UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the Month of October 2024
Commission File Number: 001-38104
IMMURON LIMITED
(Name of Registrant)
Level 3, 62 Lygon Street, Carlton South,
Victoria, 3053, Australia
(Address of principal executive office)
Indicate by check mark whether the registrant files or will file annual
reports under cover of Form 20-F or Form 40-F.
Form 20-F ☒ Form
40-F ☐
Indicate by check mark whether by furnishing the information contained
in this Form, the registrant is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities
Exchange Act of 1934.
Yes ☐ No
☒
If “Yes” is marked, indicate below the file number assigned
to the registrant in connection with Rule 12g3-2(b): 82-
IMMURON LIMITED
EXPLANATORY NOTE
Immuron Limited (the “Company”) published
one announcement (the “Public Notices”) to the Australian Securities Exchange on October 18, 2024 titled:
| - | “Notice of Annual General Meeting” |
A copy of the Public Notice is attached as an exhibit to this report
on Form 6-K.
This report on Form 6-K (including the exhibit
hereto) shall not be deemed to be “filed” for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and shall not be incorporated by reference into any filing under the Securities Act of 1933, as amended, except as shall be
expressly set forth by specific reference in such filing.
EXHIBITS
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
| |
IMMURON LIMITED |
| |
|
|
| Date: October 18, 2024 |
By: |
/s/ Phillip Hains |
| |
|
Phillip Hains |
| |
|
Company Secretary |
3
Exhibit
99.1
IMMURON
LIMITED
ACN
063 114 045
(ASX
code: IMC, NASDAQ code: IMRN)
NOTICE
OF 2024 ANNUAL GENERAL MEETING AND
EXPLANATORY
MEMORANDUM
Date
and Time of Meeting:
Monday,
18 November 2024 at 11.00 am
Place
of Meeting:
The
Offices of K & L Gates,
Level 25, Rialto South Tower,
525 Collins Street Melbourne, Victoria
And
virtually at
https://bit.ly/IMCAGM2024
If
Shareholders are unable to attend the Meeting in person or using the online platform they are encouraged to return the proxy form to
the Company in accordance with the instructions thereon.
Returning
the proxy form will not preclude a Shareholder from attending and voting at the Meeting in person or utilising the online platform should
they elect to do so.
This
Notice of Annual General Meeting and Explanatory Memorandum should be read in its entirety. If you are in doubt as to how to vote on
any of the Resolutions, you should seek advice from your accountant, solicitor or other professional adviser without delay.
IMMURON
LIMITED
ACN
063 114 045
Notice
of 2024 Annual General Meeting
Notice
is given that a general meeting of the shareholders of Immuron Limited ACN 063 114 045 (Company or Immuron) will be held
at the offices of the Offices of K & L Gates, Level 25, Rialto South Tower, 525 Collins Street Melbourne, Victoria and virtually
(online) at https://bit.ly/IMCAGM2024 on Monday, 18 November 2024 at 11.00 am (Melbourne time) for the purpose of considering and
if thought fit passing the resolutions as stated below.
Webcast
meeting details
To
register to attend the webcast meeting, please click this link https://bit.ly/IMCAGM2024.
After
registering, you will receive a confirmation email containing information about joining the Meeting. A guide to registration and voting
is available here https://www.automicgroup.com.au/virtual-agms.
To
participate in the webcast meeting you will need a desktop or mobile/tablet device with internet access. When you log onto the online
platform to register to attend the AGM, you will need to provide your details (including SRN or HIN) to be verified as a Shareholder.
Please
note that additional information concerning the proposed resolutions is contained in the Explanatory Memorandum that accompanies and
forms part of this Notice of Annual General Meeting. Voting Exclusions to some the following resolutions appear below and are deemed
to form part of this Notice.
Business
of the Meeting
Financial
statements and reports
To
receive and consider the financial statements and the reports of the Directors and of the Auditors for the year ended 30 June 2024.
Resolution
1: Adoption of Remuneration Report
To
consider and, if thought fit, pass the following resolution as an ordinary resolution:
“That
the Remuneration Report for the year ended 30 June 2024 as set out in the Company’s Annual Report for the year ended 30 June 2024 be
adopted.”
*Please
note that section 250R(3) of the Corporations Act 2001 (Cth) provides that the vote on this resolution is advisory only and does not
bind the Directors or the Company
A
voting exclusion statement in respect of this Resolution is set out below.
Resolution
2: Re-election of Mr Daniel Pollock
To
consider and, if thought fit, to pass the following resolution as an ordinary
resolution:
“That
pursuant to the Company’s Constitution and for all other purposes, the members of the Company approve the re-election of Mr Daniel Pollock
as a Non-Executive Director of the Company, who pursuant to clause 13.3 of the Company’s Constitution is retiring by rotation and being
eligible offers himself for re-election.”
Resolution
3: Election of Dr Jeannette Joughin
To
consider and, if thought fit, to pass the following resolution as an ordinary
resolution:
“That
Shareholders elect Dr Jeannette Joughin, who was appointed as a director by the Board on 1 June 2024 to fill a casual vacancy, whose
appointment as a Director expires at this Annual General Meeting in accordance with Listing Rule 14.4, and being eligible offers herself
for election by Shareholders.”
Resolution
4: Approval of increased placement capacity
To
consider and, if thought fit, to pass the following 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 increase in the capacity
of the Company to issue equity securities up to 10% of the issued capital of the Company (at the time of the issue) calculated in accordance
with the formula prescribed in Listing Rule 7.1A.2 and on the terms and conditions stated in the Explanatory Memorandum which accompanies
and forms part of this Notice of Meeting.”
A
voting exclusion statement in respect of this Resolution is set out below.
Resolution
5: Approval of the Issue of Options to Dr Jeannette Joughin
To
consider and, if thought fit, pass the following resolution as an ordinary
resolution:
“That,
for the purposes of ASX Listing Rule 10.14 and for all other purposes, shareholders approve the issue of 1,000,000 Options to Dr Jeannette
Joughin on the terms and conditions set out in the Explanatory Memorandum which accompanies and forms part of this Notice of Meeting.”
A
voting exclusion statement in respect of this Resolution is set out below.
Resolution
6: Approval of the Issue of Options to Mr Daniel Pollock
To
consider and, if thought fit, pass the following resolution as an ordinary
resolution:
“That,
for the purposes of ASX Listing Rule 10.14 and for all other purposes, shareholders approve the issue of 1,000,000 Options to Mr Daniel
Pollock on the terms and conditions set out in the Explanatory Memorandum which accompanies and forms part of this Notice of Meeting.”
A
voting exclusion statement in respect of this Resolution is set out below.
Resolution
7: Approval of the Issue of Options to Prof. Ravi Savarirayan
To
consider and, if thought fit, pass the following resolution as an ordinary
resolution:
“That,
for the purposes of ASX Listing Rule 10.14 and for all other purposes, shareholders approve the issue of 1,000,000 Options to Prof. Ravi
Savarirayan on the terms and conditions set out in the Explanatory Memorandum which accompanies and forms part of this Notice of Meeting.”
A
voting exclusion statement in respect of this Resolution is set out below.
By
order of the Board
Phillip
Hains
Company
Secretary
18
October 2024
Voting
Exclusion Statement
Corporations
Act
Resolution
1 - The Company will disregard votes cast by a member of the Key Management Personnel details of whose remuneration are included in the
Remuneration Report, or a closely related party of such a member, in contravention of section 250R or 250BD Corporations Act. Restrictions
also apply to votes cast as proxy unless exceptions apply.
