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LIVIUM LTD — Proxy Solicitation & Information Statement 2009
Aug 19, 2009
65239_rns_2009-08-19_73c0f4fd-3369-42f4-a773-2284f44a1cfb.pdf
Proxy Solicitation & Information Statement
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MIDWINTER RESOURCES NL (ACN 126 129 413)
NOTICE OF GENERAL MEETING
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EXPLANATORY STATEMENT
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PROXY FORM
DATE AND TIME OF MEETING: 22 September 2009 at 10.00am
VENUE: Celtic Club The President's Room 48 Ord Street WEST PERTH Western Australia 6005
These documents should be read in their entirety. If shareholders are in any doubt as to how they should vote, they should seek advice from their accountant, solicitor or other professional advisor.
NOTICE OF MEETING
Notice is hereby given that a General Meeting of the members of Midwinter Resources NL ("Midwinter" or the "Company") will be held at the Celtic Club, The President's Room, 48 Ord Street, West Perth, Western Australia 6005, at 10.00am, 22 September 2009.
The Explanatory Statement that accompanies and forms part of this Notice of Meeting describes in more detail the matters to be considered.
AGENDA
BUSINESS
To consider and, if thought fit, to pass, with or without modification, the following ordinary resolution:-
$\mathbf{1}$ . Ordinary Resolution 1: - Issue of Options
To consider and, if thought fit, to pass, with or without amendment, the following resolution as an ordinary resolution:
"That, for the purposes of Listing Rule 7.1 of the Listing Rules of ASX Limited and for all other purposes, the Company is authorised to issue up to 18,350,001 options at 0.2 cents each, exercisable at 25 cents each on or before 30 November 2011 and otherwise on the terms and conditions set out in the Explanatory Statement accompanying this Notice."
Voting Exclusion: For the purposes of Listing Rule 7.1, the Company will disregard any votes cast on this resolution by any person who may participate in the proposed issue and a person who may obtain a benefit, except a benefit solely in the capacity of a holder of ordinary securities, if the resolution is passed, and any associates of those persons. However the Company need not disregard a vote if:
- (a) it is cast by a person as proxy for a person who is entitled to vote, in accordance with the directions on the proxy form; or
- (b) it is cast by the person chairing the meeting as proxy for a person who is entitled to vote, in accordance with a direction on the proxy form to vote as the proxy decides.
$2.$ Ordinary Resolution 2: - Participation of some of the Directors in the Option Issue the subject of Resolution 1
To consider and, if thought fit, to pass the following resolution as an ordinary resolution:
"That, subject to Resolution 1 being approved, for the purposes of Listing Rule 10.11 of the Listing Rules of ASX Limited and for all other purposes, Mr Philip Miolin, Mr David Seymour and Benbecca Pty Ltd (an associate of Mr David Seymour), who are both directors of the Company, are authorised to apply for and be issued up to an aggregate of 260,000 options (the subject of Resolution 1) on the terms and conditions set out in the Explanatory Statement."
Voting Exclusion: The Company will disregard any votes cast on this Resolution by Mr Philip Miolin, Benbecca Pty Ltd and Mr David Seymour (or their respective nominees) or any of their associates.
PROXIES
- $\mathbf{L}$ A member entitled to attend and vote at a meeting of the Company is entitled to appoint not more than two proxies to attend and vote instead of the member. If two proxies are appointed, and a member does not specify the proportion or number of the member's votes each proxy may exercise, each proxy may exercise half the votes. A proxy need not be a member of the Company.
- $2.$ In order to vote on behalf of a company that is a shareholder of Midwinter, a valid Power of Attorney in the name of the attendee, must be either lodged with the Company prior to the General Meeting, or be presented at the General Meeting before registering on the attendance register for the General Meeting.
