which is referred to in the rest of this Memorandum of Incorporation as the Company.

Transcription

1 Memorandum of Incorporation of SOUTHERN AFRICAN MARKETING RESEARCH ASSOCIATION NPC (Form CoR 15.1E Long Standard Form for Non Profit Companies with Members) which is referred to in the rest of this Memorandum of Incorporation as the Company. The Company is a Non Profit Company with members, with the objects set out in Annexure A hereto. Adoption of Memorandum of Incorporation This Memorandum of Incorporation was adopted by the members of the Company by special resolution of the Company dated 14 August 2012 in accordance with section 16(1)(c) of the Companies Act, 2008 ("the Act") In this Memorandum of Incorporation: Interpretation a) a reference to a section by number refers to the corresponding section of the Act; b) words that are defined in the Act bear the same meaning in this Memorandum of Incorporation; and c) words appearing to the right of an optional check line are void unless that line contains a mark to indicate that it has been chosen as the applicable option. The schedules attached to this Memorandum of Incorporation form part thereof. 1.1 Incorporation ARTICLE 1 INCORPORATION AND NATURE OF THE COMPANY The Company is incorporated as a Non Profit company, as defined in the Act. [A non profit company is defined as a company incorporated for a public benefit, cultural, social, communal and/or group object and which does not distribute its income to members, directors, officers or related persons.] The Company is incorporated in accordance with and governed by: (a) (b) (c) the unalterable provisions of the Act; and the alterable provisions of the Act, subject to the limitations, extensions, variations or substitutions set out in this Memorandum of Incorporation; and the provisions of this Memorandum of Incorporation. 1.2 Objects and Powers of the Company The Objects of the Company are as set out on in Annexure A and, except to the extent necessarily implied by the stated objects, the purposes and powers of the Company 1

2 X are not subject to any restriction, limitation or qualification, as contemplated in section 19 (1)(b)(ii). are subject to any restriction, limitation or qualification, contemplated in section 19 (1)(b)(ii), as set out in Part A of Schedule 1. [Sections 19(1)(a), 19(b)(i) and (ii) provide that from the time that a company is registered, the company is a juristic person and has all the legal powers and capacity of an individual, except to the extent that a juristic person is incapable of having those powers, or a company's MOI provides otherwise. Section 19(1)(b)(ii) provides that a company's legal powers and capacity may be limited by its MOI.] The Company: X is not subject to any provisions contemplated in section 15(2)(b) or (c). is subject to provisions contemplated in section 15(2)(b) or (c), as set out in Part B of Schedule 1. [Section 15(2)(b) provides that the MOI of any company may contain any restrictive conditions applicable to the company, and any requirement for the amendment of those conditions in addition to the requirements set out in section 16. Section 16 contains the standard provisions for the amendment of the MOI (which in summary are amendments by way of a court order or by a special resolution). Section 15(2)(c) provides that the MOI of any company may prohibit the amendment of any particular provision of the MOI. If a MOI includes a provision that restricts or prohibits the amendment of any particular provision of the MOI, the company's name must immediately be followed by the expression 'RF'. The term 'RF' refers to a 'ring-fenced company'. Third parties are deemed to have knowledge of the restrictive provisions in a RF company's MOI (section 19(5).] Upon dissolution of the Company, its net assets must be distributed in the manner determined in accordance with (a) Item 1(4)(b) of Schedule 1 of the Act; and (b) the provisions, if any, set out in Part C of Schedule 1 of this Memorandum. [Item 1(4)(b) of Schedule 1 says that, upon the winding-up or dissolution of the Company, its entire net value must be distributed to one or more other non-profit companies that carry on activities in South Africa, voluntary associations or non-profit trusts which have similar objects as the Company. Those other nonprofit companies, voluntary associations or non-profit trusts must be determined by the MOI (in Part C of Schedule 1), the Company's members or directors at the time of dissolution or by the court. 1.3 Memorandum of Incorporation and Company Rules This Memorandum of Incorporation of the Company: X may be altered or amended only in the manner set out in sections 16, 17 or 152(6)(b). may be altered or amended in the manner set out in sections 16, 17 or 152(6)(b), subject to the provisions contemplated in section 16(1)(c), as set out in Part D of Schedule 1. [Section 16 contains standard provisions for the amendment of a MOI. Section 17 contains standard provisions for altering errors in spelling, punctuation, reference, grammar or similar errors, translating and consolidating the MOI. Section 152(6)(b) provides that, to the extent that it is necessary to implement a 2