For
the purposes of section 224 Corporations Act, the Company will not disregard a vote if:
| (a) | it
is cast by a person as a proxy appointed in writing that specifies how the proxy is to vote
on the proposed resolution; and |
| (b) | it
is not cast on behalf of a related party or associate of a related party of the Company to
whom the resolution would permit a financial benefit to be given or an associate of such
a related party. |
Listing
Rules
In
accordance with the Listing Rule 14.11, the Company will disregard votes cast in favour of the resolution by or on behalf of:
| Resolution 4: Approval of increased placement capacity |
|
(a) |
if at the time the approval of Resolution
4 is sought the Company is proposing to make an issue of securities under rule 7.1A.2, any person who is expected to participate in,
or who will obtain a material benefit as a result of, the proposed issue (except a benefit solely by reason of being a holder of ordinary
securities in the Company; or |
| |
|
(b) |
an associate of such a person. |
| |
|
|
|
| Resolution 5 Approval of the Issue of Options to Dr Jeannette Joughin |
|
(a) |
any person referred to in Listing Rules
10.14.1, 10.14.2 or 10.14.3 who is eligible to participate in this employee incentive scheme; or |
| |
|
(b) |
an associate of such a person. |
| |
|
|
|
| Resolution 6 Approval of the Issue of Options to Mr Daniel Pollock |
|
(a) |
any person referred to in Listing Rules
10.14.1, 10.14.2 or 10.14.3 who is eligible to participate in this employee incentive scheme; or |
| |
|
(b) |
an associate of such a person. |
| |
|
|
|
| Resolution 7 Approval of the Issue of Options to Ravi Savarirayan |
|
(a) |
any person referred to in Listing Rules
10.14.1, 10.14.2 or 10.14.3 who is eligible to participate in this employee incentive scheme; or |
| |
|
(b) |
an associate of such a person. |
However,
this does not apply to a vote cast in favour of a resolution by:
| (a) | a
person as proxy or attorney for a person who is entitled to vote on the resolution, in accordance
with directions given to the proxy or attorney to vote on the resolution in that way; or |
| (b) | the
chair of the meeting as proxy or attorney for a person who is entitled to vote on the resolution,
in accordance with a direction given to the chair to vote on the resolution as the chair
decides; or |
| (c) | a
holder acting solely in a nominee, trustee, custodial or other fiduciary capacity on behalf
of a beneficiary provided the following conditions are met: |
| (i) | the
beneficiary provides written confirmation to the holder that the beneficiary is not excluded
from voting, and is not an associate of a person excluded from voting, on the resolution;
and |
| (ii) | the
holder votes on the resolution in accordance with directions given by the beneficiary to
the holder to vote in that way. |
VOTING
ENTITLEMENT NOTICE
For
the purposes of the Meeting, the Company has determined that in accordance with regulation 7.11.37 of the Corporations Regulations, shares
will be taken to be held by the persons registered as holders at 7:00 pm (Melbourne time) on Saturday, 16 November 2024. Accordingly,
transfers registered after that time will be disregarded in determining entitlements to vote at the Meeting.
You
may vote by participating in the Meeting at the above described venue or by appointing an attorney or corporate representative to participate
in the Meeting and vote for you. Alternatively, Shareholders who are entitled to vote at 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
more than one Shareholder votes in respect of jointly held Shares, only the vote of the Shareholder whose name appears first in the share
register will be counted whether the vote is given personally, by attorney or proxy.
Shareholders
wishing to vote, or their attorneys or in the case of a Shareholder or proxy which is a corporation, corporate representatives, may attend
the Meeting in person at K & L Gates, Level 25, Rialto South Tower, 525 Collins Street Melbourne, Victoria at 11.00 am (Melbourne
time) on Monday, 18 November 2024. It is suggested that participants attend 15 minutes prior to the time designated for the commencement
of the Meeting, if possible, to register and to obtain a voting card.
| (c) | Voting
by attending virtually |
Shareholders
wishing to vote virtually, or their attorneys or in the case of a Shareholder or proxy which is a corporation, corporate representatives,
must log in online on the Automic portal to participate in the Meeting to be held at 11.00 am (Melbourne time) on Monday, 18 November
2024 by clicking on the following link: https://bit.ly/IMCAGM2024 .
Shareholders
who do not have an account with Automic are strongly encouraged to register as soon as possible and well in advance of the Meeting to
avoid any delays on the day of the Meeting. An account can be created via the following link https://investor.automic.com.au and then
clicking on “register” and following the prompts. Shareholders will require their holder number (securityholder reference
number (SRN) or holder identification number (HIN)) to create an account with Automic.
For
further information on the live voting process please see the Registration and Voting Guide at https://bit.ly/AGM-Meeting-Guide .
Shareholders,
their attorneys or in the case of Shareholders or proxies which are corporations, corporate representatives, who plan to participate
virtually in the Meeting should log in online 30 minutes prior to the time designated for the commencement of the Meeting, if possible,
to register and to obtain an electronic voting card.
Shareholders
wishing to appoint a proxy to vote on their behalf at 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. A person appointed as a proxy may be an individual or
a body corporate.
Completed
Proxy Forms must be delivered to the Share Registry by 11.00 am (Melbourne time) on Saturday, 16 November 2024 in any of the following
ways:
| (i) | By
mail in 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
if you wish to appoint your proxy online, you should do so by visiting https://investor.automic.com.au/#/loginsah
and following the instructions on that website. Online appointments of proxies must be done
by 11.00 am (Melbourne time) on Saturday, 16 November 2024. |
C/-
Automic Registry Services
Level
5, 126 Phillip Street
Sydney
NSW 2000
A
proxy need not be a Shareholder.
If
you appoint a proxy and subsequently wish to attend the meeting yourself, the proxy will retain your vote and you will be unable to vote
yourself unless you notify the registrar of the revocation of your proxy appointment before the commencement of the Meeting. You may
notify the registrar by calling 1300 288 664 (within Australia) or +61 2 9698 5414 (overseas).
If
a proxy appointment is signed by a Shareholder but does not name the proxy or proxies in whose favour it is given, the Chairman will
act as proxy.
You
are entitled to appoint up to two proxies to participate in the meeting and vote on a poll. If you appoint two proxies you must specify
the percentage of votes or number of securities for each proxy, otherwise each proxy may exercise half of the votes. When appointing
a second proxy you must specify the names of each proxy and the percentage of votes or number of securities for each proxy on the Proxy
Form. Replacement Proxy Forms can also be obtained from the Share Registry.
If
you hold Shares jointly with one or more other persons, in order for your proxy appointment to be valid, each of you must 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 any or all items of business to be considered at the Meeting.
If
a proxy appointment is signed or validly authenticated by that Shareholder but does not name the proxy or proxies in whose favour it
is given, the Chairman of the Meeting will act as proxy in respect of any or all items of business to be considered at the Meeting.
Proxy
appointments in favour of the Chairman of the Meeting, the Company Secretary or any Director which do not contain a direction as to how
to vote will be voted in favour of the resolution at the Meeting.
The
Chairman intends to vote undirected proxies of which the chair is appointed as proxy in favour of the resolutions.
If
you wish to appoint an attorney to vote at the Meeting, the original or a certified copy of the power of attorney under which the attorney
has been appointed must be received by the Share Registry no later than 11.00 am (Melbourne time) on Saturday, 16 November 2024
(or if the Meeting is adjourned or postponed, no later than 48 hours before the resumption of the Meeting in relation to the resumed
part of the Meeting).
Any
power of attorney granted by a Shareholder will, as between the Company and that Shareholder, continue in force and may 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 does not preclude you from logging in online and participating and voting at the Meeting. The appointment
of your attorney is not revoked merely by your participation and taking part in the Meeting, but if you vote on a resolution, the attorney
is not entitled to vote, and must not vote, as your attorney on that resolution.
| (g) | Voting
by corporate representative |
To
vote by corporate representative at the Meeting, a Shareholder or proxy who is a corporation should obtain a Certificate of Appointment
of Corporate Representative from the Share Registry, complete and sign the form in accordance with the instructions on it. The completed
appointment form should be lodged with the Share Registry before 11.00 am (Melbourne time) on Saturday, 16 November 2024.
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
original Certificate of Appointment of Corporate Representative, a certified 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 information of Shareholders in connection with the business to be conducted at the Annual
General Meeting of Shareholders to be held at 11.00 am (Melbourne time) on Monday, 18 November 2024 (Meeting).
The
Corporations Act requires the Company to provide before the Annual General Meeting, the Financial Report, Directors’ report (including
the Remuneration Report) and the Auditor’s Report for the financial year ended 30 June 2024.
Shareholders
will be offered the opportunity to discuss the Financial Report, Directors’ Report and Auditor’s Report at the Meeting. Copies
of these reports can be found on the Company’s website www.immuron.com.au.
