MEMORANDUM OF INCORPORATION

Transcription

1 MEMORANDUM OF INCORPORATION THE FIELD GUIDES ASSOCIATION OF SOUTHERN AFRICA NPC Memorandum of Incorporation prepared in terms of Section 15 of the Companies Act, A non-profit No 71 of company 2008 (as amended) Registration number: 2004/003844/08 Registration date: 17 February 2004 A non-profit company Registration number: 2004/003844/08 Registration date: 17 February 2004

2 Contents 1. INTERPRETATION JURISTIC PERSONALITY LIMITATION OF LIABILITY OBJECTS AND POWERS OF THE COMPANY SPECIAL CONDITIONS ASSOCIATION AND RIGHTS OF ASSOCIATES FINANCIAL ASSISTANCE RIGHTS OF ASSOCIATES PROHIBITION ON DISTRIBUTION OF INCOME AND PROPERTY TRANSFER OF ASSOCIATION DEBT INSTRUMENTS ASSOCIATES MEETINGS ASSOCIATES MEETINGS BY ELECTRONIC COMMUNICATION COMPOSITION AND POWERS OF THE BOARD OF DIRECTORS DIRECTORS MEETINGS DIRECTORS COMPENSATION AND FINANCIAL ASSISTANCE MANAGING DIRECTOR INDEMNIFICATION OF DIRECTORS BORROWING POWERS COMMITTEES OF THE BOARD ANNUAL FINANCIAL STATEMENTS COMPANY SECRETARY ACCESS TO COMPANY RECORDS NOTICES AMENDMENT OF MEMORANDUM OF INCORPORATION COMPANY RULES WINDING-UP The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 2

3 1. INTERPRETATION 1.1. In this Memorandum of Incorporation, unless the context clearly indicates a contrary intention, the following words and expressions bear the meanings assigned to them and cognate expressions bear corresponding meanings: Act means the Companies Act, No 71 of 2008, as amended, consolidated or re-enacted from time to time, and includes all schedules to such Act; Associate means the Associate(s) of the Company from time to time who have been admitted to Association of the Company in accordance with the provisions of this Memorandum of Incorporation; Associates Register means the register of Associates required to be established and kept in terms of this Memorandum of Incorporation; Board means the board of Directors from time to time of the Company; Code of Conduct means the Code of Conduct which Associates are obliged to accept and abide by as set out in Schedule 2 to this Memorandum of Incorporation; Commission means the Companies and Intellectual Property Commission established by section 185 of the Act; Company means the company named on the first page of this document, duly incorporated under the registration number endorsed thereon; Days shall be construed as Gregorian calendar Days unless qualified by the word business, in which instance a business day will be any day other than a Saturday, Sunday or public holiday as gazetted by the government of the Republic from time to time and any period provided for between the happening of one event and another shall be calculated by excluding the day upon which the first such event occurs and including the day upon which the second event is to occur; Director means a Member of the Board as contemplated in section 66 of the Act, and includes any person occupying the position of a Director, by whatever name designated; Electronic Communication has the meaning set out in section 1 of the Electronic Communications and Transactions Act, No 25 of 2002; The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 3

4 Executive Committee means the committee established in terms of clause 20.1 from time to time; FGASA means the Company; IFRS means the International Financial Reporting Standards, as adopted from time to time by the Board of the International Accounting Standards Committee, or its successor body, and approved for use in South Africa from time to time by the Financial Reporting Standards Council established in terms of section 203 of the Act; Law means any law of general application, as amended and reenacted from time to time, and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law; Prescribed Officers means any officer of the Company who has been designated as a Prescribed Officer as contemplated in Section 66(10) of the Act; Region means each geographic region in respect of which the Associates are divided by the Board in its sole discretion from time to time; Regulations means the regulations published in terms of the Act from time to time; Republic means the Republic of South Africa; Rules means any rules made by the Board and ratified by the Company as contemplated in Section 15 (3) to (5) of the Act, provided that such rules shall be published by means of circulating a copy of such rules once accepted by the Board by means of a simple majority vote of the Board at a meeting duly constituted, by means of Electronic Communication. The initial Rules pertaining to Association status and FGASA Guiding Principles and Code of Conduct are annexed hereto marked Schedule 1 and 2 respectively; Solvency and Liquidity Test has the meaning attributed thereto in section 4 of the Act, provided that any preferential rights of an Associate upon liquidation shall be taken into account when applying the test; The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 4

