Notice of Annual General Meeting
BUILDMAX LIMITED
(Incorporated in the Republic of South Africa)
(Registration number 1995/012209/06)
(“Buildmax” or the company’)
JSE Code: BDM
ISIN. ZAE000011250
Notice is hereby given that the Annual General Meeting of shareholders of Buildmax will be held at 11h00 on Monday,
21 November 2011 at The Country Club Johannesburg,
1 Napier Road, Auckland Park, Johannesburg for the following purposes:
1. To consider the annual financial statements for the financial year ended 28 February 2011 as presented in the annual report to which this notice is attached. A copy of the annual financial statements for the financial year ended 28 February 2010 may be obtained from the registered office of the company during normal working hours;
2. To transact such other business as may be transacted at an Annual General Meeting of a company including the
re-appointment of the auditors, members of the audit and risk committee and the re-election of retiring directors; and
3. To consider and, if deemed fit, to pass, with or without modification, the special and ordinary resolutions set out below. The record date for determining which shareholders are entitled to: (i) receive notice of the Annual General Meeting is 31 August 2011 and (ii) participate in and vote at the Annual General Meeting is 11 November 2011, in terms of section 62(3)(a), as read with section 59 of the South African Companies Act, (Act 71 of 2008) as amended (the “Act”):
Special resolution number 1: Share repurchases
“Resolved that the directors be authorised by way of a general authority to approve the repurchase by the company or its subsidiaries of shares of the company on such terms and conditions and in such amounts that the directors of the company may determine subject to the company’s Memorandum of Incorporation (previously Articles and Association) (“MOI”), the JSE Limited (“JSE”) Listings Requirements and the Act on the following basis:
1. repurchases of shares must be effected through the order book operated by the JSE trading system, and done without any prior understanding or arrangement between the company and the counter-party:
2. at any point in time, the company may only appoint one agent to effect repurchases on its behalf;
3. the company (or any subsidiary) must be authorised thereto by its MOI;
4. the number of shares which may be acquired pursuant to this authority in any financial year (which commenced
1 March 2011) may not in the aggregate exceed 20% (twenty percent) (or 10% (ten percent) where such acquisitions are effected by a subsidiary) of the company’s share capital as at the date of this notice of Annual
General Meeting:
5. repurchases of shares may not be made at a price more than 10% (ten percent) above the weighted average of the market value on the JSE of the shares in question for the five business days immediately preceding the repurchase;
6. repurchases may not take place during a prohibited period (as defined in paragraph 3.67 of the JSE Listings Requirements) unless a repurchase programme (where the dates and quantities of shares to be repurchased during the prohibited period are fixed) is in place and full details thereof announced on SENS prior to commencement of the prohibited period;
7. after the company has acquired shares which constitute, on a cumulative basis, 3% (three percent) of the number of shares in issue (at the time that authority from shareholders for the repurchase is granted), the company shall publish an announcement to such effect, or any other announcements that may be required in such regard in terms of the Listings Requirements of the JSE which may be applicable from time to time;
8. the company’s sponsor shall confirm the adequacy of the company’s working capital for purposes of undertaking the repurchase of shares in writing to the JSE prior to the company entering the market to proceed with the repurchase; and
9. this general authority shall be valid until the next Annual General Meeting of the company provided that it shall not extend beyond 15 months from the date of passing of this special resolution.”
In accordance with the Listings Requirements of the JSE, the directors record that:
Although there is no immediate intention to effect a repurchase of securities of the company, the directors would utilise the general authority to repurchase securities as and when suitable opportunities present themselves, which opportunities may require expeditious and immediate action.
The directors undertake that, after considering the maximum number of securities which may be repurchased and the price at which the repurchases may take place pursuant to the buyback general authority, for a period of 12 months after the date of notice of this Annual General Meeting:
• the company and the group will be able to pay their debts in the ordinary course of business;
• the consolidated assets of the company and of the group fairly valued in accordance with International Financial Reporting Standards will exceed the consolidated liabilities of the company and of the group; and
• the working capital, share capital and reserves of the company and of the group will be adequate for the purposes of the business of the company and its subsidiaries.
The following additional information is provided in terms of paragraph 11.26 of the Listings Requirements of the JSE for purposes of this general authority:
• Directors — page 14
• Major shareholders — page 86
• Directors’ interests in ordinary shares — page 45
• Share capital of the company — pages 42 and 66
Litigation statement
Diesel Power Open Cast Mining (“Diesel Power”) is in negotiations arising out of a labour dispute which arose as a result of its dismissal of a substantial number of its employees. If not successfully concluded, this may result in legal proceedings being instituted against Diesel Power by the Association of Mineworkers and Construction Union (“AMCU”) and a counter claim being instituted by Diesel Power.