There
is no requirement for Shareholders to approve the Financial Report, Directors’ Report and Auditor’s Report. Shareholders
will be offered the following opportunities:
| (a) | discuss
the Annual Report for the financial year ended 30 June 2024; |
| (b) | ask
questions or make comments on the management of the Company; and |
| (c) | ask
the auditor questions about the conduct of the audit and preparation and content of the Auditor’s
Report. |
In
addition to taking questions at the Annual General Meeting, written questions to the Chairman about 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, |
may
be submitted no later than 5 business days before the Annual General Meeting to the Company Secretary at the Company’s registered
office.
| 2. | Resolution
1: Adoption of Remuneration Report |
Under
the Corporations Act, listed entities are required to put to the vote a resolution that the Remuneration Report section of the Directors’
Report be adopted. This Remuneration Report can be found in the Company’s 2024 Annual Report. It sets out a range of matters relating
to the remuneration of Directors, the Company Secretary and senior executives of the Company.
A
vote on this resolution is advisory only and does not bind the Directors or the Company. A copy of the Company’s 2024 Annual Report
can 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 in the Remuneration
Report (and any closely related party of those members) are 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 least
25% of the votes cast, this will constitute a “first strike”. |
The
Company’s current “strike” count is zero. If a “first strike” was to occur at the 2024 Annual General Meeting:
| (c) | the
Company’s subsequent Remuneration Report (in other words, the Company’s Remuneration
Report to be included in the 2024 Annual Report) must include an explanation of the Board’s
proposed action in response to a 2024 “no vote” or an explanation of why no action
has been taken; and |
| (d) | if
the Company’s subsequent (i.e. 2024) Remuneration Report also receives a “no
vote” at the 2024 Annual General Meeting of at least 25% of the votes cast, then Shareholders
at the 2024 Annual General Meeting will be asked (at that 2024 Annual General Meeting) to
vote on whether or not the Company is to hold another general Shareholder’s meeting
(within the following 90 days) to vote on a “spill resolution” under section
250V of the Corporations Act. |
As
set out in the Notice of Meeting, any member of the Key Management Personnel whose remuneration details are included in the Remuneration
Report, together with a closely related party of those members, are excluded from casting a vote on Resolution 1.
Accordingly,
the Board abstains from making a recommendation 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 Daniel Pollock |
Clause
13.3 of the Company’s Constitution provides that no Director may hold office for a period in excess of 3 years, or beyond the third
annual general meeting following the Director’s election, whichever is the longer, without submitting himself for re-election.
Mr
Daniel Pollock was re-elected as a Non-Executive Director on 15 December 2021, being eligible, offers himself for re-election.
Daniel
Pollock Non-Executive Director |
| Appointment
date |
11
October 2012 |
| Qualifications |
Mr
Pollock holds a Bachelor of Laws and Diploma in Professional Legal Practice and is a lawyer admitted in both Scotland and Australia
and holding practising certificates in both jurisdictions. |
| Experience |
Mr
Pollock is a sole practitioner in his own legal firm based in Melbourne which operates internationally and specialises in commercial
law. Further, he is executive director and co-owner of Great Accommodation Pty Ltd, a property management business operating in Victoria.
He
has had historical involvement as a seed investor and board member of a number of small unlisted companies. The most recent of these
was an e-pharmacy company where he was heavily involved in its commercial growth and ultimate sale to a large listed health services
company. |
| Other
current directorships |
None |
| Special
responsibilities |
Chair
of the Audit and Risk Committee
Member
of the Remuneration and Nomination Committee |
The
Directors (other than Mr Daniel Pollock) 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: Election of director - Dr Jeannette Joughin |
Dr
Jeannette Joughin was appointed on 1 June 2024 to fill a casual vacancy on the Board, in accordance with the Company’s’ Constitution.
Dr
Jeannette Joughin Non-Executive Director |
| Appointment
date |
1
June 2024 |
| Qualifications |
Dr.
Joughin holds a Bachelor of Science (Honours) and a PhD, Immunology from Monash University. |
| Experience |
Dr.
Joughin is an experienced biopharmaceutical and medical device leader with 20+ years’ experience locally and internationally.
Her operational and leadership experience has been forged through conducting research at universities and holding clinical and commercial
positions of increasing seniority in multi-national pharmaceutical companies, start-up environments in private and listed companies
located in the USA, Europe and Australia, and as a Venture Partner working with local and global portfolio companies. |
| Other
current directorships |
Nil. |
| Special
responsibilities |
Member
of Remuneration and Nomination Committee.
Member
of Audit and Risk Committee. |
The
Directors (other than Dr Jeannette Joughin) 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: Approval of increased placement capacity |
ASX
Listing Rule 7.1A enables eligible entities, after obtaining shareholder approval by special resolution at an annual general meeting,
to issue equity securities up to 10% of its issued share capital through placements over a 12 month period after the annual general meeting
(10% Placement Facility). The 10% Placement Facility is in addition to the Company’s 15% placement capacity under Listing Rule
7.1. This Resolution 4 seeks approval to allow the Board the flexibility to issue additional Shares if it so decided. The Board may decide
not to issue any Shares pursuant to this Resolution 4.
An
eligible entity for the purposes of Listing Rule 7.1A is an entity that is not included in 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 seeking shareholder approval by way of a special resolution to have the ability to issue equity securities under the 10%
Placement Facility.
The
exact number of equity securities to be issued under the 10% Placement Facility will be determined in accordance with the formula prescribed
in Listing Rule 7.1A.2.
If
this Resolution 4 is not approved by shareholders then the Company will not have the flexibility of an available additional 10% capacity
to issue Shares under the 10% Placement Facility described in this section 6 of the Explanatory Memorandum. The Company not having the
10% Placement Facility will have no effect on the Company’s existing Listing Rule 7.1 15% capacity.
| 5.2 | Description
of Listing Rule 7.1A |
Any
equity securities issued under the 10% Placement Facility (Placement Securities) must be in the same class as an existing quoted
class of equity securities of the Company. The Company, as at the date of the Notice, has on issue one class of quoted equity securities,
being ordinary shares (Shares).
Resolution
4 is a special resolution and therefore requires approval of 75% of the votes cast by Shareholders present and eligible to vote (in person,
by proxy, by attorney or, in the case of a corporate Shareholder, by a corporate representative).
Eligible
entities which have obtained Shareholder approval at an annual general meeting may issue or agree to issue, during the 12 month period
after the date of the annual general meeting, a number of Placement Securities calculated in accordance with the formula in Listing Rule
7.1A.2.
The
effect of Resolution 4 will be to allow the Directors to issue the Placement Securities under Listing Rule 7.1A during the 10% Placement
Period (as defined below) without using any of the Company’s 15% placement capacity under Listing Rule 7.1.
| 5.3 | 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 10% Placement Facility as follows:
| (a) | Period
for which approval will be valid |
Shareholder
approval of the 10% 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 earlier to occur of:
| (i) | the
date that is 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 significant change to the nature or scale of activities) or 11.2 (disposal of main 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 be issued for cash consideration which is not less
than 75% of the VWAP of equity securities in the same class calculated over the 15 trading days on which trades in that class were recorded
immediately before:
| (i) | the
date on which the price at which the Placement Securities are to be issued is agreed; or |
| (ii) | if
the Placement Securities are not issued within 10 trading days of the date in paragraph (i)
above, the date on which the Placement Securities are issued. |
The
actual number of Placement Securities that the Company will have capacity to issue under Listing Rule 7.1A will be calculated at the
date of issue of the Placement Securities in accordance with the formula prescribed in Listing Rule 7.1A.2.
| (c) | Maximum
Number of Shares to be Issued: |
Listing
Rule 7.1A.2 provides that an eligible entity which has obtained a 7.1A mandate may, during the period of the mandate, issue or agree
to issue a number of equity securities (N) equal to the 10% Placement Facility, calculated in accordance with the following formula
prescribed in Listing Rule 7.1A.2:
N
= (A x D) – E
where:
A
= is the number of shares on issue 12 months before the date of the issue or agreement:
| ● | plus
the number of fully paid ordinary securities issued in the relevant period under an exception in Listing Rule 7.2 other than exception
9, 16 or 17, |
| ● | plus
the number of fully paid ordinary securities issued in the relevant period on the conversion of convertible securities within 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 issue 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 number of fully paid ordinary securities issued in the relevant period under an agreement
to issue securities within 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 number of any other fully paid ordinary securities issued in the relevant period with
approval under Listing Rule 7.1 or Listing Rule 7.4, |
| ● | plus
the number of partly paid ordinary securities that became fully paid in the relevant period, |
| ● | less
the number of fully paid ordinary securities cancelled in the relevant period. |
| |
(Note: “A” has the same meaning as in Listing Rule 7.1 when calculating the 15% capacity); |
D
= 10%;
E
= the number of equity securities issued or agreed to be issued under Listing Rule 7.1A.2 in the relevant period (being the 12 month
period immediately preceding the date of the issue or agreement), where the issue or agreement has not been subsequently approved by
holders of ordinary securities under Listing Rule 7.4;
| (d) | Purposes
for which Placement Securities may be issued |
The
Company may seek to issue the Placement Securities as cash consideration for the acquisition of new assets and or other investments,
or as cash for general working capital purposes.
