NOTICE OF 2022 ANNUAL GENERAL MEETING AND EXPLANATORY MEMORANDUM
Date and Time of Meeting:
21 November 2022 at 4.00pm
Place of Meeting:
Level 2, 62 Lygon Street, Carlton, Victoria, Australia 3053
This Meeting will likely be held in person on the above venue and won’t be held virtually. Shareholders are strongly encouraged to lodge their accomplished Proxy Forms in accordance with the instructions on this Notice of Meeting (Notice).
To appoint your proxy online, visit https://investor.automic.com.au/#/loginsah and follow the instructions on that website. Online appointments of proxies should be done by 4.00 pm (Melbourne time) on 19 November 2022.
This Notice might be viewed and downloaded from the Company’s website at www.immuron.com.au/company-securities-exchange-announcements/ or the ASX at www2.asx.com.au.
Immuron Limited encourages all shareholders to offer our share registry an email address so we will communicate with you electronically when shareholder notices grow to be available online, for items resembling meeting documents and annual reports. By providing your email address, you’ll:
| ● | Support the corporate by reducing the fee of mailing/postage |
| ● | Receive your investor communications faster and in a safer way |
| ● | Help the environment through the necessity for less paper |
|
This Notice of Annual General Meeting and Explanatory Memorandum needs to be read in its entirety. When you are unsure as to how you can vote on any of the Resolutions, you need to seek advice out of your accountant, solicitor or other skilled adviser at once. |
IMMURON LIMITED
ACN 063 114 045
Notice of 2022 Annual General Meeting
Notice is on condition that a general meeting of the shareholders of Immuron Limited ACN 063 114 045 (Company or Immuron) will likely be held at Level 2, 62 Lygon Street, Carlton, Victoria, Australia 3053 on Monday, 21 November 2022 at 4.00pm (Melbourne time) for the aim of considering and if thought fit passing the resolutions as stated below.
Please note that additional information in regards to the proposed resolutions is contained within the Explanatory Memorandum that accompanies and forms a part of this Notice of Annual General Meeting. Voting Exclusions to some the next resolutions appear below and are deemed to form a part of this Notice.
Financial statements and reports
To receive and consider the financial statements and the reports of the Directors and of the Auditors for the yr ended 30 June 2022.
Resolution 1: Adoption of Remuneration Report
To think about and, if thought fit, pass the next resolution as an unusual resolution:
“That the Remuneration Report for the yr ended 30 June 2022 as set out within the Company’s Annual Report for the yr ended 30 June 2022 be adopted.”
| Voting exclusion: | ||
| The Company will disregard any vote solid on Resolution 1 by, or on behalf of: | ||
| (a) | a member of the Key Management Personnel, details of whose remuneration are included within the remuneration report; or | |
| (b) | a closely related party of such a member. | |
| Nevertheless, an individual (the Voter) described above may solid a vote on the resolution as a proxy if the vote will not be solid on behalf of an individual described above and either: | ||
| (a) | the Voter is appointed as a proxy by writing that specifies the best way the proxy is to vote on the Resolution; or | |
| (b) | the Voter is the chair of the meeting and the appointment of the chair as proxy: | |
| (i) doesn’t specify the best way the proxy is to vote on the Resolution; and | ||
| (ii) expressly authorises the chair to exercise the proxy even when the resolution is connected directly or not directly with the remuneration of a member of the Key Management Personnel for the Company. |
| * | Please note that section 250R(3) of the Corporations Act 2001 (Cth) provides that the vote on this resolution is advisory only and doesn’t bind the Directors or the Company |
Resolution 2: Re-election of Mr Stephen Anastasiou
To think about and, if thought fit, to pass the next resolution as an unusual resolution:
“That pursuant to the Company’s Structure and for all other purposes, the members of the Company approve the re-election of Mr Stephen Anastasiou as a Non-Executive Director of the Company, who pursuant to clause 13.3 of the Company’s Structure is retiring by rotation and being eligible offers himself for re-election.”
Resolution 3: Re-election of Prof. Ravi Savarirayan
To think about and, if thought fit, to pass the next resolution as an unusual resolution:
“That pursuant to the Company’s Structure and for all other purposes, the members of the Company approve the re-election of Prof. Ravi Savarirayan as a Non-Executive Director of the Company, who pursuant to clause 13.3 of the Company’s Structure is retiring by rotation and being eligible offers himself for re-election.”
Resolution 4: Election of Mr Paul Brennan
To think about and, if thought fit, to pass the next resolution as an unusual resolution:
“That Shareholders elect Mr Paul Brennan, who was appointed as a director by the Board on 16 March 2022 to fill an informal emptiness, whose appointment as a director expires at this Annual General Meeting in accordance with Listing Rule 14.4, and being eligible, offers himself for election by Shareholders.”
Resolution 5: Approval of increased placement capability
To think about and, if thought fit, to pass the next resolution as a special resolution:
“That pursuant to and in accordance with ASX Listing Rule 7.1A and for all other purposes, Shareholders approve the rise within the capability of the Company to issue equity securities as much as 10% of the issued capital of the Company (on the time of the problem) calculated in accordance with the formula prescribed in Listing Rule 7.1A.2 and on the terms and conditions stated within the Explanatory Memorandum which accompanies this Notice of Meeting.”
| Voting exclusion: | ||
| The Company will disregard any vote solid in favour of Resolution 5 by, or on behalf of: | ||
| (a) | if on the time the approval of Resolution 5 is sought the Company is proposing to make a difficulty of securities under rule 7.1A.2, any one that is predicted to take part in, or who will obtain a cloth profit consequently of, the proposed issue (except a profit solely by reason of being a holder of unusual securities within the Company; or | |
| (b) | an associate of such a member. | |
| Nevertheless, this doesn’t apply to a vote solid in favour of Resolution 5 by: | ||
| (a) | an individual as proxy or attorney for a one that is entitled to vote on the resolution, in accordance with the directions given to the proxy or attorney to vote on the resolution in that way; | |
| (b) | the chair of the meeting as proxy or attorney for a one that is entitled to vote on the resolution, in accordance with a direction given to the chair to vote on the resolution because the chair decides; or | |
| (c) | a shareholder acting solely in a nominee, trustee, custodial or other fiduciary capability on behalf of a beneficiary provided the next conditions are met: | |
| (i) | the beneficiary provides written confirmation to the shareholder that the beneficiary will not be excluded from voting, and will not be an associate of an individual excluded from voting, on the resolution, and | |
| (ii) | the shareholder votes on the resolution in accordance with directions given by the beneficiary to the shareholder to vote in that way. |
Resolution 6: Approval to Amend Structure – virtual meetings
To think about and, if thought fit, pass the next resolution as a special resolution:
“That pursuant to section 136(2) of the Corporations Act and for all other purposes, the members of the Company approve the amendment of clause 12.23 of the Company’s Structure to allow the Company to carry virtual meetings of members in accordance with the provisions of the Corporations Act, as detailed within the Explanatory Memorandum which accompanies this Notice of Meeting.”
