Companies - Miscellaneous (Ss 508-528) (Botswana)

Companies - Miscellaneous (Ss 508-528)

Published: 2007-07-03

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508. Service of documents on companies in legal proceedings

(1) A document in any legal proceedings may be served on a company as follows-

(a) by delivery to a person named as a director of the company on the register of companies;

(b) by delivery to an employee of the company at the company’s head office or principal place of business;

(d) by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings; or

(e) in accordance with an agreement made with the company.

(2) The methods of service specified in subsection (1) are, notwithstanding any other law, the only methods by which a document in legal proceedings may be served on a company in Botswana.

509. Service of other documents on companies

A document, other than a document in any legal proceedings, may be served on a company as follows -

(a) by any of the methods set out in paragraph (a), (b), (c) or (e) of subsection (1) of section 508;

(b) by posting it to the company’s registered office or address for service or delivering it to a post office box which the company is using at the time; or

(c) by sending it by facsimile machine to a telephone number used for the transmission of documents by facsimile at the company’s registered office or address for service or its head office or principal place of business.

510. Service of documents on external companies in legal proceedings

(1) A document in any legal proceedings may be served on an external company in Botswana as follows -

(a) by delivery to a person named in the register of external companies as a director of the external company and who is resident in Botswana;

(b) by delivery to a person named in the register of external companies as being authorised to accept service in Botswana of documents on behalf of the external company;

(c) by delivery to an employee of the overseas company at the external company’s place of business in Botswana or, if the external company has more than one place of business in Botswana at the external company’s principal place of business in Botswana;

(d) by serving it in accordance with any directions as to service given by the court having jurisdiction in the proceedings; or

(e) in accordance with an agreement made with the external company.

(2) The methods of service specified in subsection (1) are, notwithstanding any other law, the only methods by which a document in legal proceedings under this Act may be served on an external company in Botswana.

511. Service of other documents on external companies

A document other than a document in any legal proceedings, may be served on an external company as follows -

(a) by any of the methods set out in paragraph (a), (b), (c) or (e) of subsection (1) of section 510;

(b) by posting it to the address of the external company’s principal place of business in Botswana or delivering it to a post office box which the external company is then using at the time; or

(c) by sending it by facsimile machine to a telephone number used for the transmission of documents by facsimile at the principal place of business in Botswana of the external company.

512. Service of documents on shareholders and creditors

(1) A notice, statement, report, accounts, or other document to be sent to a shareholder or creditor who is a natural person may be-

(a) delivered to that person;

(b) posted to that person’s address or delivered to a post office box which that person is using at the time; or

(2) A notice, statement, report, accounts or other document to be sent to a shareholder or creditor that is a company or is an external company may be sent by any of the methods of serving documents referred to in section 510 or section 511 as the case may be.

(3) A notice, statement, report, accounts, or other document to be sent to a creditor that is a body corporate, not being a company or an external company, may be-

(a) delivered to a person who is a principal officer of the body corporate;

(b) delivered to an employee of the body corporate at the principal office or principal place of business of the body corporate;

(d) delivered in accordance with an agreement made with the body corporate including in the case of shareholders the constitution;

(e) posted to the address of the principal office of the body corporate or delivered to a box at a document exchange which the body corporate is using at the time; or

(f) sent by facsimile machine to a telephone number used for the transmission of documents by facsimile at the principal place of business of the body corporate.

(4) Where a liquidator sends documents-

(a) to the last known address of a shareholder or creditor who is a natural person; or

(b) to the address for service of a shareholder or creditor that is a company,

and the documents are returned unclaimed three consecutive times, the liquidator need not send further documents to the shareholder or creditor until the shareholder or creditor gives notice to the company of its new address.

513. Additional provisions relating to service

(1) Subject to subsection (2), for the purposes of section 512 -

(a) if a document is to be served by delivery to a natural person, service shall be made -

(i) by handing the document to the person, or

(ii) if the person refuses to accept the document, by bringing it to the attention of, and leaving it in a place accessible to, the person;

(b) a document posted or delivered to a post office box is deemed to be received five working days, or any shorter period as the court may determine in a particular case, after it is posted or delivered;

(c) a document sent by facsimile machine is deemed to have been received on the working day following the day on which it was sent;

(d) in proving service of a document by post or by delivery to a post office box it is sufficient to prove that -

(i) the document was properly addressed,

(ii) all postal or delivery charges were paid, and

(iii) the document was posted;

(e) in proving service of a document by facsimile machine, it is sufficient to prove that the document was properly transmitted by facsimile to the person concerned.

(2) A document is not to be deemed to have been served or sent or delivered to a person if the person proves that, through no fault on the person’s part, the document was not received within the time specified.

514. Directors’ certificates

A requirement imposed by any provision of this Act that directors of a company sign a certificate is complied with if the directors who are required to sign the certificate -

(a) sign the same certificate; or

(b) sign separate certificates in the same terms.

515. Prohibition of large partnerships

(1) No company, association, syndicate or partnership consisting of more than 20 persons shall be formed in Botswana for the purpose of carrying on any business that has for its object the acquisition of gain by the company, association, syndicate or partnership, or by the individual members thereof, unless it is registered as a company under this Act or is formed in pursuance of some other law.

(2) Subsection (1) shall not apply to the formation of any association, syndicate or partnership for carrying on any organised professions which are designated by the Minister by notice in the Gazette, or for carrying on any combination of such professions.

516. Exemption for liability of acts or omissions of Government officers

No act or omission whatever of the Registrar or of any officer, clerk or other person in the employment of the Government, having duties to perform under this Act, shall render the Government or the Registrar or any such officer, clerk or person liable in respect of any loss or damage sustained by any person in consequence of any such act or omission unless such act or omission was mala fide or was due to want of reasonable care or diligence.

517. Power to grant relief

(1) Where in any proceedings before any court for negligence, default or breach of duty against a person to whom this section applies it appears to the court that the person is or may be liable in respect thereof, but that that person has acted honestly and reasonably and that, having regard to all circumstances of the case including those connected with the person’s appointment, the person ought fairly to be excused for the negligence, default or breach, the court may relieve that person either wholly or partly from liability on such terms as the court considers appropriate.

(2) Where a person to whom this section applies has reason to apprehend that any claim will or might be made against the person in respect of any negligence, default, or breach of duty that person may apply to the court for relief, and the court shall have the same power to relieve the person under this section as it would have had if it has been a court before which proceedings against that person for negligence, default, or breach of duty had been brought.

(3) The section shall apply to-

(a) an officer;

(b) a person employed by a company as auditor;

(d) a liquidator;

(e) a trustee for debenture holders; and

(f) directors, managers and other officers of an external company.

