1st Nov 2006 07:00
Albidon Limited01 November 2006 ALBIDON LTD NOTICE OF GENERAL MEETING AND EXPLANATORY MEMORANDUM Date of Meeting Thursday, 16 November 2006 Time of Meeting 11:30am (WST) Place of Meeting 62 Colin Street, West Perth, Western Australia ALBIDON LIMITED NOTICE OF GENERAL MEETING NOTICE IS HEREBY GIVEN that a General Meeting of the shareholders of Albidon Ltd("Company") will be held at 62 Colin Street, West Perth, Western Australia onThursday, 16 November 2006, at 11:30am WST for the purpose of transacting thefollowing business. AGENDA An Explanatory Memorandum containing information in relation to each of thefollowing Resolutions accompanies this Notice of General Meeting. BUSINESS 1. RESOLUTION 1 - RATIFICATION OF PLACEMENT To consider and if thought fit, to pass, with or without amendment, thefollowing resolution as an ordinary resolution: - "That pursuant to Australian Stock Exchange ("ASX") Listing Rule 7.4shareholders approve and ratify the issue of 9,500,000 ordinary fully paidshares in the capital of the Company ("Shares") at an issue price of AUD$1.20(or GBP£0.47) each, and otherwise on the terms and conditions and in the mannerdescribed in the Explanatory Memorandum accompanying this Notice." Voting Exclusion - The Company will disregard any votes cast on this Resolution1 by any person who participated in the issue; and any associate of that person.However, the Company need not disregard a vote if it is cast by a person asproxy for a person who is entitled to vote, in accordance with the directions onthe proxy form; or it is cast by the person chairing the meeting as proxy for aperson who is entitled to vote, in accordance with a direction on the proxy formto vote as the proxy decides. 2. RESOLUTION 2 - AMENDMENT TO THE ARTICLES OF ASSOCIATION To consider and if thought fit, to pass, with or without amendment, thefollowing resolution as an ordinary resolution: "That, for the purposes of Section 16 of the International Business CompaniesAct, 1984 (as amended), the Company's Articles of Association be amended inaccordance with the amendments as marked up in the copy of the Company'sArticles of Association contained in Annexure A, such amendments to take effectfrom the date this resolution is passed." By order of the Board Mr Nicholas DayCompany SecretaryDated: 31 October 2006 Proxies -Registered shareholders for the Company only can vote at the meetingeither personally or by proxy, attorney or representative. A shareholderentitled to attend and vote at the above meeting may appoint not more than twoproxies to attend and vote at this meeting. Where more than one proxy isappointed, each proxy must be appointed to represent a specified proportion ofthe shareholder's voting rights. A proxy may but need not be a shareholder ofthe Company. The instrument appointing of a proxy must be in writing, executedby the appointor or his/her attorney duly authorised in writing or, if suchappointer is a corporation, either under seal or under hand of an officer or his/her attorney duly authorised. The instrument of proxy (and the power ofattorney or other authority, if any, under which it is signed) must be lodged byperson, post, courier or facsimile and reach the Registered office of theCompany not later than 6.00 pm Western Australian Standard Time on Tuesday, 14November 2006. For the convenience of shareholders a Proxy Form is enclosed withnotices sent to shareholders. A shareholder that is a corporation may elect toappoint a representative in accordance with the Articles of Association in whichcase the Company will require written proof of the representative's appointmentwhich must be lodged with, or presented to the Company not later than 6.00 pmWestern Australian Standard Time on Tuesday, 14 November 2006. CHESS Depositary Interests - Holders of CHESS Depositary Interests ("CDI") areinvited to attend the meeting but are not entitled to vote at the meeting. Inorder to have votes cast at the Meeting on their behalf, CDI holders mustcomplete, sign and return the CDI Notice of Direction enclosed with the Noticesent to them to Computershare Investor Services Pty Limited, Level 2, 45 StGeorges Terrace, Perth, WA 6000, Australia or GPO Box D182, Perth WA 6840,Australia so that CDI holders can direct CHESS Depositary Nominees Pty Ltd tovote the underlying shares on their behalf. The CDI Notice of Direction needs tobe received at the address shown on the form by not later than 6.00 pm WesternAustralian Standard Time on Tuesday, 14 November 2006. CREST Depositary Interests- Holders of CREST Depositary Interests ("CRDI") areinvited to attend the meeting but are not entitled to vote at the meeting. Inorder to have votes