Save as stated above and/or the annual financial statements for the year ended 28 February 2011, the directors, whose names appear on page 14 of the annual report, are not aware of any other legal or arbitration proceedings, including proceedings that are pending or threatened, that may have or have had in the recent past (being at least the previous 12 (twelve) months) a material effect on the group’s financial position.
Directors’ responsibility statement
Directors, whose names appear on page 14 of the annual report, collectively and individually accept full responsibility for the accuracy of the information pertaining to 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 statement false or misleading, and that all reasonable enquiries to ascertain such facts have been made and that the special resolution contains all information required in terms of the Listings Requirements of the JSE.
Material changes
Other than the facts and developments reported on in the annual report, there have been no material changes in the affairs or financial position of the company and its subsidiaries since the date of signature of the audit report for the financial year ended 28 February 2011 and up to the date of this notice.
Reasons for and affect of special resolution 1
The reason for special resolution 1 is to afford directors of the company or a subsidiary of the company general authority to affect a buyback of the company’s shares on the JSE. The effect of the resolution will be that the directors will have the authority, subject to the Rules and Requirements of the JSE, to effect acquisitions of the company’s shares on the JSE.
Special resolution number 2: Approval of non-executive directors’ remuneration for their services as directors:
“To consider and if deemed fit, to pass with or without modification, the following special resolutions by way of separate resolutions:
2.1 “Resolved that payment of the portion of the non-executive directors’ fee approved at the company’s Annual General Meeting held on 24 November 2010 (ordinary resolution number 11) in terms of the relevant provisions applicable at that time but which have not been paid, since 1 May 2011, being the commencement date of the Companies Act from which date such fees must be approved as a special resolution is hereby approved and authorised in terms of section 66 of the Companies Act.”
2.2. “Resolved, as a special resolution, that the fees payable by the company to the non-executive directors for their services as directors (in terms of section 66 of the Companies Act) for the year ending 28 February 2012 be and are hereby approved for a period of two years from the passing of this resolution or until its renewal, whichever is the earliest, as follows:
| 2.2.1 | Chairman | R300 000 |
| 2.2.2 | Non-Executive Directors | R150 000 |
| 2.2.3 | Audit and Risk Committee Chair | R136 000 |
| 2.2.4 | Audit and Risk Committee Member | R68 000 |
| 2.2.5 | Remuneration Committee Chair | R80 000 |
| 2.2.6 | Remuneration Committee Member | R40 000 |
| 2.2.7 | Transformation Committee Member | R38 000 |
2.3 “Resolved, as a special resolution that an annual increase not exceeding 7,8% of the fees payable by the company to the non-executive directors for their services as directors be and is hereby approved for a period of two years from the passing of this resolution or until its renewal, whichever is the earliest.”
Reasons and effect:
The reason and affect for special resolution number 2.1:
The approval of the non-executive directors’ remuneration was proposed and approved as an ordinary resolution at the company’s last Annual General Meeting on 24 November 2010 (ordinary resolution number 11), in terms of the relevant provisions applicable at the time. However, since the approval by the shareholders of such non-executive directors’ remuneration, the Companies Act has come into force and effect on 1 May 2011, and in terms of section 66 thereof, such remuneration must be approved as a special resolution in terms of section 66(9) of the Companies Act. Therefore, the company requests that a resolution be proposed and passed as a special resolution.
The reason and affect for special resolution number 2.2:
To obtain shareholder approval by way of a special resolution in accordance with section 66(9) of the Companies Act for the payment by the company of remuneration of each of the non-executive directors of the company for each non-executive director’s services as a non-executive director for the ensuing financial year in the amounts set out under special resolution number 2.2. For purposes of comparative analysis the remuneration of each of the non-executive directors of the company for the preceding financial year (1 March 2010 –
28 February 2011) are set out below:
| Chairman | R280 000 |
| Non-Executive Directors | R140 000 |
| Audit and Risk Committee Chair | R126 000 |
| Audit and Risk Committee Member | R63 000 |
| Remuneration Committee Chair | R70 000 |
| Remuneration Committee Member | R35 000 |
| Transformation Committee Member | R35 000 |
The reason and affect for special resolution number 2.3:
As the fees payable to non-executive directors are, from time to time, benchmarked to other companies with a similar market capitalisation taking into account the estimated time and the other requirements of directors, an annual increase not exceeding 7,8% is proposed for approval in the subsequent year.
Percentage of voting rights required for the adoption of special resolution number 2:
In order for special resolutions numbers 2.1, 2.2 and 2.3 to be adopted, the support of 75% of the total number of votes exercisable by shareholders, present in person or by proxy, is required to pass this resolution.