518. Irregularities in proceedings

(1) No proceeding under this Act shall be invalidated by any defect, irregularity or deficiency of notice or time unless the Court is of opinion that substantial injustice has been or may be caused thereby which cannot be remedied by any order of the Court.

(2) The Court may if it considers appropriate make an order declaring that such proceeding is valid notwithstanding any such defect, irregularity or deficiency.

(3) Notwithstanding subsections (1) and (2) or any other provision of this Act, where such defect, irregularity or deficiency, including an omission, error or the absence of a quorum at any meeting of the company or of the directors, has occurred in the management of administration of a company whereby a provision of this Act has been contravened, or whereby there has been default of a procedural or technical kind in the observance of the constitution or whereby any proceedings at or in connection with any meeting of the company or of the directors of any assembly purporting to be such a meeting have been rendered ineffective, including the failure to make or lodge with the Registrar any declaration of solvency, the Court -

(a) may, either of its own motion or on the application of any interested person, make such order as it considers appropriate to rectify or cause to be rectified or to nullify or modify or cause to be modified the consequences in law of any such defect, irregularity, deficiency, omission or error, or to validate any act, matter or thing rendered or alleged to have been rendered invalid by or as a result of any such defect, irregularity, deficiency omission or error;

(b) shall before making any such order satisfy itself that such an order would not do injustice to the company or to any member or creditor;

(d) may determine what notice or summons is to be given to other persons of the intention to make any such application or of the intention to make such an order, and whether and how it should be given or served and whether it should be advertised in any newspaper.

(5) The Court may, whether a company is in the process of being wound up or not, on good cause being shown, enlarge or abridge any time for doing any act or taking any proceeding allowed or limited by this Act or any subsidiary enactment made under this Act on such terms as the justice of the case may require and any such enlargement may be ordered although the application for the same is not made until after the time originally allowed or limited.

519. Translations of instruments

(1) Where under this Act a corporation is required to lodge with the Registrar any instrument, certificate, contract, statement or document or a certified copy thereof and if the same is not written in the English language the corporation shall lodge at the same time with the Registrar a certified translation in the English language.

(2) Where under this Act a corporation is required to make available for public inspection any instrument, certificate, contract, statement or document and the same is not written in the English language, the corporation shall keep at its registered office in Botswana a certified translation in the English language.

(3) Subject to section 187(3), where in the case of any company any account, minute book or other record of a corporation required by this Act to be kept is not kept in the English language, the directors shall cause-

(a) a true translation in the English language of such account, minute book or record to be made at intervals of not more than seven days; and

(b) the translation to be kept with the original account, minute book or record for as long as the original account, minute book or record is required by this Act to be kept.

520. Costs in actions by limited companies

Where a company or an external company is a plaintiff in any action or other legal proceeding, the court having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the company or the external company or the liquidator or judicial manager of the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security for those costs, and may stay all proceedings until the security is given.

521. Arbitration

(1) A company may, by writing under the hands of two directors agree to refer and may refer, to arbitration, in accordance with the general law relating to arbitration, any existing or future dispute between itself and any other company or person.

(2) Every company which is party to an arbitration may delegate to the arbitrator power to settle any term or to determine any matter capable of being lawfully settled or determined by the company itself or by its directors or other governing body.

522. Fees

(1) There shall be paid to the Registrar, in respect of such matters as the Minister may, by statutory instrument, specify, such fee as the Minister may prescribe in that statutory instrument.

(2) Where a time limit is prescribed under any provision of this Act for the lodging of any document with the Registrar, a penalty fee shall be payable to the Registrar at such rate as the Minister may, by statutory instrument, prescribe, on any document lodged after the expiration of the prescribed time limit in addition to payment of the fee prescribed under subsection (1).

(3) The Registrar may accept the payment of a penalty fee as purging the offence committed under section 505(b) of failing to do an act within the time which it is required by this Act to be done, but, in the case of a repeated offence or of excessive delay, he may report the matter to the Attorney-General under section 506.

523. Rules of procedure

(1) The Chief Justice may make rules concerning the procedure to be followed with respect to any matter in connection with the winding up of companies, external companies or unregistered associations and generally as to all matters in which the court is empowered under this Act to exercise jurisdiction, and all matters which are required by this Act to be prescribed by rules.

(2) Every rule aforesaid shall be published in the Gazette and thereupon shall take effect and have the force of law.

524. Amendment of Schedules

The Minister may, by regulations published in the Gazette, amend or replace the provisions of any of the Schedules.

525. Fees paid to company

(1) Where under this Act a fee is payable to a company for inspecting or obtaining a copy of, any book or document, the company may by resolution provide that a lesser fee shall be paid.

(2) The maximum fee payable for the inspection or obtaining of copies of any book or document shall be such fee as the Minister may, by statutory instrument, prescribe.

526. Repeal of Cap. 42:01

The Companies Act is hereby repealed.

527. Transitional provisions

(1) Any person appointed under the repealed Act and holding office at the commencement of this Act, shall remain in office as if he had been appointed under this Act.

(2) Any act made, executed, issued or passed under the repealed Act and in force and operative at the commencement of this Act, shall have effect as if made, executed, issued or passed under this Act.

(3) Subject to the provisions of this section, the memorandum of association and articles of association of an existing company in force and operative at the commencement of this Act and the provisions of Table A in the First Schedule to the repealed Act, if adopted as all or part of the articles of a company at the commencement of this Act, shall subject to sections 38 and 43 have effect as if made or adopted under this Act.

(4) Where a company formed prior to the commencement of this Act has pursuant to its memorandum or articles or are solution of the general meeting authorised the directors of the company to issue shares (its "authorised capital") and some part of the authorised capital remains unissued, the directors shall have authority to issue shares under section 50 on the terms and conditions and up to the limit expressed in the memorandum, articles or resolution, without requiring the authority of a further ordinary resolution of the general meeting.

(5) Any register, fund and account kept under any provisions of the repealed Act shall be deemed to be part of the register, fund and account kept under the corresponding provision of this Act.

(6) Subject to the other provisions of this Act, a company registered under the repealed Act shall be deemed to be registered under this Act and this Act shall extend and apply to the company accordingly and any reference in this Act, express or implied, to the date of registration of such a company shall be construed as a reference to the date upon which the company was registered under the repealed Act.

(7) The provisions of this Act with respect to winding up, shall not apply to any company of which the winding up has commenced before the commencement of this Act, but every such company shall be wound up in the same manner and with the same incidents as if this Act had not been passed and for the purposes of the winding up the Act under which the winding up commenced and any rules made thereunder shall be deemed to remain in full force.