Resolution 7: Approval to Amend Structure – re-insert Proportional Bid Provisions
To think about and, if thought fit, to pass the next resolution as a special resolution:
“That pursuant to section 136(2) of the Corporations Act and for all other purposes, the members of the Company approve the amendment of the Company’s Structure by re-inserting the Clause 13, being the Proportional Bid provisions of the Structure, as detailed within the Explanatory Memorandum which accompanies this Notice of Meeting”
By order of the Board
Phillip Hains
Company Secretary
21 October 2022
VOTING ENTITLEMENT NOTICE
For the needs of the Meeting, the Company has determined that in accordance with regulation 7.11.37 of the Corporations Regulations, shares will likely be taken to be held by the individuals registered as holders at 4.00pm (Melbourne time) on 19 November 2022. Accordingly, transfers registered after that point will likely be disregarded in determining entitlements to vote on the Meeting.
You might vote by participating within the Meeting on the above described venue or by appointing an attorney or corporate representative to take part in the Meeting and vote for you. Alternatively, Shareholders who’re entitled to vote on the Meeting may vote by appointing a proxy to participate and vote on their behalf, using the Proxy Form accompanying this Notice of Meeting or by appointing a proxy online.
If multiple Shareholder votes in respect of jointly held Shares, only the vote of the Shareholder whose name appears first within the share register will likely be counted whether the vote is given personally, by attorney or proxy.
Shareholders wishing to vote, or their attorneys or within the case of a Shareholder or proxy which is an organization, corporate representatives, must attend the Meeting in person on the above described venue to be held at 4.00pm (Melbourne time) on 19 November 2022. It is usually recommended that participants attend quarter-hour prior to the time designated for the commencement of the Meeting, if possible, to register and to acquire an voting card. This Meeting won’t be conducted virtually.
Shareholders wishing to appoint a proxy to vote on their behalf on the Meeting must either complete and sign or validly authenticate the personalised Proxy Form which accompanies this Notice of Meeting or lodge their proxy online. An individual appointed as a proxy could also be a person or a body corporate.
Accomplished Proxy Forms should be delivered to the Share Registry by 4.00pm (Melbourne time) on 19 November 2022 in any of the next ways:
| (i) | By mail within the enclosed reply-paid envelope (or the self-addressed envelope, for Shareholders whose registered address is outside Australia) provided to the Share Registry: |
Immuron Limited
C/- Automic Registry Services
GPO Box 5193
Sydney NSW 2001
| (ii) | By email to the Share Registry at meetings@automicgroup.com.au |
| (iii) | Online for those who want to appoint your proxy online, you need to achieve this by visiting https://investor.automic.com.au/#/loginsah and following the instructions on that website. Online appointments of proxies should be done by 4.00pm (Melbourne time) on 19 November 2022. |
C/- Automic Registry Services
Level 5, 126 Phillip Street
Sydney NSW 2000
A proxy needn’t be a Shareholder.
When you appoint a proxy and subsequently want to attend the meeting yourself, the proxy will retain your vote and also you will likely be unable to vote yourself unless you notify the registrar of the revocation of your proxy appointment before the commencement of the Meeting. You might notify the registrar by calling 1300 288 664 (inside Australia) or +61 2 9698 5414 (overseas).
If a proxy appointment is signed by a Shareholder but doesn’t name the proxy or proxies in whose favour it’s given, the Chairman will act as proxy.
You might be entitled to appoint as much as two proxies to take part in the meeting and vote on a poll. When you appoint two proxies you have to specify the share of votes or variety of securities for every proxy, otherwise each proxy may exercise half of the votes. When appointing a second proxy you have to specify the names of every proxy and the share of votes or variety of securities for every proxy on the Proxy Form. Alternative Proxy Forms can be obtained from the Share Registry.
When you hold Shares jointly with a number of other individuals, so as to your proxy appointment to be valid, each of you have to sign the Proxy Form.
If a Shareholder nominates the chairman of the Meeting as that Shareholder’s proxy, the person acting as chairman of the Meeting must act as proxy under the appointment in respect of all or any items of business to be considered on the Meeting.
If a proxy appointment is signed or validly authenticated by that Shareholder but doesn’t name the proxy or proxies in whose favour it’s given, the Chairman of the Meeting will act as proxy in respect of all or any items of business to be considered on the Meeting.
Proxy appointments in favour of the Chairman of the Meeting, the Company Secretary or any Director which don’t contain a direction as to how you can vote will likely be voted in favour of the resolution on the Meeting.
The Chairman intends to vote undirected proxies of which the chair is appointed as proxy in favour of the resolutions.
When you want to appoint an attorney to vote on the Meeting, the unique or a licensed copy of the ability of attorney under which the attorney has been appointed should be received by the Share Registry no later than 4.00pm (Melbourne time) on 19 November 2022 (or if the Meeting is adjourned or postponed, no later than 48 hours before the resumption of the Meeting in relation to the resumed a part of the Meeting).
Any power of attorney granted by a Shareholder will, as between the Company and that Shareholder, proceed in force and will be acted on, unless express notice in writing of its revocation or the death of the relevant Shareholder is lodged with the Company.
