Sorry Alan,
The Board is seeking legal advice on whether or not there has been a breach of
any NDA, and expects to receive an answer by 30 March 2018.
I cannot speak for others – but in my view – this is simply not good enough –
if this board however wishes to defy the members of this community as so
clearly expressed over the last few days based on technicalities and running to
the lawyers to see if there is a way out to protect their own – then -let us
look at the situation a little more closely.
Let us look at some facts – firstly – resolution 201411.211 – the board saw in
its wisdom to word that resolution to refer to information discussed within the
board – not information within a formal board meeting – and technicalities will
not some how absolve someone of sharing confidential information with a random
employee.
Secondly – and at the bottom of this email I paste the relevant sections I am
about to refer to – Mr Folayan’s actions are in my belief in violation of the
following sections of the Mauritian companies act of 2001:
143.1.(a), 143.1.(g), 160.1(b), 160.4(a), 160.4(d)
I also include section 160.6 in what I have pasted below because it is
extremely relevant to the interpretation of 160.4(a) and 160.4(d)
Thirdly – I point out that the board has the right to remove a director with or
without cause – Section 138 of the companies act does not limit the reasons for
a removal of a director – and nor does section 14(iii) of the companies bylaws.
Forth – If you wish to get into legal technicalities – you need to ask if the
community – who elected this board – believes that the sharing of the
information that was published in that document was a violation – because a
director is elected by the community – and if the community feels that sharing
the information was a grievous violation – and it has destroyed their
confidence in said director – then the director should be removed.
Fifth – It is absolutely unquestionable that this saga has dragged AfriNIC
through the mud – and it is being seen by members of the Internet community
across the world. That does reputational harm – which in turn have the
possibility to hurt the company financially in terms of sponsorship, in terms
of new members and in terms of costs of things like investigations. I would
argue without hesitation that this brings section 160.3(a) into play – and when
the board refuses – at the request of the community – to act against Mr Folayan
– instead of seeking to save him by technicalities – they themselves become
liable under the aforementioned section. The only question is – how do you
quantify the damage being done here?
Let us stop playing to technicalities and trying to absolve behaviour on
technicalities – the information shared was CLEARLY sensitive information in
the context of the company. It is admittedly that it was shared with an
employee of the company and this was a “mistake”. It was shared by the
chairperson of the board without thought to the potential consequences. Let’s
stop playing games – the NDA was violated – and if not the NDA – the confidence
of this community and the trust of this community – and again I state – if the
board refuses to act rather than attempt to find loopholes – this community
needs to act against the board in its entirety.
Andrew
Relevant sections of the companies act below:
Section 143.1(g) of the companies act states:
143.1 - Subject to this section, the directors of a company shall –
(d) - exercise the degree of care, diligence and skill required
by section 160;
(g) - not make use of or disclose any confidential information
received by them on behalf of the company as directors otherwise than as
permitted and in accordance with section 153;
Section 160 goes on to say:
160.1 - Every officer of a company shall exercise –
(b) the degree of care, diligence and skill that a reasonably prudent person
would exercise in comparable circumstances.
160.3 - Without limiting any liability of a director under section 143, where
an officer commits a breach of any duty under this Part –
(a) the officer and every person who knowingly participated in the breach shall
be liable to compensate the company for any loss it suffers as a result of the
breach;
160.4 - A director or other officer of a company who makes a business judgment
shall be taken to meet the requirements of subsections (1) and (2) in respect
of the judgment where the director or officer –
(a) makes the judgment in good faith for a proper purpose;
(d) reasonably believes that the judgment is in the best
interests of the company.
160.6 - In this section “business judgment” means any decision to take or not
take action in respect of a matter relevant to the business operations of the
company.
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