(8) The Companies Winding-Up Rules made under the repealed Act shall continue in force and apply to companies wound up under this Act as if these rules were made under this Act.

(8A) Subject to the other provisions of this Act, a company which has outstanding annual returns on or before 3rd July, 2007, shall file all such outstanding annual returns within 12 months commencing on 1st February, 2009, upon the payment of a filing fee of P300 for every outstanding annual return.

528. Regulations

(1) The Minister may make regulations for the better carrying out of the purposes and provisions of this Act, or to give force or effect to its provisions.

(2) Without prejudice to the generality of the powers conferred in subsection (1) regulations may-

(a) prescribe forms and procedures for the purposes of this Act;

(b) prescribe requirements with which documents delivered for registration comply;

(d) regulate the conduct of liquidations; and

(e) provide for such other matters as are contemplated by or necessary for giving effect to the transitional provisions of the Act.

FIRST SCHEDULE

(section 40 (b))

CONSTITUTION OF A PRIVATE COMPANY LIMITED BY SHARES

1. Interpretation

In this constitution "Act" means the Companies Act.

2. Issue of new shares

New shares shall be issued in accordance with section 50 with the preemptive rights provided for in section 52.

3. Transfer of shares

(1) Freedom to Transfer is Qualified: Every change in the ownership of shares in the capital of the company shall be subject to the following limitations and restrictions.

(2) Pre-emptive Provisions: No share in the capital of the company shall be sold transferred by any shareholder unless and until the rights of preemption hereinafter conferred have been exhausted.

(3) Transfer Notice and Fair Price: It shall be required that -

(a) every shareholder including the personal representative of a deceased shareholder or the trustee of the property of an insolvent shareholder who desires to sell or transfer any share or shares shall give notice in writing to the board of such desire;

(b) if such notice includes several shares it shall not operate as if it were a separate notice in respect of each such share, and the proposing transferor shall be under no obligation to sell or transfer some only of the shares specified in such notice;

(c) such notice shall be irrevocable and shall be deemed to appoint the board the proposing transferor's agent to sell such shares in one or more lots to any shareholder or shareholders of the company (including the directors or any of them) at a price to be agreed upon between the party giving such notice and the board or, failing agreement between them within 28 days of the board receiving such notice, at a fair price to be determined on the application of either party by a person to be nominated by the President for the time being of the Law Society of Botswana;

(d) such person, referred to in subparagraph (b), when nominated, and in certifying the sum which in that person's opinion is the fair price for the share, shall be considered to be acting as an expert and not as an arbitrator.

(4) Offer to Shareholders and Consequent Sale: The following conditions shall apply -

(a) upon the price for such shares being agreed on or determined, as the case may be, the board shall immediately give notice to each of the shareholders (other than the person wanting to sell or transfer such shares) stating the -

(b) number and price of such shares and inviting each of the shareholders to whom the notice is given to state in writing within 21 days after the date of the notice whether such shareholder is willing to purchase any; and

(d) at the expiration of 21 days from the date of the notice the board shall -

(i) apportion such shares amongst the shareholders (if more than one) who have expressed a desire to purchase the same; and

(ii) as far as may be pro rata according to the number of shares already held by the shareholders respectively, or if there is only one such shareholder, the whole of such shares shall be sold to that shareholder:

Provided that no shareholder shall be obliged to take more than the maximum number of shares stated in that shareholder's response to such notice;

(e) upon such apportionment being made or such one shareholder notifying such shareholder's willingness to purchase, as the case may be, the party desiring to sell or transfer such share or shares shall be bound, upon payment of the said price, to transfer such share or shares to the respective shareholder or shareholders who have or has agreed to purchase the same and, in default thereof, the board may receive and give a good discharge for the purchase money on behalf of the party desiring to sell and enter the name of the purchasers or purchaser in the share register as holder or holders of such share or shares so sold.

(5) Shares on Offer not Taken up by Shareholders: In the event of all such shares not being sold under the preceding clause within 60 days of the board receiving notice, the party desiring to sell or transfer shall be at liberty within a further period of 30 days to sell the shares not so sold, but not a portion only, to persons who are not shareholders, provided however, that such party shall not sell them for a price less than the price at which the same have been offered for sale to the shareholders under this clause, but every such sale shall nevertheless be subject to the provisions of clause 4.

(6) Family Transactions: Any share -

(a) may be transferred by a shareholder to, or to trustees for, any husband or wife or child or grandchild or son-in-law or daughter-in-law of that shareholder, and any share of a deceased shareholder may be transferred by his or her executors or administrators to any husband or grandchild or son-in-law or daughter-in-law of the deceased shareholder; and

(b) held by trustees under any such trust as aforesaid may be transferred to any beneficiary, referred to in paragraph (a), of such trust, and shares standing in the name of the trustee of the will of any deceased shareholder or trustees under any such trust may be transferred upon any change of trustees for the time being of such will or trust, and the restrictions contained in the preceding subclauses 3(2) to 3(5) inclusive shall not apply to any transfer authorised by this clause but every such transfer shall nevertheless be subject to the provisions of clause 4.

4. Refusal to register transfers

Directors' Right to refuse registration: Subject to compliance with the provisions of section 81, the board may refuse or delay the registration of any transfer of any share to any person whether an existing shareholder or not -

(a) if so required by law;

(b) if registration would impose on the transferee a liability to the Company and the transferee has not signed the transfer;

(c) if a holder of any such share has failed to pay on due date any amount payable thereon either in terms of the issue thereof or in accordance with the constitution (including any call made thereon);

(d) if the transferee is a minor or a person of unsound mind;

(e) if the transfer is in respect of more than one class of shares;

(f) if the transfer is not accompanied by such proof as the board reasonably requires of the right of the transferor to make the transfer;

(g) if the pre-emptive provisions contained in Clause 3 have not been complied with; or

(h) if the board acting in good faith decides in its sole discretion that registration of the Transfer would not be in the best interests of the company and/or any of its shareholders.

5. Purchase or other acquisition of own shares

(1) Authority to Acquire Own Shares: for the purposes of section 65 of the Act, the company is expressly authorised to purchase or otherwise acquire shares issued by it.

(2) Authority to hold own shares: Subject to any restrictions or conditions imposed by law the company is expressly authorised to hold shares acquired by it pursuant to section 66 or section 100 of the Act.

6. Calls on shares and forfeiture of shares

Calls on shares and forfeiture of shares shall be conducted in accordance with the Seventh Schedule of the Act.

7. Shareholders meetings

Shareholders meetings shall be conducted in accordance with the Second Schedule of the Act.