Your appointment of an attorney doesn’t preclude you from logging in online and participating and voting on the Meeting. The appointment of your attorney will not be revoked merely by your participation and collaborating within the Meeting, but for those who vote on a resolution, the attorney will not be entitled to vote, and must not vote, as your attorney on that resolution.
| (f) | Voting by corporate representative |
To vote by corporate representative on the Meeting, a Shareholder or proxy who’s an organization should obtain a Certificate of Appointment of Corporate Representative from the Share Registry, complete and sign the shape in accordance with the instructions on it. The finished appointment form needs to be lodged with the Share Registry before 4.00pm (Melbourne time) on 19 November 2022.
The appointment of a representative may set out restrictions on the representative’s powers. The appointment must comply with section 250D of the Corporations Act.
The unique Certificate of Appointment of Corporate Representative, a licensed copy of the Certificate of Appointment of Corporate Representative, or a certificate of the body corporate evidencing the appointment of a representative is prima facie evidence of a representative having been appointed.
IMMURON LIMITED
ACN 063 114 045
Explanatory Memorandum
This Explanatory Memorandum has been prepared for the data of Shareholders in reference to the business to be conducted on the Annual General Meeting of Shareholders to be held in person (i.e. not virtually) at 4.00pm (Melbourne time) on Monday 21 November 2022 (Meeting).
The Corporations Act requires the Company to offer before the Annual General Meeting, the Financial Report, Directors’ report (including the Remuneration Report) and the Auditor’s Report for the financial yr ended 30 June 2022.
Shareholders will likely be offered the chance to debate the Financial Report, Directors’ Report and Auditor’s Report on the Meeting. Copies of those reports might be found on the Company’s website www.immuron.com.au/.
There isn’t any requirement for Shareholders to approve the Financial Report, Directors’ Report and Auditor’s Report. Shareholders will likely be offered the next opportunities:
| (a) | discuss the Annual Report for the financial yr ended 30 June 2022; |
| (b) | ask questions or make comments on the management of the Company; and |
| (c) | ask the auditor questions on the conduct of the audit and preparation and content of the Auditor’s Report. |
Along with taking questions on the Annual General Meeting, written inquiries to the Chairman concerning the management of the Company, or to the Company’s auditor about:
| (a) | the preparation and content of the Auditor’s Report; |
| (b) | the conduct of the audit; |
| (c) | accounting policies adopted by the Company in relation to the preparation of the financial statements; and |
| (d) | the independence of the auditor in relation to the conduct of the audit, |
could also be submitted no later than 5 business days before the Annual General Meeting to the Company Secretary on the Company’s registered office.
| 2. | Resolution 1: Adoption of Remuneration Report |
Under the Corporations Act, listed entities are required to place to the vote a resolution that the Remuneration Report section of the Directors’ Report be adopted. This Remuneration Report might be present in the Company’s 2022 Annual Report. It sets out a spread of matters regarding the remuneration of Directors, the Company Secretary and senior executives of the Company.
A vote on this resolution is advisory only and doesn’t bind the Directors or the Company. A replica of the Company’s 2022 Annual Report might be found on its website at www.immuron.com.au/.
The Corporations Act provides that:
| (a) | members of the Key Management Personnel whose remuneration details are included within the Remuneration Report (and any closely related party of those members) should not permitted to vote on a resolution to approve the Remuneration Report, and |
| (b) | if the vote to approve the Remuneration Report receives a “no” vote by at the very least 25% of the votes solid, this may constitute a “first strike”. |
The Company’s current “strike” count is zero. If a “first strike” was to occur on the 2022 Annual General Meeting:
| (c) | the Company’s subsequent Remuneration Report (in other words, the Company’s Remuneration Report back to be included within the 2023 Annual Report) must include a proof of the Board’s proposed motion in response to a 2023 “no vote” or a proof of why no motion has been taken; and |
| (d) | if the Company’s subsequent (i.e. 2023) Remuneration Report also receives a “no vote” on the 2023 Annual General Meeting of at the very least 25% of the votes solid, then Shareholders on the 2023 Annual General Meeting will likely be asked (at that 2023 Annual General Meeting) to vote on whether or not the Company is to carry one other general Shareholder’s meeting (throughout the following 90 days) to vote on a “spill resolution” under section 250V of the Corporations Act. |
As set out within the Notice of Meeting, any member of the Key Management Personnel whose remuneration details are included within the Remuneration Report, along with a closely related party of those members, are excluded from casting a vote on Resolution 1.
Accordingly, the Board abstains from making a advice in relation to Resolution 1. The Chairman intends to exercise all undirected proxies in favour of Resolution 1.
| 3. | Resolution 2: Re-election of Mr Stephen Anastasiou |
Clause 13.3 of the Company’s Structure provides that no Director may hold office for a period in excess of three years, or beyond the third annual general meeting following the Director’s election, whichever is the longer, without submitting himself for re- election.
Mr Stephen Anastasiou was re-elected as a Non-Executive Director on 6 November 2019, being eligible, offers himself for re-election.
|
Mr Stephen AnastasiouNon-Executive Director |
||
| Appointment date | 28 May 2013 | |
| Qualifications | Mr Anastasiou holds a Bachelor of Science (Hons), Graduate Diploma in Marketing and Master of Business Administration. | |
| Experience and expertise |
Mr Anastasiou has over 20 years’ experience generally management, marketing and strategic planning throughout the healthcare industry. His breadth of experience incorporates medical diagnostics, pharmaceuticals, hospital, dental and over-the-counter products, with firms including the international pharmaceutical company Bristol- Myers Squibb (NYSE: BMY). While working with KPMG Peat Marwick as a management consultant, Mr Anastasiou has previously led project teams in a various range of market development and strategic planning projects in each the private and non-private sector. He can also be a director and shareholder of plenty of unlisted private firms, covering quite a lot of industry sectors that include healthcare and funds management. Mr Anastasiou’s firms have participated in several corporate transactions involving business units and types of multinational and Australian firms. |
|
| Other current directorships | None | |
| Special responsibilities | None |
The Directors (aside from Stephen Anastasiou) recommend that Shareholders vote in favour of this Resolution 2. The Chairman intends to exercise all undirected proxies in favour of Resolution 2.
| 4. | Resolution 3: Re-election of Prof. Ravi Savarirayan |
Clause 13.3 of the Company’s Structure provides that no Director may hold office for a period in excess of three years, or beyond the third annual general meeting following the Director’s election, whichever is the longer, without submitting himself for re- election.
