Notice of annual general meeting
Barloworld Limited
(Incorporated in the Republic of South Africa)
Registration number 1918/000095/06
JSE share code: BAW
ISIN: ZAE000026639
(“company”)
Notice is hereby given that the ninety-eighth annual general
meeting (“AGM”) of shareholders of the company will be held
in the Tokyo Meeting Room, Barloworld Corporate Office,
180 Katherine Street, Sandton, on Wednesday,
4 February 2015, at 12:30 for the purpose of considering
the following business and, if deemed fit, to pass, with or
without modification, the resolutions set out below.
The record date on which shareholders must be recorded as
such in the register maintained by the transfer secretaries of
the company for the purposes of determining which
shareholders are entitled to attend and vote at the AGM
is Friday, 29 January 2015.
| 1. |
Ordinary resolutions |
| 1.1 |
Acceptance of annual financial statements
Ordinary resolution 1 is proposed to receive and
accept the group audited annual financial statements
for the year ended 30 September 2014, including the
directors’ report, the independent auditors’ report
and the audit committee report thereon. The
summarised financial statements, the directors’
report, the independent auditors’ report and the
audit committee report thereon are set out in the
integrated report. The consolidated audited
annual financial statements are available online
at www.barloworld.com. |
| 1.1.1 |
Ordinary resolution 1
“Resolved that the consolidated audited annual
financial statements for the year ended 30 September
2014, including the directors’ report, the independent
auditors’ report and the audit committee report
thereon be and are hereby received and accepted.”
In order for this resolution to be adopted, the support
of more than 50% of the voting rights exercised on
the resolution by shareholders present or represented
by proxy at the AGM and entitled to exercise voting
rights on the resolution is required. |
| 1.2 |
Re-election of directors
In terms of clause 7.1.5 of the company’s
memorandum of incorporation, at every AGM at least
one third of the directors, excluding the directors
appointed in terms of clause 7.2.1 of the company’s
memorandum of incorporation, must retire by
rotation and the directors to so retire shall be those
who have been longest in office since their last
election.
Messrs PJ Blackbeard, M Laubscher, SS Ntsaluba and Adv DB Ntsebeza SC, and Ms SS Mkhabela are required to retire by rotation. All of the retiring directors are eligible and have offered themselves for re-election.
Ms FNO Edozien and Mr DM Sewela, having been appointed as an independent non-executive director and an executive director respectively, with effect from 19 March 2014, are required to stand for election.
Ordinary resolutions 2 and 3 are proposed to elect the directors appointed in accordance with clause 7.2.1 of the company’s memorandum of incorporation and who, being eligible, have offered themselves for election.
Ordinary resolutions 4 to 8 are proposed to re-elect the directors who retire as directors of the company by rotation in accordance with the company’s memorandum of incorporation and who, being eligible, have offered themselves for re-election.
Brief biographical information of each of the retiring directors and the directors eligible for election is set out on pages 1 and 2 of this document.