8. Directors

(1) The directors of the company shall be such person or persons as may be appointed from time to time by ordinary resolution, or by notice to the company signed by the holder or holders for the time being of the majority of ordinary shares in the capital of the company but so that the total number of directors shall not at any time exceed the number fixed pursuant to subclause (2) or by ordinary resolution pursuant to subclause (3).

(2) The first directors and the number of directors shall be determined in writing by the subscribers to the application for incorporation.

(3) The company may by ordinary resolution increase or reduce the number of directors.

(4) The directors may appoint any person to be a director to fill a casual vacancy or as an addition to the existing directors but the total number of directors shall not at any time exceed the number fixed in accordance with subclause (2) or by ordinary resolution pursuant to subclause (3).

(5) Any director appointed under subclause (4) shall hold office only until the next following annual meeting and shall then retire but is eligible for election at that meeting.

(6) A director shall hold office until removed by special resolution pursuant to section 151(2) of the Act or ceasing to hold office pursuant to section 152 of the Act.

9. Remuneration of directors

The remuneration of directors shall be determined in accordance with section 157.

10. Proceedings of directors

The directors meetings and the proceedings of directors shall be conducted in accordance with the Fourth Schedule.

11. Managing Director

(1) The directors may appoint one or more of their body to the office of managing director for such period and on such terms as they think fit and subject to the terms of any agreement entered into in any particular case may revoke that appointment.

(2) If for any reason a managing director ceases to be a director his appointment shall automatically determine.

(3) A managing director shall, subject to the terms of any agreement entered into in any particular case, receive such remuneration whether by way of salary, commission or participation in profits as the directors may determine.

(4) The directors may entrust to and confer upon the managing director any of the powers exercisable by them with such restrictions as they may think fit, and either generally or to the exclusion of their own powers subject always to section 129 of the Act, and the directors may revoke, alter, or vary, all or any of these powers.

12. Dividends

(1) Subject to the rights of persons, if any, entitled to shares with special rights as to dividend, all dividends shall be declared and paid according to the amounts paid or credited as paid on the shares in respect of which the dividend is paid, but no amount paid or credited as paid on a share in advance of calls shall be treated for the purposes of this article as paid on the share.

(2) All dividends shall be authorised by the board pursuant to section 58 of the Act with the approval of an ordinary resolution of shareholders, provided that the board may make payment of an interim dividend where this appears to be justified by the profits of the company and provided the solvency test is satisfied in accordance with section 58.

(3) All dividends shall be apportioned and paid proportionately to the amounts paid or credited as paid on the shares during any portion or portions of the period in respect of which the dividend is paid, but if any share is issued on terms providing that it shall rank for dividend as from a particular date, that share shall rank for dividend accordingly.

(4) The directors may deduct from any dividend payable to any member all sums of money, if any, presently payable by him to the company on account of calls or otherwise in relation to the shares of the company.

(5) No dividend shall bear interest against the company.

(6) Any dividend, interest, or other money payable in cash in respect of shares may be paid by cheque or postal or money order sent through the post directed to the registered address of the holder, or in the case of joint holders, to the registered address of that one of the joint holders who is first named on the members' register or to such person and to such address as the holder or joint holders may in writing direct.

(7) Every such cheque or postal or money order shall be made payable to the order of the person to whom it is sent.

(8) Any one of the 2 or more joint holders may give effectual receipts for any dividends, bonuses, or other money payable in respect of the shares held by them as joint holders.

13. Winding up

(1) Subject to the terms of issue of any shares in the company and to subclause (b), upon the winding up of the company, the assets, if any, remaining after payment of the debts and liabilities of the company and the costs of winding up ("the surplus assets"), shall be distributed among the shareholders in proportion to their shareholding provided, however, that the holders of shares not fully paid up shall only receive a proportionate share of their entitlement being an amount paid to the company in satisfaction of the liability of the shareholder to the company in respect of the shares either under the constitution of the company or pursuant to the terms of issue of the shares.

(2) Where the company is wound up, the liquidator may, with the sanction of a special resolution of the company, divide in kind amongst the members the assets of the company, whether they consist of property of the same kind or not, and may for the purpose set such value as he deems fair upon any property to be divided and may determine how the division is to be carried out as between the shareholders or different classes of shareholders.

14. One person companies and companies in which all shareholders are directors

If at any time the company, for a continuous period exceeding six months is a one person company, or is a company in which all shareholders also hold office as director, then, for so long as such circumstance continues, the following provisions shall apply -

(a) new shares may be issued by unanimous resolution signed by the shareholder or shareholders having such rights and on such terms and conditions as may be set out in the resolution;

(b) a copy of the resolution shall be registered with the Registrar of Companies;

(c) separate meetings of shareholders and directors need not be held provided all matters required by the Act to be dealt with by a general meeting of shareholders or a meeting of directors are dealt with by way of a unanimous resolution.

SECOND SCHEDULE

(section 109)

PROCEEDINGS AT MEETINGS OF SHAREHOLDERS

1. Chairperson

(1) If the directors have elected a chairperson of the board, and the chairperson of the board is present at a meeting of shareholders, he or she shall chair the meeting.

(2) If no chairperson of the board has been elected or if, at any meeting of shareholders, the chairperson of the board is not present within 15 minutes of the time appointed for the commencement of the meeting, the directors present shall elect one of their number to be chairperson of the meeting. If no director is willing to act as chairperson, or if no director is present within 15 minutes of the time appointed for holding the meeting, the shareholders present may choose one of their number to be chairperson of the meeting.

2. Notice of meetings

(1) Written notice of the time and place of a meeting of shareholders shall be sent to every shareholder entitled to receive notice of the meeting and to every director, any secretary and any auditor of the company not less than 10 working days before the meeting.

(2) The notice shall state -

(a) the nature of the business to be transacted at the meeting in sufficient detail to enable a shareholder to form a reasoned judgment in relation to it; and

(b) the text of any special resolution to be submitted to the meeting.

(3) An irregularity in a notice of a meeting is waived if all the shareholders entitled to attend and vote at the meeting attend the meeting without protest as to the irregularity, or if all such shareholders agree to the waiver.

(4) The accidental omission to give notice of a meeting to, or the failure to receive notice of a meeting by, a shareholder does not invalidate the proceedings at that meeting. The chairperson may, and if directed by the meeting shall, adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting of shareholders is adjourned for 30 days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting.

NOTE: Subclauses 1 to 3 apply notwithstanding any contrary provision in any constitution adopted by the company.

3. Methods of holding meetings

A meeting of shareholders may be held either by -

(a) a number of shareholders, who constitute a quorum, being assembled together at the place, date, and time appointed for the meeting; or

(b) means of audio, or audio and visual, communication by which all shareholders participating and constituting a quorum, can simultaneously hear each other throughout the meeting.