5 Tourist Guide means an Associate who is legally registered as a tourist guide in terms of the prevailing legislation and takes persons into the environment of Southern Africa, either for reward or not, and is thus considered to be a tourist guide in an area or areas that may be difficult to visit, interpret or enjoy without the expertise, direction or protection of such a guide; Writing means legible writing and in English and includes printing, typewriting, lithography or any other mechanical process, as well as any Electronic Communication in a manner and a form permitted in terms of the Act and/or the Regulations In this Memorandum of Incorporation, unless the context clearly indicates otherwise: words and expressions defined in the Act and which are not defined herein shall have the meanings given to them in the Act; a reference to a clause by number refers to a corresponding provision of this Memorandum of Incorporation; clause headings are for convenience only and are not to be used in its interpretation; an expression which denotes: any gender includes the other genders; a natural person includes a juristic person and vice versa; and the singular includes the plural and vice versa; if the due date for performance of any obligation in terms of this Memorandum of Incorporation is a day which is not a business day then (unless otherwise stipulated), the due date for performance of the relevant obligation shall be the immediately succeeding business day; in any instance where there is a conflict between a provision (be it expressed, implied or tacit) of this Memorandum of Incorporation and: a provision of any Agreement entered into between the Company and any of its Associates, the provision of this Memorandum of Incorporation shall prevail to the extent of the conflict; The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 5

6 an alterable or elective provision of the Act, the provision of this Memorandum of Incorporation shall prevail to the extent of the conflict; and an unalterable or non-elective provision of the Act, the unalterable or non-elective provision of the Act shall prevail to the extent of the conflict unless the Memorandum of Incorporation imposes on the Company a higher standard, greater restriction, longer period of time or similarly more onerous requirement, in which event the relevant provision of this Memorandum of Incorporation shall prevail to the extent of the conflict; any words or expressions defined in any clause shall, unless the application of any such word or expression is specifically limited to that clause, bear the meaning assigned to such word or expression throughout the whole of this Memorandum of Incorporation; any reference to a notice shall be construed as a reference to a written notice, and shall include a notice which is transmitted electronically in a manner and form permitted in terms of the Act and/or the Regulations The words include and including mean include without limitation and including without limitation. The use of the words include and including followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it Unless otherwise provided, defined terms appearing in this Memorandum of Incorporation in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning Unless specifically otherwise provided, any number of Days prescribed shall be determined by excluding the first and including the last day or, where the last day falls on a day that is not a business day, the next succeeding business day Where figures are referred to in numerals and in words, and there is any conflict between the two, the words shall prevail, unless the context indicates a contrary intention Any reference herein to this Memorandum of Incorporation shall be construed as a reference to this Memorandum of Incorporation as amended from time to time Whenever any person is required to act as an expert and not as an arbitrator in terms of this Memorandum of Incorporation, then:- The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 6

7 the determination of the expert shall (in the absence of manifest error) be final and binding; subject to any express provision to the contrary, the expert shall determine the liability for his or its charges, which shall be paid accordingly; the expert shall be entitled to determine such methods and processes as he or it may, in his or its sole discretion, deem appropriate in the circumstances provided that the expert may not adopt any process which is manifestly biased, unfair or unreasonable; the expert shall consult with the relevant parties (provided that the extent of the expert s consultation shall be in his or its sole discretion) prior to rendering a determination; and having regard to the sensitivity of any confidential information, the expert shall be entitled to take advice from any person considered by him or it to have expert knowledge with reference to the matter in question. 2. JURISTIC PERSONALITY 2.1. The Company is a pre-existing non-profit company as defined in the Act and, as such, continues to exist as a non-profit company as if it had been incorporated and registered in terms of the Act, as contemplated in item 2 of the Fifth Schedule to the Act, and this Memorandum of Incorporation replaces and supersedes the Memorandum and Articles of Association of the Company applicable immediately prior to the approval hereof The Company is incorporated in accordance with and governed by: the unalterable provisions of the Act, save to the extent that this Memorandum of Incorporation does not impose on the Company a higher standard, greater restriction, longer period of time or similarly more onerous requirement; and the alterable provisions of the Act, subject to the limitations, extensions, variations or substitutions set out in this Memorandum of Incorporation; section 10 and schedule 1 to the Act detailing specific provisions concerning non-profit companies; and the other provisions of this Memorandum of Incorporation. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 7

