Notice of Annual General Meeting/Proxy Form
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29th December 2021
Dear Shareholders
IMPACT OF COVID-19 RESTRICTIONS ON THE COMPANY’S ANNUAL GENERAL MEETING
The annual general meeting of The Agency Group Australia Ltd (ACN 118 913 232) (Company) is scheduled
to be held virtually on 28 January 2022 at 10.00am (WST).
The Company is continuing to monitor the impact of the COVID-19 virus in Western Australia and following
guidance from the Federal and State Governments. In light of the current circumstances and continued
uncertainty on restrictions on gatherings, the Directors have made the decision to hold the Meeting
virtually. Accordingly, there will not be a physical location where shareholders can attend the Meeting in
person.
In accordance with the Treasury Laws Amendment (2021 Measures No. 1) Act 2021, the Company will not
be sending hard copies of the Notice of Meeting to shareholders unless a shareholder has previously
requested a hard copy. The Notice of Meeting can be viewed and downloaded from the link set out
below. Please also refer to the Online Meeting Guide in the Notice of Meeting for details on how to
participate in the Meeting.
The Company strongly encourages Shareholders to lodge a directed proxy form prior to the meeting.
Questions should also be submitted in advance of the Meeting as this will provide management with the
best opportunity to prepare for the Meeting, for example by preparing answers in advance to Shareholders
questions. However, votes and questions may also be submitted during the Meeting. Shareholders who
wish to vote by poll during the Meeting will be able to submit their online poll votes immediately after the
Chair calls for a vote on the Resolutions. Shareholders can do this by clicking the poll button on their screen.
The outcome of each Resolution will not be determined until after the conclusion of the Meeting to allow
the Company Secretary sufficient time to check poll votes.
Participation in the virtual meeting and electronic voting will be offered through
www.advancedshare.com.au/Dashboard/Virtual-Meeting-Centre-Login . Please refer to the Meeting ID
and Shareholder ID on your proxy form to login to the website.
Shareholders will be able to view and download the Meeting Materials online from the Company’s website,
www.theagencygroup.com.au. Alternatively, a complete copy of the Meeting Materials has been posted
on the Company’s ASX market announcements page (ASX: AU1).
If you have nominated an email address and have elected to receive electronic communications from
the Company, you will also receive an email to your nominated email address with a link to an electronic
copy of the Meeting Materials.
In order to receive electronic communications from the Company in the future, please update your
Shareholder details online at www.advancedshare.com.au. Once logged in you can also lodge your proxy
vote online by clicking on the “Vote” tab.
If you are unable to access any of the Meeting Materials online please contact the Company Secretary,
Stuart Usher, on +61 499 900 044 or via email at stuartu@theagencygroup.com.au.
The Australian government and the respective State governments are implementing a wide range of
measures to contain or delay the spread of COVID-19. If it becomes necessary or appropriate to make
alternative arrangements to those set out in the Company’s Notice of Meeting, the Company will notify
Shareholders accordingly via the Company’s website at www.theagencygroup.com.au and the
Company’s ASX Announcement Platform at asx.com.au (ASX: AU1).
This announcement is authorised for market release by The Agency Group Australia Ltd.
Sincerely,
Stuart Usher
Company Secretary
TH E AGENCY GROUP AUSTRAL IA L IMITED
ACN 118 913 23 2
NOTICE OF ANNUAL GENERAL MEETING
Notice is given that the Meeting will be held at:
TIME: 10:00am (WST)
DATE: 28 January 2022
PLACE: Virtual meeting, access via the link below:
advancedshare.com.au/virtual-meeting
The business of the Meeting affects your shareholding and your vote is important.
This Notice of Meeting should be read in its entirety. If Shareholders are in doubt as to how
they should vote, they should seek advice from their professional advisers prior to voting.
The Directors have determined pursuant to Regulation 7.11.37 of the Corporations
Regulations 2001 (Cth) that the persons eligible to vote at the Meeting are those who are
registered Shareholders at 10:00am (WST) on 26 January 2022.
BUSINESS OF THE MEETING
AGENDA
1. FINANCIAL STATEMENTS AND REPORTS
To receive and consider the annual financial report of the Company for the
financial year ended 30 June 2021 together with the declaration of the Directors,
the Director’s report, the Remuneration Report and the auditor’s report.
2. RESOLUTION 1 – ADOPTION OF REMUNERATION REPORT
To consider and, if thought fit, to pass, with or without amendment, the following
resolution as a non-binding resolution:
“That, for the purposes of section 250R(2) of the Corporations Act and for all
other purposes, approval is given for the adoption of the Remuneration
Report as contained in the Company’s annual financial report for the
financial year ended 30 June 2021.”
Note: the vote on this Resolution is advisory only and does not bind the Directors or the
Company.
A voting prohibition statement applies to this Resolution. Please see below.
3. RESOLUTION 2 – RE-ELECTION OF DIRECTOR – ANDREW JENSEN
To consider and, if thought fit, to pass, with or without amendment, the following
resolution as an ordinary resolution:
“That, for the purpose of clause 14.2 of the Constitution, Listing Rule 14.5 and
for all other purposes, Andrew Jensen, a Director, retires by rotation, and
being eligible, is re-elected as a Director.”
4. RESOLUTION 3 – RATIFICATION OF PRIOR ISSUE OF OPTIONS
To consider and, if thought fit, to pass, with or without amendment, the following
resolution as an ordinary resolution:
“That, for the purposes of Listing Rule 7.4 and for all other purposes,
Shareholders ratify the issue of 30,000,000 Options on the terms and
conditions set out in the Explanatory Statement.”
A voting exclusion statement applies to this Resolution. Please see below.
5. RESOLUTION 4 – APPROVAL OF 7.1A MANDATE
To consider and, if thought fit, to pass the following resolution as a special
resolution:
“That, for the purposes of Listing Rule 7.1A and for all other purposes,
approval is given for the Company to issue up to that number of Equity
Securities equal to 10% of the issued capital of the Company at the time of
issue, calculated in accordance with the formula prescribed in Listing Rule
7.1A.2 and otherwise on the terms and conditions set out in the Explanatory
Statement.”
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6. RESOLUTION 5 – APPROVAL OF ISSUE OF PERFORMANCE RIGHTS TO DIRECTOR - PAUL
NIARDONE
To consider and, if thought fit, to pass the following resolution as an ordinary
resolution:
“That, for the purposes of section 208 of the Corporations Act, Listing Rule
10.14 and for all other purposes, approval is given for the Company to issue
11,000,000 Performance Rights to Paul Niardone (or their nominee) under the
Performance Rights and Options Plan on the terms and conditions set out in
the Explanatory Statement.”
A voting exclusion statement and voting prohibition statement applies to this
Resolution. Please see below.
Dated: 22 Dec 2021
By order of the Board
Stuart Usher
Company Secretary
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Voting Prohibition Statements
Resolution 1 – Adoption A vote on this Resolution must not be cast (in any capacity) by or on behalf
of Remuneration Report of either of the following persons:
(a) a member of the Key Management Personnel, details of whose
remuneration are included in the Remuneration Report; or
(b) a Closely Related Party of such a member.