cast at the Meeting on their behalf, CRDI holders mustcomplete, sign and return the instruction form enclosed with the Notice sent tothem to Computershare Investor Services PLC, PO BOX 82, The Pavilions,Bridgewater Road, Bristol BS99 7NH so that CRDI holders can direct ComputershareCompany Nominees Limited to vote the underlying shares on their behalf. TheInstruction Form needs to be received at the address shown on the form by notlater than 6.00 pm Western Australian Standard Time (being 10.00 am London Time)on Tuesday, 14 November 2006. ALBIDON LTD ABN 86 107 288 755 EXPLANATORY MEMORANDUM This Explanatory Memorandum is intended to provide shareholders with sufficientinformation to assess the merits of the Resolutions contained in theaccompanying Notice. The Directors recommend that shareholders read this Explanatory Memorandum infull before making any decision in relation to the Resolutions. RESOLUTION 1 - RATIFICATION OF PLACEMENT The Company previously announced on 11 October 2006 the completion of theplacement of 39,500,000 Shares ("Placement") at an issue price of AUD$1.20 (orGBP£0.47) raising AUD$47million (or GBP£18.6million) (before expenses). Under Chapter 7 of the ASX Listing Rules, there are limitations on the capacityof the Company to enlarge its capital by the issue of equity securities. ASXListing Rule 7.1 provides generally that a company may not issue Shares oroptions to subscribe for Shares equal to more than 15% of the company's issuedshare capital in any 12 months without obtaining shareholder approval. The issue of up to 30,000,000 Placement Shares was approved by shareholders atthe Company's general meeting on 29 September 2006. The balance of thePlacement Shares, being 9,500,000 Shares, was issued using the Company's 15%capacity under Listing Rule 7.1. Listing Rule 7.4 permits the ratification of previous issues of securities madewithout prior shareholder approval, provided the issue did not breach the 15%threshold set by Listing Rule 7.1. The effect of such a ratification is torestore a company's maximum discretionary power to issue further shares up to15% of the issued capital of the company without requiring shareholder approval. Shareholder approval for the Placement is now sought pursuant to ASX ListingRule7.4. For the purpose of Listing Rule 7.4,the following additional information isprovided pursuant to Listing Rules 7.5 : 1. the maximum number of securities to be ratified under this Resolution is9,500,000 Shares; 2. the Shares have been issued at a price AUD$1.20 (or GBP£0.47) each; 3. the allottees were the Royal Bank of Canada (who had arranged to placethe Shares with institutional clients in Australia and Asia) and NumisSecurities Limited (who had arranged to place the Shares with institutionalclients in the United Kingdom); 4. the Shares are fully paid ordinary shares ranking pari passu in allrespects with all other ordinary shares in the Company on issue; and 5. the purpose of the raising is to assist in the funding of the MunaliProject. As previously announced on 11 October 2006, the balance of the fundsrequired will be provided by debt. The Company will also retain a modest cashreserve for working capital purposes. The Board recommends shareholders vote in favour of this Resolution as it allowsthe Company to ratify the Placement and retain the flexibility to issue furtherequity securities representing up to 15% of the Company's share capital duringthe next 12 months. RESOLUTION 2 - AMENDMENT TO THE ARTICLES OF ASSOCIATION Under Section 16 of the International Business Companies Act 1984 (as amended)("International Business Companies Act"), a company registered under theInternational Business Companies Act may modify its Articles of Association byordinary resolution. Resolution 2 seeks shareholder approval, by ordinary resolution, to amend thefollowing articles of the Company's Articles of Association: • article 1.1 - Definitions; • article 2.7 - Uncertificated Holdings and Electronic Transfer; • article 5.4 - Directors' Powers to Decline to Register; • article 7 - Failure to Disclose Interests in Shares; and • article 11.7 - Voting Rights. The proposed amendments are as marked up in the copy of the Company's Articlesof Association contained in Annexure B and are to take effect on the date thisresolution is passed. Article 2.7 The Company has amended this article to set out in detail the provisionsregarding the holding of the Company's securities in uncertificated form. The amended Article 2.7(a) provides that the Directors have power to implementany arrangements they may reasonably think fit in relation to the evidencing oftitle to and transfer of an uncertificated share, subject to