8 3. LIMITATION OF LIABILITY No person shall, subject to the provisions of section 77 of the Act, solely by reason of being an incorporator, Associate or Director or Prescribed Officers of the Company, be liable for any liabilities or obligations of the Company. 4. OBJECTS AND POWERS OF THE COMPANY 4.1. The main objects of the Company shall be to promote, encourage and protect the interest of Associates and, without limiting the generality of the aforegoing, to: promote the common interests of its Associates in carrying on their occupation as Tourist Guides or to individuals who represent business entities involved in the tourism sector; to actively promote the continued improvement of these facilities and services to meet national and international needs; to provide and promote training within the tourism industry in an effort to achieve the highest standards reasonably possible within the Tourist Guide Industry, exceeding at least the minimum standards as set out by the relevant government body; to promote or oppose legislative or other measures connected with or effecting the tourism industry; to undertake any other activity in pursuit of the maintenance and improvement of standards of efficiency and professionalism in the tourism industry, or related to the expansion of the tourism industry; to deal with such matters as may affect the common interests of the Associates; if deemed desirable by the Company in general meeting, to join or become a member or an Associate of, or affiliate to anybody or other association whose objects are wholly or in part similar to those of the Company; maintain a high standard of conduct and to develop and encourage a high ethical standard of conduct amongst its Associates; to execute agreements for the attainment of any of its objects; to make such rules as it may deem necessary for the proper conduct of the Associates activities; to invite patronage of and grant honorary Association status to any persons it considers desirable; The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 8

9 to set down, from time to time, nationally coordinated practical and theoretical evaluations and examinations, either written or oral, to grant Associates recognition of differing levels of expertise in an effort to achieve standards exceeding the minimum requirements as set by the relevant government body; to consider applications for the accreditation of trainers and training enterprises by evaluating the trainers and the content of such courses, as set out in the FGASA syllabus, in conjunction with the relevant government body or any other relevant government body; to do or perform all such other acts, deeds, things or functions as may be incidental or conducive to the attainment of the aforegoing objectives or any one of them The Company shall apply all of its assets and income, however derived, to advance its stated objects, as set out in this Memorandum of Incorporation, as contemplated in item 1(2)(a) of Schedule 1 to the Act The Company shall have all of the legal powers and capacity contemplated in the Act, and no provision contained in this Memorandum of Incorporation should be interpreted or construed as negating, limiting or restricting those powers in any way whatsoever The legal powers and capacity of the Company is not subject to any restrictions, limitations or qualifications, as contemplated in section 19(1)(b)(ii) of the Act The Company is not subject to any provisions contemplated in section 15(2)(b) or (c) of the Act Upon winding-up or dissolution of the Company, its net assets must be distributed in accordance with item 1(4)(b) of Schedule 1 of the Act namely, to one or more non-profit companies carrying on activities within the Republic, voluntary associations or non-profit trusts: having objects similar to the objects set out in this Memorandum of Incorporation; and as determined in this Memorandum of Incorporation, or by the Associates or Directors as provided for in the Memorandum of Incorporation, subject to the provisions of item 1 (4) of Schedule 1 to the Act; The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 9

10 5. SPECIAL CONDITIONS This Memorandum of Incorporation does not contain any prohibitions to Amendment as contemplated in section 15(2)(b) or 15(2)(c) of the Act. 6. ASSOCIATION AND RIGHTS OF ASSOCIATES 6.1. The Company shall not have voting Members, but shall consist of a Board of Directors and shall have Associates The terms and conditions of Association to the Company shall be as set out in Schedule 1 to this Memorandum of Incorporation. 7. FINANCIAL ASSISTANCE The Board may not authorize the Company to provide financial assistance by way of loan, guarantee, the provision of security or otherwise to any person for the purpose of, or in connection with, the subscription of any option, or any Association status. The authority of the Board in this regard is thus restricted by this Memorandum of Incorporation in so far as financial assistance as contemplated in section 44 of the Act is concerned. 8. RIGHTS OF ASSOCIATES 8.1. Associates Rights to Information Every Associate shall, in accordance with the provisions of section 26(1) of the Act, have the right to inspect and copy the following information contained in the Company s records: the Company s Memorandum of Incorporation and any amendments to it, and any Rules made by the Company; the records in respect of the Company s Directors; the reports to annual meetings and annual financial statements, if any; 9. PROHIBITION ON DISTRIBUTION OF INCOME AND PROPERTY 9.1. The Company shall use all of its assets and income, however derived, to advance its objects as set out in clause 4 of this Memorandum of Incorporation The Company may not directly or indirectly, pay any portion of its income or transfer any of its assets, regardless of where the income or assets was derived, to any person who is or was an incorporator of the Company, or who is or was an Associate or Director or former member of the Company prior to the adoption of this Memorandum of Incorporation of the Company, except:- The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 10

