MGL
20/04/2012 09:16
MEETING
REL: 0916 HRS Mercer Group Limited
MEETING: MGL: Mercer Group Limted - Notice of Special Meeting
NOTICE OF SPECIAL MEETING
MERCER GROUP LIMITED
Notice is given that a special meeting of shareholders of Mercer Group
Limited (the"Company") convened by the Board, will be held on Wednesday, 9
May 2012 commencing at 3:00pm (New Zealand time) at the Company's Auckland
offices at 7 Corban Avenue, Henderson, Auckland.
BUSINESS to be transacted
To consider and, if thought fit, to pass the following ordinary resolution
(the "Resolution"), which is a resolution to be passed by a simple majority
of the votes of shareholders entitled to vote and voting on the Resolution:
That, pursuant to NZSX Listing Rule 7.3.10, the Company agree to amend the
specific terms and conditions on which the Series A Options were granted to
Rodger David Shepherd ("Rodger"), specifically that the exercise date for
those options (being 2 February 2013) be amended so that Rodger may exercise
the Series A Options at any time on or before 2 February 2013.
Please refer to the explanatory notes that accompany this Notice of Meeting.
By order of the board of directors
Garry Diack
Chairman
20 April 2012
EXPLANATORY NOTES TO THE RESOLUTION
PROPOSED AMENDMENT TO THE TERMS OF THE SERIES A OPTIONS
The Company entered into a Chief Executive's individual employment agreement
with Rodger David Shepherd ("Rodger") dated 17 October 2011 (the "Employment
Agreement").
Pursuant to the Employment Agreement, the Company agreed to grant to Rodger
options as detailed in an option agreement dated 17 October 2011 (the "Option
Agreement").
The Option Agreement provides that Rodger or his nominee shall be granted
options to subscribe for ordinary shares in the Company as follows:
An option to subscribe for 18,181,818 ordinary shares at an exercise price of
$0.055 per share exercisable on 2 February 2013 ("Series A Options");
An option to subscribe for 14,285,714 ordinary shares at an exercise price of
$0.070 per share exercisable on 2 February 2014, provided that Rodger is an
employee or director of the Company at any time in the period 30 days prior
to the exercise date ("Series B Options"); and
An option to subscribe for 11,764,706 ordinary shares at an exercise price of
$0.085 per share exercisable on 2 December 2014, provided that Rodger is an
employee or director of the Company at any time in the period 30 days prior
to the exercise date ("Series C Options"),
being options to subscribe for a total of up to 44,232,238 ordinary shares in
the Company (together the "Options").
The Options are exercisable in full (and not in part) on each of their
relevant exercise dates. The Options carry no voting rights or rights to
attend meetings however the shares issued pursuant to the exercise of the
Options will rank pari passu in all respects with all existing ordinary
shares in the Company.
The Company and Rodger have agreed (subject to Shareholder approval) that the
terms and conditions applying to the Series A Options be amended so that
Rodger may exercise the Series A Options on or before 2 February 2013 (the
"Proposed Amendment"). No other changes to the Options are proposed and all
other terms and conditions of the Options remain as previously approved.
APPLICATION OF THE LISTING RULES TO THE PROPOSED AMENDMENT
Previous Approval for the issue of the Options
The Shareholders of the Company previously approved, by ordinary resolution,
the issue of the Options to Rodger (including the terms and conditions of
issue) at the Company's annual general meeting on 30 November 2011, in
accordance with listing rule 7.3.1.
Whilst entry into the Employment Agreement would otherwise have required the
approval of the Shareholders under Listing Rule 9.2.1, the Shareholders were
not required to approve entry into the Employment Agreement in accordance
with the exception provided in Listing Rule 9.2.4(d). This exception applied
to the Company, provided that:
the terms of the contract were set on an arms' length, commercial basis and
were approved by the Independent Directors of the Company;
the Independent Directors who approved the contract, signed and delivered to
NZX a certificate stating that Rule 9.2.4(d)(i) had been complied with; and
material particulars of the contract (including the Company's use of this
exception) were disclosed in the Company's next annual report.
Those conditions have been (or will be in the case of disclosure in the
annual report), complied with.
Approval for the Proposed Amendment
As stated above, the issue of the Options was previously approved by the
Shareholders of the Company. That approval included approval as to the
precise terms and conditions of the proposal to issue the Options pursuant to
Listing Rule 7.3.1(a). The Proposed Amendment changes the precise terms and
conditions on which the Series A Options were granted by amending the
exercise date from 2 February 2013 to any date on or before 2 February 2013.
Any amendment to the terms and conditions of securities which were issued to
any employee with Shareholders' approval, must be approved by an ordinary
resolution of Shareholders pursuant to Listing Rule 7.3.10.
Because the Options form part of the Employment Agreement, the Proposed
Amendment will constitute a change not only to the Option Deed, but also to
the Employment Agreement. This change represents a material change from the
terms previously approved by the Company's Independent Directors under
Listing Rule 9.2.4(d) and accordingly, the Company's Independent Directors
will be required to reconfirm their approval under Listing Rule 9.2.4(d) (as
set out above).
PURPOSE OF THE PROPOSED AMENDMENT
The purpose of the Proposed Amendment is to permit Rodger to exercise the
Series A Options at a date earlier than the original exercise date, being 2
February 2013. Rodger has agreed that he will exercise the Series A Options
as soon as practicable following approval of the Proposed Amendment by the
Shareholders.