NOTE: Paragraph (a) applies notwithstanding any contrary provision in any constitution adopted by the company.

4. Quorum

(1) Subject to subclause (3) of this clause, no business may be transacted at a meeting of shareholders if a quorum is not present.

(2) A quorum for a meeting of shareholders is present if shareholders or their proxies are present or have cast postal votes who are between them able to exercise a majority of the votes to be cast on the business to be transacted by the meeting.

(3) If a quorum is not present within 30 minutes after the time appointed for the meeting -

(a) in the case of a meeting called under section 106(b) of the Act, the meeting is dissolved;

(b) in the case of any other meeting the meeting is adjourned to the same day in the following week at the same time and place, or to such other date, time, and place as the directors may appoint; and

(c) if, at the adjourned meeting, a quorum is not present within 30 minutes after the time appointed for the meeting, the shareholders or their proxies present are a quorum.

NOTE: Subclauses 1, 3(a) and (b) apply notwithstanding any contrary provision in any constitution adopted by the company.

5. Voting

(1) In the case of a meeting of shareholders held under clause 3(a) of this Schedule, unless a poll is demanded, voting at the meeting shall be by whichever of the following methods is determined by the chairperson of the meeting -

(a) voting by voice; or

(b) voting by show of hands.

(2) In the case of a meeting of shareholders held under clause 3(b) of this Schedule, unless a poll is demanded, voting at meeting shall be by the shareholders signifying individually their assent or dissent by voice.

(3) A declaration by the chairperson of the meeting that a resolution is carried by the requisite majority is conclusive evidence of that fact unless a poll is demanded in accordance with subclause (4) of this clause.

(4) At a meeting of shareholders a poll may be demanded by -

(a) not less than five shareholders having the right to vote at the meeting;

(b) a shareholder or shareholders representing not less than 10 per cent of the total voting rights of all shareholders having the right to vote at the meeting;

(c) a shareholder or shareholders holding shares in the company that confer a right to vote at the meeting and on which the aggregate amount paid up is not less than 10 per cent of the total amount paid up on all shares that confer that right; or

(d) the chairperson of the meeting.

(5) A poll may be demanded either before or after the vote is taken on a resolution.

(6) If a poll is taken, votes shall be counted according to the votes attached to the shares of each shareholder present in person or by proxy and voting.

(7) The chairperson of a shareholders' meeting is not entitled to a casting vote.

(8) For the purposes of this clause, the instrument appointing a proxy to vote at a meeting of a company confers authority to demand or join in demanding a poll and a demand by a person as proxy for a shareholder has the same effect as a demand by the shareholder.

(9) Subject to any rights or restrictions for the time being attached to any class of shares, every shareholder present in person or by proxy and voting by voice or by show of hands and every shareholder voting by postal vote (where this permitted) shall have one vote.

(10) The demand for a poll may be withdrawn.

(11) Except as provided in subclause 12, if a poll is duly demanded it shall be taken in such manner as the chairperson directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded.

(12) A poll demanded on the election of a chairperson or on a question of adjournment shall be taken immediately. A poll demanded on any other question shall be taken at such time and place as the meeting directs, and any business other than that on which a poll has been demanded may be proceeded with pending the taking of the poll.

NOTE: The subclauses of this clause, other than subclauses 7 and 9 to 12, apply notwithstanding any contrary provision in any constitution adopted by the company.

6. Proxies

(1) A shareholder may exercise the right to vote either by being present in person or by proxy.

(2) A proxy for a shareholder is entitled to attend and be heard at a meeting of shareholders as if the proxy were the shareholder.

(3) A proxy shall be appointed by notice in writing signed by the shareholder and the notice shall state whether the appointment is for a particular meeting or a specified term.

(4) No proxy is effective in relation to a meeting unless a copy of the notice of appointment is produced before the start of the meeting. Any power of attorney or other authority under which the proxy is signed or a notarially certified copy shall also be produced.

(5) A proxy form shall be sent with each notice calling a meeting of the company.

(6) The instrument appointing a proxy shall be in writing under the hand of the appointer or of his agent duly authorised in writing or in the case of a corporation under the hand of an officer or of an agent duly authorised.

(7) The instrument appointing a proxy shall be in the following form -

I/we.............................of..................................being shareholders of the above named company hereby appoint ........................................................................................

Or failing him/her.............................of ....................................................................

As my/our proxy to vote for me/us at the meeting of the company to be held on................................................................and at any adjournment of the meeting.

Signed this...............................day of...................................... 200..........

NOTE: The constitution of a company may provide that a proxy is not effective unless it is produced by a specified time before the start of a meeting if the time specified is not earlier than 24 hours before the start of the meeting. Otherwise the provisions of this clause (apart from the form of proxy given in subclause (4)) apply notwithstanding any contrary provision in any constitution adopted by the company.

7. Postal votes

(1) A shareholder may exercise the right to vote at a meeting by casting a postal vote in accordance with the provisions of this clause.

(2) The notice of a meeting at which shareholders are entitled to cast a postal vote shall state the name of the person authorised by the board to receive and count postal votes at that meeting.

(3) If no person has been authorised to receive and count postal votes at a meeting, or if no person is named as being so authorised in the notice of the meeting, every director is deemed to be so authorised.

(4) A shareholder may cast a postal vote on all or any of the matters to be voted on at the meeting by sending a notice of the manner in which his or her shares are to be voted to a person authorised to receive and count postal votes at that meeting. The notice shall reach that person not less than 48 hours before the start of the meeting.

(5) It is the duty of a person authorised to receive and count postal votes at a meeting -

(a) to collect together all postal votes received by him or her or by the company; and

(b) in relation to each resolution to be voted on at the meeting, to count -

(i) the number of shareholders voting in favour of the resolution and the number of votes cast by each shareholder in favour of the resolution; and

(ii) the number of shareholders voting against the resolution, and the number of votes cast by each shareholder against the resolution; and

(c) to sign a certificate that he or she has carried out the duties set out in paragraphs (a) and (b) of this subclause and which sets out the results of the counts required by paragraph (b) of this subclause; and

(d) to ensure that the certificate required by paragraph (c) of this subclause is presented to the chairperson of the meeting.

(6) If a vote is taken at a meeting on a resolution on which postal votes have been cast, the chairperson of the meeting shall -

(a) on a vote by show of hands, count each shareholder who has submitted a postal vote for or against the resolution;

(b) on a poll, count the votes cast by each shareholder who has submitted a postal vote for or against the resolution.

