Notice of Meeting for Public Company
A general meeting must satisfy certain requirements set out in the
Companies Act.
These requirements include sending a notice of the meeting (which
complies with the statutory content requirements) in the correct form to
everyone who is entitled to receive it, and ensuring that sufficient notice
of the meeting is given.
In this technology advanced era it may also be beneficial for a company
to have electronic meetings. The basic framework in South Africa for
conducting shareholders’ meetings electronically is contained in the
Companies Act, 71 of 2008 (“the Companies Act”), and sets out that:
1. All shareholders’ meetings of public companies must provide for
electronic participation by shareholders.
2. All companies may elect to either:
• conduct a shareholders’ meeting entirely by electronic
communication; or
• provide for some shareholders to participate electronically in
a shareholders meeting that is being held in person,
unless doing so is prohibited by their memorandum of incorporation
(“MOI”).
Therefore, the starting point is to check the company’s MOI to determine
if it indeed contains a prohibition on electronic shareholders’ meetings.
Although this prohibition is not something commonly seen, look for an
article in the MOI that references section 63(2) of the Companies Act
and consider whether the MOI alters the position under the Companies
Act that allows for electronic shareholder meetings.
In the absence of any specific change by the MOI to these provisions of
the Companies Act, the company will be allowed to conduct
shareholders’ meetings electronically, in whole or in part.
Who is entitled to receive notice of general meeting?
Notice of general meeting should be sent to all persons entitled to
receive it. Failure to give notice to those entitled to receive it may
invalidate the meeting.
Accordingly, identifying the persons entitled to receive notice is an
important undertaking. The task will invariably be easier where the
company is a small private company with only one class of shares,
compared to where the company is a large listed public company with
several classes of shares and a global shareholder base.
Persons entitled to receive notice
The members, directors and auditors of a company are entitled to
receive notice of general meeting. A company's MOI may include
provisions relating to entitlement to notice, so these should be checked
before any notice is sent out.
This Notice sets out the procedures which shareholders should follow in
order to participate in the Annual General Meeting by electronic
communication.
The electronic communication to be employed will enable all persons
participating in the meeting to communicate concurrently with each other
without an intermediary and to participate reasonably effectively in the
meeting.
Key legal requirements for an electronic meeting
Once it has been established that a company is permitted to hold the
shareholders’ meeting electronically, it is important to consider the key
legal requirements:
1. Shareholders must be able to participate reasonably effectively in
the meeting.
2. All participants in the meeting must be able to communicate
concurrently with each other without the need for an intermediary.
3. The costs of a shareholder in participating in the electronic
meeting are for the expense of the shareholder, unless the
company determines otherwise.
4. The notice of the shareholders’ meeting must include all
information necessary for shareholders to participate electrically.
Electronic Participation Process
Shareholders who wish to vote, but not attend the Annual General
Meeting by electronic participation:
• Register online at www.smartagm.co.za. Shareholders may still
register online to participate in and/ or vote electronically at the
Annual General Meeting after this date and time, provided,
however, that for those shareholders to participate and/or vote
electronically at the Annual General Meeting, they must be verified
and registered before the commencement of the Annual General
Meeting.
• As part of the registration process you will be requested to upload
proof of identification (that is certified copy of South African identity
document, South African driver’s licence or passport) and authority
to do so (where acting in a representative capacity), as well as to
provide details, such as your name, surname, email address and
contact number.
• Following successful registration, the Transfer Secretaries will
provide you with a meeting ID number, username and password in
order to connect electronically to the Annual General Meeting.
Shareholders who wish to vote, but not attend the Annual General
Meeting by electronic participation:
• Complete the form of proxy attached to this Notice of the Annual
General Meeting and email same, together with proof of
identification (i.e. certified copy of South African (SA) identity
document, SA driver’s licence or passport) and authority to do so
(where acting in a representative capacity), to the Transfer
Secretaries, Computershare Investor Services Proprietary Limited
(Transfer Secretaries).
The Meeting:
1. Each shareholder is entitled to appoint one or more proxy(ies)
(who need not be a shareholder(s) of the Company) to participate,
speak and vote in their stead at the Annual General Meeting.
2.
Voting will take place by way of a poll and accordingly every holder
of ordinary shares will have one vote in respect of each ordinary
share held and every holder of B ordinary shares will have 10
votes in respect of each B ordinary share held.
3. The cost (e.g. for mobile data consumption or internet connectivity)
of electronic participation in the Annual General Meeting will be
carried by the participant.
4. The participant acknowledges that the electronic communication
services are provided by third parties and indemnifies the
Company and its directors/employees/Company Secretary/
Transfer Secretaries/service providers against any loss, injury,
damage, penalty or claim arising in any way from the use or
possession of the electronic services, whether or not the problem
is caused by any act or omission on the part of the participant or
anyone else.
In particular, but not exclusively, the participant acknowledges that
he/she will have no claim against the Company or its
directors/employees/Company Secretary/Transfer Secretaries/
service providers, whether for consequential damages or
otherwise, arising from the use of the electronic services or any
defect in it or from total or partial failure of the electronic services
and connections linking the participant via the electronic services
to the Annual General Meeting.
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