11 as reasonable remuneration for goods delivered or services rendered; as payment or reimbursement for, expenses incurred to advance a stated object of the Company; as a payment of an amount due in terms of a bona fide agreement between the Company and that person; as a payment in respect of any rights of that person, to the extent that such rights are administered by the Company in order to advance a stated object of the Company; or in respect of any legal obligation binding on the Company Upon the winding-up or dissolution of the Company: no past or present Associate or Director is entitled to any part of the net value of the Company after its obligations and liabilities have been satisfied; and the entire net value of the Company must be distributed to any or more non-profit companies, external non-profit companies carrying on activities within the Republic, voluntary associations or non-profit trusts: having objects similar to the main object of the Company; and as determined in this Memorandum of Incorporation, or by the Associates or Directors as provided for in the Memorandum of Incorporation subject to the provisions of item 1(4) of Schedule 1 to the Act; 10. TRANSFER OF ASSOCIATION Association to the Company is not transferrable in any manner or form. 11. DEBT INSTRUMENTS The Board may not authorise the Company to issue secured or unsecured debt instruments as contemplated in section 43(2) of the Act. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 11

12 12. ASSOCIATES MEETINGS The Company is not required to hold any meetings of Associates unless specifically required by the Act The Board, or any prescribed officer of the Company authorised by the Board, is entitled to call an Associates meeting at any time In addition to other meetings of the Company that may be convened from time to time, the Company shall, convene an annual meeting of Associates once in each calendar year, but not more than 15 (fifteen) months after the date of the previous annual meeting of Associates Any Associates meeting shall be capable of being held by Electronic Communication in accordance with the further provisions of this Memorandum of Incorporation A notice of an Associates meeting must be in Writing and must include: the date, time and place for the meeting; the general purpose of the meeting, and any specific purpose if the meeting has been called or demanded for a specific purpose; a copy of any proposed resolution of which the Company has received notice and the percentage required for that resolution to be adopted; in the case of an annual meeting of Associates the financial statements are to be presented; and an Associate, who is fully paid up, is entitled to attend and speak at the meeting Each annual meeting of Associates of the Company shall provide for at least the following business to be transacted: the presentation of the Directors report, financial statements for the immediately preceding financial year of the Company and an audit committee report, if required by the Act; the appointment of an auditor and an audit committee for the following financial year, if required by the Act; and any matters raised by the Associates, with or without advance notice to the Company. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 12

13 12.7. The Board may determine the location of any Associates meeting, and the Company may hold any such meeting in the Republic or in any foreign country, and the authority of the Board and the Company in this regard is not limited or restricted by this Memorandum of Incorporation Every Associates meeting shall be reasonably accessible within the Republic for electronic participation by Associates such that they can all hear one another simultaneously, irrespective of whether the meeting is held in the Republic or elsewhere All meetings shall be called on not less than 14 (fourteen) calendar Days notice, save for the annual meeting of Associates which shall be called on not less than 21 (twenty-one) calendar Days notice in Writing. The notice shall be exclusive of the day on which it is served or deemed to be served and of the day for which it is given and shall specify the place, the day and the hour of the meeting and in the case of special business, the general nature of that business The quorum for an Associates meeting to begin or for a matter to be considered, shall be 7 (seven) Associates present personally at the meeting or by proxy If within 15 (fifteen) minutes after the appointed time for a meeting to begin, the requirements of clause 12.10: for that meeting to begin have not been satisfied, the meeting may be postponed, without any motion or further notice, for 1 (one) week (to the same day, time and place provided same is not a Public Holiday) or such longer period as may be determined by the person intended to preside over such meeting; provided that the person intended to chair a meeting that cannot begin due to the operation of clause may extend the 15 (fifteen) minutes limit allowed in clause for a reasonable period on the grounds that: exceptional circumstances affecting weather, transportation or Electronic Communication have generally impeded or are generally impeding the ability of Associates to be present at the meeting; or one or more particular Associates, having been delayed, have communicated an intention to attend the meeting, and those Associates, together with others in attendance, would satisfy the requirements of clause The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 13

