NOTICE OF ANNUAL GENERAL MEETING

 

Notice is hereby given that the ninth annual general meeting of members of Exxaro will be held at the Exxaro Corporate Centre, Roger Dyason Road, Pretoria West, Gauteng, South Africa, at 10:30 on Friday, 21 May 2010. 

The following business will be transacted and resolutions proposed, with or without modification: 


1.

ORDINARY RESOLUTION NUMBER 1

Approval of financial statements
To receive and adopt the annual financial statements of the group for the period ended 31 December 2009, including the directors’ report and the report of the auditors thereon. 
   

2.

ORDINARY RESOLUTION NUMBER 2

Re-appointment of independent auditors
To ratify the re-appointment of Deloitte & Touche as auditors of the company and to appoint BW Smith as the designated audit partner for the ensuing year.
   

3.

ORDINARY RESOLUTION NUMBER 3

Auditors’ fees
To authorise the directors to determine the auditors’ remuneration for the period ended 31 December 2009.
   

4.

ORDINARY RESOLUTION NUMBER 4

Re-election of directors
In terms of article 15.2 of the articles of association of the company, Mr CI Griffith, appointed to the board with effect from 16 July 2009 and Ms N Langeni, appointed to the board with effect from 23 February 2010, will retire and, being eligible, offer themselves for re-election.

Abbreviated curricula vitae in respect of Mr CI Griffith and Ms N Langeni are set out here.
   

5.

ORDINARY RESOLUTION NUMBER 5

Re-election of directors
To re-elect the following directors who retire by rotation in terms of article 16.1 of the articles of association of the company, and who are eligible for re-election:
5.1 JJ Geldenhuys
5.2 U Khumalo
5.3 RP Mohring

An abbreviated curriculum vitae in respect of each director offering himself for re-election is set out here.
   

6.

ORDINARY RESOLUTION NUMBER 6

Remuneration of non-executive directors
To approve the proposed remuneration for the period 1 January 2010 to 31 December 2010:
       
    Current Proposed
  Chairman R399 600 R433 600
  Director R184 440 R200 120
  Audit committee chairman R170 400 R184 880
  Audit committee member R90 000 R97 650
  Board committee chairman R132 000 R143 220
  Board committee member R63 000 R68 340
   

7.

ORDINARY RESOLUTION NUMBER 7

Renewal of the authority that unissued shares be placed under the control of the directors
“Resolved that, subject to the provisions of article 3.2 of the articles of association of the company, the provisions of the Companies Act, 61 of 1973, as amended, and the Listings Requirements of the JSE, the directors are hereby authorised to allot and issue at their discretion until the next annual general meeting of the company authorised but unissued shares for such purposes as they may determine, after setting aside so many shares as may be required, subject to article 3.2 of the articles of association of the company, to be allotted and issued by the company pursuant to the company’s approved employee share incentive schemes.”
   

8.

ORDINARY RESOLUTION NUMBER 8

General authority to issue shares for cash
“Resolved that, subject to article 3.2 of the articles of association of the company, the provisions of the Companies Act, 61 of 1973, as amended, and the Listings Requirements of the JSE, the directors are hereby authorised, by way of a general authority, to allot and issue ordinary shares for cash on the following basis, after setting aside so many shares as may be required, subject to article 3.2 of the articles of association of the company, to be allotted and issued by the company pursuant to the schemes, to any public shareholder, as defined by the Listings Requirements of the JSE, as and when suitable opportunities arise, subject to the following conditions:
   
8.1 this authority shall not extend beyond the next annual general meeting or 15 months from the date of this annual general meeting, whichever date is earlier;
   
8.2 a press announcement giving full details, including the impact on net asset value and earnings per share, be published at the time of any issue representing, on a cumulative basis within one year, 5% or more of the number of shares in issue prior to the issue/s;
   
8.3 the shares be issued to public shareholders as defined by the JSE and not to related parties;
   
8.4 any issue in the aggregate in any one year shall not exceed 15% of the number of shares of the company’s issued ordinary share capital; and
   
8.5 in determining the price at which an issue of shares be made in terms of this authority, the maximum discount permitted will be 10% of the weighted average traded price of the shares over the 30 days prior to the date that the price of the issue is agreed between the issuer and the party subscribing for the securities. In the event that shares have not traded in the said 30-day period, a ruling will be obtained from the committee of the JSE.”

