Item 6.
Indemnification of Directors and Officers.
The Registrant regulates the indemnification and insurance of directors and prescribed officers in its Memorandum of Incorporation (the “
MOI
”). In this regard, the MOI follows section 78 of the South African Companies Act, 2008 (the “
Companies
Act
”), except that
under the MOI no director is liable for: (i) the acts, receipts, neglect or default of any other director; (ii) for joining, for the sake of conformity, in any receipt or other act; (iii) for loss or expense suffered or incurred by the Registrant as a result of the insufficiency or deficiency of title to any property acquired by order of the directors for and on behalf of the Registrant; (iv) for the insufficiency or deficiency of any shares, debentures or other instruments irrespective of their form or title, issued or authorized to be issued by the Registrant (“
Securities
”) in or upon which any of the money of the Registrant shall be invested; (v) for any loss or damage arising from the bankruptcy, insolvency or unlawful act of any person with whom money or Securities were deposited; (vi) for any loss or damage occasioned by any error of judgment or oversight on the director’s part; or (vii) for any other loss, damage or misfortune of whatever nature which occurred in the execution of the duties of the director’s office or in relation thereto, unless the same occurred in consequence of his own negligence, neglect, breach of duty or disregard of a trust.
The MOI provides that the Registrant may not directly or indirectly 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 offense in terms of any national legislation unless the conviction was based on strict liability. The MOI further provides that the Registrant may advance expenses to a director to defend litigation in any proceedings arising out of the director’s service to the Registrant and may directly or indirectly indemnify a director for any liability, other than in respect of (a) any liability arising in terms of a section 77(3)(a), (b) or (c) of the Companies Act (i.e., if the director: acted in the name of the Registrant, signed anything on behalf of the Registrant, or purported to bind the Registrant or authorize the taking of any action by or on behalf of the Registrant, despite knowing that the director lacked the authority to do so; acquiesced in the carrying on of the Registrant’s business despite knowing that it was being conducted in a manner prohibited by section 22(1) of the Companies Act; or was a party to an act or omission by the Registrant despite knowing that the act or omission was calculated to defraud a creditor, employee or shareholder of the Registrant or had another fraudulent purpose); (b) willful misconduct or willful breach of trust on the part of the director; or (c) any fine that may not be paid as referenced in the first sentence of this paragraph. The MOI also provides that the Registrant may directly or indirectly indemnify a director for any litigation expenses referenced in the immediately preceding sentence, irrespective of whether it has advanced those expenses, if the proceedings are abandoned or exculpate the director or arise in respect of any indemnifiable liability.
The Registrant is entitled to claim restitution from a director or a related company for any money paid directly or indirectly by the Registrant to or on behalf of that director in any manner inconsistent with section 78 of the Companies Act.
The Registrant may purchase insurance to protect a director against any indemnifiable liability or expenses. The Registrant may also purchase insurance to protect the Registrant against any contingency including but not limited to any expense that may be indemnified or advanced or indemnifiable liability. As permitted by the MOI, the Registrant has purchased directors liability insurance from third parties for indemnification of its directors for wrongful acts, as well as to reimburse the Registrant for any indemnification that it provides to its directors for wrongful acts.
For the purposes of this Item 6, “director” includes a former director, an alternate director, a prescribed officer, a person (including a juristic person) who is a member of a committee of the board of directors of the Registrant, irrespective of whether or not the person is also a member of the board of directors of the Registrant, and a person who is a member of the audit committee of the Registrant.
Item 9.
Undertakings.
(a) The Registrant undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement; and
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided
,
however
, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liabilities under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the Registration Statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering.
(b) The Registrant further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to the Registrant’s directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than for the Registrant’s payment of expenses incurred or paid by one of the Registrant’s directors, officers or controlling persons in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, then, unless in the opinion of the Registrant’s counsel the matter has been settled by controlling precedent, the Registrant will submit to a court of appropriate jurisdiction the question whether such indemnification is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.