However, a person (the voter) described above may cast a vote on this
Resolution as a proxy if the vote is not cast on behalf of a person described
above and either:
(a) the voter is appointed as a proxy by writing that specifies the way
the proxy is to vote on this Resolution; or
(b) the voter is the Chair and the appointment of the Chair as proxy:
(i) does not specify the way the proxy is to vote on this
Resolution; and
(ii) expressly authorises the Chair to exercise the proxy
even though this Resolution is connected directly or
indirectly with the remuneration of a member of the
Key Management Personnel.
Resolution 5 - Approval In accordance with section 224 of the Corporations Act, a vote on this
of Issue of Performance Resolution must not be cast (in any capacity) by or on behalf of a related
Rights to Director – Paul party of the Company to whom the Resolution would permit a financial
Niardone benefit to be given, or an associate of such a related party (Resolution 5
Excluded Party). However, the above prohibition does not apply if the vote
is cast by a person as proxy appointed by writing that specifies how the
proxy is to vote on the Resolution and it is not cast on behalf of a Resolution
5 Excluded Party.
In accordance with section 250BD of the Corporations Act, a person
appointed as a proxy must not vote, on the basis of that appointment, on
this Resolution if:
(a) the proxy is either:
(i) a member of the Key Management Personnel; or
(ii) a Closely Related Party of such a member; and
(b) the appointment does not specify the way the proxy is to vote
on this Resolution.
Provided the Chair is not a Resolution 5 Excluded Party, the above
prohibition does not apply if:
(a) the proxy is the Chair; and
(b) the appointment expressly authorises the Chair to exercise the
proxy even though this Resolution is connected directly or
indirectly with remuneration of a member of the Key
Management Personnel.
Voting Exclusion Statements
In accordance with Listing Rule 14.11, the Company will disregard any votes cast in favour of the
Resolution set out below by or on behalf of the following persons:
Resolution 3 – Ratification of A person who participated in the issue or is a counterparty to the
prior issue of Options agreement being approved (namely Mr Geoff Lucas) or an
associate of that person or those persons.
Resolution 5 - Approval of Any person referred to in Listing Rule 10.14.1, 10.14.2 or 10.14.3 who is
Issue of Performance Rights eligible to participate in the employee incentive scheme in question
to Director – Paul Niardone (including Paul Niardone) or their nominees or an associate of that
person or those persons.
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However, this does not apply to a vote cast in favour of the Resolution by:
(a) a person as a proxy or attorney for a person who is entitled to vote on the Resolution, in
accordance with the directions given to the proxy or attorney to vote on the Resolution in
that way; or
(b) the Chair 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.
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Voting by proxy
To vote by proxy, please complete and sign the enclosed Proxy Form and return by the time and in
accordance with the instructions set out on the Proxy Form.
In accordance with section 249L of the Corporations Act, Shareholders are advised that:
• each Shareholder has a right to appoint a proxy;
• the proxy need not be a Shareholder of the Company; and
• a Shareholder who is entitled to cast two or more votes may appoint two proxies and may
specify the proportion or number of votes each proxy is appointed to exercise. If the
member appoints two proxies and the appointment does not specify the proportion or
number of the member’s votes, then in accordance with section 249X(3) of the
Corporations Act, each proxy may exercise one-half of the votes.
Shareholders and their proxies should be aware that:
• if proxy holders vote, they must cast all directed proxies as directed; and
• any directed proxies which are not voted will automatically default to the Chair, who must
vote the proxies as directed.
Voting in person
To vote in person, attend the Meeting at the time, date and place set out above.
Should you wish to discuss the matters in this Notice of Meeting please do not hesitate to
contact the Company Secretary on +61 499 900 044.
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EXPLANATORY STATEMENT
This Explanatory Statement has been prepared to provide information which the Directors
believe to be material to Shareholders in deciding whether or not to pass the Resolutions.
1. FINANCIAL STATEMENTS AND REPORTS
In accordance with the Corporations Act, the business of the Meeting will include
receipt and consideration of the annual financial report of the Company for the
financial year ended 30 June 2021 together with the declaration of the Directors,
the Directors’ report, the Remuneration Report and the auditor’s report.
The Company will not provide a hard copy of the Company’s annual financial
report to Shareholders unless specifically requested to do so. The Company’s
annual financial report is available on its website at
www.theagencygroup.com.au.
2. RESOLUTION 1 – ADOPTION OF REMUNERATION REPORT
2.1 General
The Corporations Act requires that at a listed company’s annual general meeting,
a resolution that the remuneration report be adopted must be put to the
shareholders. However, such a resolution is advisory only and does not bind the
company or the directors of the company.
The remuneration report sets out the company’s remuneration arrangements for
the directors and senior management of the company. The remuneration report
is part of the directors’ report contained in the annual financial report of the
company for a financial year.
The chair of the meeting must allow a reasonable opportunity for its shareholders
to ask questions about or make comments on the remuneration report at the
annual general meeting.
2.2 Voting consequences
A company is required to put to its shareholders a resolution proposing the calling
of another meeting of shareholders to consider the appointment of directors of
the company (Spill Resolution) if, at consecutive annual general meetings, at least
25% of the votes cast on a remuneration report resolution are voted against
adoption of the remuneration report and at the first of those annual general
meetings a Spill Resolution was not put to vote. If required, the Spill Resolution
must be put to vote at the second of those annual general meetings.
If more than 50% of votes cast are in favour of the Spill Resolution, the company
must convene a shareholder meeting (Spill Meeting) within 90 days of the second
annual general meeting.
All of the directors of the company who were in office when the directors' report
(as included in the company’s annual financial report for the most recent financial
year) was approved, other than the managing director of the company, will
cease to hold office immediately before the end of the Spill Meeting but may
stand for re-election at the Spill Meeting.
Following the Spill Meeting those persons whose election or re-election as directors
of the company is approved will be the directors of the company.
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2.3 Previous voting results
At the Company’s previous annual general meeting the votes cast against the
remuneration report considered at that annual general meeting were less than
25%. Accordingly, the Spill Resolution is not relevant for this Annual General
Meeting.
3. RESOLUTION 2 – RE-ELECTION OF DIRECTOR – ANDREW JENSEN
3.1 General
Listing Rule 14.5 provides that an entity which has directors must hold an election
of directors at each annual general meeting.
The Constitution sets out the requirements for determining which Directors are to
retire by rotation at an annual general meeting.
Mr Andrew Jensen, who has served as a Director since 18 February 2019 and was
elected by Shareholders on 29 November 2019, retires by rotation and seeks re-
election.
3.2 Qualifications and other material directorships
Mr Jensen previously held the position of Chief Financial Officer for International
and leading Australian Companies, which will greatly assist the Company in its
next phase of national growth under the two prominent brands of The Agency
and Sell Lease Property.
Mr Jensen has strong commercial, strategic, and M&A experience and has
financially led companies engaged in various fields including real estate, financial
services, telecommunications, and the franchising sectors both in Australia and
Internationally.