14 The Company shall not be required to give further notice of a meeting that has been postponed or adjourned in terms of 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 in terms of clause for a postponed meeting to begin, or for an adjourned meeting to resume, the requirements of clause have not been satisfied, the Associates 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 Associates forming part of the quorum must be present at the meeting for the matter to be considered at the meeting The maximum period allowable for an adjournment of an Associates meeting shall be 60 (sixty) business Days after the date on which the adjournment occurred The chairperson, if any, of the Board shall preside as chairperson at every Associates meeting If there is no such chairperson, then the vice-chairperson shall preside, or if at any meeting neither the chairperson or vice-chairperson is present within 15 (fifteen) minutes after 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 Associates present shall choose one of their number to be chairperson of the meeting Even if he is not an Associate: any Director; or the Company s attorney (or where the Company s attorneys are a firm, any partner or Director thereof), may attend and speak at any Associates meeting. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 14

15 13. ASSOCIATES MEETINGS BY ELECTRONIC COMMUNICATION The Company may conduct an Associates meeting entirely by Electronic Communication or provide for participation in a meeting by Electronic Communication, as set out in section 63 of the Act, and the power of the Company to do so is not limited or restricted by this Memorandum of Incorporation. Accordingly: any Associates meeting may be conducted entirely by Electronic Communication; or one or more Associates, or proxies for Associates, may participate by Electronic Communication in all or part of any Associates meeting that is being held in person, 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 Associates at which it will be possible for Associates to participate by way of Electronic Communication shall inform Associates of the ability to so participate and shall provide any necessary information to enable Associates or their proxies to access the available medium or means of Electronic Communication, provided that such access shall be at the expense of the Associate or proxy concerned. 14. COMPOSITION AND POWERS OF THE BOARD OF DIRECTORS In addition to the minimum number of Directors, if any, that the Company must have to satisfy any requirement in terms of the Act, the Board shall comprise at least 3 (three) Directors and the Directors shall be entitled, by ordinary resolution, to determine such maximum number of Directors as they from time to time consider appropriate comprising, inter alia, the following: at least 1 (one) Executive Director; not more than 4 (four) Non-Executive Directors; and a Chairman, who will be chosen from one of the 4 (four) Non- Executive Directors The Directors shall be appointed by virtue of their being Associates of the Company, by the Executive Committee unless they are employed by the Company, in which event their appointment as Director shall continue for so long as they are employed by the Company, or removed by a majority of the Board. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 15

16 14.3. Executive Directors shall be appointed for the period stated in their employment contract with the Company, at a time determined by the Board in accordance with the procedure set out herein Directors must be Associates and such Associate must be in good standing in order to be eligible for appointment to the Board Every person holding office as a Director, prescribed officer, company secretary or auditor of the Company immediately before the effective date of the Act will, as contemplated in item 7(1) of Schedule 5 to the Act, continue to hold that office The Chairperson shall be elected from and by the Board Members at the first meeting of the new Board In any election of Directors by the Executive Committee as contemplated in clause 20.1: in each vote to fill a vacancy: each elector shall be entitled to as many votes as vacancies; and the candidates who receives the highest amount of votes shall fill the available vacancies; If there is an equality of votes for a single candidate another series of votes shall take place in respect of the remaining candidates and the voting process shall continue mutatis mutandis Directors must satisfy the qualification and eligibility requirements in the Act The Board has the power to: fill any vacancy on the Board on a temporary basis, as set out in section 68(3) of the Act, at the next annual meeting of Associates of the Company, as required in terms of section 70(3)(b)(i) of the Act; and exercise all of the powers and perform any of the functions of the Company, as set out in section 66(1) of the Act, and the powers of the Board in this regard are only limited and restricted as contemplated in this Memorandum of Incorporation. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 16