3 business rescue plan, a business rescue practitioner may amend a company's MOI in order to authorise the issue of securities. In terms of Section 16(1)(c) the MOI may be amended at any time if a special resolution is passed. Section 16(2) provides that the MOI may prescribe different requirements for the proposal of amendments to the MOI. Note that in terms of section 15(2)(c) you can prohibit the amendment of provisions of the MOI in the MOI.] The authority of the Company s board of directors ("the Board") to make rules for the Company, as contemplated in section 15(3) to (5): X is not limited or restricted in any manner by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part D of Schedule 1. [Sections 15(3) to (5) provide that unless otherwise provided for in the MOI, the board of directors may make, amend or repeal rules relating to the governance of a company in respect of matters that are not addressed in the Act or the MOI. If those rules are not consistent with the Act, they are void. The rules must be ratified by a members' ordinary resolution and filed in the prescribed manner and form. The rules are binding on members and directors.] The Board must publish any rules made in terms of section 15(3) to (5): by delivering a copy of those rules to each director by ordinary mail. X in accordance with the requirements set out in Part D of Schedule The Company must publish a notice of any alteration of the Memorandum of Incorporation made in terms of section 17(1): by delivering a copy of the alteration of the Memorandum of Incorporation to each director by ordinary mail. X in accordance with the requirements set out in Part D of Schedule 1. [Section 17(1) provides that the board, or an individual authorised by the board, may alter a company's rules, or its 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 publishing a notice of the alteration, in any manner required or permitted by the MOI or the rules of a company and filing a notice of the alteration.] 1.4 Application of Optional Provisions of the Act The Company: does not elect, in terms of section 34(2), to comply voluntarily with the provisions of Chapter 3 of the Act. X does elect, in terms of section 34(2), to comply voluntarily with the provisions of Chapter 3 of the Act, to the extent set out in Part C of Schedule 1. [Chapter 2 part C (section 24 34) contains the standard provisions for 'transparency, accountability and integrity of companies" and includes, for example, those provisions dealing with companies' records and financial statements. Chapter 3 (section 84 94) contains extended accountability provisions applicable to public companies. Section 84 says that the extended accountability provisions are only applicable to a private company, a personal liability company or a non-profit company if that company is required to have its annual financial statements audited every year or if the company's MOI requires it. Section 34(2) also says that a private company, personal liability company, or non-profit company is not required to comply with the extended accountability requirements, except if it is required to have its annual financial statements audited every year or if its MOI requires it. 3

4 1.5 Members of the Company As contemplated in Item 4 (1) of Schedule 1 of the Act, the Company has members, who are all voting members, the classes on which are set out in Part E of Schedule 1 to this Memorandum of Incorporation. X are in either of two classes, being voting and non-voting members, respectively The terms and conditions of membership in the company are as set out in Part E of Schedule 1 to this Memorandum. 2.1 Members' Authority to Act ARTICLE 2 RIGHTS OF MEMBERS If, at any time, every member of the Company is also a director of the Company, as contemplated in section 57(4), the authority of the members to act without notice or compliance with any other internal formalities, as set out in that section: X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part A of Schedule 2. [Section 57(4) provides that, if every member of a company (excluding state-owned companies) is also a director of that company, then matters may be referred to the members without complying with the formal notice requirements but only if all the directors/members are present at the Board meeting, if there are sufficient persons to satisfy the quorum requirements and they adopt a resolution, with the required support, in their capacity as members. When the directors are acting as members, they are not subject to the provisions relating to the duties, obligations, liabilities and indemnification of directors. In Part A of Schedule 2 the members may, is required, set out any provisions limiting or restricting the right of members to act without meeting formal requirements, as contemplated in section 57(4) of the Act.] 2.2 Members' Right to Information In addition to the rights to access information set out in section 26(1), a member of the Company has the further rights to information, if any, set out in Part B of Schedule 2 of this Memorandum of Incorporation. [In terms of section 26(1), a member has a right to inspect and copy the information in the following records of the company: (a) the MOI; (b) the records in respect of the company's directors; (c) the reports to annual meetings and annual financial statements; (d) the notices and minutes of annual meetings and certain other communications; and (e) the securities register of a profit company. We have not provided for any additional rights to access information.] 2.3 Representation by Concurrent Proxies The right of a member of the Company to appoint persons concurrently as proxies, as set out in section 58(3)(a): is not limited, restricted or varied by this Memorandum of Incorporation. 4

