Notice of annual general meeting
Barloworld Limited
(Incorporated in the Republic of South Africa)
Reg No 1918/000095/06
JSE share code: BAW
ISIN: ZAE000026639
(“the company”)
Notice is hereby given that the ninety-third annual general meeting
of the members of the company will be held in the Tokyo Meeting
Room, Barloworld Corporate Office, 180 Katherine Street, Sandton,
on Thursday, 28 January 2010, at 12:30 for the purpose of considering
the following business and if deemed fit, to pass, with or without
modification, the following resolutions:
1. Ordinary business
1.1 To receive and adopt the annual financial statements for the year
ended 30 September 2009, including the directors’ report and
the report of the auditors.
1.1.1 Ordinary resolution 1
“Resolved that the group annual financial statements for the year
ended 30 September 2009, including the directors’ report and
the report of the auditors, be received and adopted.”
1.2 To elect directors in accordance with the provisions of articles
59.3.1 and 66 of the company’s articles of association.
Mr MJN Njeke, having been appointed during the financial year, is
required to retire. Messrs SAM Baqwa, DB Ntsebeza, OI Shongwe
and DG Wilson are required to retire by rotation. All retiring
directors are eligible and they have offered themselves for reelection
respectively. Brief biographical notes of each director
standing for election or re-election are set out on pages 52 to 53
of the annual report.
The nomination committee of the company has conducted
an assessment of the performance of each of the retiring
candidates and the board accepted the results of that assessment.
Accordingly, the board recommends to shareholders the election
or re-election of each of the retiring directors referred to in
Resolutions 2 to 6.
1.2.1 Ordinary resolution 2
“Resolved that Mr SAM Baqwa who retires in terms of article 66
of the articles of association of the company and is eligible and
available for election, be and he is hereby re-elected as a director
of the company.”
1.2.2 Ordinary resolution 3
“Resolved that Mr MJN Njeke who retires in terms of article 59.3.1
of the articles of association of the company and is eligible and
available for election, be and he is hereby elected as a director of
the company.”
1.2.3 Ordinary resolution 4
“Resolved that Mr DB Ntsebeza who retires in terms of article 66
of the articles of association of the company and is eligible and
available for election, be and he is hereby re-elected as a director
of the company.”
1.2.4 Ordinary resolution 5
“Resolved that Mr OI Shongwe who retires in terms of article 66
of the articles of association of the company and is eligible and
available for election, be and he is hereby re-elected as a director
of the company.”
1.2.5 Ordinary resolution 6
“Resolved that Mr DG Wilson who retires in terms of article 66
of the articles of association of the company and is eligible and
available for election, be and he is hereby re-elected as a director
of the company.”
1.3 To appoint the audit committee in terms of section 94 of the Companies Act 71, 2008 which will be applicable from 1 April 2010.
1.3.1 Ordinary resolution 7
“Resolved that the audit committee be appointed in terms
of section 94(2). The board has determined that each of the
members standing for appointment is independent in accordance
with the requirements of section 94(4)(b), and that they possess
the required qualifications and experience as determined by
the board.
The proposed members of the audit committee are as follows:
Mr AGK Hamilton Chairman
Mr MJN Njeke Member
Mr SS Ntsaluba Member
Brief biographical notes of each member standing for appointment
are set out within this website of the annual report.
1.4 To reappoint Deloitte & Touche as external auditors and to authorise the directors to determine their remuneration for the past audit.
1.4.1 Ordinary resolution 8
“Resolved that Deloitte & Touche be reappointed as the external
auditors of the company and of the group until the conclusion of
the next annual general meeting, and that their remuneration for
the past audit be determined by the directors.”
It is noted that the individual registered auditor who will undertake
the audit during the financial year ending 30 September 2010 is
Mr AG Waller.
