KENIC
Memorandum and Articles of Association
(2002)
THE COMPANIES
ACT
CAP 486.
COMPANY LIMITED BY GUARANATEE AND NOT HAVING A SHARE CAPITAL.
MEMORANDUM
AND
ARTICLES OF ASSOCIATION
OF
KENIC LIMITED
Okoth & Kiplagat,
Advocates,
Bruce House,
12th Floor,
Standard Street,
Nairobi.
THE COMPANIES
ACT (CAP 486)
COMPANY LIMITED BY GUARANTEE AND NOT HAVING A SHARE CAPITAL
MEMORANDUM OF ASSOCIATION OF KENIC LIMITED.
1. The name of the Company is KENIC LIMITED.
2. The Registered Office of the Company will be situated in Kenya at Longonot Place 5th Floor, Kijabe Street.
3. The objects for which the Company is established are:
(a) To be the administrator of, the Kenyan self regulatory policy body for the .ke ccTLD and its associated Second Level Domains;
(b) To maintain and promote the operational stability and utility of the .ke ccTLD;
(c) To ensure a cost effective administration of the .ke ccTLD and its sub ¨C domains;
(d) To develop and establish a policy framework for the development and administration of the .ke ccTLD including.
i. rules governing the operations of second level domains;
ii. the creation of second level domains;
iii. rules governing the accreditation of registrars and registry administrators;
iv. rules governing the registration of names within second level domains and access to second level domain registries.
v. Ensuring that registrars have equal access to second level registry services.
(e) To manage the operation of critical technical functions including:
i. the primary and secondary .ke name servers;
ii. zone files for second level domains; and
iii. a searchable data base containing information on registrations within the .ke ccTLD
(f) To liaise with national and international bodies on issues relating to the development and administration of domain name systems;
(g) Act as a spokesman for and representative of the Kenyan Internet Community on all matters related on ccTLD and domain names in general;
(h) To promote co-operation and dialogue between itself and as a representative of the Kenyan internet community, Internet service providers regulatory authorities and other interested parties;
(i) To establish appropriate complaints handling and dispute resolution process to provide for conciliation or redress of grievances on matters associated with the administration of the .ke ccTLD.
(j) Do all such things as are incidental or conducive to the interests of the members and the Kenyan Internet community or to the attainment of the purposes set out in this memorandum
(k) To purchase or otherwise acquire, construct, maintain and deal with land, submarine and earth satellite transmitters, receivers and dishes [including all other electrical, electronic or other apparatus for transmitting messages or information y any means], and also lands, works, buildings and apparatus in any part of the world or in space;
(l) To acquire, carry on, and deal with the undertakings, works, lands, property, and businesses of other companies and persons engaged in manufacturing, constructing, and laying down telephone lines, cables, instruments, machinery, wire, and other materials and things used for or in connection with the transmission of communications and information;
(m) To erect aerials and transmission and receiving equipment;
(n) To make and carry into effect working, traffic and other agreements with governments, local authorities and companies, shipping companies, telephone, television and cable companies and other organizations;
(o) To carry out the businesses of making, selling, hiring out, buying, installing, maintaining, repairing and working, telephones, telegraphs, radios, television sets, video and tape recorders, recording instruments and electronic, electrical and mechanical apparatus, equipment and fittings of all kinds;
(p) To carry on the businesses of a telephone, television, telegraph, cable and wireless communications company and to establish, work, manage, sell, hire out, and maintain telephone exchanges, cable communications, telegraph offices and radio and television receiving and transmitting stations and any other application of information or communication technology whether involving sounds, visual images, electrical impulses or otherwise;
(q) To obtain all necessary permits or licenses required for the purpose of enabling the company to carry on its business upon such terms and conditions as may be acceptable to it;
(r) To acquire by purchase, exchange, lease or otherwise any land or building in, on or from which or in relation to which any production or occurrence in connection with the making of a television, video or sound broadcasting program may take place, or which is otherwise suitable for the business of the company;
(s) To acquire by purchase or otherwise the copyright or design right in any material;
(t) To obtain all licenses and authorizations for all the purposes herein;
(u) To purchase, take on lease, or by any other means acquire any moveable or immovable property in Kenya or elsewhere for any estate or interest whatsoever, and any rights, privileges or easements over or in respect of any property and any building, plant, machinery, equipment, or things whatsoever.
(v) To purchase, take on lease, or by any other means acquire any moveable or immovable property in Kenya or elsewhere for any estate or interest whatsoever, and any rights, privileges or easements over or in respect of any property and any building, plant, machinery, equipment, or things whatsoever.
(w) To enter into hire, hire purchase and other agreements in respect of goods or articles dealt with and services supplied to or by the Company and to negotiate, assign, mortgage or pledge for cash or otherwise any such agreements or any payments or rights accruing there under.
(x) To enter into any arrangements with any governments or authorities, supreme, municipal, local or otherwise, that may seem conducive to the Company's objects or any of them, and to obtain from any such government or authority any contracts, rights, privileges or concessions which the Company may think it desirable to obtain, and to carry out, exercise and comply with any such arrangements, contracts, rights, privileges and concessions.
(y) To purchase, take on lease, or by any other means acquire any moveable property in Kenya or elsewhere for any estate or interest whatsoever, and any rights, privileges or easements over or in respect of any property, and any buildings, plant, machinery, equipment, or things whatsoever.
(z) To enter into hire, hire purchase and other agreements in respect of goods or articles dealt with and services supplied to or by the Company and to negotiate, assign, mortgage or pledge for cash or otherwise any such agreements or any payments or rights accruing thereunder.
(aa) To enter into any arrangements with any governments or authorities, supreme, municipal, local or otherwise, that may seem conducive to the Company's objects or any of them, and to obtain from any such government or authority any contracts, rights, privileges or concessions which the Company may think it desirable to obtain, and to carry out, exercise and comply with any such arrangements, contracts, rights, privileges and concessions.