5 X is limited, restricted or varied to the extent set out in Part C of Schedule 2. [Section 58(3)(a) provides that, except to the extent that the MOI provides otherwise, a member may appoint 2 or more persons concurrently as proxies, and may appoint more than one proxy to exercise voting rights attached to different shares. In other words, unless limited, each member can appoint 2 or more proxies to represent them. We have not limited this in this draft of the MOI but please let us know if you would like to do so. SAMRA's current Articles of Association provide that proxies' appointments may only be appointed for a 6 month period and it specifies the form of the appointment. In terms of section 58 of the Act, proxies' appointments are valid for 1 year unless a longer or shorter period is expressly set out in the appointment. We recommend that the form in which you require proxies to be appointed be incorporated into the company rules that the Board is entitled to make (in terms of article 1.3(2)) and that that form specifies the period for which the proxy would be valid.] 2.4 Authority of Proxy to Delegate The authority of a member s proxy to delegate the proxy s powers to another person, as set out in section 58(3)(b): is not limited or restricted by this Memorandum of Incorporation. X is limited or restricted to the extent set out in Part B of Schedule 3. [Section 58(3)(b) provides that, except to the extent that the MOI provides otherwise, a proxy may delegate his authority to act to another person, subject to any restriction set out in the instrument appointing him as proxy.] 2.5 Requirement to Deliver Proxy Instrument to the Company The requirement that a member must deliver to the Company a copy of the instrument appointing a proxy before that proxy may exercise the member s rights at a members' meeting, as set out in section 58(3)(c): is not varied by this Memorandum of Incorporation. X is varied to the extent set out in Part C of Schedule 2. [Section 58(3)(c) provides that, except to the extent that the MOI provides otherwise, 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 may exercise any of the rights of the member at a members meeting. In Part C of Schedule 2, we have provided in the schedule that the proxy instrument must be delivered to the company at least 48 hours before the meeting, in line with SAMRA's current Articles of Association. ] 2.6 Deliberative Authority of Proxy The authority of a member s proxy to decide without direction from the member whether to exercise, or abstain from exercising any voting right of the member, as set out in section 58(7): is not limited or restricted by this Memorandum of Incorporation. X is limited or restricted to the extent set out in Part C of Schedule 2. [Section 58(7) provides that, except to the extent that the MOI provides otherwise, a proxy is entitled to exercise, or abstain from exercising, any voting right of the member. 5

6 We have limited this right of a proxy to decide how to vote so that the proxy has to vote in accordance with the instructions received from the person who appointed him, in line with SAMRA's current Articles of Association] 2.7 Record Date for Exercise of Members' Rights If, at any time, the Board fails to determine a record date, as contemplated in section 59, the record date for the relevant matter is: X as determined in accordance with section 59(3). as determined in the manner set out in Part D of Schedule 2. [A 'record date' is the date on which a company determines the identity of its members and their shareholdings. Section 59 provides that the board may set a record date to determine members' rights. That section sets out the standard provisions for the determination of a record date. Section 59(3) determines what the record date is if the board does not set the date and if the MOI or company rules do not provide otherwise.] 3.1 Requirement to Hold Meetings The Company: ARTICLE 3 MEMBERS MEETINGS is not required to hold any members meetings other than those specifically required by the Act. X is required to hold members meetings, in addition to those specifically required by the Act, as set out in Part A of Schedule 3. [Note that a non-profit company is not required by the Act to hold an AGM but we have amended this default provision in Part 3 of Schedule A, in line with SAMRA's current Articles of Association. The standard provisions for members' meetings (including when they must be held) are set out in section 61 of the Act. The board, or anybody else specified in the MOI, may call a members' meeting at any time (section 61(1)). A company must hold members' meetings when the board is required by the Act or the MOI to refer a matter to the members, whenever a vacancy on the board (other than an ex officio vacancy) must be filled, or when otherwise required by the MOI (section 61(2)). The board, or anybody else specified in the MOI must call a meeting if it receives a written, signed demand for a meeting (section 61(3)), unless a court finds the demand to be frivolous or vexatious (section 61(5)), or unless the demand is withdrawn (section 61(6)). Sections 61(9) and (10) provide for the location of members' meetings. Sections 61(11) to (14) deal with a company's inability or failure to convene prescribed meetings.] 3.2 Members' Right to Requisition a Meeting The right of members to requisition a meeting, as set out in section 61(3), may be exercised: X by the holders of at least 10% of the voting rights entitled to be exercised in relation to the matter to be considered at the meeting, as provided for in that section. by the holders of at least % of the voting rights entitled to be exercised in relation to the matter to be considered at the meeting, despite the provisions of that section. [In terms of section 61(3) the board, or anybody else specified in the MOI or rules, must call a members' meeting if one or more written and signed demands for such a meeting are delivered to the company, and: (a) each demand describes the specific purpose for which the meeting is proposed; and 6