The
Company will comply with the disclosure obligations under Listing Rules 7.1A.4 and 3.10.3 upon issue of any Placement Securities.
| (e) | Effect
on existing (non-participating) Shareholders |
If
Resolution 4 is approved by Shareholders and the Company issues Placement Securities under the 10% Placement Facility, the existing Shareholders’
voting power in the Company will be diluted as shown in the below table. There is a risk that:
| (i) | the
market price for the Company’s equity securities may be significantly lower on the date of
the issue of the Placement Securities than on the date of the Annual General Meeting; and |
| (ii) | the
Placement Securities may be issued at a price that is at a discount to the market price for
the Company’s equity securities on the issue date. |
The
below table is included for illustrative purposes and shows the potential dilution of existing Shareholders on the basis of the current
market price of the Shares as at 30 September 2024 and the current number of Shares for variable “A” (above) calculated in
accordance with the formula in Listing Rule 7.1A.2 as at the date of this Notice.
The
table also shows:
| (i) | Two
examples where variable ‘A’ has increased by 50% and 100%. Variable ‘A’
is based on the number of Shares the Company has on issue as at the date of this Notice of
Meeting. The number of Shares on issue may increase as a result of issues of Shares that
do not require Shareholder approval (for example, a pro rata entitlements issue or scrip
issued under a takeover offer) or future specific placements under Listing rule 7.1 that
are approved at a future shareholders’ meeting; and |
| (ii) | Two
examples where the issue price of the Shares has decreased by 50% and increased by 50% as
against the current market price. |
The
table has been prepared on the following assumptions:
| (i) | The
Company issues the maximum number of Placement Securities available under the 10% Placement
Facility. |
| (ii) | The
10% voting dilution reflects the aggregate percentage dilution against the issued share capital
at the time of issue. This is why the voting dilution is shown in each example as 10%. |
| (iii) | The
table does not show an example of dilution that may be caused to a particular Shareholder
by reason of placements under the 10% Placement Facility, based on that Shareholder’s
holding at the date of the Annual General Meeting. |
| (iv) | The
table shows only the effect of issues of Placement Securities under Listing Rule 7.1A, not
under the 15% placement capacity under Listing Rule 7.1. |
| (v) | The
issue of Placement Securities under the 10% Placement Facility consists only of Shares. |
| (vi) | The
issue price is $0.105, being the closing price of the Shares on ASX on 30 September 2024. |
|
|
Dilution |
Number
of Shares on Issue
(Variable ‘A’ in Listing
Rule 7.1A.2)* |
Shares
issued –
10% voting
dilution |
Issue
Price |
| $0.052
|
$0.105
|
$0.157
|
| 50%
decrease |
Issue
Price |
50%
increase |
| Funds
Raised |
| Current |
227,998,346 |
22,799,835 |
$
1,185,591 |
$
2,393,983 |
$
3,579,574 |
| 50%
increase |
341,997,519 |
34,199,752 |
$
1,778,387 |
$
3,590,974 |
$
5,369,361 |
| 100%
increase |
455,996,692 |
45,599,669 |
$
2,371,183 |
$
4,787,965 |
$
7,159,148 |
| |
|
|
|
|
|
|
| (f) | Company’s
share allocation policy |
The
Company’s share allocation policy is dependent on the prevailing market conditions at the time of any proposed issue pursuant to
the 10% Placement Facility. The identity of the allottees of Placement Securities will be determined on a case-by-case basis having regard
to the factors including but not limited to the following:
| (i) | the
methods of raising funds that are available to the Company, including but not limited to,
issues in which existing security holders can participate; |
| (ii) | the
effect of the issue 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 10% Placement Facility have not been determined as at the date of this Notice of Meeting but may include existing
substantial Shareholders and/or new Shareholders who are not related parties or associates of a related party of the Company.
| (g) | Information
under ASX Listing Rule 7.3A.6 |
As
at the date of this Notice the Company has not issued any equity securities under Listing Rule 7.1A.2 in the past 12 months preceding
the date of the AGM.
| (h) | Voting
exclusion statement |
A
voting exclusion statement is provided above in this Notice. As at the date of this Notice the Company is not proposing to make an issue
of equity securities under Listing Rule 7.1A.2.
The
Directors of the Company believe that Resolution 4 is in the best interests of the Company and unanimously recommend that Shareholders
vote in favour of this Resolution 4. The Chairman intends to exercise all undirected proxies in favour of Resolution 4.
| 6. | Resolutions
5, 6 and 7: Issues of Options to Directors |
| 6.1 | Resolution
5: Issue of Options to Dr Jeannette Joughin |
Subject
to shareholder approval of Resolution 5, the Board has decided to issue to Dr Jeannette Joughin 1,000,000 Options under the Company’s
Omnibus Plan, with an exercise price of $0.13 (which is equivalent to a 44% premium to the Company’s Share price as at the date of Dr
Joughin’s appointment on 1 June 2024), an expiry date of 4 years from the grant date of 19 June 2024 and shall otherwise be issued
subject to the Option Terms and Conditions (a copy of which is attached as Part 3 of Annexure A to this Notice) (JJ Options).
The
1,000,000 JJ Options have been valued by the Company at approximately $58,000 by the Company using the Black-Scholes valuation method.
Dr Joughin does not currently own any other securities in the Company.
Where
shareholders do not approve the issue of the JJ Options under Resolutions 5, the Company will not issue the JJ Options to Dr Jeannette
Joughin at this time and has no commitment to Dr Jeannette Joughin to provide any compensation if this Resolution 5 is not passed.
The
Company will not be seeking quotation of the JJ Options on the ASX as a separate class of listed securities.
| 6.2 | Resolution
6: Issue of Options to Mr Daniel Pollock |
Subject
to shareholder approval of this Resolution 6, the Board has decided to issue to Mr Daniel Pollock 1,000,000 Options under the Company’s
Omnibus Plan, with an exercise price of $0.145 (which is equivalent to a 45% premium to the Company’s the 5 day volume weighted average
price (VWAP) up to and including the Grant Date of 20 August 2024), an expiry date of 4 years from the grant date of 20 August 2024 and
shall otherwise be issued subject to the Option Terms and Conditions (a copy of which is attached as Part 3 of Annexure A to this Notice)
(DP Options).
The
1,000,000 DP Options have been valued by the Company at approximately $65,000 by the Company using the Black- Scholes valuation method.
Mr Pollock currently holds direct and indirect interests in 818,030 Shares and 1,600,000 Options. The 1,600,000 Options currently held
by Mr Pollock were approved by Shareholders at the Annual General Meeting held on 29 October 2020 under the Company’s Executive
Share Option Plan in place at that time and expire on 13 November 2024.
Where
shareholders do not approve the issue of the DP Options under Resolutions 6, the Company will not issue the DP Options to Mr Pollock
at this time and has no commitment to Mr Daniel Pollock to provide any compensation if this Resolution 6 is not passed.
The
Company will not be seeking quotation of the DP Options on the ASX as a separate class of listed securities.
6.3 Resolution
7 - Issue of Options to Prof. Ravi Savarirayan
Subject
to shareholder approval of this Resolution 7, the Board has decided to issue to Prof. Ravi Savarirayan 1,000,000 Options under the Company’s
Omnibus Plan, with an exercise price of $0.145 (which is equivalent to 45% premium to the Company’s the 5 day volume weighted average
price (VWAP) up to and including the Grant Date of 20 August 2024), an expiry date of 4 years from the grant date of 20 August 2024 and
shall otherwise be issued subject to the Option Terms and Conditions (a copy of which is attached as Part 3 of Annexure A to this Notice)
(RS Options).