17 The Directors may at any time and from time to time by power of attorney appoint any person or persons to be the attorney or attorneys and agent(s) of the Company for such purposes and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors in terms of this Memorandum of Incorporation) and for such period and subject to such conditions as the Directors may from time to time think fit. Any such appointment may, if the Directors think fit, be made in favour of any company, the Associates, Directors, nominees or managers of any company or firm, or otherwise in favour of any fluctuating body of persons, whether nominated directly or indirectly by the Directors. Any such power of attorney may contain such provisions for the protection or convenience of persons dealing with such attorneys and agents as the Directors think fit. Any such attorneys or agents as aforesaid may be authorised by the Directors to sub-delegate all or any of the powers, authorities and discretions for the time being vested in them Save as otherwise expressly provided herein, all cheques, promissory notes, bills of exchange and other negotiable or transferable instruments, and all documents to be executed by the Company, shall be signed, drawn, accepted, endorsed or executed, as the case may be, in such manner as the Directors shall from time to time determine All acts performed by the Directors or by a committee of Directors or by any person acting as a Director or an Associate of a committee shall, notwithstanding that it shall afterwards be discovered that there was some defect in the appointment of the Directors or persons acting as aforesaid, or that any of them were disqualified from or had vacated office, be as valid as if every such person had been duly appointed and was qualified and had continued to be a Director or Associate of such committee If the number of Directors falls below the minimum number fixed in accordance with this Memorandum of Incorporation, the remaining Directors must as soon as possible and in any event not later than 4 (four) months from the date that the number falls below such minimum, fill the vacancy/ies in accordance with clause or convene a general meeting for the purpose of filling the vacancies, and the failure by the Company to have the minimum number of Directors during the said 4 (four) month period does not limit or negate the authority of the Board of Directors or invalidate anything done by the Board of Directors while their number is below the minimum number fixed in accordance with this Memorandum of Incorporation A Director may hold any other office or place of profit under the Company (except that of auditor) or any subsidiary of the Company in conjunction with the office of Director, for such period and on such terms as to remuneration (in addition to the remuneration to which he may be entitled as a Director) and otherwise as a disinterested quorum of the Directors may determine Each Director, prescribed officer and Associate of any committee of the Board (whether or not such latter persons are also Associates of the Board) shall, The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 17

18 subject to the exemptions contained in section 75(2) of the Act and the qualifications contained in section 75(3) of the Act, comply with all of the provisions of section 75 in the event that they (or any person who is a related person to them) have a personal financial interest in any matter to be considered by the Board In addition to the aforegoing, the Board may co-opt not more than 2 (two) individuals to the Board as advisors for the purpose of bringing specific expertise, experience or knowledge to the Board. The co-option is for the period where such expertise, knowledge or experience is required, but shall in any event not be longer than 1 (one) year, although the co-option may be renewable. Such co-opted individuals shall be non-voting Members of the Board Period of Office of Directors Directors shall be appointed for a period of 4 (four) years provided however that their appointment shall last until the following election of new Board Members as contemplated herein; Executive Directors shall be appointed for the period stipulated in their employment contract with the Company; Upon termination of the 4 (four) year period a Director may stand for re-election by the Board Disqualification of Board Members A Director shall be disqualified from continuing to act as a Director and he/she shall be deemed to have resigned in the following circumstances: where such Director is prohibited from becoming or remaining a Director on the Board by virtue of any provision of the Act; or where such Director resigns his office by notice in Writing to the Company; or where such Director is absent from Board meetings for more than 6 (six) consecutive months without approval by the Board, or where such Director ceases to be an Associate of the Company or becomes ineligible for Association as contemplated herein; or where such Director is directly or indirectly interested in any contract or proposed contract with the Company and fails to declare his interest and the nature thereof in the The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 18

19 15. DIRECTORS MEETINGS manner required by the Act; or where such Director is removed from office by an ordinary resolution of the Associates of the Company Save as may be provided otherwise herein, the Directors may meet together for the dispatch of business, adjourn and otherwise regulate their meetings as they think fit, provided that they must meet at least once every quarter The Directors shall elect a chairperson and a deputy chairperson. The chairperson, or in his absence the deputy chairperson, shall be entitled to preside over all meetings of Directors. If no chairperson or deputy chairperson is elected, or if at any meeting neither is present or willing to act as chairperson thereof within 15 (fifteen) minutes of the time appointed for holding the meeting, the Directors present shall choose 1 (one) of their number to be chairperson of such meeting Any Director or the chairperson shall at any time be entitled to call a meeting of the Directors The Board has the power to: consider any matter and/or adopt any resolution at meetings or as contemplated in section 74 of the Act and, accordingly, any decision that could be voted on at a meeting of the Board may instead be adopted by the 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; 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) of the Act, provided that, as required by such section, the Electronic Communication facility employed ordinarily enables all persons participating in the meeting to communicate concurrently with each other without an intermediary and to participate reasonably effectively in the meeting; determine the manner and form of providing notice of its meetings contemplated in section 73(4) of the Act, provided that: the notice period for the convening of any meeting of the Board will be at least 7 (seven) Days unless the decision of the Directors is required on an urgent basis which justifies a shorter period of notice, in which event the meeting may be called on shorter notice. The decision of the chairperson of the Board, or failing the chairperson for The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 19