(7) The chairperson of a meeting shall call for a poll on a resolution on which he or she holds sufficient postal votes that he or she believes that if a poll is taken the result may differ from that obtained on a show of hands.

(8) The chairperson of a meeting shall ensure that a certificate of postal votes held him or her is annexed to the minutes of the meeting.

8. Minutes

(1) The board shall ensure that minutes are kept of all proceedings at meetings of shareholders.

(2) Minutes which have been signed correct by the chairperson of the meeting are prima facie evidence of the proceedings.

NOTE: This clause applies notwithstanding any contrary provision in any constitution adopted by the company.

9. Shareholder proposals

(1) A shareholder may give written notice to the board of a matter the shareholder proposes to raise for discussion or resolution at the next meeting of shareholders at which the shareholder is entitled to vote.

(2) If the notice is received by the board not less than 20 working days before the last day on which notice of the relevant meeting of shareholders is required to be given by the board, the board shall, at the expense of the company, give notice of the shareholder proposal and the text of any proposed resolution to all shareholders entitled to receive notice of the meeting.

(3) If the notice is received by the board not less than five working days and not more than 20 working days before the last day on which notice of the relevant meeting of shareholders is required to be given by the board, the board shall, at the expense of the shareholder, give notice of the shareholder proposal and the text of any proposed resolution to all shareholders entitled to receive notice of the meeting.

(4) If the notice is received by the board less than five working days before the last day on which notice of the relevant meeting of shareholders is required to be given by the board, the board may, if practicable, and at the expense of the shareholder, give notice of the shareholder proposal and the text of any proposed resolution to all shareholders entitled to receive notice of the meeting.

(5) If the directors intend that shareholders may vote on the proposal by proxy or by postal vote, they shall give the proposing shareholder the right to include in or with the notice given by the board a statement of not more than 1000 words prepared by the proposing shareholder in support of the proposal, together with the name and address of the proposing shareholder.

(6) The board is not required to include in or with the notice given by the board a statement prepared by a shareholder which the directors consider to be defamatory, frivolous, or vexatious.

(7) Where the costs of giving notice of the shareholder proposal and the text of any proposed resolution are required to be met by the proposing shareholder, the proposing shareholder shall, on giving notice to the board, deposit with the company or tender to the company a sum sufficient to meet those costs.

NOTE: This clause applies notwithstanding any contrary provision in any constitution adopted by the company.

10. Corporations may act by representative

A body corporate which is a shareholder may appoint a representative to attend a meeting of shareholders on its behalf in the same manner as that in which it could appoint a proxy.

NOTE: This clause applies notwithstanding any contrary provision in any constitution adopted by the company.

11. Votes of joint holders

Where two or more persons are registered as the holder of a share, the vote of the person named first in the share register and voting on a matter shall be accepted to the exclusion of the votes of the other joint holders.

NOTE: This clause applies notwithstanding any other provision in any constitution adopted by the company.

12. Loss of voting right if calls unpaid

If a sum due to a company in respect of a share has not been paid, that share may not be voted at a shareholder's meeting other than a meeting of an interest group.

13. Other proceedings

Except as provided in this Schedule, a meeting of shareholders may regulate its own procedure.

THIRD SCHEDULE

(section 129 (1))

SECTIONS OF THIS ACT THAT CONFER POWERS ON DIRECTORS THAT CANNOT BE DELEGATED

1. Section 50 (which relates to the issue of shares);

2. Sections 53 and 54 (which relates to the consideration for the issue of shares);

3. Section 58 (which relates to distributions);

4. Section 61 (which relates to the issue of shares in lieu of dividends);

5. Section 62 (which relates to shareholder discounts);

6. Section 66 (which relates to offers to acquire shares);

7. Section 73 (which relates to the redemption of shares at the option of a company);

8. Section 76 (which relates to the provision of financial assistance);

9. Section 184 (which relates to a change of registered office);

10. Section 224 (which relates to the manner of approving an amalgamation proposal); and

11. Section 225 (which relates to short form amalgamations).

FOURTH SCHEDULE

(section 156)

PROCEEDINGS OF THE BOARD OF A COMPANY

1. Chairperson

(1) The directors may elect one of their number as chairperson of the board and determine the period for which he is to hold office.

(2) If no chairperson is elected, or if at a meeting of the board the chairperson is not present within five minutes after the time appointed for the commencement of the meeting, the directors present may choose one of their number to be chairperson of the meeting.

2. Notice of Meeting

(1) A director or, if requested by a director to do so, an employee of the company, may convene a meeting of the board by giving notice in accordance with this clause.

(2) Not less than two days' notice of a meeting of the board must be sent by any means of communication to every director who is in Botswana, and the notice must include the date, time, and place of the meeting and the matters to be discussed.

(3) An irregularity in the notice of a meeting is waived if all directors entitled to receive notice of the meeting attend the meeting without protest as to the irregularity or if all directors entitled to receive notice of the meeting agree to the waiver.

3. Methods of holding meetings

A meeting of the board may be held either -

(a) by a number of the directors who constitute a quorum, being assembled together at the place, date, and time appointed for the meeting; or

(b) by means of audio, or audio and visual, communication by which all directors participating and constituting a quorum can simultaneously hear each other throughout the meeting.

4. Quorum

(1) A quorum for a meeting of the board shall be fixed by the board and if not so fixed shall be a majority of the directors.

(2) No business may be transacted at a meeting of directors if a quorum is not present.

5. Voting

(1) Every director has one vote.

(2) The chairperson does not have a casting vote.

(3) A resolution of the board is passed if it is agreed to by all directors present without dissent or if a majority of the votes cast on it are in favour of it.

(4) A director present at a meeting of the board is presumed to have agreed to, and to have voted in favour of, a resolution of the board unless he expressly dissents from or votes against the resolution at the meeting.

6. Minutes

The board must ensure that minutes are kept of all proceedings at meetings of the board.

7. Resolution in writing

(1) A resolution in writing, signed or assented to by all directors then entitled to receive notice of a board meeting, is as valid and effective as if it had been passed at a meeting of the board duly convened and held.

(2) Any such resolution may consist of several documents (including facsimile or other similar means of communication) in like form each signed or assented to by one or more directors.

(3) A copy of any such resolution must be entered in the minute book of board proceedings.

8. Other proceedings

Except as provided in this Schedule, the board may regulate its own procedure.

FIFTH SCHEDULE

(section 115(4))

PROVISIONS RELATING TO TRUSTEE FOR DEBENTURE HOLDERS AND TRUST DEED

1. Qualification to act as trustee for debenture holders

(1) Subject to subclause (2) and (3), no person shall be qualified to act as a trustee for debenture holders unless that person is -

(a) a legal practitioner;

(b) a banking company;

(d) a qualified auditor;

(e) an investment trust company, finance or other corporation or person approved in writing by the Minister for the purpose of section 115, either generally or in respect of a particular issue.