1.5 To approve the non-executive directors’ fees.
1.5.1 Ordinary resolution 9
“Resolved that in terms of article 61 of the company’s articles of
association, the fees payable to the chairman and to the other
non-executive directors for their services to the board, audit and
the other committees of the board be revised with effect from
1 January 2010 as follows:
| Non-executive fees | Present |
Proposed |
| Chairman of the board, inclusive of fees payable as chairman of board committees | R1 437 500 |
R1 437 500 |
| Resident non-executive directors | R204 500 |
R220 000 |
| Non-resident non-executive directors | £51 600 |
£52 600 |
| Chairman of the audit committee | £25 000 |
£25 500 |
| Resident members of the audit committee | R68 150 |
R73 500 |
| Chairman of the remuneration committee (non-resident) | £16 000 |
£16 300 |
| Chairman of the empowerment and transformation committee (resident) | R75 000 |
R81 000 |
| Chairman of the risk and sustainability committee (resident) | – |
R81 000 |
| Resident members of each of the board committees | R51 120 |
R55 210 |
| Non-resident members of each of the board committees | £3 405 |
£3 475 |
1.6 To place 5% of the issued shares under the control of directors, thus providing the company with flexibility to take advantage of opportunities that may arise including the possibility of payment of a scrip dividend if the board deems appropriate.
1.6.1 Ordinary resolution 10
“Resolved that the directors of the company be and are hereby
authorised as a general authority, to allot and issue, after providing
for the requirements of the Barloworld 1985 Share Option
Scheme, up to 5% of the authorised but unissued ordinary shares
of 5 cents each in the share capital of the company, at such time
or times to such person or persons; or bodies corporate upon
such terms and conditions as the directors may from time to time
in their sole discretion determine, subject to the provisions of the
Companies Act and the JSE Listings Requirements.”
This ordinary resolution 9 is required in order to comply with the provisions of section 221 of the Companies Act and has been limited to ensure that not all of the current unissued share capital, being 72 559 506 ordinary shares as at 30 September, be placed under the control of the directors.
1.7 To advance the objectives of retention of key talent while aligning the interests of participants with those of shareholders.
1.7.1 Ordinary resolution 11
“Resolved that the Barloworld Limited Forfeitable Share Plan (FSP)
tabled at the meeting and initialled for purposes of identification
be and is hereby adopted by the company and the directors are
authorised to take all steps necessary to implement the FSP.”
In terms of JSE Listings Requirements, a 75% majority of all votes
cast is required for the adoption of this ordinary resolution.
The FSP scheme rules will be available for inspection to
shareholders at the registered office of the company: Barloworld
Corporate Office, 180 Katherine Street, Sandton, for a period of
14 (fourteen) days prior to the annual general meeting to be held
on 28 January 2010.
1.7.2 Ordinary resolution 12
“Resolved that, subject to the passing of ordinary resolution 11,
and subject also to the provisions of the Companies Act, 1973,
as amended, and the Listings Requirements of the JSE Limited,
the authorised but unissued ordinary shares of 5 cents each in
the share capital of the company comprising the ordinary shares
that may be purchased in the market and allocated to participants
in settlement of the Forfeitable Share Plan (FSP) be placed at
the disposal of and directly under the control of the directors,
who are hereby authorised to allot and issue such shares in their
discretion to such persons, on such terms and conditions and at
such times as the directors may determine in accordance with the
Rules of the FSP.”
2. Special business
As special business, to consider and, if deemed fit, pass with or
without modification the following resolutions:
2.1 Special resolution 1
“Resolved as a special resolution and subject to the passing of
ordinary resolutions 11 and 12 that in accordance with section
38(2A) of the Companies Act, as amended, the company be
authorised to provide financial assistance for the purchase of or
subscription for shares in respect of the Barloworld Forfeitable
Share Plan (FSP) upon the terms expressly set out in the Share
Scheme Rules.”
The reason and effect of the special resolution is to permit the company to provide financial assistance for the purchase of or subscription for shares to give effect to the requirements and implementation of the Barloworld FSP.
2.2 Special resolution 2
“Resolved that the authorised ordinary share capital of the
company be increased from 300 000 000 ordinary shares of
5 cents each, to 400 000 000 ordinary shares of 5 cents each.”
The reason for special resolution 2 is to increase the authorised
ordinary share capital of the company so as to provide the
company with sufficient authorised ordinary shares to enable it
to have available adequate unissued ordinary shares to, inter alia,
take advantage of any opportunities which may arise in the future
and which would require the allotment and issue by the company
of ordinary shares in the company. Shareholder approval would
be required for any allotment of shares, other than those placed under the control of directors, in terms of ordinary resolutions 10 and 11 above. The effect of passing special resolution 2 will be to increase the authorised ordinary share capital of the company by R5 000 000 by the creation of 100 000 000 new ordinary shares having a par value of 5 cents each.