He is an accomplished CFO with over 20 years’ experience in senior finance and
management roles. Previously, Mr Jensen was the CFO and Director of
Australasia’s largest real estate group Ray White, with over $20 billion in annual
sales and one of Australia’s largest independent mortgage broking businesses
Loan Market. He has also been the CFO of VGC Food Group Pty Ltd, a private
diversified manufacturing and franchising group.
Mr Jensen was also CFO and COO of Digicel PNG (Papua New Guinea) part of
Digicel Group Limited (Digicel), one of the South Pacific’s largest and most
successful telecommunications companies. He is also a fellow of the Institute of
Public Accountants and member of the Australian Institute of Company Directors.
3.3 Independence
If re-elected the Board does not consider Mr Jensen will be an independent
Director.
3.4 Board recommendation
The Board has reviewed Mr Jensen’s performance since his appointment to the
Board and considers that Mr Jensen’s skills and experience will continue to
enhance the Board’s ability to perform its role. Accordingly, the Board supports
the re-election of Mr Jensen and recommends that Shareholders vote in favour of
Resolution 2.
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4. RESOLUTION 3 – RATIFICATION OF PRIOR ISSUE OF OPTIONS
4.1 General
On 30 November 2021, the Company issued 30,000,000 Options to Mr Geoff Lucas,
pursuant to the employment agreement entered into between Mr Lucas and the
Company dated 29 March 2021 (Employment Agreement), comprising:
(a) 10,000,000 Options exercisable at $0.05 per Option, which will vest 60 days
after the conclusion of Mr Lucas’s 6 month probationary period, as
stipulated in the Employment Agreement (Probationary Period), and
exercisable on or before 12 months after the conclusion of the
Probationary Period;
(b) 10,000,000 Options exercisable at $0.075 per Option, which will vest on
the 12 month anniversary date of the conclusion of the Probationary
Period, and exercisable on or before 12 months after vesting; and
(c) 10,000,000 Options exercisable at $0.10 per Option, which will vest on the
24 month anniversary date of the conclusion of the Probationary Period,
and exercisable on or before 12 months after vesting,
(together, the Employment Options).
A summary of the material terms of the Employment Agreement is set out in
Schedule 2.
4.2 Listing Rule 7.1
Broadly speaking, and subject to a number of exceptions, Listing Rule 7.1 limits the
amount of equity securities that a listed company can issue without the approval
of its shareholders over any 12 month period to 15% of the fully paid ordinary
securities it had on issue at the start of that 12 month period.
The issue of the Employment Options does not fit within any of the exceptions set
out in Listing Rule 7.2 and, as it has not yet been approved by Shareholders, it
effectively uses up part of the 15% limit in Listing Rule 7.1, reducing the Company’s
capacity to issue further equity securities without Shareholder approval under
Listing Rule 7.1 for the 12 month period following the date of issue of the
Employment Options.
Listing Rule 7.4 allows the shareholders of a listed company to approve an issue of
equity securities after it has been made or agreed to be made. If they do, the
issue is taken to have been approved under Listing Rule 7.1 and so does not
reduce the company’s capacity to issue further equity securities without
shareholder approval under that rule.
The Company wishes to retain as much flexibility as possible to issue additional
equity securities in the future without having to obtain Shareholder approval for
such issues under Listing Rule 7.1. Accordingly, the Company is seeking
Shareholder ratification pursuant to Listing Rule 7.4 for the issue of the Employment
Options.
Resolution 3 seeks Shareholder ratification pursuant to Listing Rule 7.4 for the issue
of the Employment Options.
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4.3 Technical information required by Listing Rule 14.1A
If Resolution 3 is passed, the Employment Options will be excluded in calculating
the Company’s 15% limit in Listing Rule 7.1, effectively increasing the number of
equity securities the Company can issue without Shareholder approval over the
12 month period following the date of issue of the Employment Options.
If Resolution 3 is not passed, the Employment Options will be included in
calculating the Company’s combined 15% limit in Listing Rule 7.1, effectively
decreasing the number of equity securities that the Company can issue without
Shareholder approval over the 12 month period following the date of issue of the
Employment Options.
4.4 Technical information required by Listing Rule 7.5
Pursuant to and in accordance with Listing Rule 7.5, the following information is
provided in relation to Resolution 3:
(a) the Employment Options were issued to Mr Geoff Lucas;
(b) in accordance with paragraph 7.4 of ASX Guidance Note 21, the
Company confirms that none of the recipients were:
(i) related parties of the Company, members of the Company’s Key
Management Personnel, substantial holders of the Company,
advisers of the Company or an associate of any of these parties;
and
(ii) issued more than 1% of the issued capital of the Company;
(c) 30,000,000 Employment Options were issued and the Employment
Options were issued on the terms and conditions set out in Schedule 1;
(d) the Employment Options were issued on 30 November 2021;
(e) the Employment Options were issued at a nil issue price, as equity
remuneration under the Employee Agreement. The Company has not
and will not receive any other consideration for the issue of the
Employment Options (other than in respect of funds received on exercise
of the Employment Options);
(f) the purpose of the issue of the Employment Options was to satisfy the
Company’s obligations under the Employment Agreement; and
(g) the Employment Options were issued to Mr Lucas under the Employment
Agreement. A summary of the material terms of the Employment
Agreement is set out in Schedule 2.
5. RESOLUTION 4 – APPROVAL OF 7.1A MANDATE
5.1 General
As set out in Section 4.2 above, subject to a number of exceptions, Listing Rule 7.1
limits the amount of Equity Securities that a listed company can issue without the
approval of its shareholders over any 12 month period to 15% of the fully paid
ordinary securities it had on issue at the start of that period.
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However, under Listing Rule 7.1A, an eligible entity may seek shareholder approval
by way of a special resolution passed at its annual general meeting to increase
this 15% limit by an extra 10% to 25% (7.1A Mandate).
An ‘eligible entity’ means an entity which is not included in the S&P/ASX 300 Index
and has a market capitalisation of $300,000,000 or less. The Company is an eligible
entity for these purposes.
As at the date of this Notice, the Company is an eligible entity as it is not included
in the S&P/ASX 300 Index and has a current market capitalisation of $21,857,372
(based on the number of Shares on issue and the closing price of Shares on the
ASX on 1 December 2021).
Resolution 4 seeks Shareholder approval by way of special resolution for the
Company to have the additional 10% placement capacity provided for in Listing
Rule 7.1A to issue Equity Securities without Shareholder approval.
If Resolution 4 is passed, the Company will be able to issue Equity Securities up to
the combined 25% limit in Listing Rules 7.1 and 7.1A without any further Shareholder
approval.
If Resolution 4 is not passed, the Company will not be able to access the additional
10% capacity to issue Equity Securities without Shareholder approval under Listing
Rule 7.1A, and will remain subject to the 15% limit on issuing Equity Securities
without Shareholder approval set out in Listing Rule 7.1.