The nomination committee of the company conducted an assessment of the performance of each of the retiring directors and the directors eligible for election, and the board of directors of the company (“the board”) considered the findings of the nomination committee. Based on these findings, the board recommends to shareholders the appointment and re-election of each of the directors as set out in ordinary resolutions 2 to 8. |
| 1.2.1 |
Ordinary resolution 2
“Resolved that Ms FNO Edozien, who was appointed in terms of clause 7.2.1 of the memorandum of incorporation of the company and who is eligible and available for election, be and is hereby elected as a director of the company.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.2.2 |
Ordinary resolution 3
“Resolved that Mr DM Sewela, who was appointed in terms of clause 7.2.1 of the memorandum of incorporation of the company and who is eligible and available for election, be and is hereby elected as a director of the company.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.2.3 |
Ordinary resolution 4
“Resolved that Mr PJ Blackbeard, who retires in terms of clause 7.1.5 of the memorandum of incorporation of the company and who is eligible and available for re-election, be and is hereby re-elected as a director of the company.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.2.4 |
Ordinary resolution 5
“Resolved that Mr M Laubscher, who retires in terms of clause 7.1.5 of the memorandum of incorporation of the company and who is eligible and available for re-election, be and is hereby re-elected as a director of the company.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.2.5 |
Ordinary resolution 6
“Resolved that Ms SS Mkhabela, who retires in terms of clause 7.1.5 of the memorandum of incorporation of the company and who is eligible and available for re-election, be and is hereby re-elected as a director of the company.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.2.6 |
Ordinary resolution 7
“Resolved that Mr SS Ntsaluba, who retires in terms of clause 7.1.5 of the memorandum of incorporation of the company and who is eligible and available for re-election, be and is hereby re-elected as a director of the company.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.2.7 |
Ordinary resolution 8
“Resolved that Adv DB Ntsebeza SC, who retires in terms of clause 7.1.5 of the memorandum of incorporation of the company and who is eligible and available for re-election, be and is hereby re-elected as a director of the company.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.3 |
Election of audit committee
Ordinary resolutions 9 to 11 are proposed to elect an audit committee in terms of section 94(2) of the Companies Act, No 71 of 2008 (as amended) (“the Companies Act”) and the King Report on Corporate Governance for South Africa (“King III”).
Section 94 of the Companies Act requires that, at each AGM, shareholders of the company must elect an audit committee comprising at least three members to perform the duties and responsibilities stipulated in section 94(7) of the Companies Act and in King III and to perform such other duties and responsibilities as may from time to time be delegated to it by the board.
The nomination committee conducted an assessment of the performance and independence of each of the directors proposed to be members of the audit committee, namely Messrs AGK Hamilton, SS Ntsaluba and Ms B Ngonyama, and the board considered and accepted the findings of the nomination committee. The board is also satisfied that the proposed members meet the requirements of section 94(4) of the Companies Act, that they are independent according to King III and that they possess the required qualifications and experience as prescribed in Regulation 42 of the Companies Act Regulations, 2011, which requires that at least one third of the members of a company’s audit committee at any particular time must have academic qualifications or experience in economics, law, corporate governance, finance, accounting, commerce, industry, public affairs or human resource management.
Brief biographical notes of each member standing for election are set out on pages 1 and 2 of this document. |
| 1.3.1 |
Ordinary resolution 9
“Resolved that Mr AGK Hamilton is re-elected as a member and the chairman of the audit committee to hold office until the next AGM, in terms of section 94(2) of the Companies Act.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.3.2 |
Ordinary resolution 10
“Resolved that Ms B Ngonyama is re-elected as a member of the audit committee to hold office until the next AGM, in terms of section 94(2) of the Companies Act.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.3.3 |
Ordinary resolution 11
“Resolved that Mr SS Ntsaluba is re-elected as a member of the audit committee to hold office until the next AGM, in terms of section 94(2) of the Companies Act, subject to his re-election as a director pursuant to ordinary resolution number 7.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.4 |
Appointment of external auditor
Ordinary resolution 12 is proposed to approve the appointment of Deloitte and Touche as the external auditor of the company for the financial year ending 30 September 2015 and to remain in office until the conclusion of the next AGM, and to authorise the audit committee to determine its remuneration.
Subject to the passing of the resolution, Mr G Berry will be the individual registered auditor who will undertake the audit for the financial year ending 30 September 2015.
Section 90(1) of the Companies Act requires the company to appoint an auditor each year at its AGM. The audit committee conducted an assessment of the performance and the independence of the external auditor and the individual external registered auditor, and considered whether or not the external auditor complies with the requirements of sections 90(2) and (3) of the Companies Act and section 22 of the Listings Requirements of the JSE, and the board considered and accepted the findings. The board is satisfied that the proposed external auditor and Mr G Berry comply with the relevant provisions and are duly accredited by the JSE.
|
| 1.4.1 |
Ordinary resolution 12
“Resolved that Deloitte and Touche be appointed as the external auditor of the company and of the group for the financial year ending 30 September 2015 and to remain in office until the conclusion of the next AGM, and that its remuneration for the financial year ending 30 September 2015 be determined by the audit committee.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 1.5 |
Non-binding advisory vote on remuneration policy
The purpose of ordinary resolution 13 is to endorse, by way of a non-binding advisory vote, the remuneration policy of the company set out on pages 128 to 134 of the integrated report.