the "Regulations"and the "BVI Statutes", as defined in the Articles of Association. Article 5.4 Article 5.4 has been amended to include another possible situation where theDirectors may decline to register any transfer of shares, that is, where theshares to be transferred are at the relevant time the subject of a voting rightssuspension under Article 7.2 or Article 11.7; or at the relevant time thesubject of an issue, or any application to, or commencement of, any courtprocedure in relation to a voting rights suspension under Article 7.2 or Article11.7. Articles 11.7 and 7 As the Company is incorporated pursuant to the laws of the British VirginIslands ("BVI"), neither the Company nor its shareholders receive the benefit ofthe shareholder protection mechanisms available to companies incorporated inAustralia (pursuant to Chapter 6 of the Corporations Act) and the United Kingdom(pursuant to the City Code on Takeovers and Mergers) ("City Code"). Further,neither the International Business Companies Act (Cap. 21) nor any other BVIlaws contain any laws regulating the takeover of companies. In the absence of adequate shareholder protection mechanisms, shareholders maynot be afforded a reasonable opportunity to participate equally in the benefitsoffered by a person seeking control of the Company, or would not receive anycompensation in the form of a "control premium" which would ordinarily be paidby a person obtaining control of the Company. Indeed, under the laws of theBVI, shareholders may not even be aware of any attempt by a person to gaincontrol of the Company. Accordingly, in order to mitigate the lack of that protection which is generallyavailable to shareholders in Australian and UK incorporated companies, theCompany intends, with shareholder approval by ordinary resolution, to amend itsArticles of Association, to include shareholder protection mechanisms inArticles 11.7(c), 11.7(d), 11.7(e) and 11.7(f), the primary purpose of which isto ensure, as far as possible, the fair treatment for all shareholders in theevent of a change of control of the Company. Although the BVI does not currently regulate takeovers of changes of control ofBVI companies, BVI incorporated companies such as Albidon that wish to establishshareholder protection mechanisms for the benefit of their shareholders mayadopt articles which regulate the acquisition of shares in the company or suchother provisions as are deemed appropriate by the company to regulate theconduct of the affairs of the company. Summary of Articles 11.7 and 7 Article 11.7(c) grants the directors power to suspend the voting rights ofpersons in the circumstances set out in Articles 11.7(c)(i) and (ii). That is,the board can disenfranchise shareholders under Articles 11.7(c) if a person("Non-Compliant Offeror") does not make a mandatory offer under Article 11.7(c)(i) ("Mandatory Offer") or makes an offer that is not a Mandatory Offer underArticle 11.7(c)(ii) ("Voluntary Offer"), other than in accordance with thoseArticles. (a) Articles 11.7(c)(i) and 11.7(d) - Mandatory Offer Under Article 11.7(c)(i), if a person or persons acting with him or her fails tomake a Mandatory Offer to acquire all of the shares held by other shareholderswhere he or she would be required to make a mandatory offer if the City Code orany subsequent takeover regime in the UK (the "Takeover Regime") applied (underthe current rules of the City Code, this is where persons acting togetherincrease their holding beyond 30% of the issued share capital or, where personsacting together holding between 30% and 50% increase their holding), the boardcan suspend all voting rights attributable to the shares held by that person orthose persons acting with him or her until that person makes a Mandatory Offerin compliance with Article 11.7(c)(i) (except that such suspension shall notsurvive beyond such time as the obligation to make a Mandatory Offer would havecontinued to exist under the Takeover Regime). Article 11.7(d) states that the board can only exercise its right of suspensionafter obtaining a determination from a court of competent jurisdiction in theBVI or any place in which the Company is registered ("Court") that a breach ofArticle 11.7(c)(i) has occurred and is continuing. The board must act inaccordance with such determination, including with respect to any remedies whichthe expert requires or allows the Company to exercise. The board may determine who is "acting together" for the purposes of whether aMandatory Offer should be made. Article 11.7(c)(i) requires the terms of a Mandatory Offer to be no lessfavourable to the other shareholders than the offeror would have been obliged tooffer had the Takeover Regime