(bb) To adopt such means of making known the activities and products of the Company as may seem expedient, and in particular by advertising in the press, on radio, cinema or television, by circular, by purchase and exhibition of works of art or interest by publication of books and periodical and by granting prizes, rewards and donations.
(cc) To acquire, carry on and undertake all or any of the business, property and liabilities of any person or company carrying on business similar to that which the company is authorized on, or possessed of rights of property suitable for any of the purposes of the Company, and to purchase, acquire, sell and deal with the shares and securities of any such person or company.
(dd) To sell the property and undertaking of the Company or any part thereof, for such consideration as the Company may think fit, and in particular for shares, debentures of securities of any other company having objects altogether or in part similar to the subjects of the Company.
(ee) To promote any other for the purposes of acquiring all or any of the property and liabilities of the Company, or for any other purpose which may seem directly or indirectly calculated to benefit the Company, and to subsidize or otherwise assist any such company.
(ff) To take or otherwise acquire and hold shares in any other company, having objects altogether or in part similar to those of the Company, or carrying on any business capable of being conducted so as directly or indirectly to benefit the Company.
(gg) To amalgamate with any other company having objects altogether or in part similar to those of the company.
(hh) To distribute any of the property of the Company among the members in specie or in kind.
(ii) Generally to purchase, take on lease or in exchange, hire or otherwise acquire any property, moveable or immovable, or any interest therein any and rights or privileges which the Company may think necessary or convenient for the purposes of its business, and in particular any land or buildings, and to pay for such properties, rights and privileges, either in cash or in stock or shares of the Company or partly in cash and partly in stock or shares or otherwise.
(jj) To lend money to such persons and on such terms as may seem expedient, and in particular to customers and others having dealings with the Company, and to guarantee and become surety for the liabilities of, the performances of contracts and the repayment of money by any firm company individual or whether connected or having dealings with the Company, or not including therein to charge and/or mortgage any or all moveable or immovable property or properties of the company (both present and future) including its uncalled capital for and on behalf and for the benefit of such firm company individual or corporation whether connected with the company or not.
(kk) To borrow and raise money and to secure or discharge any debt or obligation of or binding on the Company in such manner as may be thought fit and, in particular, by legal and equitable mortgages and charges upon the undertaking and all or any of the property and assets (present and future) and the uncalled capital of the Company or by the creation and issue on such terms and conditions as may be thought expedient and in particular by debentures, debenture stock or other securities of any description.
(ll) To pay out of the funds of the Company all expenses of and incidental to its formation and registration, and to remunerate any person or company, whether in cash or by the allotment of shares credited as fully or partly paid up for services rendered in the formation of the Company or in placing or assisting to place any of the shares in the Company's capital or in or about the promotion of the Company or the conduct of its business.
(mm) To draw, make, accept, endorse, discount, execute, and issue promissory notes, bills of exchange, debentures and other negotiable or transferable instruments.
(nn) To purchase or otherwise acquire any patents, licenses, concessions and the like, conferring any exclusive or non exclusive or limited rights to use any invention which may seem capable of being used for any purposes of the Company, or the acquisition of which may seem calculated directly or indirectly, to benefit the Company and to use, exercise, and develop, or grant licenses in respect of, or otherwise turn to account, the property and rights so acquired.
(oo) To sell, improve, manage, develop, lease, mortgage, charge, or dispose of the whole of any portion of the property and rights of the Company.
(pp) To invest in any manner the moneys of the Company not immediately required.
(qq) To establish and support or aid in the establishment and support of associations, institutions, funds, trusts and conveniences calculated to benefit and to grant pensions and allowances to directors or ex-directors and any persons who are or have been at any time employed or in the service of the Company or of any subsidiary, allied or associated company or of the predecessors in business of any such company, or the dependants or connections of such persons, and to make payments towards insurance for the purpose aforesaid and to subscribe or guarantee money for any charitable or benevolent object or for any exhibitions or for any public, general or useful object.
(rr) To do all such other things as may be conducive or incidental to the attainment of the above objects.
(ss) To do all or any of the above things in any part of the world, and as principals, managing agents, agents, contractors, trustees or otherwise, and by or through trustees, agents, managing agents, or otherwise, and whether alone or in conjunction with others.
The objects set forth in any sub clause of this Clause shall not be restrictively construed, but the widest interpretation shall be given thereto, and they shall not, except when the context expressly so requires, be in any way limited to or restricted by reference to or inference from any other object or objects set forth in such sub clause or from the terms of any other sub clause or by the name of the Company. None of such sub clauses or the object or objects therein specified or the powers thereby conferred shall be deemed subsidiary or ancillary to the objects or powers mentioned in any other sub clause, but the Company shall have full power to exercise all or any of the powers and to achieve or to endeavor to achieve all or any of the objects conferred by and provided in any one or more of the said sub clauses.
4. The liability of the Members is limited.
5. Every member of the Company undertakes to contribute to the assets of the Company in the event of the same being wound up during the time that he is a member, or within one year afterwards, for payment of the debts and liabilities of the company contracted before the time at which he ceases to be a member and if the costs charges and expenses of winding up the same, and for adjustments of the rights of the contributories amongst themselves such amount as may be required, not exceeding Kenya Shillings One Hundred Thousand only (KShs. 100,000/-)
WE the several persons whose names, postal addresses and occupations are subscribed, are desirous of being formed into a Company in pursuance of this Memorandum of Association.
| NAMES, POSTAL ADDRESSES AND OCCUPATIONS OF SUBSCRIBERS
|
SIGNATURES OF SUBSCRIBERS | |
| TOTAL SHARES TAKEN |
DATED the ______________ day of _______________ 2002.