The
1,000,000 RS Options have been valued by the Company at approximately $65,000 by the Company using the Black- Scholes valuation method.
Prof. Savarirayan currently holds direct and indirect interests in 877,840 Shares and 900,000 Options. The 900,000 Options currently
held by Prof. Savarirayan were approved by Shareholders at the Annual General Meeting held on 29 October 2020 under the Company’s
Executive Share Option Plan in place at that time and expire on 13 November 2024.
Where
shareholders do not approve the issue of the RS Options under Resolutions 7, the Company will not issue the RS Options to Prof. Savarirayan
at this time and has no commitment to Prof. Savarirayan to provide any compensation if this Resolution 7 is not passed.
The
Company will not be seeking quotation of the RS Options on the ASX as a separate class of listed securities.
| 6.4 | Regulatory
Background for Resolutions 5, 6 and 7 |
Pursuant
to the Corporations Act 2001 (Cth), the provision of any financial benefit to a related party requires shareholder approval in
accordance with the procedure set out in Part 2E.1 of that Act, unless one of a number of exceptions applies. Part 2E.1 applies to the
issuance of securities to a related party by the Company to a related party. A “related party” (as defined in the Act) includes
the Directors of the Company and their controlled entities.
With
respect to Resolutions 5, 6 and 7, the Board is of the view that the Options proposed to be issued would be issued upon terms that would
meet both the “arm’s length terms” and the “reasonable remuneration” criteria of Section 210 of the Corporations
Act (and would therefore be exempt from the need to seek shareholder approval pursuant to the Corporations Act).
In
addition, ASX Listing Rule 10.14 provides that a listed company must not, without the approval of ordinary shareholders, issue equity
securities under an employee incentive plan (such as the Omnibus Plan) to a related party. A “related party” (as defined in
the ASX Listing Rules) includes the directors of the listed company and their controlled entities. The Company is seeking approval pursuant
to ASX Listing Rule 10.14
| 6.5 | ASX
Listing Rules in relation to Resolutions 5, 6 and 7 |
ASX
Listing Rule 10.15 requires that the notice of meeting in relation to a proposed resolution to approve an issue of securities under Listing
Rule 10.14, include the following information:
| (a) | The
name of the person to whom the securities will be issued and Listing Rule 10.14 category: |
| ● | Dr
Jeannette Joughin is a Director, and therefore related party, of the Company (Listing Rule
10.14.1 applies); |
| ● | Mr
Daniel Pollock is a Director, and therefore related party, of the Company (Listing Rule 10.14.1
applies); and |
| ● | Prof.
Ravi Savarirayan is a Director, and therefore related party, of the Company (Listing Rule
10.14.1 applies). |
| (b) | The
number and class of securities to be issued to the person: |
| | | |
| | | Dr
Jeanette Joughin, Mr Daniel Pollock and Prof. Ravi Savarirayan, will each be issued 1,000,000 unlisted Options to purchase Shares
(a total of 3,000,000 Options). |
| (c) | The
details of the directors’ current total remuneration packages: |
| ● | The
total annual remuneration package for Dr Jeannette Joughin for the financial year ending
30 June 2024 is $75,000 (exclusive of statutory superannuation); |
| ● | The
total annual remuneration package for Mr Daniel Pollock for the financial year ending 30
June 2024 is $115,000 (exclusive of statutory superannuation); and |
| ● | The
total annual remuneration package for Prof. Ravi Savarirayan for the financial year ending
30 June 2024 is $75,000 (no statutory superannuation applicable). |
| (d) | The
following securities have previously been issued to the Directors under the Plan. |
| ● | Dr
Jeannette Joughin – nil. |
| ● | Mr
Daniel Pollock – 1,800,000 options; and |
| ● | Prof.
Ravi Savarirayan – 900,000 options. |
| (e) | The
date by which the entity will issue the securities: |
| | | |
| | | No
later than one month after the date of this Annual General Meeting. |
| (f) | The
issue price of the securities: |
| | | |
| | | No
funds will be received by the Company upon the issue of the JJ Options, DP Options or RS Options. However, should: |
| ● | Dr
Joughin exercise all the JJ Options, she will have to subscribe a total of $130,000; |
| ● | Mr
Pollock exercise all the DP Options, he will have to subscribe a total of $145,000; and |
| ● | Prof.
Savarirayan exercise all the RS Options, he will have to subscribe a total of $145,000. |
| (g) | A
summary of the material terms of the Employee Share Plan |
| | | |
| | | A
summary of the material terms of the Omnibus Plan is set out in Annexure A of this Notice, and in particular, Part 3 of Annexure A. |
| (h) | A
summary of the material terms of the loans that will be made |
Not
Applicable - there will be no loan to any Director in respect of the JJ Options, DP Options or RS Options.
| (i) | Additional
Information |
Details
of any securities issued under this scheme will be published in the annual report of the Company relating to the period in which the
above securities are issued, along with a statement that approval for the issue was obtained under Listing Rule 10.14. Any additional
persons covered by Listing Rule 10.14 who become entitled to participate in an issue of securities under this scheme after this resolution
is approved and who were not named in the notice of meeting will not participate until approval is obtained under that rule.
If
approved, the issue of the Options under Resolutions 5, 6 and 7 does not result in the Relevant Directors having a relevant interest
in the capital of the Company, unless they subsequently exercised the Options.
Approval
of this issue of securities pursuant to Listing Rule 10.14 means that pursuant to Listing Rule 7.2 (Exception 14), member approval is
not required under Listing Rule 7.1 to the issue of the 1,000,000 Options to each Director (a total of 3,000,000 Options).
| (a) | The
Board of Directors (other than Dr Jeannette Joughin) unanimously recommends that shareholders
vote in favour of Resolution 5. Dr Jeannette Joughin abstains from making a recommendation
due to her personal interest in the outcome of the Resolution. The Chair intends to vote
all undirected proxies in favour of Resolution 5. |
| (b) | The
Board of Directors (other than Mr Daniel Pollock) unanimously recommends that shareholders
vote in favour of Resolution 6. Mr Daniel Pollock abstains from making a recommendation due
to his personal interest in the outcome of the Resolution. The Chair intends to vote all
undirected proxies in favour of Resolution 6. |
| (c) | The
Board of Directors (other than Prof. Ravi Savarirayan) unanimously recommends that shareholders
vote in favour of Resolution 7. Prof. Ravi Savarirayan abstains from making a recommendation
due to his personal interest in the outcome of the Resolution. The Chair intends to vote
all undirected proxies in favour of Resolution 7. |
The
Directors are not aware of any other information which is relevant to the consideration by members of the proposed Resolutions set out
in this Notice of Meeting.
The
Directors recommend members read this Explanatory Memorandum in full and, if desired, seek advice from their 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
The
following definitions are used in the Notice of Meeting and the Explanatory Memorandum:
Annual
General Meeting / AGM means the annual general meeting of the Company to be held as a hybrid meeting at the offices of The Offices
of K & L Gates, Level 25, Rialto South Tower, 525 Collins Street Melbourne, Victoria and online.
ASX
means ASX Limited ACN 008 624 691.
ASX
Listing Rules or Listing Rules means the Listing Rules of the ASX as amended from time to time.
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 key personnel as disclosed in 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 year ended 30 June 2024 as set out in the Company’s Annual Report for
the year ended 30 June 2024.
Resolution
means the resolutions referred to in the Notice of Meeting.
Share
means a fully paid ordinary share in the capital of the Company.
Share
Registry means Automic Registry Services.
Shareholder
means a holder of a Share.
VWAP
means volume weighted average price.
Annexure
A - Omnibus Plan Summary
Part
1 - General Omnibus Plan Terms
A
summary of the terms of each of the constituent awards under the Omnibus Incentive Plan (Plan) is as follows:
Only
those Employees, Directors and Contractors of the Company invited by the Board, in its absolute discretion, to apply for Awards will
be eligible to participate (Eligible Participants).