Special Resolution number 3:
Financial Assistance to related or inter-related companies
To consider and if deemed fit, to pass with or without modification, the following special resolution:
“Resolved that, to the extent required by the Companies Act, the Board of directors of the company may, subject to compliance with the requirements of the company’s Memorandum of Incorporation, the Companies Act and the
JSE Listings Requirements, each as presently constituted and as amended from time to time, authorise the company to provide direct or indirect financial assistance in terms of section 45 of the Companies Act by way of loans, guarantees, the provisions of security or otherwise, to any of its present or future subsidiaries and/or any other company or corporation that is or becomes related or inter-related (as defined in the Companies Act) to the company for any purpose or in connection with any matter, such authority to endure until the Annual General Meeting of the company to be held in 2012.”
Reason for and affect of Special Resolution Number 3
The company, when the need previously arose, had to provide loans to and guarantee loans or other obligations of subsidiaries and was not precluded from doing so in terms of its Articles of Association or in terms of the Companies Act, 61 of 1973, as amended. The company would like the ability to continue to provide financial assistance, if necessary, also in other circumstances, in accordance with section 45 of the Companies Act. This authority is necessary for the company to continue to provide financial assistance in appropriate circumstances. Under the Companies Act, the company will, however, require the special resolution referred to above to be adopted, provided that the Board of directors of the company be satisfied that the terms under which the financial assistance is proposed to be given are fair and reasonable to the company and, immediately after providing the financial assistance, the company would satisfy the solvency and liquidity test contemplated in the Companies Act. In the circumstances and in order to, inter alia, ensure that the company’s subsidiaries and other related and inter-related companies and corporations have access to financing and/or financial backing from the company (as opposed to banks), it is necessary to obtain the approval of shareholders, as set out in special resolution number 3. Therefore, the reason for, and effect of, special resolution number 2 is to permit the company to provide direct or indirect financial assistance (within the meaning attributed to that term in section 45 of the Companies Act) to the entities referred to in special resolution number 3 above.
Percentage of voting rights required for the adoption of special resolution number 3:
In order for special resolution number 3 to be adopted, the support of 75% of the total number of votes exercisable by shareholders, present in person or by proxy, is required to pass this resolution.
Ordinary resolution number 1: Issue of shares for cash
“Resolved that the directors be authorised pursuant inter alia to the company’s MOI until this authority lapses at the next Annual General Meeting of the company, unless it is then renewed at the next Annual General Meeting of the company provided that it shall not extend beyond 15 months to allot and issue ordinary shares for cash subject to the Rules and Requirements of the JSE Limited (“JSE) on the following basis:
1. the allotment and issue of the shares must be made to persons qualifying as public shareholders and not to related parties as defined in the Listings Requirements of the JSE;
2. the shares which are the subject of the issue for cash must be of a class already in issue, or where this is not the case, must be limited to such shares or rights that are convertible into a class already in issue;
3. the number of shares issued for cash shall not in the aggregate in any one financial year exceed 15% (fifteen percent) of the company’s issued share capital of ordinary shares. The number of ordinary shares which may be issued shall be based on the number of ordinary shares in issue at the date of such application less any ordinary shares issued during the current financial year, provided that any ordinary shares to be issued pursuant to a rights issue (announced, irrevocable and fully underwritten) or acquisition (concluded up to the date of application including announcement of the final terms) may be included as though they were shares in issue at the date of application;
4. the maximum discount at which ordinary shares may be issued is 10% (ten percent) of the weighted average traded price on the JSE of those shares over the 30 business days prior to the date that the price of the issue is agreed between the company and the party subscribing for
the shares;
5. after the company has issued shares for cash which represent, on a cumulative basis within a financial year, 5% (five percent) or more of the number of shares in issue prior to that issue, the company shall publish an announcement containing full details of the issue, (including the number of shares issued, the average discount to the weighted average traded price of the shares over the
30 days prior to the date that the price of the issue is agreed in writing between the company and the parties subscribing for the shares and the effect of the issue on net asset value per share, net tangible asset value per share, earnings per share, headline earnings per share and, if applicable, diluted earnings and headline earnings per share), or any other announcements that may be required in such regard in terms of the JSE Listings Requirements which may be applicable from time to time.”
In terms of the Listings Requirements of the JSE a 75% (seventy-five percent) majority of the votes cast by shareholders present or represented by proxy at the general meeting must be cast in favour of ordinary resolution number 1 for it to be approved.
Ordinary resolution number 2: Unissued ordinary shares
“Resolved that the authorised and unissued ordinary share capital of the company be and is hereby placed under the control of the directors of the company which directors are, subject to the Rules and Regulations of the JSE Limited and the provisions of the Companies Act as amended, authorised to allot and issue any of such shares at such time or times, to such person or persons, company or companies and upon such terms and conditions as they may determine, such authority to remain in force until the next Annual General Meeting of
the company.”
Ordinary resolution number 3: Re-election of CB Brayshaw as a director of the company
“Resolved that CB Brayshaw be re-elected as a director of the company.”
A brief curriculum vitae is set out in the annual report of which this notice form part.