The board is responsible for determining the remuneration of executive directors in accordance with the remuneration policy of the company. The remuneration committee assists the board in its responsibility for setting and administering remuneration policies in the company’s long-term interests. The remuneration committee considers and recommends remuneration for all levels in the company, including the remuneration of senior executives and executive directors, and advises on the remuneration of non-executive directors. King III recommends that every year the company’s remuneration policy should be tabled to shareholders for a non-binding advisory vote at the AGM. This vote enables shareholders to express their views on the remuneration policies adopted and on their implementation. The remuneration committee prepared, and the board considered and accepted, the remuneration policy, as set out in the remuneration report on pages 128 to 134 of the integrated report, and shareholders are required to vote on it.
|
| 15.1 |
Ordinary resolution 13
“Resolved that the company’s remuneration policy, as set out in the remuneration report in the integrated report, be and is hereby endorsed by way of a non-binding advisory vote.”
In order for this resolution to be adopted, the support of more than 50% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 2. |
Special resolutions |
| 2.1 |
To approve the non-executive directors’ fees
Section 66(8) (read with section 66(9)) of the Companies Act provides that, to the extent permitted in the company’s memorandum of incorporation, the company may pay remuneration to its directors for their services as directors provided that such remuneration may only be paid in accordance with a special resolution approved by shareholders within the previous two years. Clause 7.9 of the company’s memorandum of incorporation does not limit, restrict or qualify the power of the company to pay remuneration to its directors for their service as directors in accordance with section 66(9) of the Act. The remuneration committee has considered the remuneration for non-executive directors and the board has accepted the recommendations of the remuneration committee. |
| 2.1.1 |
Special resolution 1:
“Resolved that the fees payable to the non-executive directors for their services to the board and committees of the board be revised by a separate vote in respect of each item, with effect from 1 January 2015 as follows:
| |
Non-executive
directors’ fees |
Present |
|
Proposed* |
|
| 1.1 |
Chairman of the board |
R1 480 000 |
|
R1 554 000 |
|
| 1.2 |
Resident
non-executive directors |
R283 122 |
|
R305 772 |
|
| 1.3 |
Non-resident
non-executive directors |
£57 732 |
|
£58 887 |
|
| 1.4 |
Chairman of the audit committee (non-resident) |
£28 050 |
|
£28 611 |
|
| 1.5 |
Resident members of the audit committee |
R105 930 |
|
R114 404 |
|
| 1.6 |
Chairman of the remuneration committee (non-resident) |
£18 013 |
|
£18 373 |
|
| 1.7 |
Chairman of the social, ethics and transformation committee (resident) |
R104 004 |
|
R112 324 |
|
| 1.8 |
Chairman of the risk and sustainability committee (resident) |
R115 560 |
|
R124 805 |
|
| 1.9 |
Chairman of the general purposes committee (resident) |
R104 004 |
|
R112 324 |
|
| 1.10 |
Chairman of the nomination committee (resident) |
R104 004 |
|
R112 324 |
|
| 1.11 |
Resident members of each of the board committees other than audit committee |
R70 200 |
|
R75 816 |
|
| 1.12 |
Non-resident members of each of the board committees |
£4 310 |
|
£4 396 |
|
| * |
Per calendar year, commencing on 1 January 2015, and
subsisting until another special resolution dealing with the fees
payable to non-executive directors is adopted, or this special
resolution expires, whichever happens first.” |
In order for this resolution to be adopted, the support of at least 75% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 2.2 |
Loans or other financial assistance to related or inter-related companies or corporations
Section 45 of the Companies Act provides, among other things, that, except to the extent that the memorandum of incorporation of a company provides otherwise, the board may authorise the company to provide direct or indirect financial assistance (which includes lending money, guaranteeing a loan or other obligation and securing any debt or obligation) to a related or inter- related company or corporation, including a subsidiary of the company incorporated in or outside of the Republic of South Africa, provided that such authorisation shall be made pursuant to a special resolution of the shareholders adopted within the previous two years, which approved such assistance either for the specific recipient or generally for a category of potential recipients and the specific recipient falls within that category. |
| 2.2.1 |
Special resolution 2:
“Resolved that the directors of the company be and are hereby authorised, in accordance with section 45 of the Companies Act, to authorise the company to provide direct or indirect financial assistance to any company or corporation, including a subsidiary of the company incorporated in or outside of the Republic of South Africa, which is related or inter-related to the company.”
