Andrew.Alston at liquidtelecom.com
Fri May 31 21:02:40 UTC 2019
Thank you Alan,
Now – I would like to break this down a bit – firstly – every directory is signatory to this document – and by signing it – have acknowledged – under their own hand – their knowledge of its contents. There can be no claim that the contents of this document once signed by a director are not known.
Now – with that said – let us look at what the NDA said – wording relevant to this is highlighted:
1. I understand that certain information about AfriNIC is confidential, which is information not previously published or otherwise disclosed to the public and which relates to but is not limited to the following:
Now – there can be no question that the information in said documents were disclosed to the public. The court had the documents – the courts – are a public entity – judges – are public servants. To add further weight – I point to the fact that resolution 201411.211 states: However, information disclosed by the Board to third parties not under NDA to the Board is no longer confidential and is deemed to be in the public domain.
So – it is absolutely beyond dispute that those court documents were public information. It is absolutely beyond dispute that every director had to know the definition of confidential – they signed the NDA. Therefore – logic states – that any director making a claim of NDA violation or claiming contractual violation in breach of the NDA was bringing a motion that he KNEW was both frivolous and without any merit whatsoever.
Now – let us look beyond the bylaws at the companies act specifically section 143 entitled “Duties of directors to act in good faith and in best interests of the company”
Section 143.(1).(c) states: exercise their powers honestly in good faith in the best interests of the company and for the respective purposes for which such powers are explicitly or impliedly conferred;
Now – since it can be CLEARLY established that the power to bring charges of NDA violation and violation of contract were exercised in bad faith – considering the full knowledge of said director under his own signature that the information was not – and could not be – covered under the NDA – at the VERY least one director is in, at least in my mind, in clear violation of this clause and his fiduciary duties as a director. Furthermore – while perhaps more tenuous an argument – I would argue that the chair – knowing full well that the charges being brought were frivolous and in bad faith (on the same basis that the charges made by Serge were in bad faith) acted contrary to the best interests of the company by allowing these charges to be heard – and published – showing the world a completely dysfunctional board acting in bad faith.
So – while I stand by my statements that I believe the board as a whole should resign – particularly in light of the fact that not a single director objected to the charges brought and the fact that the meeting was being held in the first place – thereby lending credibility to a clear cut act of bad faith – and therefore also acting against the best interests of the company – I need to state – that this in particular applies both the Chair and Serge Ilunga – both of whom in my mind CLEARLY violated the companies act and their fiduciary duties as is clearly documented in those minutes.
Hence – I reiterate my call for the resignation of the directors.
From: Alan Barrett <alan.barrett at afrinic.net>
Date: Friday, 31 May 2019 at 20:55
To: General Discussions of AFRINIC <community-discuss at afrinic.net>
Cc: AFRINIC Board of Directors' List <board at afrinic.net>
Subject: Re: [Community-Discuss] Gratitude
> On 28 May 2019, at 14:49, Frank Habicht <geier at geier.ne.tz> wrote:
> Dear AfriNIC board members,
> reference is made in below email, and also in several other discussion
> items regarding AfriNIC and its governance, to an NDA that board members
> are to adhere to.
> Can you share the document please?
The Board NDA has been published at <https://afrinic.net/board/board-documents<https://afrinic.net/board/board-documents>>
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