Types
of Award
The
Plan Rules allow for the following Awards to be offered by the Board to Eligible Participants:
| (a) | a
Loan Share, by which the Company may provide an Acquisition Loan in relation to Loan
Shares by making a loan to a Participant on the terms set out in an Offer and in the Plan
Rules - refer Part 2 below for further detail; |
| (b) | an
Option - a right to acquire a newly issued Share in the Company subject to achievement
of specified vesting conditions and payment of the relevant exercise price - refer Part
3 below for further detail; |
| (c) | a
Performance Right to acquire a Share issued in the Company subject to achievement
of the specific performance-based vesting conditions - refer Part 4 below for further
detail; |
| (d) | a
Deferred Share Award, which are Shares issued to Eligible Participants: |
| (i) | who
elect to receive Shares in lieu of any wages, salary, director’s fees, or other remuneration;
or |
| (ii) | by
the Company in its discretion, in addition to their wages, salary and remuneration, or in
lieu of any discretionary cash bonus or other incentive payment; or |
| (e) | an
Exempt Share Award may be offered, which are Shares issued for no consideration or
at an Issue Price which is a discount to the Market Price with the intention that up to $1,000
(or such other amount which is exempted from tax under the Tax Act from time to time) of
the total value or discount received by each Eligible Participant will be exempt from tax. |
Offer
Letters
Awards
will be issued to Eligible Participants that accept the terms of offer outlined in the letter of offer (Offer Letter). Participation
in the Plan is voluntary. The Offer Letter will detail the following terms (where appropriate):
| (a) | Type
of Award to be offered (e.g. Options, Performance rights, etc.); |
| (b) | Number
of Awards to be offered; |
| (c) | Exercise
period, which will include details of the vesting date or dates and the expiry date; |
| (d) | Exercise
price or issue price; |
| (e) | Vesting
performance conditions such as the achievement of a particular performance target; |
| (f) | Vesting
conditions, such as the requirement to remain a permanent employee; |
| (g) | Disposal
restrictions; |
| (h) | Award
expiry date, being the date that the terms of offer expire; and |
| (i) | any
other matters required to be specified in the Offer by either the Corporations Act or the
Listing Rules. |
Exercising
an Award
Exercising
the Award is done by providing the Company with a Notice of Exercise stating the number of Award units to be exercised, and if required,
accompanied by payment of the Exercise Price or acceptance of a loan agreement with the Company, to fund the Exercise Price.
Once
a Participant has exercised a vested Award (including payment of the Exercise Price where required), the Company will issue new Shares
to the Participant. If the Company has provided a loan to the Participant to fund the exercise price, the shares will be issued with
disposal restrictions.
General
Provisions
Generally,
if the Eligible Participant ceased employment or engagement with the Company the below will apply. See Parts 1, 2 or 3 below for more
detail:
| (a) | Unvested
Options and Performance Rights lapse on the date of the date of cessation |
| (b) | Upon
cessation the Holder has 6 months to exercise your vested Options and/or Performance Rights,
failing which vested Options and/or Performance Rights will lapse. |
| (c) | outstanding
loans by the Company (for the acquisition of Loan Plan Shares) are to be repaid within 30
days of cessation of employment. |
A
Holder cannot vote in respect of Options and Performance Rights held under the Plan. Holders can vote in respect of Shares acquired under
the Plan, including upon the exercise of vested Options and Performance Rights.
Subject
to further detail contained in Parts 1, 2 or 3 below, in general:
| (a) | Options
and Performance Rights |
| (i) | may
be subject to restrictions until they are exercised or expire. |
| (ii) | may
specify a Restriction Period for Shares issued on their exercise. |
| (iii) | are
subject to adjustment where there is a reorganisation of capital of the Company (other than
by way of a bonus issue or issue for cash) to the extent necessary to comply with the Listing
Rules as they apply at the relevant time (Reorganisation Adjustment). |
| (i) | may
be subject to restrictions until Vesting Conditions are satisfied and the Loan is repaid
or satisfied; and |
| (ii) | Loan
and security terms apply. |
Unless
a different Restriction Period is specified in an Offer, the Restriction Period for Deferred Share Awards will expire on the earlier
of:
| (i) | when
a Participant ceases to be an Eligible Participant; |
| (ii) | when
the Board, in its discretion, agrees to end the Restriction Period; and |
| (iii) | 10
years from the date of issue of the Shares. |
Unless
a different Restriction Period is specified in an Offer, the Restriction Period for Exempt Share Awards will expire on the earlier of:
| (i) | three
years from the date of issue of the Shares; and |
| (ii) | the
time when a Participant ceases to be an Eligible Participant. |
The
Company will offer Exempt Share Awards on a non-discriminatory basis as defined by section 83A-35(6) of the Tax Act.
Dilution
Limit
An
Offer of Awards must not be made if the total of the following:
| (a) | the
number of Shares which are the subject of the Offer of Awards; |
| (b) | the
total number of Shares which are the subject of any outstanding Offers of Awards; |
| (c) | the
total number of Shares issued during the previous five years under this Plan or any other
employee share scheme extended only to Eligible Participants of the Company (adjusted if
necessary in each case for capital reorganisations), but not including existing Shares transferred
to a Participant after having been acquired for that purpose; and |
| (d) | the
total number of Shares which would be issued under all outstanding Awards that have been
granted but which have not yet been exercised, terminated or expired, assuming all such Awards
were exercised and ignoring any Vesting Conditions, |
but
disregarding any Offer made, or Award offered or issued, or Share issued by way of or as a result of:
| (e) | an
offer to a person situated outside Australia at the time of receipt of the offer; |
| (f) | an
offer that did not need disclosure to investors because of section 708 of the Corporations
Act; or |
| (g) | of
offer made under a disclosure document as defined in the Corporations Act, |
would
exceed 12.5% of the number of Shares on issue at the time of the Offer.
Default
Vesting Conditions
If
vesting conditions or other vesting events are not specified in an Offer and the Offer does not expressly state to the effect that no
vesting conditions apply, the following Vesting Conditions apply to any Options, Performance Rights or Loan Shares offered under the
Plan:
| (a) | the
Awards only vest if at the applicable vesting date the Participant either: |
| (i) | remains
employed with a Company Group Member, continues to provide consulting services to a Company
Group Member or acts as a director of a Company Group Member (as applicable); or |
| (ii) | ceased
to do so before the applicable vesting date in circumstances where the person was a Good
Leaver; and |
| (b) | the
Awards vest in equal one-third tranches on the first, second, and third anniversaries of
the grant date of the Awards (or of another date specified in the Offer for this purpose). |
Where,
for the purposes of the Plan:
“Good
Leaver” means a person who has ceased to be employed or engaged by the Company or its subsidiary as a result of that person’s:
| (a) | total
or permanent disablement, or an illness which persists for at least 3 months, which in either
case prevents the person from carrying out their previous functions as an employee, contractor
or director; |
| (d) | other
factors determined by the Board in its discretion to constitute sufficient reason to treat
the person as a Good Leaver; |
provided
that the Participant has not committed a material breach of their employment contract or obligations during their employment or engagement
with the Company Group.
“Bad
Leaver” means a person who has ceased to be employed or engaged by the Company or its subsidiary, in circumstances where they
are not a Good Leaver.
Takeovers
and control transactions
If
a takeover bid is made to acquire all of the issued Shares of the Company, or a scheme of arrangement, selective capital reduction or
other transaction is initiated which has an effect similar to a full takeover bid for Shares in the Company, then Participants are entitled
to accept the takeover bid or participate in the other transaction in respect of all or part of their Awards, other than Exempt Share
Awards, notwithstanding that a restriction period in respect of such Awards has not expired. The Board may, in its discretion, waive
unsatisfied vesting conditions in relation to some or all Awards in the event of such a takeover or other transaction.
Ranking
Shares
allotted under or on the exercise of an Award will rank equally in all respects with the then existing issued ordinary fully paid shares
in the capital of the Company (except to the extent any such Shares are subject to a restriction agreement upon issue or in respect to
any dividends which shall have been declared but not yet distributed before the actual exercise of an Option) and will be subject to
the provisions of the Constitution of the Company.
Reorganisation
Event
If,
prior to the exercise of an Award, the Company undergoes a reorganisation of capital (other than by way of a bonus issue or issue for
cash) the terms of the Awards of the Participant will be changed to the extent necessary to comply with the Listing Rules as they apply
at the relevant time.