In order for this resolution to be adopted, the support of at least 75% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required. |
| 2.3 |
General authority to acquire the company’s own shares
Special resolution 3 is proposed to authorise the acquisition by the company, and any subsidiary of the company, of up to 5% of the ordinary shares issued by the company.
The board’s intention is for the shareholders to pass a special resolution granting the company and its subsidiaries a general authority to acquire ordinary shares issued by the company in order to enable the company and its subsidiaries, subject to the requirements of the Companies Act, the Listings Requirements of the JSE and the company’s memorandum of incorporation, to acquire ordinary shares issued by the company, should the board consider that it would be in the interest of the company and/or its subsidiaries to acquire ordinary shares issued by the company while the general authority subsists. |
| 2.3.1 |
Special resolution 3:
“Resolved that the company and any subsidiary of the company be and are hereby authorised, subject to the provisions of the Companies Act, the Listings Requirements of the JSE and the company’s memorandum of incorporation, to acquire (“repurchase”), as a general repurchase, up to 5% of the ordinary shares issued by the company; provided that the company and any subsidiary may only make such general repurchase subject to the following:
| (a) |
the repurchase of securities being effected through the order book operated by the JSE trading system and done without any prior understanding or arrangement between the company and the counterparty (reported trades are prohibited); |
| (b) |
authorisation thereto being given by the company’s memorandum of incorporation; |
| (c) |
the approval shall be valid only until the next AGM or for 15 months from the date of the resolution, whichever period is shorter; |
| (d) |
repurchases may not be made at a price greater than 10% above the weighted average of the market value for the securities for the five business days immediately preceding the date on which the transaction is effected; |
| (e) |
at any point in time, the company may only appoint one agent to effect any repurchase(s) on the company’s behalf; |
| (f) |
a resolution is passed by the board authorising the repurchase and confirming that the company has passed the solvency and liquidity test and that, since the test was performed, there have been no material changes to the financial position of the group; |
| (g) |
in the event that the directors are granted general authority to buy back a maximum 5% of the issued share capital of Barloworld, or in the case of acquisition by any of the Company’s subsidiaries, 5% of the issued ordinary share capital in the aggregate, it is the opinion of the directors that following such maximum repurchase of shares:
 |
the company and the group would be able in the ordinary course of business to pay its debts for a period of 12 months after the date of notice issued in respect of the annual general meeting; |
|
the assets of the company and the group would be in excess of the liabilities of the company and the group. For this purpose, the assets and liabilities would be recognised and measured in accordance with the accounting policies used in the latest audited group annual financial statements; |
|
the ordinary capital and reserves of the company and the group would be adequate for a period of 12 months after the date of notice issued in respect of the annual general meeting; and |
|
the working capital of the company and the group would be adequate for a period of 12 months after the date of notice issued in respect of the annual general meeting; and |
|
| (h) |
the company or any of its subsidiaries may not repurchase securities during a prohibited period, as defined in paragraph 3.67 of the Listings Requirements of the JSE, unless they have in place a repurchase programme where the dates and quantities of securities to be traded during the relevant period are fixed (not subject to any variation) and has been submitted to the JSE in writing, prior to the commencement of the prohibited period. |
In order for this resolution to be adopted, the support of at least 75% of the voting rights exercised on the resolution by shareholders present or represented by proxy at the AGM and entitled to exercise voting rights on the resolution is required.