- Forms to appoint proxies, and the Power of Attorney (if any) under which they are 3. signed, must be lodged at the registered office of the Company, at Level 1, 22 Oxford Close, West Leederville Western Australia 6007, or by facsimile (61 8) 9381 5911 not less than 48 hours before the time of the General Meeting or resumption of an adjourned meeting at which the person named in the instrument proposes to vote.
- An instrument appointing a proxy: $\overline{4}$
- a) shall be in writing under the hand of the appointor or of his attorney, or if the appointor is a corporation, either under seal or under the hand of a duly authorised officer or attorney;
- b) may specify the manner in which the proxy is to vote in respect of a particular resolution and, where an instrument of proxy so provides, the proxy is not entitled to vote on the resolution except as specified in the instrument;
- c) shall be deemed to confer authority to demand or join in demanding a poll;
- d) shall be in such form as the Directors determine and which complies with Section 250A of the Corporations Act 2001;
- e) proxies appointing the Chairman which do not specify the way in which the proxy is to vote on a particular resolution will be recorded as voting in favour of the resolutions.
ATTENDANCE AND VOTING ELIGIBILITY
For the purpose of regulation 7.11.37 of the Corporations Regulations 2001, the Directors have determined that Shares held at 5.00pm WST on Friday 18 September 2009 will be taken, for the purposes of this General Meeting, to be held by the persons who held them at that time.
BY ORDER OF THE BOARD
Philip Miolin Director Dated: 20 August 2009
Midwinter Resources NL ABN 29 126 129 413
INTRODUCTION
This Explanatory Statement has been prepared for the information of the Shareholders in connection with the business to be conducted at the General Meeting to be held at 10.00am (WST) on 22 September 2009 at The Celtic Club, 48 Ord Street, West Perth, Western Australia.
This purpose of this Explanatory Statement is to provide information which the Directors believe to be material to Shareholders in deciding whether or not to pass the Resolutions in the Notice of Meeting.
RESOLUTION 1 - ISSUE OF OPTIONS
$1.1$ Background
Resolution 1 seeks shareholder approval for the issue (Options Issue) of up to 18,350,001 Options. Options will be offered to all persons registered as the holder of Listed Options at 5:00pm (WST) 30 September 2009 on the basis of one new Option for every Listed Option held. Directors reserve the right, at their absolute discretion, to issue any Options not taken up under the Options Issue to unrelated and non-associated parties. The Options Issue will raise up to approximately \$36,700, before costs.
$1.2$ Indicative Timetable
Set out in the table below is the expected timing for completion of the Option Issue. These dates are indicative only and may be varied without prior notice.
| Lodgement of prospectus with ASIC | 22 September 2009 |
|---|---|
| General Meeting of Existing Shareholders | 22 September 2009 |
| Record Date | 30 September 2009 |
| Prospectus offer opens | 7 October 2009 |
| Prospectus offer closes | 21 October 2009 |
| Allotment of Options | 22 October 2009 |
$1.3$ Capital Structure
On completion of the Option Issue and allotment of the Options contemplated by Resolution 1 the capital structure of the Company will be as follows:
| Shares | Listed Options |
Unlisted Options |
Partly paid shares |
|
|---|---|---|---|---|
| As at date of General Meeting | 25,000,002 | 18,350,001(i) | 200,000 (iii) .700.000 (iv) |
11,700,000 |
| Post Option Issue | 25,000,002 | 18,350,001(ii) | 200,000 (iii) 700.000 (iv) |
11,700,000 |
The Listed Options the Company have an exercise price of \$0.25 cents with an expiry date of 30 $\left($ i) September 2009.
The Options to be issued under the Option Issue will have an exercise price of \$0.25 cents and an expiry $(ii)$ date of 30 November 2011.
- $(iii)$ These unlisted options have an exercise price of \$0.50 cents with an expiry date of 14 February 2010.
- $(iv)$ These unlisted options have an exercise price of \$0.30 cents with an expiry date of 19 November 2013.