The authorised share capital of the company was last increased in 1997 and after taking into account the shares to be set aside from the unissued shares of the company, as previously approved by shareholders for purposes of the company’s share incentive scheme and the employee share ownership plans to be implemented outside of South Africa totalling 2 637 709 ordinary shares as at 30 September 2009, the company has minimal shares in reserve for this purpose.
2.3 Special resolution 3
Resolved that
(a) the directors of the company be authorised from time to time
to acquire issued shares in the ordinary share capital of the
company on the JSE Limited open market at a price no greater
than 10% above the weighted average of the market value for
the securities for the five previous business days immediately
preceding the date on which the transaction was agreed or
at a bid price no greater than the current trading price of the
share; and the purchase by any of the company’s subsidiaries
of shares in the company in the manner contemplated by
and in accordance with the provisions of section 89 of the
Companies Act, 1973, and other provisions which may be
applicable;
(b) the authorisation granted in terms of (a) above shall remain in
force from the date of registration of these special resolutions
by the
Registrar of Companies until the conclusion of the next
annual general meeting of the company and in any event,
no later than 15 months
from the date on which they were
passed;
(c) the repurchase by the company of its own securities in terms
of (a) above may not exceed 10% of the company’s issued
ordinary share capital in the aggregate in any one financial
year or in the case of acquisition by any of the company’s
subsidiaries,
of 10% of the issued ordinary share capital in
the aggregate;
(d) in the event that the directors are granted general authority
to buy back a maximum 10% of the issued share capital
of Barloworld,
or in the case of acquisition by any of the
company’s subsidiaries, 10% 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;
(e) the repurchase of securities to be effected through the order
book operated by the JSE trading system and to be done
without
any prior understanding or arrangement between the
company and the counterparty;
(f) the authorisation to repurchase the shares is in accordance with the company’s articles of association;
(g) that only one agent will effect the buy-back on behalf of the company;
(h) that after the repurchase has been effected the company will still comply with shareholder spread requirements of the JSE Limited;
(i) the company and its subsidiary will not repurchase shares during a prohibited period;
(j) the company and its subsidiaries, prior to undertaking a repurchase, will obtain a working capital letter from its sponsor.”
The reason for proposing and the effect of special resolution 3 is to grant the directors a general authority in terms of the Companies Act 61 of 1973, as amended, and subject to the Listings Requirements of JSE Limited and any other stock exchange upon which the shares of the company may be quoted or listed, for the acquisition by the company or one of its subsidiaries of the company’s own shares on the terms set out above.
Detail in regard to other JSE Listings Requirements applying to special resolution 3:
Details of the directors
Directors’ details can be found by referencing the table on
pages 52 to 53.
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 page 194.
Major shareholders
Details of major shareholders of the company are set out on
page 64.
Share capital of the company
Details of the share capital of the company are set out on page 209.
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 16 November 2009.
Litigation
The company and its subsidiaries are not, and have not in the
12 months preceding the date of this notice of annual general
meeting, 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.
Registered holders of certificated ordinary shares and holders of dematerialised ordinary shares in their own name, may attend, speak and vote at the annual general meeting or are entitled to appoint a proxy to attend, speak and, on a poll, vote in his/ her stead. The person so appointed need not be a member of the company. Proxy forms should be forwarded to reach the company’s transfer secretaries, Link Market Services, 11 Diagonal Street, PO Box 4844, Johannesburg 2000, South Africa, or United Kingdom registrars, Equiniti Limited, Aspect House, Spencer Road, Lancing, West Sussex, BN99 6DA, England, by not later than 12:00 (South African time) on 26 January 2010.
Shareholders who have dematerialised their shares through a Central Securities Depository Participant (CSDP) or stockbroker, and who have not elected own-name registration and wish to attend the annual general meeting, 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.
3. To transact such other business as may be transacted at an annual general meeting.By order of the board
S Mngomezulu
Secretary
Sandton
11 December 2009