The approval of a 75% majority of the votes cast by shareholders present or represented by proxy at the meeting is required for ordinary resolution number 8 to become effective.
   

9.

ORDINARY RESOLUTION NUMBER 9

“Resolved that, in accordance with the amendments to Schedule 14 of the JSE Listings Requirements, the amendments be made to:
  • the Deferred Bonus Plan 2006
  • the Long-term Incentive Plan 2006
  • Share Appreciation Right Scheme 2006

established and approved by shareholders of the company in 2006 (“the 2006 Incentive Plans”) in order to give effect to the amendments summarised in the Appendices attached to the Notice of Annual General Meeting be and are hereby approved.”

In terms of the JSE Listings Requirements:
  • the approval of a 75% majority of votes of all shareholders, present or represented by proxy, is required to approve the ordinary resolution to approve the amended 2006 Incentive Plans; and
  • equity securities held by a share trust or scheme will not have their votes at a general meeting or an annual general meeting taken into account for the purposes of resolutions proposed in terms of the JSE Listings Requirements.

The amended 2006 Incentive Plans will be available for inspection at the offices of the company at Roger Dyason Road, Pretoria West, during normal office hours on business day from Tuesday, 20 April 2010 until Thursday, 20 May 2010.
   

10.

ORDINARY RESOLUTION NUMBER 10

“Resolved that subject to the adoption of ordinary resolution number 9 and in terms of sections 221 and 222 of the Companies Act No. 61 of 1973 (as amended), the allotment and issue of shares by the board, as a specific authority, pursuant to the provisions of the 2006 Incentive Plans, of such allowable maximum number of ordinary shares as provided thereunder and subject to the terms and conditions of the 2006 Incentive Plans, be and is hereby approved.”
   

11.

SPECIAL RESOLUTION NUMBER 1

Authority to repurchase shares
“Resolved that by way of a general authority, the company or any subsidiary of the company may, subject to the Companies Act, 61 of 1973, as amended, (“the Act”), article 36 of the articles of association of the company or articles of association of a subsidiary respectively and the Listings Requirements of the JSE, from time to time purchase shares issued by itself or shares in its holding company, as and when deemed appropriate.”

Pursuant to the above, the following additional information, required in terms of the Listings Requirements of the JSE, is submitted.

It is recorded that the general repurchase will be subject to the following limitations:
   
11.1 that the repurchase is effected through the order book operated by the JSE trading system and is done without any prior understanding or arrangement between the company and the counterparty;
   
11.2 that this authority shall not extend beyond 15 months from the date of this resolution or the date of the next annual general meeting, whichever is the earlier date;
   
11.3 that an announcement containing full details of such repurchases is published as soon as the company has repurchased shares constituting, on a cumulative basis, 3% of the number of shares in issue prior to the repurchases and for each 3%, on a cumulative basis, thereafter;
   
11.4 that the repurchase of shares shall not, in the aggregate, in any one financial year, exceed 20% of the company’s issued share capital at the time this authority is given;
   
11.5 that at any one time, the company may only appoint one agent to effect any repurchase;
   
11.6 that the repurchase of shares will not take place during a prohibited period (unless it forms part of a pre-announced repurchase programme which meets the requirements of the JSE) and will not affect compliance with the shareholders’ spread requirements as laid down by the JSE;
   
11.7 shares issued by the company may not be acquired at a price greater than 10% above the weighted average traded price of the company’s shares for the five business days immediately preceding the date of repurchase.”

The reason for this special resolution number 1 is, and the effect thereof will be to grant, in terms of the provisions of the Act and the Listings Requirements of the JSE, and subject to the terms and conditions embodied in the articles of the company or any subsidiary and the said special resolution, a general authority to the directors to approve the repurchase by the company of its own shares.

At present, the directors have no specific intention with regard to the utilisation of this authority, which will only be used if the circumstances are appropriate.

A general repurchase of the company’s shares shall not be effected before the JSE has received written confirmation from the company’s sponsor to the effect that the directors have considered the solvency and liquidity of the company as required in terms of Section 85(4) of the Act.
   
12. To transact such other business as may be transacted at an annual general meeting.


DISCLOSURES REQUIRED IN TERMS OF THE LISTINGS REQUIREMENTS OF THE JSE

The following information is provided in accordance with paragraph 11.26 of the Listings Requirements of the JSE and relates to special resolution number 1. 