$1.4$ Regulatory Requirements - ASX Listing Rule 7.1
ASX Listing Rule 7.1 provides that a company must not, subject to specified exceptions, issue or agree to issue during any 12 month period any equity securities, or other securities with rights to conversion to equity (such as an option), if the number of those securities exceeds 15% of the number of ordinary securities on issue at the commencement of that 12 month period.
ASX Listing Rule 7.3 requires that the following information be disclosed to Shareholders for the purposes of obtaining Shareholder approval pursuant to ASX Listing Rule 7.1:
Midwinter Resources NL ABN 29 126 129 413
- the maximum number of Options to be issued by the Company pursuant to Resolution 1 is 18,350,001 $(a)$ Options:
- it is intended that the issue and allotment of the Options will take place following completion of the $(b)$ Options Issue but in any event will take place no later than three (3) months after the date of the general meeting (or such later date as permitted by ASX);
- the Options will be issued at 0.2 cents per Option; $\mathcal{L}$
- the terms of the Options are set out in Annexure A; $(d)$
- subject to Resolution 2 being approved, related parties and their associates will be entitled to $(e)$ participate in the Options Issue and may elect to take up their respective entitlement if they are a holder of Listed Options on the record date; and
- funds raised from the Options Issue will be used to cover the costs of the Options Issue with any $(f)$ remainder aoing to the working capital of the Company.
RESOLUTION 2 - PARTICIPATION OF DIRECTORS IN OPTIONS ISSUE
$2.1$ Background
Pursuant to Resolution 1, the Company is seeking approval to undertake the Options Issue to holders of Listed Options in the Company. The purpose of Resolution 2, is to enable the Company to issue Options to the Directors who seek to participate in the Options Issue to the extent of their holding of Listed Options.
Resolution 2 seeks approval for the issue of up to 260,000 Options to the Directors of the Company under the Options Issue, being the aggregate holding of Listed Options of the Directors who hold Listed Options in the Company.
$2.2$ ASX Listing Rules
A summary of ASX Listing Rule 7.1 is outlined in Section 1.4 above.
ASX Listing Rule 10.11 provides that a company may not agree to issue securities to a related party of the company (including a Director) without shareholder approval to that issue. ASX Listing Rule 7.2 provides that where approval is obtained under ASX Listing Rule 10.11, approval is not required under ASX Listing Rule 7.1.
The Company is seeking approval under ASX Listing Rule 10.11 to enable directors, as related parties of the Company, who hold Listed Options either directly or indirectly, to be able to participate to the extent of their entitlement under the Options Issue.
In addition to the information outlined in Section 1.4 above, the following additional information is included as required under ASX Listing Rule 10.13:
the names of the related parties who will be entitled to participate in the Options Issue as a holder of $(a)$ Listed Options are:
| Related Party Additional Property Related Party | Example 1 Number of Listed Options Held |
|---|---|
| Philip Miolin (Director) | |
| Benbecca Pty Ltd (a company controlled by David Seymour (Director)) | 40.000 |
| David Seymour (Director) | 120.000 |
- it is intended that the issue of the Options will taken place at the same time as all other Options are $(b)$ issued to holders of Listed Options under the Options Issue. The Options will issued to the related parties within 1 month from the date of the general meeting or such later date as ASX may permit.
- the total number of Options that may be issued to the related parties outlined above is 260,000 Options, $(C)$ assuming that each of the related parties takes up their full entitlement under the Options Issue;
- the Options will be issued at the same price and on the same terms as the Options the subject of $(d)$ Resolution 1. Refer to Section 1.4 above for further information; and
- any funds raised pursuant to Resolution 2 shall be combined with the funds raised under Resolution 1 $(e)$ and used as outlined in Section 1.4(f) above.
$3.$ ENQUIRIES
Shareholders are required to contact Piers Lewis on (+ 61 8) 9388 2816 if they have any queries in respect of the matters set out in these documents.