Prof. Ravi Savarirayan was re-elected as a Non-Executive Director on 6 November 2019, being eligible, offers himself for re-election.
|
Prof. Ravi SavarirayanNon-Executive Director |
||
| Appointment date | 7 April 2017 | |
| Qualifications | Prof. Savarirayan holds a Doctor of Medicine from the University of Melbourne, a Bachelor of Medicine and Bachelor of Surgery from the University of Adelaide, is a Fellow of the Royal Australasian College of Physicians (FRACP) and is an honorary associate of the Royal College of Pathologists of Australasia (ARCPA). | |
| Experience and expertise |
Prof. Savarirayan has been a consultant clinical geneticist on the Victorian Clinical Genetics Services since August 1999, in addition to professor and research group leader of skeletal biology and disease on the Murdoch Kid’s Research Institute since September 2000. Prof. Savarirayan is a founding member of the Skeletal Dysplasia Management Consortium since January 2011 and has been the chair of the specialist advisory committee in clinical genetics on the Royal Australasian College of Physicians since February 2009. He was president of the International Skeletal Dysplasia Society from July 2009 to June 2011 and has been an invited member of several international working committees on constitutional diseases of bone. Prof. Savarirayan’s primary research focus is on inherited disorders of the skeleton causing short stature, arthritis and osteoporosis and he leads quite a few clinical therapy trials for these conditions. He has published over 180 peer-reviewed articles, collaborating with peers from over 30 countries. He has been on the editorial board of Human Mutation since January 2009, European Journal of Human Genetics since July 2007, American Journal of Medical Genetics since December 2011 and the Journal of Medical Genetics since June 2005. He was recently named considered one of the “Sensible Minds” of the Murdoch Kid’s Research Institute over the past 30 years. |
|
| Other current directorships | None | |
| Special responsibilities | None |
The Directors (aside from Ravi Savarirayan) recommend that Shareholders vote in favour of this Resolution 3. The Chairman intends to exercise all undirected proxies in favour of Resolution 3.
| 5. | Resolution 4 – Election of Director: Mr Paul Brennan |
Mr Paul Brennan was appointed as Director of the Company on 16 March 2022 in accordance with Rule 13.1(c) of the Structure. This rule allows at any time the appointment by the Directors of an individual to be a director. Pursuant to Rule 13.3(b)(ii) of the Structure and ASX Listing Rule 14.4, any director so appointed holds office until the subsequent annual general meeting of members of the Company and is then eligible for election at that meeting.
Accordingly, Mr Paul Brennan being eligible, submits himself for election as a Director of the Company. Information regarding Mr Brennan is as follows:
|
Mr Paul BrennanNon-Executive Director |
||
| Appointment date | 16 March 2022 | |
| Qualifications | Mr Brennan holds an MBA from Swinburne University, a Bachelor of Science from the University of Latest England in NSW, Certificate in Midwifery Central Coast Areas Health Service NSW and General Nursing certificate from St Vincent’s Hospital Darlinghurst NSW. | |
| Experience and expertise |
He has extensive experience within the health system through his clinical background and industrial exposure with various multinational firms. Mr Brennan was Chief Executive Officer (CEO) of PolyNovo Limited (ASX: PNV) for 7 years from 2015 to 2021 and took the corporate from a market capitalisation of $30M to a high of $2B. Prior to this he was Marketing Director Australia and Latest Zealand and Sales Director Latest Zealand for Smith& Nephew Healthcare for six years. Mr. Brennan has coordinated the marketing, global strategy development, latest product development and regulatory processes for the Asia-Pacific region for industry leading organisations in relation to medical products and devices. He has an intimate knowledge of the manufacturing and production processes. |
|
| Other current directorships | None | |
| Special responsibilities | None |
The Directors (within the absence of Mr Brennan) recommend that shareholders vote in favour of Resolution 4 for the election of Mr Brennan. As a consequence of the interest he has within the end result of Resolution 4, Mr Brennan makes no advice to Shareholders in relation to Resolution 4.
| 6. | Resolution 5: Approval of increased placement capability |
ASX Listing Rule 7.1A enables eligible entities, after obtaining shareholder approval at an annual general meeting, to issue equity securities as much as 10% of its issued share capital through placements over a 12 month period after the annual general meeting
(10% Placement Facility). The ten% Placement Facility is along with the Company’s 15% placement capability under Listing Rule 7.1. This Resolution 5 seeks approval to permit the Board the flexibleness to issue additional Shares if it so decided. The Board may resolve to not issue any Shares pursuant to this Resolution 5.
An eligible entity for the needs of Listing Rule 7.1A is an entity that will not be included within the S&P/ASX 300 Index and has a market capitalisation of $300 million or less. The Company is an eligible entity.
The Company is now in search of shareholder approval by means of a special resolution to have the flexibility to issue equity securities under the ten% Placement Facility.
The precise variety of equity securities to be issued under the ten% Placement Facility will likely be determined in accordance with the formula prescribed in Listing Rule 7.1A.2.
If this Resolution 5 will not be approved by shareholders then the Company won’t have the flexibleness of an available additional 10% capability to issue Shares under the ten% Placement Facility described on this section 6 of the Explanatory Memorandum. The Company not having the ten% Placement Facility can have no effect on the Company’s existing Listing Rule 7.1 15% capability.
| 6.2 | Description of Listing Rule 7.1A |
Any equity securities issued under the ten% Placement Facility (Placement Securities) should be in the identical class as an existing quoted class of equity securities of the Company. The Company, as on the date of the Notice, has on issue one class of quoted equity securities, being unusual shares (Shares).
Resolution 5 is a special resolution and subsequently requires approval of 75% of the votes solid by Shareholders present and eligible to vote (in person, by proxy, by attorney or, within the case of a company Shareholder, by a company representative).
Eligible entities which have obtained Shareholder approval at an annual general meeting may issue or conform to issue, throughout the 12 month period after the date of the annual general meeting, plenty of Placement Securities calculated in accordance with the formula in Listing Rule 7.1A.2.
