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 97th 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,
29 January 2014, 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, 24 January 2014.
| 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 2013, including the
directors’ report, the independent auditors’ report
and the audit committee report thereon. The
summarised financial statements are set out on
pages 100 to 108 of 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 2013,
including the directors’ report, 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 |
Election and re-election of directors
In terms of clause 7.1.5 of the company’s
memorandum of incorporation (MOI), 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 MOI, must retire by rotation and the
directors to so retire shall be those who have been
longest in office since their last election.
Messrs CB Thomson, PJ Bulterman, AGK Hamilton,
SB Pfeiffer and Ms TH Nyasulu are required to retire
by rotation in terms of clause 7.1.5 of the MOI. All of
the retiring directors are eligible and, with the
exception of Ms TH Nyasulu, they have offered
themselves for re-election. Ms TH Nyasulu retires
from the board at the AGM.
Dr Alexander Landia, having been appointed an
independent non-executive director with effect from
1 October 2013 in terms of clause 7.2.1, is required
to stand for election.
Ordinary resolution 2 is proposed to elect the director
appointed in accordance with clause 7.2.1 of the
company’s memorandum of incorporation and who,
being eligible, has offered himself for election.
Ordinary resolutions 3 to 6 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 is set out on pages 2 and 3 of this booklet.
The nomination committee of the company
conducted an assessment of the performance of each
of the retiring directors 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
re-election of each of the retiring directors as set out
in ordinary resolutions 3 to 6. |
| 1.2.1 |
Ordinary resolution 2
“Resolved that Dr A Landia, 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 CB Thomson, 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 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 Bulterman, 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 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 AGK Hamilton, 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 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 Mr SB Pfeiffer, 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 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 7 to 9 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 and
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 2 and 3 of this booklet. |
| 1.3.1 |
Ordinary resolution 7
“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, subject to his
re-election as a director pursuant to ordinary
resolution number 5.”
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 8
“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 9
“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.”
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 auditors
Ordinary resolution 10 is proposed to approve the
appointment of Deloitte and Touche as the external
auditor of the company for the financial year ending
30 September 2014 and to remain in office until the
conclusion of the next AGM, and to authorise the
audit committee to determine their 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 2014.
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 the
individual registered comply with the relevant
provisions and are duly accredited by the JSE. |
| 1.4.1 |
Ordinary resolution 10
“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 2014 and
to remain in office until the conclusion of the next
AGM, and that their remuneration for the financial
year ending 30 September 2014 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 directors
The purpose of ordinary resolution 11 is to endorse,
by way of a non-binding advisory vote, the
remuneration policy of the company set out on
pages 116 to 120 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 116 to 120 of the
integrated report, and shareholders are required to
vote on it. |
| 1.5.1 |
Ordinary resolution 11
“Resolved that the company’s remuneration policy, as
set out in the remuneration report on pages 116 to
120 of 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 2014 as follows: |
| |
Non-executive
directors’ fees |
|
Present |
|
|
Proposed* |
|
 |
|
|
|
|
|
|
|
| 1.1 |
Chairman of the
board |
|
R1 480 000 |
|
|
R1 480 000 |
|
| 1.2 |
Resident non-executive
directors |
|
R262 150 |
|
|
R283 122 |
|
| 1.3 |
Non-resident
non-executive
directors |
|
£56 600 |
|
|
£57 732 |
|
| 1.4 |
Chairman of the
audit committee
(non-resident) |
|
£27 500 |
|
|
£28 050 |
|
| 1.5 |
Resident members of
the audit committee |
|
R96 300 |
|
|
R105 930 |
|
| 1.6 |
Chairman of the
remuneration
committee (non-resident) |
|
£17 660 |
|
|
£18 013 |
|
| 1.7 |
Chairman of the
social, ethics and
transformation
committee (resident) |
|
R96 300 |
|
|
R104 004 |
|
| 1.8 |
Chairman of the risk
and sustainability
committee (resident) |
|
R107 000 |
|
|
R115 560 |
|
| 1.9 |
Chairman of the
general purposes
committee (resident) |
|
R96 300 |
|
|
R104 004 |
|
| 1.10 |
Chairman of the
nomination
committee (resident) |
|
R96 300 |
|
|
R104 004 |
|
| 1.11 |
Resident members of
each of the board
committees other
than the audit
committee |
|
R65 000 |
|
|
R70 200 |
|
| 1.12 |
Non-resident
members of each of
the board committees |
|
£4 225 |
|
|
£4 310 |
|
| |
* Per calendar year, commencing on 1 January 2014, 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 is 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) |
It is the opinion of the directors of the company
that following a 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 AGM; |
| • |
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 AGM; 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 AGM. |
|
|
| (g) |
A resolution is passed by the board authorising
the repurchase and confirming that the company
passed the solvency and liquidity test and that
since the test was done there have been no
material changes to the financial position of
the group. |
|
| (h) |
The company or its subsidiary 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 full details of the programme have
been disclosed in an announcement over SENS
prior to the commencement of the prohibited
period. |
|
| (i) |
The company and its subsidiaries, prior to
undertaking a repurchase will obtain a working
capital letter from its sponsor.” |
|
|
| |
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, the integrated report, and this booklet.
Details of the directors
Directors’ details can be found by referring to the profiles on
pages 2 and 3 of this booklet.
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.
Interests of directors
The interests of the directors in the share capital of the
company are set out on of the annual consolidated
financial statements.
Major shareholders
Details of major shareholders of the company are set out on
page 122 of the integrated report.
Share capital of the company
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
18 November 2013.
Litigation
The company and its subsidiaries are not, and have not, in the
12 months preceding the date of this notice of AGM, been
involved in any legal or arbitration proceedings which may
have or have had a material effect on the financial position of
the company and its subsidiaries, nor is the company aware of
any such proceedings that are pending or threatened.
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, 27 January 2014.
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
annual general meeting, 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, driving
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 his/her 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 his/her 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 his/her
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
29 November 2013
|