WITNESS to the above signatures: -
Certified that this document is produced by the process of xerography
For: - OKOTH & KIPLAGAT,
ADVOCATES,
BRUCE HOUSE,
12TH FLOOR,
STANDARD STREET,
NAIROBI.
COMPANY LIMITED BY GUARANATEE AND NOT HAVING A SHARE CAPITAL.
ARTICLES
OF ASSOCIATION
OF
KENIC LIMITED
1.1 In these Articles unless the context otherwise requires:
". ke ccTLD" means the country code Top Level Domain (ccTLD) that is the area of the Internet domain name system administered by Kenya. For example ". ke" in the Internet address www.keda.org.ke
"Kenyan Internet Community" means those users and suppliers of services via the Internet who are based in Kenya;
"Board" means the whole or any number of the Directors for the time being assembled at a meeting of Directors and not being less than a quorum; and reference to "the Directors" shall be construed as references to the Board unless the context requires otherwise;
"Director" includes any natural person occupying the position of a director of the Company;
"Directors" means the Directors for the time being or such number of them as have authority to act for the Company;
"Legal Person" means the legal definition of a person, including without limitation a natural person (individual) or an Organization;
"Members" means Legal Persons admitted as members of the company pursuant to clause 4;
"Board Members" are the initial Board members of the Company pursuant to Clause 4.1(i);
"Associate Members" are the initial Associate members of the Company pursuant to clause 4. (ii) and any other member who may be admitted into the company after the adoption of these Articles;
"Organization" means a body corporate including without limitation an incorporated association or a Government agency;
"Register" means the register of Members to be kept pursuant to the Corporations Law;
"Registrar" means a Legal Person who acts as an interface between domain name holders and a registry, providing registration services.
"Registry" means the database administered by a Registry Administrator, consisting of the zone file for a domain, containing the name and corresponding Domain Name System Resource Records, for each sub-domain of the domain.
"Registry Administrator" means a Legal Person responsible for maintaining a Registry for a domain, where the domain was delegated from its parent domain for the explicit purpose of accepting registrations from the Australian Internet Community generally. In most (but not all) cases these domains will be Second Level Domains under ". au".
"Second Level Domain" means the second level of an Internet address. For example "org.au" in the Internet address "www.auda.org.au".
"Secretary" includes the assistant or acting secretary of The Company and any substitute for the time being for the secretary.
"The Act" shall mean the companies Act (Cap 486) and every other Act incorporated therewith, or any Act or Acts substituted therfor; and in case of any such substituted the references in these presents to the provisions of non existing Acts shall be read as referring to the provisions substituted therfor in the new Act or Acts.
words (including defined expressions) importing the singular include the plural and vice versa;
words (including defined expressions) importing any gender include the other genders; words (including defined expressions) importing persons shall include corporations and bodies politic;
references to "writing" or "written" includes typing, printing and any mode of representing or reproducing words in visible form including words or figures displayed on an electronic screen;
references to "signatures" include "electronic signatures", being the result of a process applied to a document in electronic form by which a person authenticates the document and acknowledges that the document is being signed;
references to the "sending" of a document includes the sending of that document via electronic means, including, but not limited to, electronic mail;
The liability of the Members is limited.
3 NON-PROFIT
The income and property of the Company must be applied solely in promoting the objects of the Company as set out in these Articles and no portion of it is to be paid or transferred directly or indirectly by way of profit to Members or Directors. This does not prevent the payment in good faith:
i. for goods supplied in the ordinary and usual course of business;
ii. of interest at a reasonable and proper rate on money borrowed from any Member;
iii. of interest at a reasonable and proper rate on money borrowed from any Member;
iv. of reasonable and proper rent for premises demised or let by any Member to the Company;
v. of remuneration to any officers or servants of the Company in return for any services rendered to the Company other than in the capacity as director or officer, where the provision of the service has the prior approval of the directors of the Company and where the amount payable is approved by the directors of the Company and is not more than an amount which commercially would be a reasonable payment for the service;
vi. of out-of -pocket expenses incurred by a director in the performance of any duty as a director of the Company where the amount payable does not exceed any amount previously approved by the directors of the Company;
vii. of any salary or wage due to a director as an employee of the Company where the terms of employment have been approved by the directors of The Company; or
Every Member undertakes to contribute an amount not exceeding Kenya Shillings one Hundred Thousand (KShs.100,000/-) to the property of the Company in the event of its being wound up while that person is a Member or within one year afterwards for:
i. payment of the debts and liabilities of the Company contracted before the time when that Member ceased to be a Member;
4.1 The Members of the Company are
The Board Members of the Company are:
a. Communications Commission of Kenya (CCK)
c. Computer Society of Kenya (CSK)
d. Kenya Education Network (KENET)
e. Kenya Information Society (KIS)
f. Nationwide Taskforce on Electronic Commerce (NTF ecom)
g. The Telecommunications Service Providers Association of Kenya (TESPOK)
The Board Members shall each elect one director to sit in the Board with the exception of Communications Commission of Kenya, which shall elect two directors to sit in the Board.
The initial Associate Members are
Each Associate Member may elect one person to be an observer in the board PROVIDED that such person shall not be entitled to vote on any matters of the Board.
4.2 Application for Associate Membership
An application for Associate membership must be made in the form approved by the Board from time to time, provided that each such application must contain:
i. an undertaking on the part of the applicant to be bound by the Company¡¯s Articles.
ii. the postal address and electronic mail address of the applicant;
iii. adequate particulars of the applicant's qualifications for membership;
iv. if the applicant is an Organization, the name of the Organization¡¯s proposed Nominee(s); and
v. the signature (or where applicable, the seal) of the applicant, or such other form of authentication (electronic or otherwise) approved by the Board from time to time.
An application for Associate membership, accompanied by the applicable membership fee and entrance fee, where applicable, must be lodged with the Company in the form and at the place (if any) approved by the Board from time to time.