The effect of Resolution 5 will likely be to permit the Directors to issue the Placement Securities under Listing Rule 7.1A throughout the 10% Placement Period (as defined below) without using any of the Company’s 15% placement capability under Listing Rule 7.1.
| 6.3 | Specific information required by Listing Rule 7.3A |
Pursuant to and in accordance with Listing Rule 7.3A, information is provided in relation to the approval of the ten% Placement Facility as follows:
| (a) | Period for which approval will likely be valid |
Shareholder approval of the ten% Placement Facility under Listing Rule 7.1A is valid from the date of the annual general meeting at which the approval is obtained and expires on the sooner to occur of:
| (i) | the date that’s 12 months after the date of the annual general meeting at which the approval is obtained; |
| (ii) | the time and date of the Company’s next annual general meeting; or |
| (iii) | the time and date of the approval by shareholders of a transaction under Listing Rules 11.1.2 (a major change to the character or scale of activities) or 11.2 (disposal of foremost undertaking), or such longer period if allowed by ASX |
(10% Placement Period).
If any Placement Securities are issued, the minimum price the Placement Securities will likely be issued for money consideration which will not be lower than 75% of the VWAP of equity securities in the identical class calculated over the 15 trading days immediately before:
| (i) | the date on which the value at which the Placement Securities are to be issued is agreed; or |
| (ii) | if the Placement Securities should not issued inside 10 trading days of the date in paragraph (i) above, the date on which the Placement Securities are issued. |
The actual variety of Placement Securities that the Company can have capability to issue under Listing Rule 7.1A will likely be calculated on the date of issue of the Placement Securities in accordance with the formula prescribed in Listing Rule 7.1A.2.
| (c) | Maximum Variety of Shares to be Issued: |
Listing Rule 7.1A.2 provides that an eligible entity which has obtained a 7.1A mandate may, throughout the period of the mandate, issue or conform to issue plenty of equity securities (N) equal to the ten% Placement Facility, calculated in accordance with the next formula prescribed in Listing Rule 7.1A.2:
N = (A x D) – E
where:
A = is the variety of shares on issue 12 months before the date of the problem or agreement:
| ● | plus the variety of fully paid unusual securities issued within the relevant period under an exception in Listing Rule 7.2 aside from exception 9, 16 or 17, |
| ● | plus the variety of fully paid unusual securities issued within the relevant period on the conversion of convertible securities inside Listing Rule 7.2 exception 9 where: |
– the convertible securities were issued or agreed to be issued before the commencement of the relevant period; or
– the problem of, or agreement to issue, the convertible securities was approved, or taken under these rules to have been approved, under Listing Rule 7.1 or Listing Rule 7.4,
| ● | plus the variety of fully paid unusual securities issued within the relevant period under an agreement to issue securities inside Listing Rule 7.2 exception 16 where: |
– the agreement was entered into before the commencement of the relevant period; or
– the agreement or issue was approved, or taken under these rules to have been approved, under Listing Rule 7.1 or Listing Rule 7.4,
| ● | plus the variety of another fully paid unusual securities issued within the relevant period with approval under Listing Rule 7.1 or Listing Rule 7.4, |
| ● | plus the variety of partly paid unusual securities that became fully paid within the relevant period, |
| ● | less the variety of fully paid unusual securities cancelled within the relevant period. |
(Note: “A” has the identical meaning as in Listing Rule 7.1 when calculating the 15% capability);
D = 10%;
E = the variety of equity securities issued or agreed to be issued under Listing Rule 7.1A.2 within the relevant period (being the 12 month period immediately preceding the date of the problem or agreement), where the problem or agreement has not been subsequently approved by holders of unusual securities under Listing Rule 7.4;
| (d) | Purposes for which Placement Securities could also be issued |
The Company may seek to issue the Placement Securities as money consideration for the acquisition of latest assets and or other investments, or as money for general working capital purposes.
The Company will comply with the disclosure obligations under Listing Rules 7.1A.4 and three.10.3 upon issue of any Placement Securities.
| (e) | Effect on existing (non-participating) Shareholders |
If Resolution 5 is approved by Shareholders and the Company issues Placement Securities under the ten% Placement Facility, the present Shareholders’ voting power within the Company will likely be diluted as shown within the below table. There’s a risk that:
| (i) | the market price for the Company’s equity securities could also be significantly lower on the date of the problem of the Placement Securities than on the date of the Annual General Meeting; and |
| (ii) | the Placement Securities could also be issued at a price that’s at a reduction to the market price for the Company’s equity securities on the problem date. |
The below table is included for illustrative purposes and shows the potential dilution of existing Shareholders on the premise of the present market price of the Shares as at 12 October 2022 and the present variety of Shares for variable “A” (above) calculated in accordance with the formula in Listing Rule 7.1A.2 as on the date of this Notice.