5.2 Technical information required by Listing Rule 7.1A
Pursuant to and in accordance with Listing Rule 7.3A, the information below is
provided in relation to Resolution 4:
(a) Period for which the 7.1A Mandate is valid
The 7.1A Mandate will commence on the date of the Meeting and expire
on the first to occur of the following:
(i) the date that is 12 months after the date of this Meeting;
(ii) the time and date of the Company’s next annual general
meeting; and
(iii) the time and date of approval by Shareholders of any
transaction under Listing Rule 11.1.2 (a significant change in the
nature or scale of activities) or Listing Rule 11.2 (disposal of the
main undertaking).
(b) Minimum price
Any Equity Securities issued under the 7.1A Mandate must be in an existing
quoted class of Equity Securities and be issued at a minimum price of 75%
of the volume weighted average price of Equity Securities in that 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 Equity Securities are to
be issued is agreed by the entity and the recipient of the Equity
Securities; or
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(ii) if the Equity Securities are not issued within 10 trading days of the
date in Section 5.2(b)(i), the date on which the Equity Securities
are issued.
(c) Use of funds raised under the 7.1A Mandate
The Company intends to use funds raised from issues of Equity Securities
under the 7.1A Mandate for the acquisition of new assets and investments
(including expenses associated with such an acquisition), the
development of the Company’s current business and/or general working
capital.
(d) Risk of Economic and Voting Dilution
Any issue of Equity Securities under the 7.1A Mandate will dilute the
interests of Shareholders who do not receive any Shares under the issue.
If Resolution 4 is approved by Shareholders and the Company issues the
maximum number of Equity Securities available under the 7.1A Mandate,
the economic and voting dilution of existing Shares would be as shown in
the table below.
The table below shows the dilution of existing Shareholders calculated in
accordance with the formula outlined in Listing Rule 7.1A.2, on the basis
of the closing market price of Shares and the number of Equity Securities
on issue or proposed to be issued as at 17 December 2021.
The table also shows the voting dilution impact where the number of
Shares on issue (Variable A in the formula) changes and the economic
dilution where there are changes in the issue price of Shares issued under
the 7.1A Mandate.
Dilution
Issue Price
Shares $0.025 $0.050 $0.075
Number of Shares on
issued –
Issue (Variable A in 50% 50%
10% voting Issue Price
Listing Rule 7.1A.2) decrease increase
dilution
Funds Raised
428,576,584 42,857,658
Current $1,071,441 $2,142,883 $3,214,324
Shares Shares
50% 642,864,876 64,286,488
$1,607,162 $3,214,324 $4,821,487
increase Shares Shares
100% 857,153,168 85,715,317
$2,142,883 $4,285,766 $6,428,649
increase Shares Shares
*The number of Shares on issue (Variable A in the formula) could increase as a result
of the issue of Shares that do not require Shareholder approval (such as under a pro-
rata rights issue or scrip issued under a takeover offer) or that are issued with
Shareholder approval under Listing Rule 7.1.
The table above uses the following assumptions:
1. There are currently 428,576,584 Shares on issue at the date of this Notice of
Meeting:
2. The issue price set out above is the closing market price of the Shares on the ASX
on 17 December 2021 (being $0.050).
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3. The Company issues the maximum possible number of Equity Securities under the
7.1A Mandate.
4. The Company has not issued any Equity Securities in the 12 months prior to the
Meeting that were not issued under an exception in Listing Rule 7.2 or with
approval under Listing Rule 7.1.
5. The issue of Equity Securities under the 7.1A Mandate consists only of Shares. It is
assumed that no Options are exercised into Shares before the date of issue of
the Equity Securities. If the issue of Equity Securities includes quoted Options, it is
assumed that those quoted Options are exercised into Shares for the purpose of
calculating the voting dilution effect on existing Shareholders.
6. The calculations above do not show the dilution that any one particular
Shareholder will be subject to. All Shareholders should consider the dilution
caused to their own shareholding depending on their specific circumstances.
7. This table does not set out any dilution pursuant to approvals under Listing Rule
7.1 unless otherwise disclosed.
8. 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%.
9. The table does not show an example of dilution that may be caused to a
particular Shareholder by reason of placements under the 7.1A Mandate, based
on that Shareholder’s holding at the date of the Meeting.
Shareholders should note that there is a risk that:
(i) the market price for the Company’s Shares may be significantly
lower on the issue date than on the date of the Meeting; and
(ii) the Shares may be issued at a price that is at a discount to the
market price for those Shares on the date of issue.
(e) Allocation policy under the 7.1A Mandate
The recipients of the Equity Securities to be issued under the
7.1A Mandate have not yet been determined. However, the recipients
of Equity Securities could consist of current Shareholders or new investors
(or both), none of whom will be related parties of the Company.
The Company will determine the recipients at the time of the issue under
the 7.1A Mandate, having regard to the following factors:
(i) the purpose of the issue;
(ii) alternative methods for raising funds available to the Company
at that time, including, but not limited to, an entitlement issue,
share purchase plan, placement or other offer where existing
Shareholders may participate;
(iii) the effect of the issue of the Equity Securities on the control of the
Company;
(iv) the circumstances of the Company, including, but not limited to,
the financial position and solvency of the Company;
(v) prevailing market conditions; and
(vi) advice from corporate, financial and broking advisers (if
applicable).
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(f) Previous approval under Listing Rule 7.1A
The Company did not obtain approval under Listing Rule 7.1A at its
annual general meeting held on 4 January 2021. Accordingly, the
Company has not issued any Equity Securities under Listing Rule 7.1A.2 in
the twelve months preceding the date of the Meeting.
During the 12 month period preceding the date of the Meeting, being on
and from 24 January 2021, the Company has not issued any Equity
Securities pursuant to the Previous Approval.
5.3 Voting Exclusion Statement
As at the date of this Notice, the Company is not proposing to make an issue of
Equity Securities under Listing Rule 7.1A. Accordingly, a voting exclusion statement
is not included in this Notice.
6. RESOLUTION 5 – APPROVAL OF ISSUE OF PERFORMANCE RIGHTS TO DIRECTOR –
PAUL NIARDONE
6.1 General
As announced on 29 December 2021, the Company has entered into a revised
executive services agreement with current Managing Director, Mr Paul Niardone
(Executive Services Agreement) pursuant to which Mr Niardone will move from
the position of Managing Director to that of an Executive Director following
closure of the Company’s 2021 annual general meeting, at which point in time
Mr Geoff Lucas will assume the role of Managing Director of the Company.
Under the Executive Services Agreement, the Company has agreed, subject to
obtaining Shareholder approval, to grant Mr Niardone (or their nominee) a total
of 11,000,000 Performance Rights (consisting of 8,000,000 Class A Performance
Rights and 3,000,000 Class B Performance Rights) pursuant to the Company’s
Performance Rights and Options Plan and on the terms set out below.