4.4 Determination of Application by the Board
i. The Board must determine whether or not to approve each application for Associate Membership at the next Board meeting after receipt of the application.
ii. The Board may require an applicant to give such further information as it desires before approving or refusing the admission of an applicant for Associate Membership.
iii. An applicant for Associate membership is taken to be admitted as an Associate Member upon the Board approving the application and the name, address and email address of the Legal Person being entered in the Register of members.
The Secretary shall keep the Register and shall enter in it the full names, addresses, and email addresses of Members, the date upon which Members became Members and the date upon which any Member ceased to be a Member. The Register must not be used for any other purpose and is to be open for inspection by Members.
On dissolution of the company the right to administer the .ke ccTLD must be transferred to Communications Commission of Kenya.
The Board shall have the discretion to charge its Members an annual subscription fees to be determined from time to time.
7.2 Membership Fees payable on Application for Membership
An applicant for membership is obliged to pay the applicable annual membership fee at the time of application and any entrance fee determined by the Board from time to time.
A Member shall cease to be entitled to any of the rights or privileges of Membership if:
i. the annual membership fee or entrance fee, where applicable, of that Member remains unpaid for three (3) months after it becomes payable; and
but, subject to clause 8.2, those rights and privileges shall be reinstated on payment of all arrears.
Membership of the Company ceases if the Member;
i. resigns by submitting notice to the Directors;
ii. being a natural person, dies, becomes bankrupt, makes a composition with or assigns the Member's estate for the benefit of the Member's creditors;
iii. being an Organisation, becomes insolvent, has a receiver, receiver and manager, administrator or liquidator appointed, or is wound up (except for the purposes of reconstruction or amalgamation);
iv. ceases to satisfy the criteria for admission to membership of the Company
8.2 Termination of Membership for Non-Payment of Membership Fees
The Board may at any time terminate the membership of a Member for non-payment of membership fees if:
i. the membership fees payable by the Member have remained unpaid for a period of three (3) months after the due date for payment; and
ii. a notice of default has been given to the Member pursuant to a resolution of the Directors; and
iii. the membership fees payable by the Member remain in arrears for a period of one (1) month after the date of service of the notice of default upon the Member in relation to those outstanding fees.
8.3 Expulsion of Members for Conduct Detrimental to Objects
The Company in general meeting may by special resolution terminate the membership of a Member if:
i. the Directors resolve that in the opinion of the Directors the Member may have been guilty of conduct detrimental to the interests of the Company or to the objects of the Company; and
ii. the notice of meeting specifies the purpose of the meeting and the general nature of conduct referred to in the Directors' resolution; and
iii. the Member is given the opportunity to be heard at that part of the general meeting at which the resolution is considered.
Upon the termination of membership of a Member for any reason the name of the Member must be immediately removed from the Register.
The termination of a membership for any reason does not in any way prejudice, lessen or otherwise affect the liabilities and obligations of a Member (whether they arise under these Articles or otherwise) existing at the date of termination or which arise or crystallizes after that date out of, or by reason of, facts or circumstances occurring or in existence at or before that date.
Without limiting the previous clause, termination of membership does not relieve a Member from any obligation to pay any membership fees payable on or before the date of termination and does not entitle the Member to any refund of any entrance or membership fees in part or in whole.
The operations of the Company shall be consistent with the Kenya Communications Act (1998), the Kenya Communications Regulations (2000) and the Laws of Kenya and if any resolution shall be in conflict with the said Acts the Communications Commission of Kenya shall the right to overrule, vary or nullify the same.
An annual general meeting of the Company must be held in accordance with the Act.
10.2 Holding of General Meetings
General meetings are to be held at the times and places prescribed by the Company in general meeting or if no time or place is prescribed then as determined by the Directors.
At least Seven (7) clear days notice of a general meeting must be given to the members .The notice must specify the place, day, and hour of meeting, and in the case of special business the general nature of that business, and in the case of an election of Directors, the names of the candidates for election.
10.4 Content of Notice of General Meeting
A notice of a general meeting must:
i. set out the place, date and time for the meeting (and, if the meeting is to be held in two (2) or more places, the technology that will be used to facilitate this); and
ii. state the general nature of the meeting's business; and
iii. if a special resolution is to be proposed at the meeting:
a. set out an intention to propose the resolution as a special resolution, and
The accidental omission to give notice of a meeting to, or the non-receipt of notice of a meeting by, any person entitled to receive notice does not invalidate the proceedings at the meeting.
10.6 Cancellation or Postponement of General Meeting
Except in the case of a general meeting convened on the requisition of Members, the Directors may at any time cancel or postpone a general meeting before the time for holding the meeting. The Directors shall endeavor to notify each Member orally or otherwise of the cancellation or postponement, but failure to notify a Member does not affect the validity of the cancellation or postponement.
10. 7 Resolutions Evidenced by Each Member
i. Any written resolution of the Company determined on without a general meeting (whether in one document or in several copies) and signed (including by electronic signature) by each Member entitled to vote is as valid and effectual as a resolution duly passed at a general meeting of the Company unless the Act requires a resolution to be passed at a general meeting of the Company.
ii. The written resolution of the Company may consist of:
a. several copies of a document each signed by one or more Members and takes effect at the date and time on which the last Member necessary for the resolution to be passed, signs a copy of the resolution; or
b. a record of several electronic messages each indicating the identity of the sender, the text of the resolution and the sender¡¯s agreement disagreement to the resolution, as the case may be, and such a resolution takes effect on the date on which the last Member's message necessary for the resolution to be passed is received.