Midwinter Resources NL ABN 29 126 129 413
GLOSSARY OF TERMS 4.
In this Explanatory Statement:
| "S" | means Australian dollars. | |
|---|---|---|
| "ASX" | ASX Limited (ACN 008 624 691) trading as the Australian Securities | |
| Exchange. | ||
| "ASX Listing Rules" or "Listing Rules" | The Official Listing Rules of ASX as amended from time to time. | |
| "Directors" | The current directors of the Company | |
| "Explanatory Statement" | The explanatory statement accompanying the Notice of Meeting. | |
| "General Meeting" | The meeting convened by the Notice of Meeting. | |
| "Listed Option" | The options issued by the Company and listed on the Australian | |
| Securities Exchange under ASX code MWNO. | ||
| "Midwinter" | Midwinter Resources NL (ABN 29 126 129 413). | |
| "Notice of Meeting" | The notice convening the Meeting, which accompanies this | |
| Explanatory Statement. | ||
| "Option" | An option to acquire a Share with the terms and conditions set out | |
| in Annexure A. | ||
| "Options Issue" | The pro rata issue of Options to holders of Listed Options on the | |
| basis of one (1) new Option for every one (1) Listed Option held by | ||
| holders of Listed Options as at 30 September 2009 at an issue price | ||
| of 0.2 cents per Option. | ||
| "Share" | A fully paid ordinary share in the capital of the Company. | |
| "Shareholder" | The registered holder of a Share in the Company. | |
| "WST" | Western Standard Time as observed in Perth, Western Australia. |
Annexure A - Terms and Conditions of Options
Midwinter Resources NL (Company) hereby grants the right to subscribe for one fully paid ordinary share in the capital of the Company (Share) on the following terms and conditions (Option).
- Each Option is exercisable into one Share by paying \$0.25 (Exercise Price) at any time on or before $(a)$ 5.00pm (Western Australian Standard Time) on 30 November 2011 (Expiry Date).
- Options may be exercised by delivering the form prescribed by the Company from time to time for $(b)$ the purpose of exercising Options (Exercise Notice) to the Company's registered office or the Company's share registry at any time prior to the Expiry Date.
- The Exercise Notice must state the number of Options to be exercised and be accompanied by the $(c)$ relevant holding statement(s) and a cheque (in Australian currency) made payable to the Company for an amount being the result of the Exercise Price multiplied by the number of Options being exercised.
- As soon as practical following receipt of a properly executed Exercise Notice and application monies $(d)$ in respect of the exercise of any Options, the Company will issue the resultant Shares and deliver notification of shareholdings.
- The Company shall make application to have the Shares (issued pursuant to an exercise of Options) $(e)$ listed for quotation by ASX within 7 days of the date of issue.
- Shares issued pursuant to an exercise of Options shall rank, from the date of issue, pari passu with $(t)$ existing Shares of the Company in all respects.
- An Option has no right to participate in pro rata issues of securities to shareholders unless the Option is $(q)$ exercised before the record date for determining entitlements to the relevant pro rata issue. Each person or persons registered as the holder of an Option from time to time will be notified by the Company of any proposed pro rata issue of securities to shareholders in accordance with ASX Listing Rules.
- In the event the Company proceeds with a bonus issue of securities to Shareholders after the date of $(h)$ issue of the Options, the number of securities over which an Option is exercisable may be increased by the number of securities which the Option Holder would have received if the Option had been exercised before the record date for the bonus issue
- In the event of a reorganisation (including reconstruction, consolidation, subdivision, reduction, or $(i)$ return) of the capital of the Company, the terms of the Options will be changed to the extent necessary to comply with the requirements of ASX Listing Rules (in force at the time of the reorganisation) for the reorganisation of capital.