7 (b) in total, demands for substantially the same purpose are made and signed by the holders of at least 10% of the voting rights entitled to be exercised in relation to the matter proposed to be considered at the meeting. In terms of section 61(4), a company's MOI can specify a lower percentage.] 3.3 Location of Members' Meetings The authority of the Board to determine the location of any members meeting, and the authority of the Company to hold any such meeting in the Republic or in any foreign country, as set out in section 61(9): X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part B of Schedule 3. [Section 91(9) provides that, except where the MOI provides otherwise, the board may determine the location of members' meetings. Members' meetings may be held in South Africa or in any foreign country.] 3.4 Notice of Members' Meetings The minimum number of days for the Company to deliver a notice of a members meeting to the members, as required by section 62: X is as provided for in section 62(1). is business days before the annual general meeting business days before any other general meeting is to begin. [In terms of section 62(1) a company must deliver a notice of each members' meeting in the prescribed manner and form to all of the members at least 10 business days before the meeting is to begin. In terms of section 62(2), the MOI can prescribe longer or shorter minimum notice periods. In terms of section 61(3), the stipulated notice may only be waived if all the members attend the meeting and agree to that waiver.] 3.5 Electronic Participation in Members' Meetings The authority of the Company to conduct a meeting entirely by electronic communication or to provide for participation in a meeting by electronic communication, as set out in section 63: X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part C of Schedule 3. [Section 63 sets out the standard provisions regulating the conduct of members' meetings. In terms of section 63(2), unless the MOI provides otherwise, a members' meeting may be conducted entirely by electronic communication or any members/proxies may participate in a members' meeting electronically.] 3.6 Quorum for Members' Meetings The quorum requirement for a members meeting to begin, or for a matter to be considered are: as set out in section 64(1) without variation. X as set out in section 64(1) subject to a minimum of 15 voting members in substitution for the 25% required by that section. [Section 64(1) provides that a members' meeting may not begin until there are enough persons to exercise at least 25% of all of the voting rights in respect of at least one matter to be decided at the meeting. It 7

8 furthermore provides that a matter to be decided at the meeting may not begin to be considered unless there are enough people to exercise at least 25% of all of the voting rights on that matter at the time the matter is called on the agenda. In terms of section 64(2), the MOI may specify a higher or lower percentage but, despite any such provisions in the MOI, if a company has more than 2 members a meeting cannot begin (and a matter cannot begin to be considered) until at least 3 members are present and any other provisions in the MOI are satisfied (this is in terms of section 64(3).] The time periods allowed in section 64(4) and (5): X apply to the Company without variation. apply to the Company, subject to the variations set out in Part D of Schedule 3. [Section 64(4) provides that if the requirements for a company's quorum are not satisfied within an hour after the meeting was due to start, or the matter due was due to be considered, the meeting must be postponed for 1 week. The person presiding at the meeting can, in exceptional circumstances (such as weather, transport or electronic communication problems) extend the 1 hour limit if affected members have communicated their intention to attend (section 64(5)). Section 64(6) allows the MOI to specify different time periods for the 1 hour limit and the 1 week postponement.] The authority of a meeting to continue to consider a matter, as set out in section 64(9): X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part D of Schedule 3. [Section 64(9) provides that unless otherwise provided for in the MOI or the company's rules, after a quorum has been established for a meeting, or for the consideration of a matter, the meeting may continue, or the matter may be considered, so long as at least 1 member with voting rights is present.] 3.7 Adjournment of Members' Meetings The maximum period allowable for an adjournment of a members meeting is: X as set out in section 64(13), without variation. as set out in section 64(13), subject to the variations set out in Part E of Schedule 3. [Section 64(12) provides that a meeting may not be adjourned beyond the earlier of a date which is 120 business days after the record date or 60 business days after the date on which the adjournment occurred. In terms of section 64(13), the MOI may provide different maximum adjournment periods or for unlimited adjournment.] 3.8 Members' Resolutions For an ordinary resolution to be adopted at a members meeting, it must be supported by the holders of at least: X 50% of the voting rights exercised on the resolution, as provided in section 65(7). % of the voting rights exercised on the resolution, despite section 65(7). the minimum percentage of the voting rights exercised on the resolution, as set out in Part F of Schedule 3. [Section 65(7) provides that for an ordinary resolution to be approved by members, it must be supported by more than 50% of the voting rights exercised on the resolution. Section 65(8) provides that, except for an ordinary resolution for the removal of a director, the MOI may require a higher percentage to approve all ordinary resolutions or higher percentages to approve ordinary 8

9 resolutions in particular matters. If the MOI prescribes different percentages for different matters, there must at all times be a margin of at least 10 percent between the highest established requirement for approval of an ordinary resolution on any matter, and the lowest established requirement for approval of a special resolution on any matter.] For a special resolution to be adopted at a members meeting, it must be supported by the holders of at least: X 75% of the voting rights exercised on the resolution, as provided in section 65(9). % of the voting rights exercised on the resolution, despite section 65(7). the minimum percentage of the voting rights exercised on the resolution, as set out in Part F of Schedule 3. [Section 65(9) provides that for a special resolution to be approved by members, it must be supported by at least 75% of the voting rights exercised on the resolution. Section 65(10) provides that the MOI may require a higher or lower percentage to approve all special resolutions or to approve special resolutions in particular matters. If the MOI prescribes different percentages for different matters, there must at all times be a margin of at least 10 percent between the highest established requirement for approval of an ordinary resolution on any matter, and the lowest established requirement for approval of a special resolution on any matter.] A special resolution adopted at a members meeting is: X 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 3. [In terms of section 65(11), a special resolution is needed to: a) amend the MOI; b) ratify a consolidated revision of the MOI; c) ratify actions by the company or directors in excess of their authority; d) approve an issue of shares or grant of rights in certain circumstances (section 41(1)); e) approve an issue of shares or securities (section 41(3)); f) authorise the board to grant financial assistance in certain circumstances (section 44(3)(a)(ii) or 45(3)(a)(ii)); g) approve a decision of the board for re-acquisition of shares in certain circumstances (section 48(8)); h) authorise the basis for compensation to directors of a profit company; i) approve the voluntary winding up of the company; j) approve the winding up of a company in certain circumstances (section 81(1)); k) approve an application to transfer the registration of the company to a foreign jurisdiction; l) approve any proposed fundamental transaction, to the extent required by Part A of Chapter 5; or m) revoke a resolution (section 164(9)(c)). In terms of section 65(12), the MOI may require a special resolution for any other matter.] 9