(2) A person shall not be qualified for appointment as a trustee for debenture holders if he is -

(a) a director, officer, or employee of the company which issues debentures covered by the deed; or

(b) a substantial shareholder of the company.

(3) A trustee for debenture holders shall be disqualified from acting as such and shall vacate office if he -

(a) ceases to be qualified under subclause (1) or disqualified under subclause (2);

(b) is adjudged bankrupt or, in the case of a body corporate, goes into liquidation or makes an arrangement or composition with its creditors;

(d) is convicted of an offence involving fraud or dishonesty.

(4) Where the trustee for debenture holders is a person other than a body corporate, a successor to him shall be named in the trust deed.

(5) Where the successor dies or becomes disqualified during the term of office of the trustee, a meeting of debenture holders shall be convened by the trustee within 28 days to appoint another person as successor.

(6) On the disqualification of the trustee under subclause (3) or on his death or resignation the successor shall immediately and without special appointment assume office, and shall within 28 days of assuming office convene a meeting of debenture holders to name his successor in accordance with subclause (5).

(7) Where the trustee for debenture holders is a body corporate it shall not without the consent of the court be discharged or retire from office until another trustee has been appointed to and taken office in accordance with the trust deed.

2. Trust deed

(1) A company may, as security for a debenture, but subject to any other laws create over any of its assets or property a charge, of whatever nature, in favour of the trustee for debenture holders.

(2) Every trust deed shall state -

(a) the maximum sum which the company may raise by issuing debenture of the same class;

(b) the maximum discount which may be allowed on the issue or reissue of the debentures, and the maximum premium at which the debentures may be made redeemable;

(i) the company is indebted to the trustee for debenture holders' for the amounts from time to time payable in respect of the debentures; and

(ii) except for his own remuneration and indemnity against expenses incurred by him, the trustee for debenture holders holds on behalf of the debenture holders any amount from time to time issued under the deed and remaining outstanding in accordance with their respective rights;

(d) the nature of any assets over which any charge is created by the deed in favour of the trustee for debenture holders for the benefit of the debenture holders equally, and except where such a charge is a floating charge, the identity of the assets subject to it;

(e) the nature of any assets over which any charge has been or will be created in favour of any person other than the trustee for debenture holders for the benefit of the debenture holders equally, and except where such a charge is a floating charge, the identity of the assets subject to it;

(f) whether the company has created or will have power to create a charge for the benefit of some, but not all, of the holders of debentures issued under the deed;

(g) any prohibition or restriction on the power of the company to issue debentures or to create charges on any of its assets ranking in priority to, or equally with, the debentures issued under the deed;

(h) whether the company will have power to-

(i) acquire debentures issued under the deed before the date for their redemption;

(ii) re-issue such debentures;

(i) the date on which the principal of the debentures issued under the deed will be repaid and, unless the whole principal is to be repaid to all the debenture holders at the same time, the manner in which repayment will be effected;

(j) the date on which interest on the debentures issued under the deed will be paid and the manner in which payment will be made;

(k) in the case of convertible debentures, the date and terms on which the debentures may be converted into shares and the amounts which will be credited as paid up on such shares, and the date and terms on which the debenture holders may exercise any right to subscribe for shares in place of the debentures held by them;

(l) the circumstances in which the debenture holders will be entitled to realise any charge vested in the trustee for debenture holders or any other person for their benefit;

(m) the circumstances in which the trustee for debenture holders may appoint a receiver or manager and the power and duties of the receiver or manager;

(n) the powers of the company and the trustee for debenture holders to call meetings of the debenture holders, and the rights of debenture holders to require the company or the trustee for debenture holders to call such meetings;

(o) whether the rights of debenture holders may be altered or abrogated and if so, the conditions which must be fulfilled and the procedure which must be followed to effect such an alteration or abrogation;

(p) the amount or rate of remuneration to be paid by the company to the trustee for debenture holders and the period for which it will be paid, and whether it will be paid in priority to the principal, interest and costs in respect of debentures issued under the deed.

3. Powers of trustee for debenture holders

(1) On the execution of a debenture trust deed the debenture debt shall, where the deed so provides, vest as it is created in the trustee for debenture holders and thereupon he shall -

(a) have power to act in his own name on behalf of the debenture holders;

(b) be entitled to represent them in all matters affecting the debentures and their rights and obligations under the deed; and

(i) take title in his own name to any property charged by the borrowing company under the deed;

(ii) notwithstanding any other law be registered on behalf of the debenture holders in any register of movable or immovable property, the entry in the register to be made in his own name followed by the words "as the trustee for debenture holders under a trust deed dated the ........................."

(iii) hold any document of title, certificate or other security conferring or evidencing the title or interest of the borrowing company in or otherwise relating to the property charged by the deed;

(iv) take or defend legal proceedings in his own name on behalf of the debenture holders in relation to any matter connected with the protection of their interest in the assets of the borrowing company and their rights and obligations under the deed;

(v) enter into any contract, compromise or arrangement in his own name on behalf of the debenture holders;

(vi) represent the debenture holders, in person or by proxy, at a meeting of the borrowing company, or of creditors of the borrowing company or at any other meeting which the debenture holders have a right to attend;

(vii) take any enforcement action under the deed in the name of and on behalf of the debenture holders.

(2) Every company shall at the request of a debenture holder and on payment of the fee prescribed in the Twelfth Schedule forward to him a copy of the trust deed relating to or securing any issue of debentures held by him.

4. Right of trustee for debenture holders to obtain information

(1) A trustee for debenture holders shall be entitled to receive all notices of and other communications relating to any general meeting of the borrowing company which a shareholder is entitled to receive.

(2) A borrowing company shall on the written request of the trustee for debenture holders -

(a) make available for his inspection any book of the company;

(b) provide him with such information as he requires with respect to any matter relating to such book.

5. Meetings on request

(1) A borrowing company shall, on the written request of the trustee for debenture holders or on that of persons holding not less than one-tenth in nominal value of the issued debentures to which the trust deed relates, summon a meeting of the holders of those debentures for the purpose of -

(a) considering the accounts and balance sheet of the company for its last preceding financial year; and

(b) giving directions to the trustee for debenture holders in relation to the exercise of his powers.

(2) Every meeting under subclause (1) shall be summoned by sending a notice by post, specifying the time and place of the meeting, to every holder of the debentures at his last known address not later than14 days before the date of the proposed meeting.