Midwinter Resources NL ABN 29 126 129 413
PROXY FORM
The Secretary Midwinter Resources NL Level 1, 22 Oxford Close West Leederville WA 6007
being a member/members of Midwinter Resources NL (the "Company") hereby appoint
| Print proxy's name in full of |
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|---|---|---|---|---|
| print proxy's address and (if you wish to appoint two proxies) |
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| print second proxy's name in full | ||||
| of | ||||
| print second proxy's address | ||||
| or, in the proxy's/proxies' absence or if no other appointee is mentioned, the Chairman of the meeting as my/our proxy/proxies to vote for me/us on my/our behalf at the General Meeting of the Company to be held at the Celtic Club, The President's Room, 48 Ord Street, West Perth, Western Australia, 6005, at 10.00am, 22 September 2009 and at any adjournment of that meeting in respect of ……………………of my/our shares or, failing any number being specified, ALL of my/our shares. |
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| If the Chairman of the General Meeting is appointed as your proxy, or may be appointed by default and you do not wish to direct your proxy how to vote, please place a mark in the box. |
† | |||
| By marking this box, you acknowledge that the Chairman of the General Meeting may exercise your proxy even if he has an interest in the outcome of the resolutions and that votes cast by the Chairman of the General meeting for those resolutions other than as a proxy holder will be disregarded because of that interest. If you do not mark this box, and you have not directed your proxy how to vote, the Chairman will not cast your votes on the resolution and your votes will not be counted in calculating the required majority if a poll is called on the resolution. |
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| If you wish to indicate how your proxy is to vote, please tick the appropriate places below. If no indication is given on the resolution, the proxy may abstain or vote at his or her discretion. I/We direct my/our proxy to vote as indicated below: |
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| RESOLUTION | FOR | AGAINST | ABSTAIN | |
| 1. Issue of Options |
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| 2. Participation of some of the Directors in the Option Issue the subject of Resolution 1 |
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| Note: 1. If you have appointed two proxies the proportion of your voting rights allocated to each proxy is: Proxy No. 1 _% Proxy No. 2 _%. 2. If the appointment of a proxy is signed by the appointor's attorney, this form must |
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| be accompanied by the authority under which the appointment was signed, or a |
certified copy of the authority.
The completed Form of proxy may be:
• Mailed to the address on this form; or
• Faxed to the Company on (08) 9381 5911
Midwinter Resources NL ABN 29 126 129 413
PROXY FORM
| Signed this | day of | 2009 | |
|---|---|---|---|
| If a natural person: | |||
| SIGNED by in the presence of: |
) ) ) |
(Signature) | |
| (Signature of Witness) | |||
| (Name of Witness in full) | |||
| If a Company: | |||
| EXECUTED by (ACN accordance with section 127 of the Corporations Act 2001: |
) in | ) ) ) ) |
|
| (Signature of Secretary/other Director) | (Signature of Director/Sole Director) | ||
| (Name of Secretary/other Director in full) | (Name of Director/Sole Director in full) |
PROXY VOTES
A vote given in accordance with the terms of an instrument or proxy is valid notwithstanding the previous death or unsoundness of mind of the principal, the revocation of the instrument (or the authority under which the instrument was executed), or the transfer of the Share in respect of which the instrument or power is given, if no intimation in writing of the death, unsoundness of mind, revocation or transfer has been received by the Company at the Registered Office before the commencement of the General Meeting or adjourned General Meeting at which the instrument is used or the power is exercised.
REPRESENTATIVES OF CORPORATE SHAREHOLDERS
A body corporate ("the Appointor") that is a Shareholder may authorise, in accordance with Section 250D of the Corporations Act 2001, by resolution of its Directors or other governing body such person or persons as it may determine to act as its Representative at any General Meeting of the Company or of any class of Shareholders. A person so authorised shall be entitled to exercise all the rights and privileges of the Appointor as a Shareholder. When a Representative is present at a General Meeting of the Company, the Appointor shall be deemed to be personally present at the General Meeting unless the Representative is otherwise entitled to be present at the General Meeting.