10.8 Convening of Extra Ordinary General Meeting.
i. The Directors may when they think fit and they shall upon the requisition in writing by one third or more members, convene an Extra Ordinary General meeting.
iii. Any requisition made by the Members must state the object of the meeting proposed to be called, and must be signed by the requisitions and deposited at the registered Office of the Company.
iv. If the directors do not cause the meeting to be held within twenty one days
from the date of the requisition being so deposited, the requistionists or any other five members may themselves convene the meeting.iv. In case of an extra ordinary General meeting being called in pursuance of a requisition, unless such meeting shall have been called by the Council no business other than that stated in the requisition as the objects of the meeting shall be transacted.
Fifty percent of the directors present in person or by proxy or representative and entitled to vote are a quorum for all general meetings. No business is to be transacted at any general meeting unless a quorum is present at the time the meeting proceeds to business.
If within thirty (30) minutes after the time appointed for the meeting a quorum is not present, the meeting will stand adjourned to the same day in the next week at the same time and place or to such other day time and place as the Directors determine. If at the adjourned meeting a quorum is not present within thirty (30) minutes after the time appointed for the meeting thirty percent of the Members present in person or by proxy or representative will be a quorum and if such reduced quorum is not then present the meeting will be dissolved.
The Chairperson of Directors, or in the Chairperson's absence the deputy Chairperson may preside as Chairperson at every general meeting. If there is no Chairperson or deputy Chairperson or if neither is present within fifteen (15) minutes after the time appointed for the meeting or if they are both unwilling to act as Chairperson of the meeting the Directors must choose another Director as Chairperson. If no Director is so chosen or if all the Directors present decline to take the chair the Members present must choose one of their own number to be Chairperson.
The Chairperson of a general meeting may with the consent of a meeting at which a quorum is present (and must if directed by the meeting) adjourn the meeting from time to time and place to place but no business is to be transacted at an adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place.
11.5 Notice of Adjourned Meeting
It is not necessary to give notice of an adjournment or of the business to be transacted at an adjourned meeting, unless the meeting is adjourned for thirty (30) days or more in which case notice of the adjourned meeting is to be given as in the case of an original meeting.
At a general meeting a resolution put to the vote of the meeting is to be decided on a show of hands unless a poll is (before or on the declaration of the result of the show of hands) demanded by the Chairperson or (other than on the election of the Chairperson of a meeting or the adjournment of a meeting) by not less than fifty Percent (50%) of the directors having the right to vote at the meeting.
11.7 Minutes as Evidence of Result
Unless a poll is duly demanded, a declaration by the Chairperson that a resolution has on the show of hands been carried or carried unanimously or carried by a particular majority or lost or not carried by a particular majority and an entry to that effect in the book containing the minutes of the proceedings of the Company signed by the Chairperson will be conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favor of or against the resolution.
If a poll is duly demanded it must be taken in the manner and at the time and place as the Chairperson of the meeting directs. The result of the poll will be deemed to be the resolution of the meeting at which the poll was demanded provided that a poll on the election of a Chairperson of a meeting or on any question of adjournment must be taken at the meeting and without adjournment. The demand for a poll will not prevent the continuance of a meeting for the transaction of any business other than the question on which a poll has been demanded. The demand for a poll may be withdrawn. In the case of a dispute as to the admission or rejection of a vote on a show of hands or on a poll the Chairperson shall determine the dispute and the determination made in good faith will be final and conclusive.
The Company may hold a general meeting at two (2) or more venues using any technology that gives the Members as a whole a reasonable opportunity to participate.
Every Director present in person or represented by proxy or representative has one vote, whether on a show of hands or on a poll.
Any resolution of Directors will not be taken to be carried whether on a show of hands or a poll unless the requisite majority comprises the following:
i. in the case of an ordinary resolution of Directors, there is an affirmative vote of more than 50% of Directors present and entitled to vote (in person or by authorized representative or proxy);
ii. in the case of a special resolution of Directors, there is an affirmative vote of more than 75% of Directors present and entitled to vote (in person or by authorized representative or proxy);
The following matters will require a special resolution of the Members in Meeting:
i. any business which the Act states requires a special resolution;
ii. any alteration to the Company's legal status;
iii. voluntary winding up of the Company;
iv. changing the purposes, objects or scope of the Company;
v. any variation or amendment to, or repeal of, this Memorandum and Articles of Association;
vi. and making, varying, or repealing the Company¡¯s by-laws.
A Board Member may appoint a proxy and that proxy is entitled to vote on a show of hands or on a poll PROVIDED that the proxy is an existing director of the company.
The instrument appointing a proxy must be in writing signed by the appointor or the appointor's attorney duly authorized in writing.
The instrument appointing a proxy and the power of attorney or other authority (if any) under which it is signed or executed or a notarially certified copy of that power or authority (or a copy certified in another manner acceptable to the Directors) must be received in the manner specified for that purpose in the notice convening the meeting, not less than twenty-four (24) hours before the time for holding the meeting or adjourned meeting or taking of the poll at which the person named in the instrument proposes to vote and in default the instrument of proxy will not be treated as valid.
Every instrument of proxy whether for a specified meeting or otherwise must as nearly as circumstances will admit be addressed to The Company in the following form:
I/We
of
being a member of the Company appoint
of
as my/our proxy to vote for me/us and on my/our behalf at the general meeting of the Company to be held on the day of ________ and at any adjournment thereof.
This form is to be used **in favor of/against the resolution.
**Strike out whichever is not desired. Unless otherwise instructed the proxy may vote as the proxy thinks fit.
As witness my/our hand/s this day of
Signed by the said
in the presence of:
or in such other form as the Directors from time to time prescribe or in particular case accept. An instrument of proxy in which the name of the appointee is not filled in will be deemed to be given in favor of the Chairperson of the meeting to which it relates.
A vote given in accordance with the terms of an instrument of proxy is valid notwithstanding the previous death or unsoundness of mind of the appointor or revocation of the instrument or of the authority under which the instrument was executed provided that no intimation in writing of the death unsoundness of mind or revocation has been received by the Company before the meeting or adjourned meeting at which the instrument is used. A proxy is not revoked by the appointor attending and taking part in any meeting but if the appointor votes on a resolution either on a show of hands or on a poll the person acting as proxy for that appointor has no vote as proxy on that resolution.