The Performance Rights will vest and convert into Shares, subject to the
satisfaction of the following conditions:
(a) Class A Performance Rights: 24 months continuous service by the
Executive to the Company from closure of the Company’s 2021 annual
general meeting;
(b) Class B Performance Rights: upon achievement of one of the following
(as verified by the Company’s auditor):
(i) recruitment by The Agency (WA) and the Company’s SLP Model
of 85 Agents by the financial year ending 30 June 2024; or
(ii) achievement of gross commission income of $50,000,000 for the
financial year ending 30 June 2024 by The Agency (WA),
and will otherwise be issued on the terms and conditions set out in Schedule 3.
It is proposed to issue the Class A Performance Rights to Mr Niardone in recognition
of him agreeing to terminate his role as Managing Director (and move to the role
of an Executive Director), to ensure the Company retains Mr Niardone and his
significant services and to retain the Company’s cash reserves by not being
13
required to make any cash pay-out in relation to his current executive services
agreement.
It is proposed to issue the Class B Performance Rights to Mr Niardone is to reward,
retain and incentivise Mr Niardone for his ongoing commitment to the
performance and future success of the Company.
The Board considers that the milestones set out above will ensure Mr Niardone
remains focused on retention and growth, while adding significant revenue to
AU1.
(a) in order to retain Mr Niardone’s significant services; and
(b) following on from the success of The Agency model (which currently
consists of approximately 340 real estate agents nationally), incentivise
Mr Niardone to build out the SLP Model nationally and roll out the model
into other states.
The Company and Mr Niardone have agreed that any Shares issued upon
conversion of the Performance Rights will be voluntarily escrowed for one year
from the date of issue of the Shares.
Resolution 5 seeks Shareholder approval for the issue of 11,000,000 Performance
Rights to Mr Niardone under the Company’s Performance Rights and Options
Plan.
6.2 Chapter 2E of the Corporations Act
For a public company, or an entity that the public company controls, to give a
financial benefit to a related party of the public company, the public company
or entity must:
(a) obtain the approval of the public company’s members in the manner set
out in sections 217 to 227 of the Corporations Act; and
(b) give the benefit within 15 months following such approval,
unless the giving of the financial benefit falls within an exception set out in
sections 210 to 216 of the Corporations Act.
The issue of the Performance Rights the subject of Resolution 5 to the
Paul Niardone constitutes giving a financial benefit and Paul Niardone is a related
party of the Company by virtue of being a director.
The Directors (other than Paul Niardone) consider that:
(a) the issue of the 8,000,000 Class A Performance Rights does not fall within
one of the exceptions set out in sections 210 to 216 of the Corporations
Act. Accordingly, Shareholder approval for the issue of the Class A
Performance Rights to Mr Niardone is sought in accordance with
Chapter 2E of the Corporations Act.
(b) the issue of the 3,000,000 Class B Performance Rights constitutes
reasonable remuneration payable to Mr Niardone as part of his revised
remuneration package. However, the Directors consider that it is best
corporate governance practice to seek Shareholder approval for the
Performance Rights the subject of Resolution 5 for the purposes
Chapter 2E of the Corporations Act.
14
Accordingly, Shareholder approval for the grant of the Performance Rights under
Resolution 5 to Paul Niardone is sought in accordance with Chapter 2E of the
Corporations Act.
6.3 Listing Rule 10.14
Listing Rule 10.14 provides that an entity must not permit any of the following
persons to acquire equity securities under an employee incentive scheme without
the approval of the holders of its ordinary securities:
10.14.1 a director of the entity;
10.14.2 an associate of a director of the entity; or
10.14.3 a person whose relationship with the entity or a person referred to in
Listing Rules 10.14.1 to 10.14.2 is such that, in ASX’s opinion, the
acquisition should be approved by security holders.
The issue of Performance Rights to Paul Niardone falls within Listing Rule 10.14.1
and therefore requires the approval of Shareholders under Listing Rule 10.14.
Resolution 5 seeks the required Shareholder approval for the issue of the
Performance Rights under and for the purposes of Chapter 2E of the Corporations
Act and Listing Rule 10.14.
6.4 Technical information required by Listing Rule 14.1A
If Resolution 5 is passed, the Company will be able to proceed with the issue of
the Performance Rights to Paul Niardone under the Performance Rights and
Options Plan within three years after the date of the Meeting (or such later date
as permitted by any ASX waiver or modification of the Listing Rules). As approval
pursuant to Listing Rule 7.1 is not required for the issue of the Performance Rights
(because approval is being obtained under Listing Rule 10.14), the issue of the
Performance Rights will not use up any of the Company’s 15% annual placement
capacity.
If Resolution 5 is not passed, the Company will not be able to proceed with the
issue of the Performance Rights to Paul Niardone under the Performance Rights
and Options Plan and the Company will need to seek to renegotiate a position
with Mr Niardone to retain his services going forward.
6.5 Technical information required by Listing Rule 10.15 and section 219 of the
Corporations Act
Pursuant to and in accordance with Listing Rule 10.15 and section 219 of the
Corporations Act, the following information is provided in relation to Resolution 5:
(a) the Performance Rights will be issued to Paul Niardone (or their nominee)
pursuant to Resolution 5. Mr Niardone falls within the category set out in
Listing Rule 10.14.1 by virtue of being a Director;
(b) the maximum number of Performance Rights to be issued to
Paul Niardone (or their nominee) (being the nature of the financial
benefit proposed to be given) is 11,000,000 Performance Rights
(consisting of 8,000,000 Class A Performance Rights and 3,000,000 Class B
Performance Rights);
15
(c) the Performance Rights will be issued to Mr Niardone no later than 3 years
after the date of the Meeting (or such later date as permitted by any ASX
waiver or modification of the Listing Rules) and it is anticipated the
Performance Rights will be issued on one date;
(d) the issue price of the Performance Rights will be nil, as such no funds will
be raised from the issue of the Performance Rights;
(e) a summary of the material terms and conditions of the Performance
Rights is set out in Schedule 3;
(f) the purpose of the issue of the:
(i) Class A Performance Rights is part of the Mr Niardone’s
agreement to take on the new role of an Executive Director and,
in doing so, forgoing his position as Managing Director. The issue
of the Class A Performance Rights will also allow the Company to
spend a greater proportion of its cash reserves on its operations
than it would if an alternative cash form of remuneration were
given to Mr Niardone;
(ii) Class B Performance Rights is to reward, retain and incentivise
Paul Niardone for his ongoing commitment to the performance
and future success of the Company;
(g) the Performance Rights are unquoted securities. The Company has
chosen to issue Performance Rights to Paul Niardone for the following
reasons:
(i) the Performance Rights are unquoted; therefore, the issue of the
Performance Rights has no immediate dilutionary impact on
Shareholders;
(ii) to reward, retain and incentivise Mr Niardone for his ongoing
commitment to the performance and future success of the
Company;
(iii) to motivate Mr Niardone in creating Shareholder value; and
(iv) it is not considered that there are any significant opportunity
costs to the Company or benefits foregone by the Company in
issuing the Performance Rights on the terms proposed;
(h) the number of Performance Rights to be issued to Mr Niardone has been
determined based upon a consideration of:
(i) current market standards and/or practices of other ASX listed
companies of a similar size and stage of development to the
Company;
(ii) the remuneration of Mr Niardone; and
(iii) incentives to attract and ensure continuity of service of
Paul Niardone who has appropriate knowledge and expertise,
while maintaining the Company’s cash reserves.
