Summary of new Memorandum of Incorporation

Pick n Pay Holdings Limited

(the “Company”)

 

Clause numbers

 

Summary 

 

Clause 23 

 

A Director or Alternate Director shall cease to hold office as such:

  • immediately she/he becomes Ineligible or Disqualified or the Board resolves to remove her/him on such basis, and in the latter case the Director/Alternate Director has not within the permitted period filed an application for review or has filed such an application but the court has not yet confirmed the removal (during which period she/he shall be suspended);
  • when her/his term of office expires;

  • when she/he dies;
  • when she/he resigns by Written notice to the Company;
  • if she/he is declared delinquent by a court, or placed on probation under conditions that are inconsistent with continuing to be a director of the company
  • if she/he is removed by Ordinary Resolution;
  • if there are more than 3 (three) Directors in office and if:
    • the Board determines that she/he has become incapacitated to the extent that the Person is unable to perform the functions of a director, and is unlikely to regain that capacity within a reasonable time;
    • she/he is removed by resolution of the Board for being negligent or derelict in performing the functions of a Director,
      and the Director/Alternate Director has not within the permitted period filed an application for review or has filed such an application but the court has not yet confirmed the removal (during which period she/he shall be suspended);
  • if she/he files a petition for the surrender of her/his estate or an application for an administration order, or if she/he commits an act of insolvency as defined in the insolvency law for the time being in force, or if she/he makes any arrangement or composition with her/his creditors generally; or
  • she/he is otherwise removed in accordance with any provisions of the MOI.
 
 

Clause 24 

 

Remuneration of Directors, Alternate Directors and members of Board committees for their services as Directors or Alternate Directors or members of Board committees shall be determined by Special Resolution within the previous 2 (two) years. In addition, the Directors and Alternate Directors shall be entitled to all reasonable expenses in travelling (including hotels) to and from meetings of the Directors and Holders, and the members of the Board committees shall be entitled to all reasonable expenses in travelling (including hotels) to and from meetings of the members of the Board committees as determined by a disinterested quorum of Directors. The Company may pay or grant any type of remuneration contemplated in Sections 30(6)(b) to (g) of the Companies Act to any executive Directors.

A Director may be employed in any other capacity in the Company or as a director or employee of a company controlled by, or itself a major subsidiary of, the Company and in that event, his/her appointment and remuneration in respect of such other office must be determined by a disinterested quorum of Directors. 

 
 

Clause 25 

 

The Board’s power is to provide direct or indirect financial assistance as contemplated in Section 45(2) of the Companies Act are not limited in any manner. 

 
 

Clause 26 

 

The powers granted to the Directors in terms of Section 66(1) of the Companies Act are not limited, except as expressly provided in the MOI.

The Directors may establish and maintain any pension, superannuation, provident and benefit funds for the benefit of any persons who are employees or ex-employees (including Directors) of the Company, or of its subsidiaries or a company in any way allied to or associated with it or any such subsidiary, and the wives, widows, families and dependants of such persons and may give pensions, gratuities and allowances to and make payments for or towards the insurance of any such persons. 

 
 

Clause 27

 

The Directors may appoint any number of Board committees and delegate to such committees any authority of the Board. 

 
 

Clause 28 

 

A Director, Alternate Director, Prescribed Officer, and a Person who is a member of a committee of the Board must disclose a Personal Financial Interest in respect of a matter to be considered at a meeting of the Board. 

 
 

Clause 29 

 

The quorum for a Directors’ meeting is 3 (three).

Notice of a meeting of Directors must be given to all Directors even those for the time being absent from South Africa.

Each Director or Alternate Director has 1 (one) vote on a matter before the Board and a majority of the votes cast on a resolution is sufficient to approve that resolution.

The Directors may elect a Chairperson of their meetings and determine the period for which she/he is to hold office. In the case of a tied vote the Chairperson may cast a deciding vote, but if only 2 (two) Directors are present at the meeting of Directors, the Chairperson shall not have a second or casting vote.

A round robin resolution shall be as valid and effectual as if it had been passed at a meeting of the Directors, provided that each Director who is able to receive notice, has received notice of the matter to be decided and the all the Directors who at the time are present in South Africa being not less than a majority of Directors have voted in favour of the resolution by signing same, within 20 (twenty) Business Days after the resolution was submitted to them. 

 
 

Clause 32 

 

The Company may make Distributions from time to time, provided that any such Distribution is pursuant to an existing legal obligation of the Company, or a court order, or has been authorised by the Board, by resolution and also by Ordinary Resolution (save in the limited circumstances set out in clause 32.1.1.1.2) and it reasonably appears that the Company will satisfy the Solvency and Liquidity Test immediately after completing the proposed Distribution, and the Board, by resolution, has acknowledged that it has applied the Solvency and Liquidity Test and reasonably concluded that the Company will satisfy the Solvency and Liquidity Test, and no obligation is imposed (if it is a distribution of capital) that the Company is entitled to require it to be subscribed again.

Dividends shall be paid to Holders registered as at a date subsequent to the date of declaration or date of confirmation of the dividend, whichever is the later.

All unclaimed dividends or other Distributions will be held in trust or by a trust nominated by the Company until claimed, without the payment of interest, provided that any dividend remaining unclaimed for a period of not less than 3 (three) years from the date on which it became payable (or such other period as may be required by law) may be forfeited by resolution of the Directors for the benefit of the Company and any other Distribution will be held until lawfully claimed or if not claimed, until such time as the claim has prescribed, after which such other Distributions may be forfeited by resolution of the Directors for the benefit of the Company.  

 
 

Clause 34 

 

A Holder or Person entitled to Securities (or his/her executor) shall be bound by every notice in respect of the Securities, Delivered to the Person who was, at the date on which that notice was Delivered (whether by personal delivery, prepaid post, telegram, telex or fax), shown in the Securities Register or established to the satisfaction of the Directors (as the case may be) as the Holder of or Person entitled to the Securities. Any notice will be deemed to have been delivered on the date and time determined in accordance with Table CR3 in the Regulations.

The holder of a share warrant to bearer, unless it be otherwise expressed in the warrant, shall not be entitled in respect thereof to notice of any Shareholders’ Meeting or otherwise. 

 
 

Clause 35 

 

The Company may advance expenses to a Director, a former Director, an Alternate Director, a Prescribed Officer or a person who is a member of a committee of the Board (for the purposes of this clause a “Director”) to defend litigation in any proceedings arising out of the Director’s service to the Company and, may indemnify a Director for any liability, subject to any limitation placed on the Company by the Companies Act and/or the Listings Requirements, and in this regard, the Company may purchase insurance on the terms more fully set out in clause 35.

The Company may not pay any fine that may be imposed on a Director, or on a Director of a Related company, as a consequence of that Director having been convicted of an offence in terms of any national legislation unless the conviction was based on strict liability.

The Company is entitled to claim restitution from a Director or of a Related company for any money paid directly or indirectly by the Company to or on behalf of that Director in any manner inconsistent with Section 78 of the Companies Act. 

 
 

Clause 36 

 

The Company is authorised to repurchase its Securities subject to compliance with the Companies Act and the Listings Requirements. 

 

Clause 37 

 

Subject to the requirements of the JSE, Holders of the requisite majority of the Securities shall be entitled at any time to expropriate the Securities of any Holders (notwithstanding that the sole or main purpose thereof may be to benefit the Holders exercising such power), provided that fair and reasonable compensation is paid to such Holders in the circumstances.