10 4.1 Composition of the Board of Directors ARTICLE 4 DIRECTORS AND OFFICERS The Board of Directors of the Company comprises of at least _3 but not more than _10 directors, and no alternate directors each of whom (a) is to be elected or appointed in the manner set out in Part A of Schedule 4; and (b) serves for a period as set out in Part A of Schedule In addition to the elected directors: there are no appointed or ex officio directors of the Company, as contemplated in section 66(4). X there are _up to 5 appointed, and 1 ex officio directors of the Company, as contemplated in section 66(4), to be designated in the manner set out in Part B of Schedule 4. [An 'ex officio' director is a person who holds office as a director only because he holds some other office, title, designation or similar status specified in the MOI. In terms of section 66(4)(a), the MOI may provide for: a) the direct appointment and removal of one or more directors by any person who is named in, or determined in terms of, the MOI; b) a person to be an ex officio director of the company as a consequence of that person holding some other office, title, designation or similar status; or c) the appointment or election of one or more persons as alternate directors of the company. However, section 66(4)(b) provides that the MOI of a profit company must provide for the election by members of at least 50% of the directors, and 50% of any alternate directors. As noted above, section 68 sets out the standard provisions for the elections and appointment of directors.] In addition to satisfying the qualification and eligibility requirements set out in section 69, to become or remain a director or a prescribed officer of the Company, a person: need not satisfy any further eligibility requirements or qualifications. X must satisfy the additional eligibility requirements and qualifications set out in Part C of Schedule 4. [In terms of section 69, the following persons are disqualified or ineligible to act as directors: a person who has been placed under probation by a court in terms of section 162, or in terms of section 47 of the Close Corporations Act; a juristic person; an unemancipated minor, or is under a similar legal disability; a person who does not satisfy any qualification set out in the company's MOI. a person prohibited by the court to be a director, or a person declared a delinquent in terms of section 162, or in terms of section 47 of the Close Corporations Act; an unrehabilitated insolvent; a person prohibited to be a director in terms of any public regulation; a person who has been removed from an office of trust, on the grounds of misconduct involving dishonesty; or a person who has been convicted, in the South Africa 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. We have supplemented this list in Part C of Schedule 4 to incorporate the provision in SAMRA's current MOI.] 10

11 4.1.4 Each elected director of the Company serves for a period as set out in Part A of Schedule Authority of the Board of Directors The authority of the Board to manage and direct the business and affairs of the Company, as set out in section 66(1): X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part D of Schedule 4. [Section 66(1) provides that the business and affairs of a company must be managed by or under the direction of its board. The board has the authority to exercise all of the powers and perform any of the functions of the company unless the MOI provides otherwise.] 4.3 Board of Directors' Meetings The authority of the Board to consider a matter other than at a meeting, as set out in section 74: X_ is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part E of Schedule 4. [Section 74 provides that, except to the extent that the MOI provides otherwise, 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 electronic communication, provided that each director has received notice of the matter to be decided. A decision made this way is of the same effect as if it had been approved by voting at a meeting.] The right of the Company s directors to requisition a meeting of the Board, as set out in section 73(1), may be exercised: by at least 25% of the directors, as provided in that section. X by at least 1 of the directors, despite the provisions of that section. [In terms of section 73(1), a director authorised by the board may call a meeting of the board at any time and must call a meeting if it is requested by at least 25% of the directors (if a board has 12 or more members) or at least 2 directors (if a board has less than 12 members). The MOI may prescribe higher or lower percentages (section 73(2)).] The authority of the Board to conduct a meeting entirely by electronic communication, or to provide for participation in a meeting by electronic communication, as set out in section 73(3): X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part F of Schedule 4. [Section 73(3) provides that, except to the extent that the MOI provides otherwise, a meeting of the board may be conducted by electronic communication, or 1 or more directors may participate in a meeting by electronic communication, provided that the electronic communication enables all persons participating in the meeting to communicate concurrently with one another without an intermediary.] 11