16
The Company does not consider that there are any significant
opportunity costs to the Company or benefits foregone by the Company
in issuing the Performance Rights upon the terms proposed;
(i) the total remuneration package for Paul Niardone for the previous
financial year and the proposed total remuneration package for the
current financial year are set out below:
Related Party Current Previous
Financial Financial
Year Year
Paul Niardone1 $815,953 $446,270
Note:
1. Comprising Directors’ fees/salary of $135,000, cash bonuses of $123,508,
superannuation payments of $10,392, motor vehicle allowance of $9,003
and Share-based payments of $538,050] being the value of the
Performance Rights the subject of Resolution 5).
(j) the value of the Performance Rights and the pricing methodology is set
out in Schedule 4;
(k) the relevant interests of Paul Niardone in securities of the Company as at
the date of this Notice are set out below:
Related Party Shares Performance Shares
Paul Niardone 3,187,007 116,237
(l) a summary of the material terms and conditions of the Performance
Rights and Options Plan is set out in Schedule 5;
(m) no loans are being made to Paul Niardone in connection with the
acquisition of the Performance Rights;
(n) Mr Niardone has not previously been issued any securities under the
Performance Rights and Options Plan;
(o) details of any Performance Rights issued under the Performance Rights
and Options Plan will be published in the annual report of the Company
relating to the period in which they were issued, along with a statement
that approval for the issue was obtained under Listing Rule 10.14;
(p) any additional persons covered by Listing Rule 10.14 who become
entitled to participate in an issue of Performance Rights under the
Performance Rights and Options Plan after Resolution 5 is approved and
who were not named in this Notice will not participate until approval is
obtained under Listing Rule 10.14;
(q) if the milestones attaching to the Performance Rights issued to
Paul Niardone are met and the Performance Rights are converted, a
total of 11,000,000 Shares would be issued. This will increase the number
of Shares on issue from 428,575,916 (being the total number of Shares on
issue as at the date of this Notice) to 439,575,916 (assuming that no Shares
are issued and no convertible securities vest or are exercised) with the
17
effect that the shareholding of existing Shareholders would be diluted by
an aggregate of 2.5%, comprising 2.5% by Paul Niardone;
(r) the trading history of the Shares on ASX in the 12 months before the date
of this Notice is set out below:
Price Date
Highest $0.077 6 April 2021
Lowest $0.045 5 March 2021
Last $0.048 22 December
2021
(s) Andrew Jensen, Adam Davey and Matthew Lahood recommend that
Shareholders vote in favour of Resolutions 5 and 6 for the reasons set out
in Sections 6.1, and 6.5(f) and (g). In forming their recommendation,
Messrs Jensen, Davey and Lahood considered the experience of
Mr Niardone, the terms of Mr Niardone’s Managing Director executive
services agreement, the current market price of Shares, the current
market standards and practices when determining the number of
Performance Rights to be issued to Mr Niardone, as well as the milestones
and expiry date of the Performance Rights;
(t) Paul Niardone has a material personal interest in the outcome of
Resolution 5 on the basis that Mr Niardone (or their nominee) is to be
issued Performance Rights should Resolution 5 be passed. For this reason,
Mr Niardone does not believe that it is appropriate to make a
recommendation on Resolution 5 of this Notice; and
(u) the Board is not aware of any other information that is reasonably
required by Shareholders to allow them to decide whether it is in the best
interests of the Company to pass Resolution 5.
18
GLOSSARY
$ means Australian dollars.
7.1A Mandate has the meaning given in Section 5.1.
Annual General Meeting or Meeting means the meeting convened by the Notice.
ASIC means the Australian Securities & Investments Commission.
ASX means ASX Limited (ACN 008 624 691) or the financial market operated by ASX
Limited, as the context requires.
Board means the current board of directors of the Company.
Business Day means Monday to Friday inclusive, except New Year’s Day, Good Friday,
Easter Monday, Christmas Day, Boxing Day, and any other day that ASX declares is not a
business day.
Chair means the chair of the Meeting.
Class A Performance Right means a Performance Right with the milestone set out on
paragraph (a)(i) of Schedule 3.
Class B Performance Right means a Performance Right with the milestone set out on
paragraph (a)(i) of Schedule 3.
Closely Related Party of a member of the Key Management Personnel means:
(a) a spouse or child of the member;
(v) a child of the member’s spouse;
(w) a dependent of the member or the member’s spouse;
(x) anyone else who is one of the member’s family and may be expected to
influence the member, or be influenced by the member, in the member’s dealing
with the entity;
(y) a company the member controls; or
(z) a person prescribed by the Corporations Regulations 2001 (Cth) for the purposes
of the definition of ‘closely related party’ in the Corporations Act.
Company means The Agency Group Australia Limited (ACN 118 913 232).
Constitution means the Company’s constitution.
Corporations Act means the Corporations Act 2001 (Cth).
Directors means the current directors of the Company.
Employment Agreement has the meaning set out in Section 4.1.
Employment Options has the meaning set out in Section 4.1.
Equity Securities includes a Share, a right to a Share or Option, an Option, a convertible
security and any security that ASX decides to classify as an Equity Security.
19
Explanatory Statement means the explanatory statement accompanying the Notice.
Key Management Personnel has the same meaning as in the accounting standards issued
by the Australian Accounting Standards Board and means those persons having authority
and responsibility for planning, directing and controlling the activities of the Company, or
if the Company is part of a consolidated entity, of the consolidated entity, directly or
indirectly, including any director (whether executive or otherwise) of the Company, or if
the Company is part of a consolidated entity, of an entity within the consolidated group.
Listing Rules means the Listing Rules of ASX.
Notice or Notice of Meeting means this notice of meeting including the Explanatory
Statement and the Proxy Form.
Option means an option to acquire a Share.
Optionholder means a holder of an Option.
Performance Rights and Options Plan means the Company’s Performance Rights and
Options Plan adopted by Shareholders on 29 November 2019.
Probationary Period has the meaning set out in Section 4.1.
Proxy Form means the proxy form accompanying the Notice.
Remuneration Report means the remuneration report set out in the Director’s report section
of the Company’s annual financial report for the year ended 30 June 2021.
Resolutions means the resolutions set out in the Notice, or any one of them, as the context
requires.
Section means a section of the Explanatory Statement.
Share means a fully paid ordinary share in the capital of the Company.
Shareholder means a registered holder of a Share.
Variable A means “A” as set out in the formula in Listing Rule 7.1A.2.
WST means Western Standard Time as observed in Perth, Western Australia.
20
SCHEDULE 1 – TERMS AND CONDITIONS OF EMPLOYMENT OPTIONS
(a) Entitlement
Each Option entitles the holder to subscribe for one Share upon exercise of the
Option.