20 any reason, the decision of any (two) Directors as to whether a matter should be decided on an urgent basis, and the period of notice to be given, shall be final and binding on the Directors; an agenda of the matters to be discussed at the meeting shall be given to each Director, together with the notice referred to in clause ; and proceed with a meeting despite a failure or defect in giving notice of the meeting, as provided in section 73(5), and the powers of the Board in respect of the above matters are not limited or restricted by this Memorandum of Incorporation The quorum requirement for a Directors meeting (including an adjourned meeting), the voting rights at such a meeting, and the requirements for approval of a resolution at such a meeting shall be as set out in section 73(5) of the Act, subject only to clause , and accordingly: if all of the Directors of the Company acknowledge actual receipt of the notice convening a meeting; are present at a meeting; waive notice of a 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; a majority of the Directors must be present at a meeting before a vote may be called at any meeting of the Directors; each Director has 1 (one) vote on a matter before the Board; a majority of the votes cast in favour of a resolution is sufficient to approve that resolution; in the case of a tied vote the chairperson may not cast a deciding vote in addition to any deliberative vote Resolutions adopted by the Board: must be dated and sequentially numbered; and are effective as of the date of the resolution, unless any resolution states otherwise. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 20

21 15.7. 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, are evidence of the proceedings of that meeting, or the adoption of that resolution, as the case may be. 16. DIRECTORS COMPENSATION AND FINANCIAL ASSISTANCE The Company may pay remuneration to the Directors for their services as they in their sole discretion see fit, and the power of the Board in this regard is not limited or restricted by this Memorandum of Incorporation provided however that the Board may, if it so wishes, obtain direction from the Associates on a non-binding basis Any Director who: serves as an Executive Director; devotes special attention to the business of the Company; or goes or resides outside South Africa for the purposes of the Company; or otherwise performs or binds himself to perform services which, in the opinion of the Directors, are outside the scope of the ordinary duties of a Director, may be paid such extra remuneration or allowances in addition to or, in substitution of the remuneration to which he may be entitled as a Director, as a disinterested quorum of the Directors may from time to time determine The Directors may also be paid all their travelling and other expenses necessarily incurred by them in connection with: the business of the Company; and attending meetings of the Directors or of committees of the Directors of the Company The Board may not, as contemplated in and subject to the requirements of Section 45, authorise the Company to provide financial assistance to a Director, prescribed officer or other person referred to in Section 45(2), and the power of the Board in this regard is limited or restricted by this Memorandum of Incorporation. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 21

22 17. MANAGING DIRECTOR The Board shall appoint a Managing Director upon such terms and conditions and for such period as it shall determine in its sole discretion The Managing Director shall report to the Board and assist the Board with the day to day operations of the Company and be delegated such powers and authority levels as the Board may, in its discretion, determine, which powers may be resolved, varied or withdrawn by the Board from time to time. 18. INDEMNIFICATION OF DIRECTORS The Company may, subject to the provisions of section 78 of the Act: advance expenses to a Director or directly or indirectly indemnify a Director in respect of the defense of legal proceedings; indemnify a Director in respect of liability; and/or purchase insurance to protect the Company or a Director, and the power of the Company in this regard is not limited, restricted or extended by this Memorandum of Incorporation The same provisions contemplated above shall apply mutatis mutandis in respect of any former Director, prescribed officer or Associate of any committee of the Board. 19. BORROWING POWERS The Directors may not exercise the powers of the Company to borrow for the purposes of the Company. 20. COMMITTEES OF THE BOARD The Board shall appoint the Executive Committee which shall consist of one elected representative from each of the established Regions from time to time. Each Region shall nominate a representative for this purpose by means of a simple majority vote The Board may: Appoint other committees of Directors and delegate to any such committee any of the authority of the Board; and/or include in any such committee persons who are not Directors, and the power of the Board in this regard is not limited or restricted by this Memorandum of Incorporation. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 22