The table also shows:
| (i) | Two examples where variable ‘A’ has increased by 50% and 100%. Variable ‘A’ relies on the variety of Shares the Company has on issue as on the date of this Notice of Meeting. The variety of Shares on issue may increase consequently of problems with Shares that don’t require Shareholder approval (for instance, a professional rata entitlements issue or scrip issued under a takeover offer) or future specific placements under Listing rule 7.1 which are approved at a future shareholders’ meeting; and |
| (ii) | Two examples where the problem price of the Shares has decreased by 50% and increased by 50% as against the present market price. |
The table has been prepared on the next assumptions:
| (i) | The Company issues the utmost variety of Placement Securities available under the ten% Placement Facility. |
| (ii) | The ten% voting dilution reflects the combination percentage dilution against the issued share capital on the time of issue. That is why the voting dilution is shown in each example as 10%. |
| (iii) | The table doesn’t show an example of dilution that could be caused to a specific Shareholder by reason of placements under the ten% Placement Facility, based on that Shareholder’s holding on the date of the Annual General Meeting. |
| (iv) | The table shows only the effect of problems with Placement Securities under Listing Rule 7.1A, not under the 15% placement capability under Listing Rule 7.1. |
| (v) | The problem of Placement Securities under the ten% Placement Facility consists only of Shares. |
| (vi) | The problem price is $0.081, being the closing price of the Shares on ASX on 12 October 2022 (Deemed Price). |
|
Variable ‘A’ in Listing Rule 7.1A.2 |
Dilution | ||
|
50% decrease in Deemed Price $0.040 |
Deemed Price $0.081 |
50% increase in Deemed Price $0.120 |
|
|
Current Variable A 227,798,346 Shares |
10% Voting Dilution 22,779,835 Shares |
||
| Funds raised | $911,193 | $1,845,167 | $2,733,580 |
|
50 % increase in current Variable A 341,697,519 Shares |
10% Voting Dilution 34,169,752 Shares |
||
| Funds raised | $1,366,790 | $2,767,750 | $4,100,370 |
|
100% increase in current Variable A 455,596,692 Shares |
10% Voting Dilution 45,559,669 Shares |
||
| Funds raised | $1,822,387 | $3,690,333 | $5,467,160 |
| (f) | Company’s share allocation policy |
The Company’s share allocation policy depends on the prevailing market conditions on the time of any proposed issue pursuant to the ten% Placement Facility. The identity of the allottees of Placement Securities will likely be determined on a case-by-case basis having regard to the aspects including but not limited to the next:
| (i) | the methods of raising funds which are available to the Company, including but not limited to, issues wherein existing security holders can participate; |
| (ii) | the effect of the problem of the Placement Securities on the control of the Company; |
| (iii) | the financial situation and solvency of the Company; and |
| (iv) | advice from corporate, financial and broking advisers (if applicable). |
The allottees under the ten% Placement Facility haven’t been determined as on the date of this Notice of Meeting but may include existing substantial Shareholders and/or latest Shareholders who should not related parties or associates of a related party of the Company.
| (g) | Information under ASX Listing Rule 7.3A.6 |
As on the date of this Notice the Company has not issued any equity securities under Listing Rule 7.1A.2 prior to now 12 months preceding the date of the AGM.
| (h) | Voting exclusion statement |
A voting exclusion statement is provided above on this Notice. As on the date of this Notice the Company will not be proposing to make a difficulty of equity securities under Listing Rule 7.1A.2.
The Directors of the Company imagine that Resolution 5 is in the very best interests of the Company and unanimously recommend that Shareholders vote in favour of this Resolution 5. The Chairman intends to exercise all undirected proxies in favour of Resolution 5.
| 7. | Resolution 6: Approval to Amend Structure – virtual meetings |
Resolution 6 proposes the amendment of the Company’s Structure, to allow the Company to carry virtual meetings of members in accordance with the provisions of the Corporations Act, by inserting further defined terms into clause 1.1 and removing the present clause 12.23 and replacing it with a latest clause 12.23 in the shape annexed to this Explanatory Memorandum as Annexure “A”.
Pursuant to section 136(2) of the Corporations Act, the Company may only modify its Structure by special resolution. Commencing as from 3 August 2022 the provisions of Schedule 2 to the Corporations Amendment (Meetings and Documents) Act 2021 (Cth) regarding electronic meetings and sending of documents got here into effect. Under the provisions of that Act, company meetings can now be held:
| ● | physically in person; |
| ● | partly in person and partly virtually using virtual meeting technology; |
| ● | entirely virtually using virtual meeting technology, as long as that’s expressly allowed under the corporate’s structure. |
The present Structure of the Company doesn’t specifically allow for shareholder meetings to be held ‘virtually’. Amending clause 12.23 provides that the Structure will more closely reflect the brand new requirements under the Corporations Amendment (Meetings and Documents) Act 2021 (Cth), which the Board believes provide more clarity and practical detail to the Structure and are necessary to incorporate.
The brand new clause 12.23 has been drafted in order that where that clause doesn’t address a specific item already handled within the Structure, the present provisions of the Structure still apply. Accordingly, the Company wishes to retain the flexibleness to have the option to conduct meetings virtually, because it believes in lots of instances a shareholder meeting held virtually is a more efficient and much more cost effective technique of conducting a shareholder meeting.
The proposed changes don’t seek to mandate that each one shareholders meetings should be held virtually, just that the Company has the flexibility to achieve this if it decides to achieve this. If this Resolution 6 will not be approved by Members, the Company won’t have the option to carry members meeting virtually and won’t have the above-described flexibility and costs savings.
If this Resolution 6 will not be approved by Shareholders, there’s less certainty for the Company and Shareholders as to the extent a gathering could possibly be held virtually and the way that meeting could possibly be conducted.
Advice
The Board unanimously recommends that shareholders vote in favour of Resolution 6.
| 8. | Resolution 7 – Approval to Amend Structure – re-insert Proportional Bid provisions |
Resolution 7 proposes the amendment of the Company’s Structure to re-insert Clause 11 of the Company’s Structure in the shape Clause 11 comprising Annexure “B”. When the Structure was adopted, Clause 11 comprises provisions coping with member approval requirements if there have been to be any proportional takeover bids for the Company’s securities (Proportional Bid Provisions). Annexure “B” re-instates the an identical wording as formed a part of the Structure when it was originally adopted.
A “proportional takeover bid” means an off-market bid for a specified proportion of the Company’s securities held by each shareholder in a category for which a takeover bid has been made. It will not be a bid for all securities held by all members of that class, only a part of the securities each holds.
Part 6.5 Subdivision 5C of the Corporations Act (and Section 11 of the Structure) provide that these Proportional Bid Provisions stop to use at the top of three years from their adoption (or last renewal), but that they could be renewed by special resolution of the members. The Board believes it is acceptable that the Proportional Bid Provisions of the Company’s Structure (Clause 11) be reinstated.
In in search of the members’ approval for the renewal of the Proportional Bid Provisions, the Corporations Act requires the below information to be provided to members.
Effect of provisions proposed to be renewed
Clause 11 of the Structure provides that the Company is prohibited from registering any transfer of shares giving effect to a contract of sale pursuant to a proportional takeover bid unless and until after the proposed transfer has been approved by the members at a general meeting of the Company (Approving Resolution). The person making the offer for the securities (Offeror) (and their associates) cannot vote on the Approving Resolution and the Approving Resolution requires the approval of greater than 50% of members who’re entitled to vote at that meeting.