12 4.3.4 The authority of the Board to determine the manner and form of providing notice of its meetings, as set out in section 73(4): X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part F of Schedule 4. [Section 73(4) provides that the board may determine the form and time for giving notice of its meetings but that form and notice must comply with requirements set out in the company's MOI, or rules. No meeting may be convened without notice to all of the directors. In terms of section 73(5)(a), a meeting may be convened even if notice of that meeting was defective if all the directors acknowledge receipt of the notice, are all present at the meeting or waived notice of the meeting.] The authority of the Board to proceed with a meeting despite a failure or defect in giving notice of the meeting, as set out in section 73(5): X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part F of Schedule 4. [In terms of section 73(5)(a), a meeting may be convened even if notice of that meeting was defective, if all the directors acknowledge receipt of the notice, are all present at the meeting or waived notice of that meeting.] The quorum requirement for a directors' meeting to begin, the voting rights at such a meeting, and the requirements for approval of a resolution at such a meeting, are: as set out in section 73(5), without variation. X as set out in section 73(5) subject to the variations set out in Part F of Schedule 4. [Sections 73(5)(b) to (e) provide that: a majority of the directors must be present at a meeting before a vote may be called at a meeting of the directors; each director has one vote on a matter before the board; a majority of the votes cast on a resolution is sufficient to approve that resolution; and in the case of a tied vote the chair may cast a deciding vote, if the chair did not initially vote or if the matter being voted on fails, in any other case.] 4.4 Indemnification of Directors The authority of the Company to advance expenses to a director, or indemnify a director, in respect of the defence of legal proceedings, as set out in section 78(4): X is not limited, restricted or extended by this Memorandum of Incorporation. is limited, restricted or extended to the extent set out in Part G of Schedule 4. [Section 78(4) provides that, except to the extent that the MOI provides otherwise, the company may advance expenses to a director to defend litigation in proceedings arising out of the director's service and may indemnify a director for those expenses if the proceedings are abandoned or exculpate the director or arise in respect of any liability for which the company may indemnify the director. In terms of sections 78(5) and (6), unless the MOI provides otherwise, the company can indemnify directors in respect of any liability arising out of anything other than the provisions in sections 77(3)(a), (b) or (c), willful misconduct/breach of trust or certain fines.] The authority of the Company to indemnify a director in respect of liability, as set out in section 78(5): 12

13 X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part G of Schedule 4. [In terms of sections 78(5) and (6), unless the MOI provides otherwise, the company can indemnify directors in respect of any liability arising out of anything other than the provisions in sections 77(3)(a), (b) or (c), willful misconduct/breach of trust or certain fines.] The authority of the Company to purchase insurance to protect the Company, or a director, as set out in section 78(7): X is not limited, restricted or extended by this Memorandum of Incorporation. is limited, restricted or extended to the extent set out in Part G of Schedule 4. [Section 78(7) provides that, except to the extent that the MOI provides otherwise, a company may purchase insurance to protect a director against any liability or expenses for which the company is permitted to indemnify a director. Alternatively a company may, except to the extent that the MOI provides otherwise, purchase insurance to protect it against any contingency.] 4.5 Officers and Committees The Board of Directors may appoint any officers it considers necessary to better achieve the objects of the Company The authority of the Board to appoint committees of directors, and to delegate to any such committee any of the authority of the Board, as set out in section 72(1), and to include in any such committee persons who are not directors, as set out in section 72(2)(a): X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part H of Schedule 4. [Section 72(1) provides that, except to the extent that the MOI provides otherwise, the board may appoint any number of committees of directors and delegate any authority to any such committee. In terms of section 72(2)(a), unless otherwise provided for in the MOI or the resolution establishing the committee, the committee may include persons who are not directors of the company, but they must not be ineligible or disqualified to be a director and they do not have a vote in any matter to be decided by that committee.] The authority of a committee appointed by the Board, as set out in section 72(2)(b) and (c): X is not limited or restricted by this Memorandum of Incorporation. is limited or restricted to the extent set out in Part K of Schedule 5. [Sections 72(2)(b) and (c) provide that, except to the extent that the MOI or resolution establishing the committee provides otherwise, the committee may consult with, or receive advice from, any person and has the full authority of the board in respect of a matter referred to it.] ARTICLE 5 GENERAL PROVISIONS Insert any further provisions desired in this or additional Articles. 13

14 SCHEDULE 1 INCORPORATION AND NATURE OF THE COMPANY PART A Insert any provisions limiting the purposes or powers of the Company, as contemplated in section 19(1)(b) of the Act. PART B Insert any Ring fencing provisions as contemplated in section 15(2) of the Act PART C Article 1.2.3: Upon its dissolution, the net assets of the Company must be distributed to Southern African Audience Research Foundation (NPC Registration No. 1973/016172/08). Article 1.4.1: An auditor shall be appointed by the Board, and approved at the annual general meeting, to carry out an annual audit. Insert: PART D (a) any provisions relating to the amendment of the Memorandum of Incorporation, as contemplated in section 16(1)(c) of the Act; and (b) any provisions relating to the Board s authority to make rules for the Company, as contemplated in section 15(3) to (5) of the Act. Delivery of Notification of Rules and Alterations to Memorandum of Incorporation Articles and The Board must notify each member that it has made rules in terms of sections 15(3) to (5) of the Act or altered the Memorandum of Incorporation in terms of section 17 and send each member a copy of any notice, rules and alterations by electronic mail or telefax to that member's address or facsimile number as reflected in the Company's records. Each member is deemed to have received any notice, rules or alterations sent to it in terms of this Part D: - if it was sent by electronic mail to the address of the addressee, on the first business day following the date on which it was transmitted from the information system under the control of the sender; or - if it was telefaxed to the selected facsimile number, on the first business day following the date of transmission. 14