Disclosures in regard to other Listings Requirements of the JSE applying to special resolution 3
The Listings Requirements of the JSE prescribe certain disclosures, which are disclosed in the group audited annual financial statements and the integrated report.
Major shareholders
Details of major shareholders of the company are set out on page 136 of the integrated report.
Material change
There has been no material change in the financial or trading position of the company and its subsidiaries since the date of publication of the company’s annual results on 17 November 2014.
Share capital of the company
Details of the share capital of the company are set out on page 136 of the integrated report.
Directors’ responsibility statement
The directors collectively and individually accept full responsibility for the accuracy of the information given and certify that to the best of their knowledge and belief there are no facts that have been omitted which would make the statement false or misleading.
Certificated shareholders/dematerialised shareholders with own name registration
Registered holders of certificated ordinary shares and holders of dematerialised ordinary shares in their own names may attend, speak and vote at the AGM or are entitled to appoint a proxy or more than one proxy to attend, speak and vote in their stead.
Registered holders of certificated 6% non-redeemable cumulative preference shares (“preference shares”) and holders of dematerialised preference shares in their own names may attend the AGM and, in relation to special resolution 3 only, speak and vote or are entitled to appoint a proxy to attend the AGM and, in relation to special resolution 3 only, speak and vote in their stead.
Any person appointed as a proxy need not be a shareholder of the company
Proxy forms should be forwarded to reach the company’s transfer secretaries, Link Market Services South Africa Proprietary Limited, 13th Floor, Rennie House, 19 Ameshoff Street, Braamfontein, Johannesburg 2001 (PO Box 4844, Johannesburg 2000) or United Kingdom registrars, Equiniti Limited, Aspect House, Spencer Road, Lancing, West Sussex, BN99 6ZL, England, by not later than 12:30 (South African time) on Monday, 2 February 2015.
Dematerialised shareholders
Shareholders who have dematerialised their shares through a Central Securities Depositary Participant (“CSDP”) or stockbroker, and who have not elected own-name registration and wish to attend the AGM, should timeously inform their CSDP or stockbroker of their intention to attend the meeting and request such CSDP or stockbroker to issue them with the necessary authority to attend. If they do not wish to attend the AGM, they may provide such CSDP or stockbroker with their voting instructions.
Voting rights
The ordinary shareholders are entitled to vote on all the resolutions set out above. On a show of hands, every ordinary shareholder who is present in person or by proxy at the AGM will have one vote (irrespective of the number of ordinary shares held in the company) and, on a poll, every ordinary shareholder will have one vote for every ordinary share held or represented. The 6% non-redeemable cumulative preference shareholders (“preference shareholders”) are entitled to vote only on special resolution 3. On a show of hands, every preference shareholder who is present in person or by proxy at the AGM will have one vote (irrespective of the number of preference shares held in the company) and, on a poll, every preference shareholder will have 40 votes for every preference share held or represented.
Identification
In terms of section 63(1) of the Companies Act, any person attending or participating in the AGM must present reasonably satisfactory identification and the person presiding at the AGM must be reasonably satisfied that the right of any person to participate in and vote, whether as a shareholder or as a proxy for a shareholder, has been reasonably verified. Acceptable forms of identification include valid identity documents, drivers’ licences and passports.
Electronic participation by shareholders
Should any shareholder (or a proxy for a shareholder) wish to participate in the AGM by way of electronic participation, that shareholder should make an application in writing (including details as to how the shareholder or its representative (including its proxy) can be contacted) to so participate to the transfer secretaries, at their address above, to be received by the transfer secretaries at least five business days prior to the AGM for the transfer secretaries to arrange for the shareholder (or its representative or proxy) to provide reasonably satisfactory identification to the transfer secretaries for the purposes of section 63(1) of the Companies Act and for the transfer secretaries to provide the shareholder (or its representative or proxy) with details on how to access any electronic participation to be provided. The company reserves the right not to provide for electronic participation at the AGM in the event that it determines that it is not practical to do so. The costs of accessing any means of electronic participation provided by the company will be borne by the company.
By order of the board
LP Manaka
Company secretary
Sandton
14 November 2014 |
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