The Chairperson of a meeting may require a person acting as a proxy to establish to the satisfaction of the Chairperson that the person is the person nominated as proxy in the form of proxy lodged under these Articles and failing compliance that person may be excluded from voting either upon a show of hands or upon a poll.
If a Member executes or proposes to execute an instrument or to act by or through an attorney, the Member must
i. produce to the Company for noting the instrument appointing the attorney; and
i. (if required) file with the Company a certified copy of the last-mentioned instrument, which is to be retained by the Company.
The Directors may on the first production of that instrument of attorney and from time to time subsequently require any evidence as they think fit that the instrument of attorney is effective and current.
14.1 Constitution of the Board
The Board shall comprise:
i. Nine Directors elected by the Board Members
ii. The General Manager of the company as a non voting member of the Board;
14.2 Chairperson to the Board.
The Directors of the Board shall elect from among the Directors a chairperson of the Board who shall serve for a two-year term. The chairperson can serve for a maximum of two terms PROVIDED that Directors from Communications Commission of Kenya AND the Directorate of IT Services shall not be entitled to be elected as Chairperson to the Board.
14.3 Director's Membership Requirements
Directors are not elected as individuals. They are elected as representatives of the Board Members. Accordingly, a Director shall be disqualified from office should the Director cease to be a representative of the Organization that nominated the Director at the time of election.
Except as provided for in clause 3, no Director may receive any remuneration for services as a Director or as a Member.
15 APPOINTMENT AND REMOVAL OF DIRECTORS
The directors shall serve for a two-year term and the Board Members may elect Directors to replace them at the Board PROVIDED that the Board member shall not change its director before the expiry of the two year term unless such Director ceases to be eligible in accordance wit h the provisions of Clause 14.3 of theses Articles.
The Company in general meeting may by resolution remove any Director from office. However, no resolution for the removal of a Director from office is to be put to a general meeting unless notice signed by a Member duly qualified to vote at that meeting and signifying the intention of that Member to propose that resolution is received by The Company not less than twenty eight (28) clear days before the date appointed for holding the meeting.
Any vacancy occurring in the Board whether by death, resignation or otherwise shall be filled within three (3) calendar months of the vacancy occurring (or such longer period as the Board may otherwise resolve).
16. DISQUALIFICATION OF DIRECTORS
The office of a Director must be vacated if:
i. the Director ceases to be or is removed as a Director pursuant to the Act;
ii. the Director becomes an insolvent under administration or makes any composition or arrangement with the Directors' creditors or any class of them;
iii. the Director becomes of unsound mind or a person whose person or estate is liable to be dealt with in any way under the law relating to mental health;
iv. the Director resigns from office by notice in writing to The Company;
v. the period for which the Director is appointed expires;
vi. the Director, without the permission of the other Directors, is absent from the meetings of the Directors for six (6) months continuously; or
vii. the Director is directly or indirectly interested in any contract or proposed contract with the Company and fails to declare the nature of that interest as required by the Act.
17 POWERS AND DUTIES OF DIRECTORS
17.1 Management of The Company
Subject to clause 20.6, the management of the business and affairs of the Company is to be vested in the Directors who in addition to the powers and authorities conferred by these Articles or otherwise may exercise all powers and do all acts and things as can be exercised or done by the Company and are not required to be exercised or done by the Company in general meeting. The powers of the Directors are subject to the Act, these Articles and to any regulations (not being inconsistent with these Articles) from time to time made by the Company in general meeting. No regulation made by the Company in general meeting will invalidate any prior act of the Directors, which would have been valid, if that regulation had not been made.
17.2 Power to Appoint General Manager
The Board may appoint a natural person to be the General Manager with such title and on such terms, conditions and remuneration as the Board determines. The General Manager is responsible for the control and management of the business and day-to-day operations of the Company.
The Board may from time to time and upon such terms and conditions and with such restrictions as they deem fit, confer upon the General Manager all or any of its powers.
The Board may at any time or times, alter, revoke withdraw or vary all or any of the powers delegated to the General Manager
17.3 Duties Regarding Board Papers
i. The Board must ensure that a complete set of all Board Papers in chronological order will be kept in an appropriate and secure manner.
ii. Subject to paragraph (c) of this clause, the Company, on receiving reasonable notice from a Director or former Director, must without charge:
a. permit the Director or former Director access during business hours to those Board papers which relate to the period during which he or she was a Director; and
b. provide a copy to the Director or former Director of such Board papers, or any part of them, on request.
iii. After a Director ceases to be a Director:
a. The Company is only required to comply with paragraph (b) when the former Director is defending, or there is a reasonable prospect that the former Director will be defending, legal proceedings which relate to an act or omission of the former Director in performing the former Director's duties when he or she was a Director; and
b. the former Director only has access to, and the right to take copies of, such Board papers for the sole purpose of defending legal proceedings, which relate to that former Directors duties and acts as a Director.
For the purposes of this clause, "Board Papers" means all existing and future written communications given or made available to the Directors of The Company or any one or more of them or tabled at meetings of the Board (including periodic board papers, submissions, minutes, letters, board committee and sub-committee papers) and any other documents in the possession of the Company, which are referred to in those documents.
17.4 Directors to act in Best Interest of the Company as a Whole
Each Director must act in the best interests of the Company as a whole and with due regard to the furtherance of the Company¡¯s objectives. Each Director must also act in accordance with an non-excludable duty or obligation owed by the Director to the Company or the Members of the Company under general law, the Act, or other provisions of these Articles. Notwithstanding the foregoing provisions of this clause, a Director may make a decision in the interest of the Legal Person which appointed that Director.