Clause 11 also provides that:
| (i) | If an Approving Resolution will not be voted upon inside 14 days of the top of the bid period, the Approving Resolution is deemed approved; and |
| (ii) | If the Approving Resolution is rejected, all unaccepted offers under the proportional takeover bid are deemed withdrawn and the Offeror must rescind each contract created consequently of the acceptance of a proposal under that proportional takeover bid. |
Reasons for the resolution
Clause 11 of the Structure is required to be re-inserted as greater than 3 years have passed because the initial adoption of the Structure. Section 648(G)(1) of the Corporations Act provides that Proportional Bid Provisions resembling provided in Clause 11 stop to use at the top of three years from their adoption (or their last renewal). Section 648(G)(4) enables the members to approve a renewal of Proportional Bid Provisions by means of amendment to the Company’s Structure.
The Directors imagine that the members should proceed to have the selection of considering whether to simply accept a bid for what might grow to be control of the Company without the members having the chance to get rid of all of their securities (moderately than simply a few of their securities, as could be the case under a proportional takeover bid). To preserve this selection, Clause 11 must be renewed. If Clause 11 is renewed and any proportional takeover bid (if any) is subsequently approved by members, each member will still have the correct to make a separate decision whether that member wishes to simply accept the (proportional takeover) bid for their very own securities.
Awareness of current acquisition proposals
As on the date of those Explanatory Notes, not one of the Directors is aware of any proposal for any person to accumulate (or increase the extent of) a considerable interest within the Company from its current level.
The benefits and drawbacks of the Proportional Bid Provisions since their adoption
As there have been no takeover bids made for any of the shares within the Company because the adoption of the Proportional Bid Provisions, there was no application of Clause 11 applied for the period since adoption of Clause 11.
Potential benefits and drawbacks of the proposed resolution for each directors and shareholders
A bonus to the administrators of renewing the Proportional Bid Provisions is that the Board will have the option to evaluate the member’s acceptance or otherwise of a proportional takeover bid should one be made.
As stated above, renewing Clause 11 provides the members with the selection of considering whether to simply accept a bid for what might grow to be control of the Company without the members having the chance to get rid of all of their securities (moderately than simply a few of their securities, as could be the case under a proportional takeover bid). If Resolution 7 will not be approved and Clause 11 will not be renewed, members won’t have this chance.
Alternatively, it might be argued that the renewal of Clause 11 may make proportional takeover bids harder to succeed and subsequently effectively discourage proportional takeover bids being made and reduce the liberty for members to sell a few of their securities.
Advice for Resolution 7
Balancing the above benefits and drawbacks, the Directors are of the view that the benefits of renewing the Proportional Bid Provisions outweigh any disadvantages and unanimously recommend the renewal. Accordingly, shareholder approval is sought pursuant to this Resolution 7.
Advice
The Board unanimously recommends that shareholders vote in favour of Resolution 7.
The Directors should not aware of another information which is relevant to the consideration by members of the proposed Resolutions set out on this Notice of Meeting.
The Directors recommend members read this Explanatory Memorandum in full and, if desired, seek advice from their very own independent financial or legal adviser as to the effect of the proposed resolutions before making any decision in relation to the proposed Resolutions.
Glossary
Definitions
The next definitions are utilized in the Notice of Meeting and the Explanatory Memorandum:
Annual General Meeting / AGM means the annual general meeting of the Company to be held at Level 2, 62 Lygon Street, Carlton, Victoria, Australia 3053 on Monday, 21 November 2022 at 4.00pm pursuant to the Notice of Meeting.
ASX means ASX Limited ACN 008 624 691.
ASX Listing Rules or Listing Rules means the Listing Rules of the ASX as amended every so often.
Board means the board of Directors of the Company.
Company means Immuron Limited ACN 063 114 045.
Corporations Act or Act means the Corporations Act 2001 (Cth).
Director means a director of the Company.
Explanatory Memorandum means the explanatory memorandum attached to this Notice.
Key Management Personnel or KMP means the important thing personnel as disclosed within the Remuneration Report.
Meeting means the annual general meeting subject to this Notice.
Notice of Meeting or Notice means this notice of Annual General Meeting.
Proxy Form means the proxy form accompanying the Notice.
Remuneration Report means the remuneration report of the Company for the yr ended 30 June 2022 as set out within the Company’s Annual Report for the yr ended 30 June 2022.
Resolution means the resolutions referred to within the Notice of Meeting.
Share means a totally paid unusual share within the capital of the Company.
Share Registry means Automic Registry Services.
Shareholder means a holder of a Share.