15 If a member actually receives any notice, rules or alterations, it will be deemed to have been sent to them as prescribed in this Part. PART E Insert provisions setting out the terms and conditions of membership. 1. Membership Classes 1.1 The Company has two (2) classes of Members, being: Voting members who are: Organisation Members who: are commercial or non-profit organisations, including companies or other entities such as business units or departments in commercial or non-profit organisations and that are juristic persons involved in offering, buying, making use of or contributing to the delivery of marketing research, social research and/or opinion polling research and/or research-based consulting products and services; and have workers, 85% of whom are Associate Members (as described below) of the Company, who perform functions related to one or more SAMRA Designated Roles (as defined in the Company Rules); a group of Independent Members who: Non-voting Members, being: 1.2 For clarity: are natural persons who work in one or more SAMRA Designated Roles (as defined in the Company Rules) and that offer, buy, make use of or contribute to the delivery of marketing research, social research and/or opinion polling research and/or research-based consulting products and services; and who are not working for Organisation Members; Associate Members who: are individuals who work for Organisation Members on a voluntary, permanent, full time, part time, temporary or independent contract basis in one or more SAMRA Designated Roles (as defined in the Company Rules) and are involved in offering, buying, making use of or contributing to the delivery of marketing research, social research and/or opinion polling research and/or research-based consulting products and services. Organisation Members, and the group of Independent Members are voting members while Associate Members are non-voting members. 15

16 2. Membership Requirements 2.1 The requirements for memberships are set out in the company s rules which are made by the Board in terms of Article of this Memorandum of Incorporation read with the Act and which may be amended from time to time ("Company Rules"). The Company Rules are available on its website or from the office upon request. 3. Membership Application And Admission 3.1 Persons or entities wishing to apply for membership of the Company must make application to the Board in the manner prescribed by the Company Rules. 3.2 The decision to admit an applicant for membership or to reject the application will be made by the Board having regard to the Company Rules. 3.3 No person or entity will be admitted to membership unless he/it has paid all the relevant membership fees. 4. Membership Fees 4.1 Members must pay the membership fees (including subscription and/or application and/or other fees) prescribed in the Company Rules from time to time. 5. Termination Of Membership 5.1 A Member's membership comes to an end as soon as that Member's membership is terminated in terms of paragraph 5.2 (of this Part E of Schedule 1 to this Memorandum of Incorporation) or as soon as that Member resigns. 5.2 The Board may terminate a Member s membership of the Company if: the Member s annual subscription, if applicable, or any other sum due to the Company is 6 (six) months in arrear; in the discretion of the Board, having regard to the guidelines for termination of membership included in Company Rules and having given the affected Member an opportunity to answer any charges against the Member, the Member is guilty of conduct inimical to the interest and/or objects of the Company; in the discretion of the Board, having regard to the guidelines for termination of membership included in the Company Rules and having given the affected Member an opportunity to answer any charges against the member, it is inimical to the interest of the Company that the member should not continue as a member of the Company. 5.3 The Board will furnish their reason for the termination of a Member s membership in terms of paragraph 5.2 (of this Part E of Schedule 1 to this Memorandum of Incorporation) to that Member in writing and that Member will have the right to appeal that decision in accordance with the process prescribed in the Company Rules. 5.4 A Member whose membership has been terminated remains liable for all sums that may, at the date of termination of such membership, be due from the Member to the Company and shall not be entitled to any refund of monies already paid nor have any claim on the Company or its officers, its property or its funds. 16

17 6. Members Rights 6.1 Organisation Members are voting members, entitled to 1 vote each. 6.2 The group of Independent Members is entitled to 1 vote which is a joint vote by all the Independent Members. 6.3 Voting Members are entitled to any other benefits set out in the Company Rules. 6.4 Associate Members are non-voting members and are entitled to those benefits set out in the Company Rules. 7. Members Obligation 7.1 Members must pay the prescribed membership fees and comply with all other membership obligations as recorded in the Company Rules. 17