Any sale or disposal by the Directors of the Company¡¯s whole undertaking or of the Company¡¯s main undertaking is conditional upon ratification by the Company in general meeting and shall not involve a sale or transfer of such undertaking to any Legal Person other than one or more funds, authorities or institutions to which surplus assets of the Company could be given or distributed on a winding up under clause 6. At the meeting to ratify any sale or disposal, any person who may benefit from the sale or disposal must not vote on the resolution.
All cheques promissory notes drafts bills of exchange and other negotiable instruments and receipts for money paid to the Company must be signed drawn accepted endorsed or otherwise executed by the persons and in the manner as the Directors determine.
The Board shall cause to be prepared an operating manual, which shall set out, inter alia, the process which the Company is to conduct its deliberations and operations. This shall specify the appointment of panels of experts to advise the board on matters of policy for the development and administration of the .ke domain name space, and shall describe the process with which the Company shall achieve openness and transparency in the conduct of its business.
Subject to the Act:
i. no Director or proposed Director is disqualified by that office from:
a. entering into a contract, agreement or arrangement with the Company;
b. becoming or remaining a Director of any company in which the Company is in any way interested or which is in any way interested in the Company;
ii. no contract, agreement or arrangement in which a Director is in any way interested, entered into by or on behalf of the Company can be avoided; and
a. enters into a contract, agreement or arrangement in which the Director has an interest; or
b. is a director of another company with which the Company has entered into a contract, agreement or arrangement,
is liable to account to the Company for any profits or remuneration realized by that Director as a result of that Director being interested or being a director of the other company.
i. The nature of a Director's interest in any contract agreement or arrangement must be declared by that Director at a meeting of the Directors in accordance with the Act as soon as practicable after the relevant facts have come to that Director's knowledge.
ii. A general notice that a Director is a member of any specified firm or corporation and is to be regarded as interested in all transactions with that firm or corporation is a sufficient declaration under this clause as regards the Director and the transactions. After giving the general notice it is not necessary for the Director to give any special notice relating to any particular transaction with that firm or corporation.
iii. It is the duty of the Secretary to record in the Minutes any declaration made or any general notice given by a Director in pursuance of this clause.
18.3 Votes by Interested Directors
Subject to the Act, a Director who has a material personal interest in a matter that is being considered at a meeting of Directors:
i. must not vote on the matter (or in relation to a proposed resolution under paragraph (ii) of this clause in relation to the matter, whether in relation to that or a different Director); and
ii. must not be present while the matter (or a proposed resolution of that kind) is being considered at the meeting, unless:
a. the matter applies to an interest that the Director has as a Member in common with the other Members; or
b. the Directors have passed a resolution that specifies the Director, the interest and the matter, and states that the Directors voting for the resolution are satisfied that the interest should not disqualify the Director from considering or voting on the matter.
19 DIRECTOR'S CONFLICTS OF INTEREST
A Director who holds an office or possesses a property whereby duties or interests might be created whether directly or indirectly in conflict with that Director's duties or interest as Director must, declare at a meeting of the Directors the fact and the nature and extent of the conflict.
The Directors may meet together for the dispatch of business adjourn and otherwise regulate their meetings and proceedings as they think fit. Until otherwise determined Fifty (50%) Percentum of the Directors constitute a quorum. The quorum must be present at all times during the meeting.
A Director may at any time, and the Secretary must on the request of a Director, convene a meeting of the Directors by notice served upon the other Directors.
Reasonable notice of a meeting of Directors is to be given to all Directors except to a Director whom the Secretary when giving notice to other Directors reasonably believes to be outside Kenya. The notice need not be in writing.
The Directors may elect a Chairperson and a deputy Chairperson of their meetings and the Chairperson and deputy Chairperson positions are declared vacant at each AGM. If no Chairperson or deputy Chairperson is elected or if at any meeting neither the Chairperson nor the deputy Chairperson is present within fifteen (15) minutes of the time appointed for the holding of the meeting or is unable or unwilling or refuses to act, the Directors present shall elect a Chairperson of their meeting from among their number.
Subject to clause 20.11, questions arising at any meeting of Directors are to be decided by a majority of votes. Each Director (not including the General Manager ) has one vote and a determination by a majority of the voting Directors will for all purposes be deemed a determination of the Directors. In case of an equality of votes at a meeting at which a quorum is present the Chairperson has a second or casting vote in addition to a deliberative vote.
The Directors may delegate any of their powers to Committees consisting of Directors or other natural persons as the Directors think fit. Any Committee formed must, in the exercise of the power delegated to it, comply with the regulations that may be imposed on it from time to time by the Directors.
The meetings and proceedings of Committees consisting of more than one person are to be governed by the clauses of these Articles regulating the meetings and proceedings of the Directors so far as they are applicable and are not superseded by any regulations made by the Directors under these Articles.
i. Advisory Panels will be used by the Board as the principle mechanism for developing policy recommendations to the Board.
ii. The Directors may from time to time appoint individuals to chair an Advisory Panel, and provide that Advisory Panel with a brief to investigate, analyze and advise or report to the Directors regarding a particular issue or objective. Any interested Member or other person may be invited by the Chair of an Advisory Panel to participate in that Advisory Panel.
20.9 Procedure of Advisory Panels
The Chair of an Advisory Panel must report in writing to the Board on its activities from time to time. Subject to any conditions imposed by the Board, the meetings and procedures of the Advisory Board must be convened and conducted as the Chair thinks fit.