The Proposed Amendment is for the benefit of the Company because it will
result in the Company receiving the exercise price for the Series A Options
(being $1,000,000) earlier than anticipated.
The Proposed Amendment is beneficial to Rodger in that Rodger will have the
flexibility to be able to exercise the Series A Options on or before 2
February 2013, taking into consideration the Company's share price at the
time of exercise. At the time of the Notice of Meeting, the Company's share
price is $0.120 per share whilst the exercise price of the Series A Options
is $0.055 per share. This means that if Rodger exercises the Series A
Options at the current share price, he will be able to subscribe for shares
in the Company at a significant discount to market price.
GENERAL
Voting
Pursuant to Listing Rule 9.3.1, any person who is a party to, or a
beneficiary of, or an Associated Person thereof, the Proposed Amendment
contemplated by the Resolution, is disqualified from voting on the
Resolution. That means that Rodger and his Associated Persons are
disqualified from voting on the Resolution to the extent that they hold any
shares in the Company. As at the date of this notice, neither Rodger nor any
person Associated with Rodger, holds shares in the Company. Pursuant to
Listing Rule 9.3.3, Rodger and his Associated Persons are also disqualified
from acting as discretionary proxies on the Resolution but may act as proxies
in accordance with a shareholder's express voting instructions.
The chairman of the meeting is willing to act as proxy if shareholders wish
to appoint him. The chairman will vote in favour of the Resolution if
appointed as a discretionary proxy.
Ordinary resolution
An ordinary resolution is a resolution that is approved by a simple majority
of the votes of those Shareholders entitled to vote and voting on the
question.
Approval of notice of meeting
This Notice of Meeting has been approved by NZX Market Supervision in
accordance with Listing Rule 6.1. NZX Market Supervision takes no
responsibility for any statement in this Notice of Meeting or any Explanatory
Notes accompanying this Notice of Meeting.
Attendance of Meeting and Proxies
Shareholders are entitled to attend the meeting in person, or to appoint a
proxy to attend and vote in their place. If Shareholders do not wish to, or
are unable to attend the meeting in person and wish to appoint a proxy, a
proxy form is enclosed. This form must be completed and returned to the
Company by delivering, posting, faxing or emailing it intact to be received
by Link Market Services Limited by 3:00pm, 7 May 2012 for an appointment of a
proxy to be effective. The person appointed as your proxy does not need to
be a Shareholder in the Company.
NOTICE OF PROXY
I/We named above, being a shareholder of Mercer Group Limited, hereby
appoint:
____________________________________________________ as my/our proxy for the
Meeting of the Company to be held on Wednesday, 9 May 2012 at 3.00pm at the
Company's Auckland offices at 7 Corban Avenue, Henderson, Auckland and at any
adjournment thereof.
I/We direct my/our proxy to vote in the following manner: (Tick the
box that applies)
For Against
1.That, pursuant to Listing Rule 7.3.10, the Company agree to amend the
specific terms and conditions on which the Series A Options were granted to
Rodger David Shepherd ("Rodger"), specifically that the exercise date for
those options (being 2 February 2013) be amended so that Rodger may exercise
the Series A Options at any time on or before 2 February 2013.
Signature/(s) of Shareholder(s):
____________________________________________________________________________
Signed this day of _________of _________________ 2012
Notes:
1.All shareholders are entitled to attend and vote at the meeting.
2.A shareholder entitled to vote may appoint a proxy to attend and vote in
their place.
3.This notice of proxy must be completed and returned to the to the Company
by delivering, posting, faxing or emailing it intact to be received by Link
Market Services Limited by 3:00pm, 7 May 2012 for your proxy to be effective
as per the instructions below.
4.The person appointed as your proxy does not need to be a shareholder in the
Company.
5.The chairman of the meeting is willing to act as proxy if shareholders wish
to appoint him. The chairman will vote in favour of the Resolution if
appointed as a discretionary proxy.
6.Neither Rodger, nor any Associated Person of Rodger, may act as a proxy in
respect of the Resolution unless they are required to act in accordance with
a shareholder's express instructions to vote for or against the resolution.
7.If you return this form without directing the proxy how to vote on any
particular matter, the proxy may vote as he or she thinks fit.
8.If the proxy is signed under a power of attorney, the power of attorney
must be produced for noting by the Company, if not already noted. A
declaration of non-revocation of the power of attorney must also be attached.
9.Companies appointing a proxy must do so either under the signature of two
directors, or have an authority produced for noting by the Company.
Please return your completed Proxy Form to Link Market Services Limited, in
one of the following ways
Mail
New Zealand
If mailing Proxy Form from within New Zealand, please use the reply-paid
envelope provided.
Outside New Zealand
Place in envelope and affix the postage from the country of mailing and
address to Link Market Services, PO Box 91976, Victoria Street West,
Auckland, 1142, New Zealand.
Deliver
Link Market Services Limited, Level 16, Brookfields House, 19 Victoria
Street, Auckland, 1010.
Fax
+ 64 9 375 5990
Scan & email
[email protected]. Please put the words "Mercer Proxy Form"
in the subject line for easy identification.
End CA:00222046 For:MGL Type:MEETING Time:2012-04-20 09:16:27