Annexure
A - Omnibus Plan Summary
Part
2 - Loan Share Terms:
The
Omnibus Plan empowers the Board to exercise its discretion to issue fully paid ordinary shares in the Company (Loan Shares) to
employees who qualify to participate in the Plan, upon the basis that the Company advances (Loan) the Participant the funds to
purchase the Loan Shares pursuant to the terms of a secured limited recourse loan agreement between the Participant and the Company (Loan
Agreement) and that the Participant enters a Restriction Agreement with the Company. The Loan Shares may be issued subject to vesting
conditions as determined by the Board in its discretion.
Loan
Terms
The
key terms of each limited recourse loan (Loan) provided under the Plan (Loan Terms) are as follows:
| (a) | the
Loan may only be applied towards the subscription price for the Loan Shares; |
| (b) | the
Loan will be interest free, provided that if the Loan is not repaid by the repayment date
set by the Board, the Loan will incur interest at 9% per annum after that date (which will
accrue on a daily basis and compound annually on the then outstanding Loan balance); |
| (c) | by
signing and returning a limited recourse Loan application, the Participant acknowledges and
agrees that the Loan Shares will not be transferred, encumbered, otherwise disposed of, or
have a security interest granted over it, by or on behalf of the Participant, until the Loan
is repaid in full to the Company; |
| (d) | the
Company has the discretion as to whether it will require the Participant to provide the Company
with security over the Loan Shares as security for repayment of the Loan, which security
includes a pledge of the Participant’s Loan Shares provided under the Plan and a charge over
all dividends and other amounts paid or payable on those Loan Shares; |
| (e) | the
Participant is required to enter a restriction agreement with the Company (Restriction
Agreement) in accordance with the terms of the Employee Share Plan; |
| (f) | the
Loan becomes repayable on the earliest of: |
| (i) | 5
years from the date on which the Loan is advanced to the Participant; |
| (ii) | one
month after the date of (A) the Participant’s resignation or cessation of office/engagement/employment
(as the case may be) (other than if the Participant is removed from office), (B) if the Company
does not renew the Participant’s employment agreement or engagement terms, or (C) where the
Company dismisses the Participant other than for cause; and |
| (iii) | (by
the legal personal representative of the Participant) six months after the Participant ceases
to be an employee of the Company due to their death; |
the
earliest date being the Repayment Date.
| (g) | notwithstanding
paragraph (f) above, |
| (i) | the
Participant may repay all or part of the Loan at any time before the Repayment Date; and |
| (ii) | the
Loan will be limited recourse such that on the Repayment Date the repayment obligation under
the limited recourse loan will be limited to the lesser of the outstanding balance of the
limited recourse loan and the market value of the Loan Shares on that date. |
| (h) | where
the Participant has elected for the Loan Shares to be provided to the Company in full satisfaction
of the Loan, the Company must accept a transfer of the Loan Shares by the Participant to,
or as directed by the Company, as full settlement of the repayment obligation under the limited
recourse loan. |
Rights
attaching to the Loan Shares
The
Loan Shares will rank equally with all other fully paid ordinary shares on issue in the capital of the Company, other than for the provisions
of an applicable Restriction Agreement. Holders of Loan Shares will be entitled to exercise all voting rights attaching to those Shares
in accordance with the Company’s constitution. In addition, holders of Loan Shares will be entitled to participate in dividends declared
and paid by the Company in accordance with the Company’s constitution, but the Company may retain, or pay to itself on behalf of a Participant,
any moneys (including dividends) and any capital distributions that may become payable in respect of a Loan Share in reduction of the
amount outstanding under the Loan in respect of that Loan Share.
Sale
of the Loan Shares
The
Loan Shares may only be sold by a Participant (who has been granted a limited recourse loan) where the Loan Shares have vested and the
Loan has been repaid in full (otherwise any dealing by the Participant in the Loan Shares is prohibited without the prior written consent
of the Company).
If
the Loan becomes due and payable under the Loan Agreement and the Participant has not repaid the amount of the Loan in full within 21
days of the due date, then the Participant will forfeit their interest in the Loan Shares as full consideration for the repayment of
the outstanding Loan balance (other than any interest accrued and unpaid on any overdue loan repayment), and the Company may either (at
its election) take such action in the Participant’s name or direct that the Participant take such action in relation to the Loan Shares
as the Company considers appropriate, which may include but is not limited to the Company undertaking a buy-back of the Loan Shares or
transferring or selling the Loan Shares. For the purpose of this sale, the Participant appoints the secretary of the Company (or his
or her duly authorised delegate) as their attorney and authorises them to sell the relevant Loan Shares on behalf of the Participant.
The Company and the secretary will have complete discretion in respect of the sale of the relevant Loan Shares.
Copies
of the Employee Share Plan are available for inspection at the Company’s registered office and will be provided without charge
to shareholders on request.
Application
Form Terms
The
Application for the Loan Shares to be executed by a Participant includes the appointment by the Participant of the Company to be its
attorney under a power of attorney (Power of Attorney) to perform all acts required on the Participant’s behalf in order
| (a) | to
transfer the shares (not yet vested) which are the subject of the Application to a nominee
or nominees of the Company at the Issue Price per Share, or |
| (b) | for
the Company to undertake a buy back (at the Issue Price per Share) or capital reduction of
those Shares not yet vested pursuant to the provisions of the Corporations Act 2001, |
upon
the basis that the Application Form is an irrevocable direction to the Company to apply all proceeds that would have otherwise been provided
or due to the Participant on a transfer, buy back or capital reduction solely in satisfaction of the Outstanding Loan Balance (as defined
in the Loan Agreement).
The
Application Form also contains a vesting condition that prevails over all other (if any) vesting conditions (Liquidity Event Vesting
Condition), namely that all Loan Shares vest immediately upon the happening of a Liquidity Event (as defined). A “Liquidity
Event” is defined as:
| (a) | where
a bidder under a takeover offer (as defined in the Corporations Act) has acceptances for
more than 50% of the ordinary shares in the Company and there are no unsatisfied conditions
(or conditions that not been waived) under the bid, or |
| (b) | on
shareholder approval being obtained for a scheme of arrangement (as defined in the Corporations
Act) with respect to the assets or securities of the Company; or |
| (c) | completion
under a contract of sale with a third party purchaser of all, or substantially all, of the
assets and undertaking of the Company. |
Termination
benefits under the Plan
The
Plan allows the Board, in its discretion and subject to the Listing Rules, to accelerate vesting of share entitlements on a retirement,
for which Shareholder approval has been obtained where such an acceleration could constitute a benefit otherwise prohibited under Section
200B of the Corporations Act.
Annexure
A - Omnibus Plan Summary
Part
3 - Option Terms and Conditions:
Particulars
Participation
in the Plan is voluntary. The number of Options; the Options exercise price and expiry date, any vesting conditions and any applicable
restrictions will be determined by the Board in its absolute discretion and will be communicated to any Eligible Participant by way of
letter of offer (Offer Letter).
Exercise
of Options
The
Options may be exercised for part or all of the Options vested at a particular time by the Option Holder giving written notice, in the
required form and specifying the number of Options to be exercised and the method of exercise (Notice of Exercise) to the Company
at its registered office prior to the Expiry Date.
Options
in the Plan may be exercised by either:
| (i) | payment
in full of the respective exercise price of the Options being exercised; or |
| (ii) | by
use of the Cashless Exercise Facility described below. |
The
Cashless Exercise Facility entitles a Participant to set-off the cash Exercise Price against the number of Shares which the Participant
is entitled to receive upon exercise of the Participant’s Options. If a Participant elects to use the Cashless Exercise Facility,
the Participant will only be issued that number of Shares (rounded down to the nearest whole number) as are equal in value to the difference
between the total Exercise Price otherwise payable in cash for the Options on the Options being exercised and the then market value of
the Shares at the time of exercise (determined as the volume weighted average prices at which Shares were traded on the ASX over the
5 ASX Business Days immediately preceding the exercise date), calculated in accordance with the following:
S
= O x (MSP – EP)
MSP
Where:
S
= Number of Shares to be issued on exercise of the Options using the Cashless Exercise Facility.
O
= Number of Options being exercised.
MSP
= Market value of the Shares (calculated using the volume weighted average prices at which Shares were traded on the ASX over the 5 ASX
Business Days immediately preceding the exercise date).
EP
= (Cash) Option Exercise Price.