(b) Vesting Conditions
The Options shall vest subject to the following conditions:
(i) 10,000,000 exercisable at $0.05 per Option, will vest 60 days after the
conclusion of the Probationary Period (Tranche 1 Options);
(ii) 10,000,000 Options exercisable at $0.075 per Option, will vest on the
12 month anniversary date of the conclusion of the Probationary Period
(Tranche 2 Options); and
(iii) 10,000,000 Options exercisable at $0.10 per Option, will vest on the
24 month anniversary date of the conclusion of the Probationary Period
(Tranche 3 Options).
(c) Exercise Price
Subject to paragraph (j), the amount payable upon exercise of each Option will
be as set out in the table below (Exercise Price).
Tranche Exercise Price
Tranche 1 Options Exercisable at $0.05 per Option
Tranche 2 Options Exercisable at $0.075 per Option
Tranche 3 Options Exercisable at $0.10 per Option
(d) Expiry Date
Each Option will expire at 5:00 pm (WST) on the date set out in the table below
(Expiry Date). An Option not exercised before the Expiry Date will automatically
lapse on the Expiry Date.
Tranche Expiry Date
Tranche 1 Options On or before the date that is 12 months after
the conclusion of the Probationary Period.
Tranche 2 Options On or before the date that is 12 months after
the date the Options vest.
Tranche 3 Options On or before the date that is 12 months after
the date the Options vest.
(e) Exercise Period
The Options are exercisable at any time on or prior to the Expiry Date (Exercise
Period).
21
(f) Notice of Exercise
The Options may be exercised during the Exercise Period by notice in writing to
the Company in the manner specified on the Option certificate (Notice of
Exercise) and payment of the Exercise Price for each Option being exercised in
Australian currency by electronic funds transfer or other means of payment
acceptable to the Company.
(g) Exercise Date
A Notice of Exercise is only effective on and from the later of the date of receipt
of the Notice of Exercise and the date of receipt of the payment of the Exercise
Price for each Option being exercised in cleared funds (Exercise Date).
(h) Timing of issue of Shares on exercise
Within five Business Days after the Exercise Date, the Company will:
(i) issue the number of Shares required under these terms and conditions in
respect of the number of Options specified in the Notice of Exercise and
for which cleared funds have been received by the Company;
(ii) if required, give ASX a notice that complies with section 708A(5)(e) of the
Corporations Act, or, if the Company is unable to issue such a notice,
lodge with ASIC a prospectus prepared in accordance with the
Corporations Act and do all such things necessary to satisfy section
708A(11) of the Corporations Act to ensure that an offer for sale of the
Shares does not require disclosure to investors; and
(iii) if admitted to the official list of ASX at the time, apply for official quotation
on ASX of Shares issued pursuant to the exercise of the Options.
If a notice delivered under (h)(ii) for any reason is not effective to ensure that an
offer for sale of the Shares does not require disclosure to investors, the Company
must, no later than 20 Business Days after becoming aware of such notice being
ineffective, lodge with ASIC a prospectus prepared in accordance with the
Corporations Act and do all such things necessary to satisfy section 708A(11) of
the Corporations Act to ensure that an offer for sale of the Shares does not require
disclosure to investors.
(i) Shares issued on exercise
Shares issued on exercise of the Options rank equally with the then issued shares
of the Company.
(j) Reconstruction of capital
If at any time the issued capital of the Company is reconstructed, all rights of an
Optionholder are to be changed in a manner consistent with the Corporations
Act and the ASX Listing Rules at the time of the reconstruction.
(k) Participation in new issues
There are no participation rights or entitlements inherent in the Options and
holders will not be entitled to participate in new issues of capital offered to
Shareholders during the currency of the Options without exercising the Options.
22
(l) Change in exercise price
An Option does not confer the right to a change in Exercise Price or a change in
the number of underlying securities over which the Option can be exercised.
(m) Transferability
The Options are transferable subject to any restriction or escrow arrangements
imposed by ASX or under applicable Australian securities laws.
23
SCHEDULE 2 – SUMMARY OF EMPLOYMENT AGREEMENT
Position Chief Executive Officer (Group)
Commencement Date 29 March 2021
Salary package $550,000 inclusive of superannuation (not to increase for first 2 years
of employment).
Plus short term and long term incentive payments which will be
subject to achievement of key performance indicators to be set
and approved with and by the Board of The Agency.
Leave provisions In accordance with applicable legislation.
Probationary Period Six-month probationary period.
At any time during this period, either party may terminate the
employment by providing one week’s written notice to the other party.
Equity issues On the Commencement Date, the Company will issue Mr Lucas with
30 million unlisted options to acquire fully paid ordinary shares in the capital
of the Company(Unlisted Options) with the following terms:
(a) 10 million Unlisted Options exercisable at 5 cents each which will
vest 60 days after conclusion of the Probationary Period and are
exercisable on or before 12 months after conclusion of the
Probationary Period (approximatelySeptember 2022).
(b) 10 million Unlisted Options exercisable at 7.5 cents each which
will vest on the 12-month anniversary date of conclusion of the
Probationary Period andare exercisable on or before 12 months
from vesting (approximately September 2023).
(c) 10 million Unlisted Options exercisable at 10 cents each which
will vest on the 24-month anniversary date of conclusion of the
Probationary Period andare exercisable on or before 12 months
from vesting (approximately September 2024).
If the employment is terminated by either party, the Unlisted
Options will be cancelled or lapsed.
If all Unlisted Options are exercised the total payable by Mr Lucas
will be $2,250,000.
Termination Following the Probationary Period, the Company may terminate the
employment without cause, or Mr Lucas may resign from the employment,
with six months’ written notice to the other party. The employment
agreement also contains summary termination provisions considered
standard for an agreement of this type.
24
SCHEDULE 3 – TERMS AND CONDITIONS OF PERFORMANCE RIGHTS
The terms and conditions of the Performance Rights the subject of Resolution are as follows:
(a) Milestones
The Performance Rights will vest and convert into Shares on a one for one basis
on achievement of the following milestones (each, a Milestone):
(i) Class A Performance Rights: 24 months continuous service by the
Executive to the Company from closure of the Company’s 2021 annual
general meeting;
(ii) Class B Performance Rights: upon achievement of one of the following
(as verified by the Company’s auditor):
(A) recruitment by The Agency (WA) and the Company’s SLP Model
of 85 Agents by the financial year ending 30 June 2024; or
(B) achievement of GCI of $50,000,000 for the financial year ending
30 June 2024 by The Agency (WA).
For the purposes of the above:
Agent means a real estate agent.
GCI means gross commission income.
SLP Model means the Company’s Sell Lease Property model.
(b) Notification to holder
The Company shall notify the holder in writing when each Milestone has been
satisfied.
(c) Conversion
(i) Subject to paragraph (m), upon vesting, each Performance Right will, at
the election of the holder, convert into one (1) Share (other than as set
out below).
(ii) If the 80% of either one of the Class B Performance Rights Milestones is
achieved by the financial year ending 30 June 2024, each Class B
Performance Right will convert into 0.5 Share.