Ordinary resolution number 4: Re-election of DJ Mack as a director of the company
“Resolved that DJ Mack be re-elected as a director of
the company.”
A brief curriculum vitae is set out in the annual report of which this notice form part.
Ordinary resolution number 5: Re-election of BT Ngcuka as a director of the company
“Resolved that BT Ngcuka be re-elected as a director of
the company.”
A brief curriculum vitae is set out in the annual report of which this notice form part.
Ordinary resolution number 6: Re-election of MW McCulloch as a director of the company
“Resolved that MW McCulloch be re-elected as a director of the company.”
A brief curriculum vitae is set out in the annual report of which this notice form part.
Ordinary resolution number 7: Re-election of G Montgomery as a director of the company
“Resolved that G Montgomery be re-elected as a director of the company.”
A brief curriculum vitae is set out in the annual report of which this notice form part.
Ordinary resolution number 8: Re-appointment of the members of the audit and risk committee
“Resolved that the following directors be re-appointed as members of the audit and risk committee:
• CB Brayshaw (Chairman);
• CJM Wood; and
• MD Lamola.”
Ordinary resolution number 9: Re-appointment of auditors
“Resolved that PKF (Jhb) Inc be re-appointed as auditors of the company”
Ordinary resolution number 10: Signature of documentation
“Resolved that any director or the Company Secretary of the company be and is hereby authorised to sign all such documentation and do all such things as may be necessary for or incidental to the implementation of special resolution numbers 1, 2 and 3 as well as ordinary resolution numbers 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 which are passed by the members in accordance with and subject to the terms thereof.”
Statement in terms of section 62(3)(e) of the Companies Act
Shareholders holding certificated shares and shareholders holding shares in dematerialised form in “own name”:
• may attend and vote at the general meeting; alternatively
• may appoint an individual as a proxy (who need not also be a shareholder of the company) to attend, participate in and speak and vote in your place at the general meeting by completing the attached form of proxy and returning it to the registered office of Buildmax Limited or to the transfer secretaries, by no later than 08h30 on 21 November 2011. Alternatively, the form of proxy may be handed to the chairman of the general meeting at the general meeting at any time prior to the commencement of the general meeting. Please note that your proxy may delegate his/her authority to act on your behalf to another person, subject to the restrictions set out in the attached form of proxy. Please also note that the attached form of proxy must be delivered to the registered office of Buildmax Limited or to the transfer secretaries or handed to the chairman of the general meeting, before your proxy may exercise any of your rights as a shareholder of the company at the general meeting.
Please note that any shareholder of the company that is a company may authorise any person to act as its representative at the general meeting. Please also note that section 63(1) of the Companies Act requires that persons wishing to participate in the general meeting (including the aforementioned representative) must provide satisfactory identification before they may so participate.
Notice to owners of dematerialised shares:
Please note that if you are the owner of dematerialised shares held through a CSDP or broker (or their nominee) and are not registered as an “own name” dematerialised shareholder then you are not a registered shareholder of the company, but your CSDP or broker (or their nominee) would be.
Accordingly, in these circumstances, subject to the mandate between yourself and your CSDP or broker as the case may be:
• if you wish to attend the general meeting you must contact your CSDP or broker, and obtain the relevant letter of representation from it; alternatively
• if you are unable to attend the general meeting but wish to be represented at the general meeting, you must contact your CSDP or broker, and furnish it with your voting instructions in respect of the general meeting and/or request it to appoint a proxy. You must not complete the attached form of proxy. The instructions must be provided in accordance with the mandate between yourself and your CSDP or broker, within the time period required by your CSDP or broker.
CSDP’s, brokers or their nominees, as the case may be, recorded in the company’s sub-register as holders of dematerialised shares should, when authorised in terms of their mandate or instructed to do so by the owner on behalf of whom they hold dematerialised shares, vote by either appointing a duly authorised representative to attend and vote at the general meeting or by completing the attached form of proxy in accordance with the instructions thereon and returning it to the registered office of the company or to the transfer secretaries, by no later than 08h30 on 21 November 2011. Alternatively, the form of proxy may be handed to the chairman of the general meeting at the general meeting at any time prior to the commencement of the general meeting.
Voting at the general meeting:
In order to more effectively record the votes and give effect to the intentions of shareholders, voting on all resolutions will be conducted by way of a poll.
By order of the board
Probity Business Services (Pty) Limited
Company Secretary
30 August 2011
Registered address of Buildmax Limited
Situated in the premises of Benoni Sand and Buildware
514 Pretoria Road
Fairleads All
Benoni
1512
(Postnet Suite 435, Private Bag X108, Centurion, 0046)
Transfer Secretaries
Computershare Investor Services (Pty) Limited
70 Marshall Street
Johannesburg
2001
(P0 Box 61051, Marshalltown, 2107)
