inaccordance with section 59 orb) The date that is 60 business days after the date on which theadjournment occurredSection 64(13) states that the MOI may provide for different maximumperiods of adjournment of meetings or unlimited adjournment of meetingsin Part E of Schedule 4.4.8 Shareholders resolutions(1) For an ordinary resolution to be adopted at a shareholders meeting, itmust be supported by the holders of at least –................. 50% of the voting rights exercised on the resolution, asprovided in section 65(7);................. % of the voting rights exercised on the resolution, despitesection 65(7);................. the minimum percentage of the voting rights exercised on theresolution, as set out in Part F of Schedule 4;The company may thus insert in the Schedule any provision establishingdifferent requirements for adoption of ordinary resolution for differentmatters;(2) For a special resolution to be adopted at a shareholders meeting, it mustbe supported by the holders of at least –................. 75% of the voting rights exercised on the resolution, asprovided in section 65(9);................. % of the voting rights exercised on the resolution, despitesection 65(9);................. the minimum percentage of voting rights exercised on theresolution, as set out in Part F of Schedule 4;(3) A special resolution adopted at a shareholders meeting is –................. not required for a matter to be determined by the Company,except those matters set out in section 65(11), or elsewhere in the Act;................. required, in addition to the matters set out in section 65(11),for the matters set out in Part G of Schedule 4. (The appropriate box to beticked).28
Change language