Annexure A – Proposed Structure amendment re virtual meetings
Amendments to the Structure of Immuron Ltd (“Structure”)
| A. | Section 1.1 of the Structure is amended by the insertion of the next: |
“Meeting Technologymeans any technology approved by the Directors that is affordable to make use of for the aim of holding a gathering at a number of physical venues or entirely virtually by electronic means (with none physical meeting) or by a mixture of those methods and otherwise satisfies the necessities of this Structure and the Corporations Act;”
“Present means, in reference to a gathering, the Member being present in person or by proxy, by attorney or, where the Member is a body corporate, by representative, and includes being present at a unique venue from the venue at which other Members are participating in the identical meeting or virtually where the meeting is held using Meeting Technology, providing the pre-requisites for a legitimate meeting as set out on this Structure and the Corporations Act are observed;”
| B. | The Structure is further amended as follows: |
Clause 12.23 of the Structure is deleted and the next is inserted as a replacement
“12.23 Use of technology
Notwithstanding another provision of this Structure on the contrary, the next shall apply, and to the extent there’s a conflict (if any) between this clause 12.23 and another provision of this Structure (aside from clause 1.7), the provisions of this clause 12.23 shall prevail:
| (a) | Subject to any applicable Law, the Company may hold a gathering of Members: |
| (ii) | at a number of physical venues and virtually using Meeting Technology; |
| (iii) | virtually, using Meeting Technology only; or |
| (iv) | in another way permitted by the Corporations Act. |
| (b) | The Company must give the Members entitled to attend the meeting, as a complete, an inexpensive opportunity to take part in the meeting, nonetheless it’s held. |
| (c) | A Member, or a proxy, attorney or representative of a Member, who attends the meeting (whether at a physical venue or virtually by utilizing Meeting Technology) is taken for all purposes to be Present on the meeting while so attending. |
| (d) | If, before or during a gathering of Members, any technical difficulty occurs, such that the Members as a complete shouldn’t have an inexpensive opportunity to participate, the Chairperson of the meeting may: |
| (i) | adjourn the meeting until the technical difficulty is remedied; or |
| (ii) | subject to the Corporations Act, where a quorum stays Present and in a position to participate, proceed the meeting. |
| (e) | Each notice convening a general meeting must include the next where Meeting Technology is to be utilized in holding the meeting – |
| (i) | sufficient information to permit Members to take part in the meeting by way of the technology; |
| (ii) | Where a general meeting is held only virtually using Meeting Technology: |
| (A) | the place for the meeting is taken to be the address of the registered office of the Company; and |
| (B) | the time for the meeting is taken to be the time at that place, and. |
| (iii) | another information required by Law or the Listing Rules |
| (f) | If a quorum will not be Present inside quarter-hour after the time appointed for the overall meeting the meeting stands adjourned to a day and at a time and place because the Directors resolve or, if no decision is made by the Directors: |
| (i) | the meeting is adjourned to the identical day in the subsequent week at the identical time; |
| (ii) | if any of the Members was entitled to physically attend the meeting and the placement will not be specified, the meeting is adjourned to the identical location or locations as were specified for the unique meeting; and |
| (iii) | if Meeting Technology was utilized in holding the unique meeting and sufficient information to permit members to take part in the resumed meeting by way of the technology will not be specified, participation within the adjourned meeting by way of the Meeting Technology should be provided in the identical manner as set out within the notice for the unique meeting. |
| (g) | Subject to clause 12.23(g)(iii), and the necessities of any Law and the Listing Rules, any resolution to be considered at a general meeting will likely be decided: |
| (A) | Meeting Technology is utilized in holding the meeting; or |
| (B) | a poll is demanded at or before the declaration of the results of the show of hands; or |
| (ii) | otherwise, on a show of hands. |
| (iii) | Any resolution to be considered at a general meeting and which seeks an approval under (or in reference to) the Listing Rules should be decided by means of a poll. |
| (h) | The Directors may hold a legitimate meeting of Directors using Meeting Technology, and in that case: |
| (i) | the participating Directors are taken for all purposes to be present on the meeting while so participating; |
| (ii) | subject to the Corporations Act, the meeting is taken to be held on the place where the Chairperson of the meeting is and on the time at that place; and |
| (iii) | all proceedings of the Directors conducted in that manner are as valid and effective as if conducted at a gathering at which all of them were present in person.” |
Annexure B – Proposed Structure amendment re virtual meetings
Amendments to the Structure of Immuron Ltd (“Structure”)
Section 11 of the Structure is re-inserted as follows:
| 11 | Proportional takeover approval provisions |
On this clause11:
| (a) | Associate in relation to a different person has the meaning given to that term within the Act for the needs of subdivision C of Chapter 6.5 of the Act; |
| (b) | Bidder means an individual making a proposal for Shares under a Proportional Bid; |
| (c) | Proportional Bid means a proportional takeover bid as defined in section 9 of the Act; and |
| (d) | Relevant Day, in relation to a Proportional Bid, means the day that’s 14 days before the last day of the bid period. |
| 11.2 | Transfers prohibited without approval |
Where a Proportional Bid in respect of Shares included in a category of Shares within the Company has been made:
| (a) | the registration of a transfer giving effect to a contract resulting from the acceptance of a proposal made under the Proportional Bid is prohibited unless and until a resolution (Approving Resolution) to approve the Proportional Bid is passed, or is deemed to have been passed, in accordance with Subdivision C of Chapter 6.5 of the Act; |
| (b) | a Member (aside from the Bidder or an Associate of the Bidder) who, as at the top of the day on which the primary offer under the Proportional Bid was made, held Shares included within the bid class is entitled to vote on an Approving Resolution and, for the needs of so voting, is entitled to 1 vote for every such Share; |
| (c) | neither the Bidder nor an Associate of the Bidder may vote on an Approving Resolution; |
| (d) | an Approving Resolution should be voted on at a gathering of the Members entitled to vote on the resolution which has been convened and conducted by the Company; and |
| (e) | an Approving Resolution is passed if greater than 50% of the votes solid on the resolution by Members Present and entitled to vote on the resolution are in favour of the resolution. |
| (a) | The provisions of this Structure regarding a general meeting of the Company apply, with such modifications because the circumstances require, in relation to a gathering that’s convened for the needs of this clause 11. |
| (b) | The Directors of the Company must be sure that the Approving Resolution is voted on in accordance with this clause before the Relevant Day. |
| (c) | Where an Approving Resolution is voted on in accordance with this clause, then before the Relevant Day, the Company must: |
| (i) | give to the Bidder; and |
| (ii) | serve on ASX, a written notice stating that a resolution to approve the Proportional Bid has been voted on and that the resolution has been passed or has been rejected, because the case requires. |
Where, as at the top of the day before the Relevant Day in relation to a Proportional Bid, no Approving Resolution to approve the Proportional Bid has been voted on in accordance with this clause, an Approving Resolution to approve the Proportional Bid is, for the needs of this clause, deemed to have been passed under this clause 11.
| 11.5 | Proportional Bid rejected |
Where an Approving Resolution is voted on and is rejected then:
| (a) | despite section 652A of the Act, all offers under the Proportional Bid which have not, as at the top of the Relevant Day, resulted in binding contracts are deemed to be withdrawn at the top of the Relevant Day; |
| (b) | the Bidder must immediately, after the top of the Relevant Day, return to every Member any documents that were sent by the Member to the Bidder with the acceptance of the offer; |
| (c) | the Bidder may rescind and must, as soon as practicable after the top of the Relevant Day, rescind each contract resulting from the acceptance of a proposal made under the Proportional Bid; and |
| (d) | a Member who has accepted a proposal made under the Proportional Bid is entitled to rescind the contract (if any) resulting from that acceptance. |
This clause 11 ceases to have effect on the later to occur of:
| (a) | the third anniversary of its adoption; or |
| (b) | the third anniversary of its most up-to-date renewal effected under the Act. |