WORKING CAPITAL STATEMENT 

The directors of the company agree that they will not undertake any repurchase unless: 

  • the company and the group will be able, in the ordinary course of business, to pay its debts;
  • the assets of the company and the group have been consolidated, fairly valued in accordance with International Financial Reporting Standards, in excess of its consolidated liabilities;
  • the share capital and reserves of the company and the group will be adequate for ordinary business purposes; and
  • the working capital resources of the company and the group will be adequate for ordinary business purposes.

LITIGATION STATEMENT

Other than disclosed or accounted for in these annual financial statements, the directors of the company, whose names are given on page 68 and 69 of these annual financial statements, are not aware of any legal or arbitration proceedings, pending or threatened against the group, which may have or have had a material effect on the group’s financial position in the 12 months preceding the date of this notice of annual general meeting. 

DIRECTORS’ RESPONSIBILITY STATEMENT

The directors, whose names are given here on the financial statements, collectively and individually accept full responsibility for the accuracy of the information given in this special resolution, and certify that to the best of their knowledge and belief there are no facts that have been omitted which would make any statements false or misleading and that all reasonable enquiries to ascertain such facts have been made. 

MATERIAL CHANGES

Other than the facts and developments reported on in these annual financial statements, there have been no material changes in the affairs, financial or trading position of the group since the signature date of this annual report and the posting date thereof.

The following further disclosures required in terms of the Listings Requirements of the JSE are set out in accordance with the reference pages in these annual financial statements of which this notice forms part: 

In terms of Schedule 14 of the Listings Requirements of the JSE, equity securities held by a share trust or a scheme will not have their votes at a general meeting or annual general meeting taken into account for the purposes of resolutions proposed in terms of the Listings Requirements.

By order of the board

MS Viljoen
Company Secretary
Pretoria
16 March 2010

 

EXPLANATORY NOTES TO RESOLUTIONS FOR CONSIDERATION AT THE ANNUAL GENERAL MEETING ORDINARY BUSINESS 

Resolution 1: Approval of financial statements 
The directors must present to shareholders at the annual general meeting the annual financial statements incorporating the directors’ report and the report of the auditors, for the period ended 31 December 2009. These are contained in the annual report. 

Resolution 2: Re-appointment of independent auditors
The reason for proposing ordinary resolution number 2 is to confirm the re-appointment of Deloitte & Touche as external auditors of the company and to appoint BW Smith as the designated audit partner. Deloitte & Touche were appointed as the company’s statutory auditors since 16 February 2004. 

Resolution 3: Auditors’ fees
It is usual for this matter to be left to the directors, as they will be conversant with the amount of work that was involved in the audit. The chairman will therefore move a resolution to this effect authorising the directors to attend to this matter.

Resolution 4 and 5: Re-election of directors
Under the articles of association, one third of the directors are required to retire at each annual general meeting and may offer themselves for re-election. In addition, any person appointed to fill a casual vacancy on the board of directors, or as an addition thereto, is similarly required to retire and is eligible for re-election at the next annual general meeting. Biographical details of the directors, who are offering themselves for re-election, appear on page 263. 

Resolution 6: Remuneration of non-executive directors
The company in general meeting as per the articles of association shall from time to time determine the remuneration of non-executive directors, subject to shareholders’ approval. 

Resolution 7 and 8: Directors’ control of unissued ordinary shares
The existing authorities relating to resolutions 7 and 8 are due to expire at the forthcoming annual general meeting. The directors consider it advantageous to renew these authorities to enable the company to take advantage of business opportunities, which might arise in the future. 

Resolution 9
The current 2006 Incentive Plans are not fully compliant with the JSE Listings Requirements. The reason for and effect of resolution 9 is to address the non-compliance further to the amendments to Schedule 14 of the JSE Listings Requirements and to be in line with current corporate governance best practice. 

Resolution 10
The reason for and effect of this ordinary resolution is that it will allow the board to issue new shares to meet the obligations under the 2006 Incentive Plans, up to the allowable maximum provided for in ordinary resolution number 9. Approval is necessary to implement the 2006 Incentive Plans effectively. 

SPECIAL BUSINESS

Special Resolution 1: General authority to permit the repurchase of shares 

The reason for the special resolution is to grant the directors of the company a general authority for the acquisition of the company’s shares by the company, or a subsidiary of the company. 

The effect of the special resolution, once registered, will be to permit the company or any of its subsidiaries to repurchase such securities subject to the limitations applicable. This authority will only be used if circumstances are appropriate.