23 20.3. The authority of a committee appointed by the Board as contemplated in section 72(2)(b) and (c) of the Act is not limited or restricted by this Memorandum of Incorporation The Company may further, if the Board deems it appropriate, appoint an audit review committee in the manner and for the purposes set out in Part D of Chapter 3 of the Act and shall do so as required by the Act as read with the Company s public interest score. 21. ANNUAL FINANCIAL STATEMENTS The Company shall keep all such accurate and complete accounting records, in English, as are necessary to enable the Company to satisfy its obligations in terms of: the Act; any other law with respect to the preparation of financial statements to which the Company may be subject; this Memorandum of Incorporation; and the Rules pertaining to the Company s Financial Procedures from time to time The Company shall each year prepare annual financial statements within 6 (six) months after the end of its financial year, or such shorter period as may be decided upon by the Board of Directors The Company shall appoint an auditor each year by the Board. If the Board appoints a firm as its auditor, any change in the composition of the Associates of that firm shall not by itself create a vacancy in the office of auditor The annual financial statements of the Company shall be subject to at least an independent audit review subject to the provisions of section 30 of the Act The annual financial statements shall be prepared on a basis that is not inconsistent with any unalterable or non-elective provision of the Act. 22. COMPANY SECRETARY The Company may appoint a company secretary and shall do so as required by the Act as read with the Company s public interest score If such an appointment is made, the company secretary must have the requisite knowledge of, or experience with, relevant laws and be a permanent resident of the Republic. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 23

24 22.3. The Board must fill any vacancy in the office of company secretary within 60 (sixty) business Days after such vacancy arises by a person whom the Directors consider to have the requisite knowledge and experience. 23. ACCESS TO COMPANY RECORDS Each Associate is entitled to inspect and copy, without any charge for any such inspection or upon payment of no more than the prescribed maximum charge for any such copy, the information contained in the records of the Company referred to in section 26(1) of the Act, being: this Memorandum of Incorporation, and any amendments or alterations thereof; a record of the Directors, including the details of any person who has served as a Director, for a period of 7 (seven) years after that person has ceased to serve as a Director, and any information relating to such persons referred to in section 24(5) of the Act; all: reports presented at an annual general meeting of the Company for a period of 7 (seven) years after the date of any such meeting; and annual financial statements required by the Act for a period of 7 (seven) years after the date on which each such particular statements were issued; notice and minutes of all Associates meetings, including: all resolutions adopted by them, for 7 (seven) years after the date each such resolution was adopted; and any written communications sent generally by the Company to all Associates, for a period of 7 (seven) years after the date on which each of such communications was issued; and A person contemplated in clause 23.1 has a right to inspect the Associates Register and the register of Directors of the Company upon payment of an amount not exceeding the prescribed maximum fee for any such inspection. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 24

25 24. NOTICES Each Associate of the Company: shall notify in Writing to the Company an address, which address shall be his registered address for the purposes of receiving written notices from the Company by post and if he has not named such an address he shall be deemed to have waived his right to be so served with notices; and shall notify in Writing to the Company an address and/or facsimile number, which address shall be his address for the purposes of receiving notices by way of Electronic Communication Any Associate, whose address in the Associates Register is an address not within South Africa, shall be entitled to have notices served upon him at such address Any notice sent as contemplated above shall be deemed to have been delivered as provided for that method of delivery. 25. AMENDMENT OF MEMORANDUM OF INCORPORATION This Memorandum of Incorporation may only be altered or amended by way of a special resolution of the Board of Directors in accordance with section 16(1) (c) of the Act, except if such amendment is in compliance with a Court order as contemplated in section 16(1)(a) of the Act An amendment of this Memorandum of Incorporation will take effect from the later of:- 26. COMPANY RULES the date on, and time at, which the Commission accepts the filing of the notice of amendment; and the date, if any, set out in the said notice of amendment, save in the case of an amendment that changes the name of the Company, which will take effect from the date set out in the amended registration certificate issued by the Commission The Board is not prohibited from making any rules as contemplated in section 15(3) of the Act provided such rules are distributed to all the Associates in the manner contemplated in clause 24 and a copy of such rules are filed with the Commissioner. The Field Guides Association of Southern Africa NPC Memorandum of Incorporation ) Page 25