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Register ASX Complaint - Waiver, page-12

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healyn

5,453 Posts.

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13/07/16

10:43

Post #: 18257277
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Originally posted by Singa71 ↑

Hi all Shareholders this is a very important matter and I urge you all to consider and do what I am doing. We all need to know exactly the detail of the options agreement before our company approves this imo and a higher option price should be asked for.
Every Shareholder should be given the chance to vote and know all the exact details prior to voting. It is wrong that the company feels that Shareholders vote isn't important to them, well it is.
I believe Empire will need to apply for that waiver for 10.1 (x 2 waivers – as they will need one for the loan and one for the options – I think as both in their own right would normally require shareholder approval – of course MIN could not vote as they are the beneficiary of) by making a submission (likely written by lawyers) to their ASX Listing Advisor for the ASX to consider and decide whether to grant or reject. So if shareholders wish to make any submissions in reference to the waiver that’s who you should send stuff to as the companies ASX Listing Advisor is the one who runs the process with advice from within ASX itself of course.
The ASX advisor that Empire sent their last trading request was to:
Ben Secrett – [email protected]
If shareholders agree we me then I encourage you to send an email to Ben if you think the waiver should not be granted, but please DYOR. Below is what I have sent to Ben Secrett, feel free to simply cut/paste this email below and send to Ben. GLTA

Dear Mr Secrett,
Proposed Request for Waivers from Listing Rule 10.1 by Empire Oil & Gas NL for proposed working capital facility ($15.1m).
I write to you as a shareholder of Empire Oil & Gas NL (ASX: EGO) with specific reference to Empire’s ASX Announcement of 30 June 2016 in which they announced a new working capital facility with their current major shareholder Mineral Resources Limited (ASX: MIN).
As part of the key terms of that working capital facility I note that:

Empire will be providing a First Ranking Security comprising mortgages over EP 389 (Red Gully North-1), PL 18 and PL 19 and an unsecured guarantee by Empire (in all, effectively a deemed disposal of assets by the granting of the security).

A Condition Precedent to the facility is the issuance of additional options of some 7.5m unlisted options over new unissued shares with an exercise price of A$0.50 expiring 2 years from the date of issue; and

The obtaining of a waiver from the ASX in relation to complying with Listing Rule 10.1.

I would like to bring to your attention specifically their request for waivers to the requirement for obtaining shareholder approval, which we believe Empire, will be applying for firstly, the provision of the security for the facility and secondly, the issue of the additional options both under ASX Listing Rule 10.1.
Specifically ASX Listing Rule 10.1 is there to protect all shareholders and to allow all shareholders the opportunity to exercise their rights to vote on a proposed transaction etc, by the entity with a person or party who maybe in a position to influence the entity.
The first part of ASX Listing Rule 10.1 indicates that an entity cannot acquire a substantial asset from, or dispose of a substantial asset to, another person or party, without gaining approval from shareholders where that other person or party is in a position to influence the entity and this listing rules provides clear definitive guidance about the hurdles that trigger this requirement.
MIN is in a potential position to influence the entity by virtue of their current 19.83% shareholding in Empire, far in excess of the 10% as indicated in ASX Listing Rule 10.1.3 of a substantial holder and quite clearly the security mortgages being provided (potential deemed disposal of a substantial asset) are significantly more than the 5% value as indicated in 10.2. Therefore shareholder approval should be required in relation to the provision of the First Ranking Security comprising the relevant mortgages to MIN and shareholders should be afforded all the relevant information in respect of this security to make an informed decision and be entitled to vote accordingly on the proposed transaction.
Listing Rules 10.4, 10.5 and 10.6 also deal with the issuance of options to parties and the application of 10.1, and also require that either shareholder approval is obtained before the issue of those options, or the issue should be subject to shareholder approval.
Therefore Shareholder approval should be required for the issue of the additional 7.5 options. It is important that shareholders have the right to consider whether the issue of this many options with the stated exercise price etc. is a fair and arms-length component of the overall transaction. Shareholders cannot do that without having all the information of the transaction and should be afforded all the relevant information in respect of the terms of the grant and the issue of the options which Empire has stated in their announcement which will be set out in the definitive documentation for the facility and will be made in accordance with applicable law, however shareholders will not be provided that information unless they are provided the opportunity to cast their vote on the issue.
I urge the ASX to reject Empires request for these waivers, as simply put, the other party (MIN) already holds a substantial holding in the entity of 19.83% which is just short of the 20% Acquisition Limit under the Corporations Act and this transaction should be put to shareholders for approval not simply waved through by the grant of a waiver by ASX, after all the whole purpose of ASX Listing Rule 10.1 is to protect the companies smaller shareholders from transactions or situations where others may be in a position to influence the entity. After all, if the ASX just provides waivers to companies who ask in this regard, then the importance of this rule in the protection of all other shareholders has been lost.
By putting this transaction to shareholders for approval and providing all the necessary relevant information to shareholders, it will allow shareholders to make their own judgments on the merits of the transaction and to vote accordingly. If the majority of shareholders then choose to approve the transaction then that means the majority of shareholders are happy with the terms of the transaction and have exercised and been allowed to exercise their rights, their rights which ASX Listing Rule 10.1 is in place for in the first place.
I urge the ASX to reject Empires requires for these waivers.

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Singa. Needs correction I think
"Therefore Shareholder approval should be required for the issue of the additional 7.5 options."
EGO Price at posting: 44.0¢ Sentiment: Hold Disclosure: Held
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