20.10 Validation of Irregular Acts
All acts done by any meeting of the Directors or by a Committee or Advisory Panel or by any person acting as a Director will, even if it is later discovered that there was some defect in the appointment or continuance in office of a Director or person so acting or that they or any of them were disqualified or had vacated office or were not entitled to vote, be as valid as if every person had been duly appointed or had duly continued in office and was qualified and had continued to be a Director and had been entitled to vote.
i. A resolution in writing signed by all the Directors who are entitled to vote (not being less than a quorum) is as valid and effectual as if it had been passed at a meeting of Directors duly called and constituted and is deemed to constitute a minute of that meeting.
ii. That resolution in writing may consist of:
a. several copies of a document each signed by one or more Directors and takes effect at the date and time on which the last Director necessary to form a quorum signs a copy of the resolution; or the
b. record of several electronic mail messages each indicating the identity of the sender, the text of the resolution and the sender's agreement or disagreement to the resolution, as the case may be, and such a resolution takes effect on the date on which the last message is received from a Director necessary to form a quorum.
20.12 Meetings by Communications Technology
A Directors' meeting may be called or held using any technology consented to by all the Directors. The consent may be a standing one. A Director may only withdraw consent within a reasonable period before the meeting.
The funds of the Company shall be obtained from the following sources.
The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge all or part of its undertaking and assets and to issue debentures, debenture stock and other securities outright or as security for any debt, contract, guarantee, engagement, obligation or liability of the Company or of any third party and on such terms and conditions as the Directors think fit.
The Directors shall cause minutes to be kept and entered up in accordance with the Act.
i. of the names of the Directors present at each meeting of the Directors and of any Committee; and
ii. of all resolutions and proceedings of general meetings and of meetings of Directors and of Committees.
The minutes are to be signed by the Chairperson of the meeting at which the proceedings were held or by the Chairperson of the next succeeding meeting.
One or more Secretaries must appointed by the Directors for such terms, at such remuneration and upon such conditions as the Directors think fit. Any Secretary so appointed may be removed by the Directors.
The Directors shall provide for the safe custody of the Seal which shall only be used by the authority of the Directors or of a committee of the Directors authorized by the Directors in that behalf, and every instrument to which the seal shall be affixed shall be signed by a Director and shall be countersigned by the Secretary or by a second Director or by some other person appointed by the Directors for the purpose.
26.1 Accounting and Other Records
The Directors must cause proper accounting and other records to be kept at the registered office of the Company and shall always be open for inspection of the members. The Company will cause the audited annual reports to be published at the Company¡¯s web site.
The Board may from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounting and other records of the Company are to be open to the inspection of
The Company may give notice to a Member or other Legal Person:
ii. in the case of a Member-by sending it by post to the address for the Member in the Register or the alternative address (if any) nominated by the Member; or
iii. in the case of a Director - by sending it by post to the address for the Director in the register of directors;
iv. or in the case of the Auditor - by sending it by post to the last-known address of the Auditor; or
v. by sending it to the fax number (if any) or electronically to the electronic mail address (if any) nominated by the Member or other Legal Person.
A notice may be given by the Company to any Member either personally or by sending it by post to the Member at the Member's registered address. A notice sent by post is deemed to be given three (3) days after it is posted. A notice given by electronic means is deemed to be given on the day after it is sent, and in the form in which it was received.
27.3 Persons Entitled to Notice of General Meeting
Notice of every general meeting must be given in the manner authorized to:
iii. the Auditor for the time being (if any) of the Company.
No other person is entitled to receive notices of general meetings.
The signature to any notice to be given by the Company may be written, printed, stamped, electronic, or by any other means otherwise approved by the Board from time to time.
The Company shall indemnify each Officer of the Company out of the assets of the Company to the relevant extent against any Liability incurred by the Officer in or arising out of the conduct of the business of the Company, or in or arising out of the discharge of the Duties of the Officer, unless the Liability was incurred by the Officer through the Officer's own dishonesty, negligence, lack of good faith or breach of duty.
29.2 Insurance Against Liability
If the Directors consider it appropriate to do so, the Company may pay amounts by way of premium in respect of any contract effecting insurance on behalf or in respect of an Officer of the Company or a subsidiary against Liability incurred by the Officer in or arising out of the conduct of the activities of the Company or of the subsidiary or in or arising out of the discharge of the Duties of the Officer.
In this clause:
"Officer" means:
i. Director, Secretary, executive officer or employee; or
ii. a person appointed as a trustee by, or acting as a trustee at the request of, The Company or, where applicable, the subsidiary of the Company,
and includes a former officer.
"Duties of the Officer" includes, in any particular case where the Directors consider it appropriate, duties arising by reason of the appointment, nomination or secondment in any capacity of an Officer by the Company or, where applicable, the subsidiary of The Company to any other corporation.
"Relevant Extent" means:
i. the extent that the Company is not precluded by law from doing so;
ii. the extent and for the amount that the Officer is not otherwise entitled to be indemnified and is not actually indemnified by another Legal Person (including, in particular, an insurer under any insurance policy);
iii. and where the Liability is incurred in or arising out of the conduct of the business of another corporation or in the discharge of the Duties of the Officer in relation to another corporation, to the extent and for the amount that the Officer is not entitled to be indemnified and is not actually indemnified out of the assets of that corporation.
"Liability" means all costs, charges, losses, damages, expenses, penalties and liabilities of any kind including, in particular, legal costs incurred in defending any proceedings (whether criminal, civil, administrative or judicial) or appearing before any court, tribunal, government authority or otherwise.
| NAMES, POSTAL ADDRESSES AND OCCUPATIONS OF SUBSCRIBERS | SIGNATURES OF SUBSCRIBERS |
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DATED the day of 2002.
WITNESS to the above Signatures: -
CERTIFICATE UNDER THE COMPANIES REGULATIONS
It is hereby certified that the above Memorandum and Articles of Association of KENIC LIMITED were produced by the process of XEROGRAPHY.
For:
OKOTH & KIPLAGAT,
ADVOCATES,
12TH FLOOR
BRUCE HOUSE
STANDARD STREET
P O BOX 9807
00100 NAIROBI.
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