18 SCHEDULE 2 RIGHTS OF MEMBERS PART A Insert any provisions limiting or restricting the right of members to act without meeting formal requirements, as contemplated in section 57(4) of the Act. PART B Insert any provisions creating addition information rights of members, as contemplated in section 26. PART C Insert any provisions relating to the powers of members to appoint proxies, the appointment of proxies, and the powers of any such proxy, as contemplated in section 58 of the Act. 1. Delivery of Proxy Instrument Article 2.5: The instrument appointing a proxy must be delivered to the Company at least 48 hours before the time at which the meeting for which the proxy has been appointed is scheduled. 2. Deliberative Authority of Proxy Article 2.3: A member may appoint only one proxy to represent them. Article 2.4: A proxy may not delegate authority to act to another person. Article 2.6: A proxy must vote in accordance with the instructions given to him by the member whom he represents. PART D Insert any provisions respecting the fixing of a record date, as contemplated in section 59 of the Act. 18

19 SCHEDULE 3 MEMBERS' MEETINGS PART A Insert any provisions imposing a requirement to hold a members' meeting. 1. Annual General Meeting Article 3.1: The Company must hold an annual general meeting every year, provided that not more than 15 months will elapse between the date of one annual general meeting and that of the next and that an annual general meeting will not be held later than the last day of August each year. PART B Insert any provision limiting or restricting the authority of the Board to determine the location of members' meetings, or the authority of the Company to meet outside the Republic. PART C Insert any provision limiting or restricting the authority of the Board with respect to the use of electronic communication for members' meetings, as contemplated in section 63 of the Act. PART D Insert any provision respecting the quorum requirements for members' meetings, or varying the provisions of section 64 of the Act. PART E Insert any provision varying section 64(13) of the Act with respect to the maximum period for adjournment of a members meeting. Insert: PART F (a) any provision establishing different requirements for adoption of an ordinary resolution for different matters; 19

20 (b) any provision establishing different requirements for adoption of an special resolution for different matters; or (c) any provision imposing the requirement of a special resolution to approve any matter, as contemplated in section 65(11) of the Act. PART G Insert any provisions setting out the matters for which a special resolution of the members is required. 20

21 SCHEDULE 4 DIRECTORS OF THE COMPANY PART A Insert any provisions setting out the process for the election of directors by voting members. 1. Election and Appointment Article 4.1.1: 1.1 The Board must comprise of at least those directors listed in the Company Rules. 1.2 At least 50% of the Board must be elected at the annual general meeting of the Company. The remainder of the Board must be appointed by those directors elected to the Board at the annual general meeting. 1.3 At least 90 days before the date of the annual general meeting at which the directors are to be elected, the Company shall give the voting members written notice calling on them to nominate candidates for appointment to the Board. 1.4 Each voting member may nominate an unlimited number of candidates, provided that such nominations are submitted to the Board at least 10 business days before the annual general meeting and that each candidate signifies his or her acceptance of the nomination in writing on the nomination form delivered to the Company. Any nomination which is not accepted by the candidate in this manner shall be disregarded. 1.5 Retiring directors may be re-elected to office for one additional term. 1.6 The election of the Board shall be by means of a secret ballot held at the Company s annual general meeting or general meeting, as the case may be. 1.7 Unless the voting members determine otherwise at a general meeting, any vacancy occurring on the Board may be filled by the Board. 2. Rotation Article 4.1.4: All elected and appointed directors on the Board shall retire from office no later than the third annual general meeting after their election and newly elected members of the Board shall assume their office as directors at that meeting. PART B Insert any provisions establishing the rights of any person to appoint a director, or establishing the right of any person to be an ex officio director of the Company. Article and 4.1.2: 1. Appointed and Ex Officio Directors 1.1 The Board must comprise of at least those directors listed in the Company Rules. 21

22 1.2 At least 50% of the Board must be elected at the annual general meeting of the Company, in accordance with the procedure set out in Part A of Schedule 4 of this Memorandum of Incorporation. 1.3 The directors elected to the Board at the annual general meeting must fill the vacancies remaining on the Board after the annual general meeting, by appointing directors to those vacancies as soon as possible after the general meeting. 1.4 The Board may appoint a Chief Executive Officer who will be an ex officio director on the Board. PART C Insert any provision imposing additional eligibility or qualification requirements for directors and prescribed officers of the Company. Article 4.1.3: 1. Additional Directors' Requirements 1.1 A director of the Company ceases to be a director if: his estate is finally sequestrated; he files a petition for the surrender of his estate as insolvent; he is placed under curatorship by any court of competent jurisdiction; a written notice to that effect signed by at least 40% (forty per centum) of the members is delivered at the office with effect from the date stated in that written notice; he delivers a notice of his resignation at the office with effect from: - the date on which that notice is delivered; or - any later date stated in that notice to which the directors agree; he fails to attend 3 (three) consecutive meetings without prior apology and without good cause; he dies; or he is convicted of a criminal offence. PART D Insert any provision limiting or restricting the authority of the Board to manage and direct the business and affairs of the Company, as contemplated in section 66 (1) of the Act. PART E 22