applied. (b) Articles 11.7(c)(ii) and 11.7(d) - Voluntary Offer Under Article 11.7(c)(ii), if a person makes a Voluntary Offer to acquire sharesof the Company which, if accepted in full, would result in the person holdingover 50% of the voting interest in the Company and fails to comply with therequirements set out in this Article, the board can suspend all voting rightsattributable to the shares held by that person or those persons acting with himor her until that person makes a Voluntary Offer in compliance with Article 11.7(c)(ii). Article 11.7(d) states that the board can only exercise its right of suspensionafter obtaining a determination from a Court that a breach of Article 11.7(c)(ii) has occurred and is continuing. The board must act in accordance with suchdetermination, including with respect to any remedies which the Court requiresor allows the Company to exercise. (c) Article 11.7(e) - Further Provisions Article 11.7(e) sets out further provisions applicable to a Mandatory Offer anda Voluntary Offer. Where the Takeover Regime provisions are adopted and these include reference toan action of the UK Panel on Takeovers and Mergers (or any other independentbody) ("Panel"), such action is deemed to be incorporated into the Articles asan action of an independent expert appointed under Article 11.7(f) (e.g. wherethe Panel needs to consent to a different timetable, such right of consent isgiven to the independent expert). Before an independent expert is appointed pursuant to Article 11.7(f), the boardcan carry out, or delegate to a "Technical Expert" (appointed under 11.7(e)(ii)), the powers that would otherwise be granted to the independent expert.Once the independent expert is appointed, the board will not be entitled toexercise or delegate such powers. (d) Article 11.7(f) As noted above, an independent expert may be appointed (whose appointment is tobe either agreed between the Non-Compliant Offeror and the Company or, if nosuch agreement can be reached, appointed by the President from time to time ofthe Law Society of England and Wales) to carry out a similar role to that of thePanel. The decision of an expert appointed under Article 11.7(f) is binding and finalexcept in the event of manifest error. (e) Article 7 The Company also wishes to incorporate Article 7, the purpose of which is togrant the Directors authority to request disclosure as to the identity ofpersons beneficially interested in shares of the Company. The Directors havepower under Article 7 to enforce sanctions disenfranchising any shareholderfailing to co-operate by suspending rights to vote and dividends, and to havetransfers registered (the latter two sanctions to apply if the shares heldexceed a threshold of 0.25% of any class), provided that the Directors obtain adetermination from a Court permitting enforcement of the relevant sanctions.These powers are similar to those that would be available to UK public limitedcompanies under English law. Under Article 7.10, the provisions of disclosure will apply to personsbeneficially interested in depositary interests in the UK. The provisions in Article 7 may be used in conjunction with Article 11.7(c)where the Directors may wish to establish the extent of the interest of anofferor to determine whether a Compliant Offer should have been made. Enquiries Shareholders can contact Mr Nick Day, Company Secretary, on +61 8 9211 4600 ifthey have any queries in respect of the matters set out in these documents. GLOSSARY "ASX" means Australian Stock Exchange Limited; "AIM" means AIM, a market operated by the London Stock Exchange. "Board" means the board of Directors; "Company" or "Albidon" means Albidon Ltd; "Corporations Act" means Corporations Act 2001 of the Commonwealth of Australia; "Directors" means the directors of Albidon from time to time; "Explanatory Memorandum" means this explanatory memorandum attached to theNotice, which provides information to shareholders about the Resolutionscontained in the Notice; "Listing Rules" means the Listing Rules of ASX; "Notice" means the notice of general meeting which accompanies this ExplanatoryMemorandum; "Resolution" means a resolution contained in the Notice; "Shares" means fully paid ordinary shares issued in the capital of the Company;and "WST" means Australian Western Standard Time. Annexure A - Proposed Amendments to the Company's Articles of Association underResolution 2 To view this annexure please click on the hyperlink below: http://www.rns-pdf.londonstockexchange.com/rns/3412l_-2006-11-1.pdf This information is provided by RNS The company news service from the London Stock ExchangeRelated Shares:
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