(3) The meeting shall be held under the chairmanship of a person nominated by the trustee for debenture holders, or such other person as may be appointed in that behalf by the debenture holders present at the meeting.

6. Duties of trustee for debenture holders

(1) Every trustee for debenture holders shall -

(a) exercise reasonable diligence to ascertain whether or not the borrowing company has committed a breach of the terms of the trust deed;

(b) except where he is satisfied that the breach will not materially prejudice any security conferred by the deed or the interests of the debenture holders, do all such things as he is empowered to do to cause the borrowing company to remedy a breach of those terms of conditions;

(c) exercise reasonable diligence to ascertain whether or not the assets of the borrowing company that are or may be available, whether by way of security or otherwise, are sufficient or likely to be sufficient to discharge the amounts of the debentures as they become due;

(d) hold for the benefit of the debenture holders, and account to them for, any money or property coming into his hands by way of payment of principal or interest under the trust deed or on a realisation of the security conferred by the deed.

(2) Where, after due inquiry, a trustee for debenture holders is of the opinion that the assets of the company are insufficient or likely to be insufficient to discharge the amounts of the debentures as they become due, he may, having regard to -

(a) any other powers or remedies available to him for the protection of the interests of the debenture holders;

(b) the availability, by way of security or otherwise, of any assets of any corporation that has guaranteed or agreed to guarantee the repayment of the amounts of the debentures;

(d) all other relevant circumstances, apply to the court for an order under subclause (3).

(3) On an application for an order under this clause the court may, after giving the borrowing company an opportunity of being heard, and having regard to the rights of all creditors of the borrowing company, give such directions as it thinks fit to protect the interests of the debenture holders, the members of the borrowing company, or the public, whether by way of -

(a) staying any proceedings by or against the borrowing company;

(b) restraining the payment by it of any money to any holders of debentures or to any class of such holders; or

7. Repayment of loans and deposits

(1) Where, in a prospectus issued in connection with an invitation to subscribe for or to purchase debentures, there is a statement as to any particular purpose or project for which the moneys received by the company in response to the invitation are to be applied, the company shall report to the trustee for debenture holders as to the progress that has been made towards achieving the purpose or completing the project.

(2) Where it appears to the trustee for debenture holders that the purpose or project referred to in the prospectus has not been achieved or completed within the time stated in the prospectus or, where no time is stated, within a reasonable time, he may and shall, if in his opinion it is necessary for the protection of the interests of the debenture holders give written notice to the company requiring it to repay the money received and, subject to subclause (3) within one month, lodge a copy of the notice.

(3) The trustee for debenture holders shall not give the notice under subclause (2) if he is satisfied that -

(a) the purpose or project has been substantially achieved or completed;

(b) the interests of the debenture holders have not been materially prejudiced by the failure to achieve or complete the purpose or project within the time stated in the prospectus or within a reasonable time; or

(c) the failure to achieve or complete the purpose or project was due to circumstances beyond the control of the company that could not reasonably have been foreseen at the time the prospectus was issued.

(4) On receipt by the company of a notice referred to in subclause (2), the company shall be liable to repay any money owing as the result of a loan or deposit made in response to the invitation unless -

(a) before the money was accepted, the company had given written notice to the person from whom the money was received specifying the purpose or project for which the money would in fact be used and the money was accepted by the company accordingly; or

(b) the company by written notice given to the debenture holders -

(i) has specified the purpose or project for which the money would in fact be applied by the company; and

(ii) has offered to repay the money to the debenture holders and they have not within 14 days after the receipt of the notice, or such longer time as it specified in the notice, demanded in writing from the company repayment of the money.

(5) Where the company has given written notice under subclause (4), specifying the purpose or project for which the money will in fact be applied by the company, this clause shall apply and have effect as if the purpose or project so specified in the notice was the particular purpose or project specified in the prospectus as the purpose or project for which the money was to be applied.

8. Release of trustee from obligations

(1) Subject to subclause (2) and (3) a provision in a trust deed or in a contract with debenture holders secured by a trust deed, shall be void in so far as it would have the effect of exempting the trustee for debenture holders from, or indemnifying him against, liability for exercising reasonable diligence and care in the carrying out of his duties under the deed or observing any of the provisions of clauses 6 and 7.

(2) Subclause (1) shall not invalidate a provision enabling release to be given -

(a) with the concurrence of a majority of not less than three-fourths in nominal value of the debenture holders present and voting in person or, where proxies are permitted, by proxy at a meeting summoned for the purpose; and

(b) with respect to specific acts or omissions or on the trustee for debenture holders ceasing to act.

(3) A trustee for debenture holders may rely on a certificate or report given or statement made by any person who is a legal practitioner for or auditor or officer of the borrowing company, if he has reasonable ground for believing that the person was competent to give the certificate or report or to make the statement.

SIXTH SCHEDULE

(section 217 (5))

1. Form of Annual Return of a Company Limited by Shares

Annual Return of the ...................................... ............................................Company
Limited, made up to the date of theAnnualMeeting.

Date of Meeting ......................................... or Resolution in lieu of meeting under section 107(2) of the Act.

1. The physical and postal address of the registered office of the Company:

......................................................................................................................

2. The physical and postal address of the Company:

......................................................................................................................

3. The address at which the register of shareholders or members is kept (if not kept at the registered office)

......................................................................................................................

4. The address at which the financial records are kept (if not kept at the registered office)

......................................................................................................................

5. The company is - [tick correct box]

(i) a public company

(ii) a non-exempt private company

(iii) an exempt private company

2. Summary of Share Capital and Debentures

Share Capital

(a) Total number of shares issued by the Company:

..................................

(b) Total amount paid up on shares

P...............................

Total amount called but unpaid

P...............................

Amount received on any shares forfeited

P...............................

Stated Capital

P...............................

(3) Classes of shares

Number

Class

..............................

.............................

..............................

.............................

..............................

.............................

..............................

.............................

(4) Number of shares of each class issued subject to payment wholly in cash

...................
...................

............... shares
............... shares

...................
...................

............... shares
............... shares

(5) Number of shares of each class issued as fully paid up for a consideration other than cash

...................
...................
...................
...................

............... shares
............... shares
............... shares
............... shares

(6) The nature of the consideration given for such shares.

...................

........................

(7) Number of shares of each class issued as partly paid up for a consideration other than cash and extent to which such share is so paid up

................... ............... shares
issued as paid up to extent of P.................... per share

(8) The nature of the consideration given for such shares

................................................
................................................

(9) Amount called up on shares of each class

P..............per share on ...............shares

(10) Total number of shares of each class forfeited

.............................. ..................shares

(11) Total amount paid, if any, on shares forfeited