To
the extent the Cashless Exercise Facility is not utilised, an exercise of any Options will require the full payment of such Exercise
Price shall be made in cash for these Options being exercised, such payment to accompany the Notice of Exercise, and shall be made
| (a) | in
cash or bank cheque, or |
| (b) | in
any other manner permitted in the discretion of the Board. |
Such
Notice of Exercise shall be delivered to the Company at its principal business office or such other office as the Board may direct, and
shall be in such form, containing such further provisions consistent with the provisions of the Plan, as the Committee may prescribe.
No person exercising an Option shall have any of the rights of a holder of the shares underlying that Option until the date that such
ordinary shares are issued following the exercise of such Option. No adjustment shall be made for cash dividends or other rights for
which the record date is prior to the date of such issuance.
On
receipt by the Company of the Notice of Exercise and payment of the Exercise Price, the Company must, as soon as practicable and if the
Shares are listed on the ASX within the time period prescribed by the Listing Rules of the ASX (ASX Listing Rules):
| (a) | allot
to the Option Holder one Share in the Company for each Option exercised by the Option Holder; |
| (b) | cause
to be despatched to the Option Holder the relevant acknowledgement of issue, a holding statement
or share certificate (as applicable) as soon as is reasonably practicable detailing the issue
of the relevant Share/s; and |
| (c) | issue
(if applicable) a new holding statement (or option certificate) for the balance of the Options
that remain unexercised. |
Transfers
The
Options are not transferable and are subject all restrictions, if any, as described in the Offer Letter.
Termination
of Employment
If
an Eligible Participant’s employment with the Company or its subsidiaries ceases, then:
| (a) | If
that employee is a Good Leaver: |
| (i) | the
employee may continue to hold their vested Options and may be able to exercise them on the
occurrence of a future Exit Event, and |
| (ii) | their
unvested Options lapse on the date of their termination. |
| (b) | If
that employee is a Bad Leaver, then their vested and unvested Options lapse on the date of
their termination, unless the Board, in its sole discretion, determines otherwise. |
Reorganisation
If
any reorganisation (including consolidation, subdivision, reduction, return or cancellation) of the issued capital of the Company occurs
before the expiry of any Options, the number of Options to which each Option Holder is entitled or the Exercise Price of their Options
or both must be reorganised in accordance with the ASX Listing Rules applying to a reorganisation at the time of the reorganisation (which
adjustment formula will apply even where the Company is not admitted to the ASX Official List).
Rights
Entitlement
An
Option does not confer the right to participate in new issues of capital offered to holders of Shares (Rights Entitlement) during
the currency of the Options without exercising the Options. However, the Company will use reasonable endeavours to procure that for the
purpose of determining Rights Entitlements to any such issue, the Option Holder is to receive prior notice from the Company of the pending
closing or record date and time for the Option Holder to exercise the Options prior to that closing or record date in order to qualify
for the participation in the Rights Entitlement.
The
Options do not provide any entitlement to dividends paid to ordinary shareholders. The Options do not entitle the Option Holder to vote
at any meeting of shareholders
Governing
Laws
To
the extent (if any) that any of these Option Terms And Conditions are inconsistent with or contrary to the ASX Listing Rules, the ASX
Listing Rules provisions will prevail and these Option Terms And Conditions are deemed to incorporate the relevant ASX Listing Rules
provisions as an amendment to these terms.
These
Terms and Conditions are governed by the laws of Victoria. The Company and the Option Holder submit to the non-exclusive jurisdiction
of the courts of Victoria.
Annexure
A - Omnibus Plan Summary
Part
4 - Performance Rights
The
Plan allows Eligible Participants to be granted performance rights over fully paid ordinary shares in the capital of the Company (Performance
Rights). Each Performance Right is a right to acquire one fully paid ordinary share (Shares) in the capital of the Company
at $nil exercise price.
If
the Board proposes to grant the Performance Rights to an Eligible Participant (or their Nominated Parties) (Invitation), it will
do so subject to the Company achieving certain milestones (Milestones). The Milestones, the total $value conditionally allocated
(at a fair market value per Share to be determined upon exercise), the terms of their exercise and their expiry date will be determined
by the Board in its absolute discretion (Performance Rights Terms) and will be communicated to any Eligible Participant by way
of letter of offer (Offer Letter).
An
Eligible Participant is a Director, consultant or employee of the Company or a subsidiary thereof.
The
following is a summary of the key terms and conditions that apply to all Performance Rights:
Entitlements
A
Performance Right does not confer upon the holder (Holder) the right to
| (a) | receive
notices of general meetings and financial reports and accounts of the Company that are circulated
to holders of fully paid ordinary shares in the capital of the Company (Members). |
| (b) | vote
or receive dividends. |
| (c) | a
return of capital, whether in a winding up, upon a reduction of capital or otherwise. |
| (d) | participate
in the surplus profit or assets of the Company upon a winding up; or |
| (e) | participate
in new issues of securities such as bonus issues or entitlement issues |
unless
and until the applicable performance milestone is achieved and the Performance Right converts into ordinary shares.
Share
ranking
All
Shares issued upon exercise of the Performance Rights will upon issue rank pari passu in all respects with all other Shares.
Transfer
/ transmission of Performance Rights
A
Performance Right may not be transferred or encumbered. Unless, on the death or legal incapacity of the Holder, the relevant dealing
is effected by force of law to the Holder’s legal personal representative or the Board otherwise determines, a Holder may not dispose
of a Performance Right that has been granted to them. The Board may require that a Performance Right be forfeited if a disposal occurs
or is purported to occur other than in accordance with these terms.
Participation
in new issues
There
are no participation rights or entitlements inherent in the Performance Rights and holders will not be entitled to participate in new
issues of capital offered to Members during the currency of the Performance Rights.
Adjustment
for Reorganisation
If
any reorganisation (including consolidation, subdivision, reduction, return or cancellation) of the issued capital of the Company occurs
before the expiry of any Performance Right, all rights of a holder of a Performance Right (including the exercise conditions) must be
reorganised in accordance with the ASX Listing Rules applying to a reorganisation at the time of the reorganisation (which adjustment
formula will apply even where the Company is not admitted to the ASX Official List).
Exercise
of Performance Rights
The
exercise of a Performance Right is to be effected by the Holder completing and returning an exercise notice which will be attached to
the Holder’s Offer Letter (Exercise Notice). Each Performance Right confers upon the Holder the right to be issued a certain number
of Shares (as set out in their Offer Letter) following the achievement of the milestones (also as set out in their Offer Letter) (Milestones).
The fair market value of Shares to be issued will be as determined by the Board in good faith on such basis as it deems appropriate and
applied consistently with respect to all Shares, or another pricing method determined by the Board as at the date the Company receives
the Exercise Notice.
Lapse
if Milestone not achieved
If
the relevant Milestone is not achieved by the due date as set out in the Offer Letter, then the corresponding Performance Rights will
automatically lapse on non-satisfaction of the Milestone.
Holding
Statement
The
Company will issue the Holder with a new holding statement for any Share issued upon exercise of a Performance Right within 10 business
days following exercise.
Continued
service
A
Holder’s entitlement to any Performance Rights in relation to Milestones that have not been met, ceases upon the date that
is 3 months after the Holder ceases to be an Eligible Participant. For any Milestone met prior to the date of cessation of service,
the Holder remains entitled to exercise the relevant Performance Rights and be issued Shares, regardless of whether the Holder remains
an Eligible Participant at the time of exercise. In the event that a Holder is made redundant, their entitlement to Performance Rights
(not yet exercised) will be considered at the discretion of the Board.
Control
Events
Performance
Rights issued to a Holder may be immediately exercised and Shares issued to the Holder at the total discretion of the Board if the Company
announces its intention to sell all or substantially all of its business undertakings or assets or if a takeover offer is made for the
shares in the Company (subject to that offer becoming unconditional)
Maximum
Conversion
Under
no circumstances will the Company issue any Performance Rights such that if the number of ordinary shares into which the performance
rights will convert if the applicable milestones are achieved is greater than the number of ordinary shares in the Company on the date
of issue of the Performance Rights. Where the Company has options or other convertible securities on issue, the Company cannot issue
Performance Rights to the extent that the total number of ordinary shares that will be issued if the options are all exercised, the convertible
securities are all converted and the applicable milestone is achieved is greater than the number of ordinary shares in the entity on
the date of issue of the Performance Rights.
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