(d) Lapse of a Performance Right
If a Milestone is not achieved by the applicable date specified in paragraph (a),
the relevant Performance Rights will automatically lapse.
Any Performance Right not converted within two years of the date on which the
milestone is achieved (Expiry Date) shall automatically lapse on the Expiry Date
and the holder shall have no entitlement to Shares pursuant to those Performance
Rights.
25
(e) Share ranking
All Shares issued upon the vesting Performance Rights will upon issue rank
pari passu in all respects with other Shares.
(f) Application to ASX
The Performance Rights will not be quoted on ASX. The Company must apply for
the official quotation of a Share issued on conversion of a Performance Right on
ASX within the time period required by the ASX Listing Rules.
(g) Transfer of Performance Rights
The Performance Rights are not transferable.
(h) Participation in new issues
A Performance Right does not entitle a holder (in their capacity as a holder of a
Performance Right) to participate in new issues of capital offered to holders of
Shares such as bonus issues and entitlement issues.
(i) Reorganisation of capital
If at any time the issued capital of the Company is reconstructed, all rights of a
holder will be changed in a manner consistent with the applicable ASX Listing
Rules and the Corporations Act at the time of reorganisation.
(j) Adjustment for bonus issue
If the Company makes a bonus issue of Shares or other securities to existing
Shareholders (other than an issue in lieu or in satisfaction of dividends or by way of
dividend reinvestment) the number of Shares or other securities which must be
issued on the conversion of a Performance Right will be increased by the number
of Shares or other securities which the holder would have received if the holder
had converted the Performance Right before the record date for the bonus issue.
(k) Dividend and Voting Rights
The Performance Rights do not confer on the holder an entitlement to vote
(except as otherwise required by law) or receive dividends.
(l) Change in Control
Subject to paragraph (m), upon:
(i) a takeover bid under Chapter 6 of the Corporations Act having been
made in respect of the Company and:
(A) having received acceptances for not less than 50.1% of the
Company’s Shares on issue; and
(B) having been declared unconditional by the bidder; or
(ii) a Court granting orders approving a compromise or arrangement for the
purposes of or in connection with a scheme of arrangement for the
reconstruction of the Company or its amalgamation with any other
company or companies,
26
then, to the extent Performance Rights have not converted into Shares due to
satisfaction of the applicable Milestone, Performance Rights will accelerate
vesting conditions and will automatically convert into Shares on a one-for-one
basis.
(m) Deferral of conversion if resulting in a prohibited acquisition of Shares
If the conversion of a Performance Right under paragraph (c) or (l) would result in
any person being in contravention of section 606(1) of the Corporations Act 2001
(Cth) (General Prohibition) then the conversion of that Performance Right shall be
deferred until such later time or times that the conversion would not result in a
contravention of the General Prohibition. In assessing whether a conversion of a
Performance Right would result in a contravention of the General Prohibition:
(i) holders may give written notification to the Company if they consider that
the conversion of a Performance Right may result in the contravention of
the General Prohibition. The absence of such written notification from the
holder will entitle the Company to assume the conversion of a
Performance Right will not result in any person being in contravention of
the General Prohibition; and
(i) the Company may (but is not obliged to) by written notice to a holder
request a holder to provide the written notice referred to in paragraph
(m)(i) within seven days if the Company considers that the conversion of
a Performance Right may result in a contravention of the General
Prohibition. The absence of such written notification from the holder will
entitle the Company to assume the conversion of a Performance Right
will not result in any person being in contravention of the General
Prohibition.
(n) No rights to return of capital
A Performance Right does not entitle the holder to a return of capital, whether in
a winding up, upon a reduction of capital or otherwise.
(o) Rights on winding up
A Performance Right does not entitle the holder to participate in the surplus profits
or assets of the Company upon winding up.
(p) No other rights
A Performance Right gives the holder no rights other than those expressly provided
by these terms and those provided at law where such rights at law cannot be
excluded by these terms.
(q) Subdivision 83AC-C and risk of forfeiture
(a) Subdivision 83A-C of the Income Tax Assessment Act 1997 applies to the
Performance Rights.
(b) The Company and the holder acknowledge and agree that the Class A
Performance Rights and Class B Performance Rights are subject to risk of
forfeiture and that the rights are part of a Sec 83 A tax deferral scheme.
27
(r) Discretion
Consistent with the terms of the Performance Rights and Options Plan, the Board
may, in its absolute discretion, determine by resolution of the Board that a
particular Milestone has been satisfied or satisfied to such an extent that the
Performance Right to which the applicable Milestone relates will be deemed to
have vested.
(s) ASX requirements
The terms and conditions of the Performance Rights are subject to any
amendments required as required by ASX or the ASX Listing Rules.
28
SCHEDULE 4 – VALUATION OF PERFORMANCE RIGHTS
The Performance Rights to be issued to Paul Niardone pursuant to Resolution 5 have been
independently valued by Pendragon Capital Ltd.
Using the Hoadleys ESO1 option model and based on the assumptions set out below, the
Performance Rights were ascribed the following value:
Class A Performance Class B Performance
Item Rights Rights
Share price $0.051 $0.051
Exercise price Nil Nil
Valuation date 24-Nov-21 24-Nov-21
Measurement/vesting date 30-Jun-24 30-Jun-24
Measurement/vesting period (years) 2.60 2.60
Expiry date 30-Jun-24 30-Jun-24
Life of the Performance Rights (years) 2.60 2.60
Volatility 101.7% 101.7%
Risk-free rate 1.01% 1.01%
Dividends Nil Nil
Notes: Share price is the closing prices of the Company’s Shares as at 24 November 2021. The valuation
noted above is not necessarily the market price that the Performance Rights could be traded at and is
not automatically the market price for taxation purposes.
The value of the Performance Rights (before non-market vesting adjustments) to
Mr Niardone is summarised below:
Value per Performance Number of Total Value of
Right Performance Rights to Performance Rights
be issued
Class A Performance $0.051 8,000,000 $408,000
Rights
Class B Performance $0.051 3,000,000 $153,000
Rights
$561,000
29
The value of the Performance Rights, if 80% of either of the Class B Performance Rights
milestones are achieved, to Mr Niardone is summarised below:
Value per Performance Number of Total Value of
Right Performance Rights to Performance Rights
vest
Class A Performance $0.051 8,000,000 $408,000
Rights
Class B Performance $0.051 1,500,000 $76,500
Rights
$484,500
The value of the Performance Rights (after non-market vesting adjustments are made to
the number of Performance Rights that are expected to eventually vest) to Mr Niardone
are summarised below:
Value per Total Value of Total Adjusted Value
Vesting
Performance Performance of Performance
Probability
Right Rights1 Rights2
Class A Performance Rights $0.051 $408,000 100% $408,000
Class B Performance Rights $0.051 $153,000 85%
$130,05
0
$538,050
1Before non-market adjustments
2After non-market adjustments
The total value of the Performance Rights to Mr Niardone is between $484,500 and $561,000.
Based on discussions with management, the probability of the Class A Performance Rights
and Class B Performance Rights fully vesting is 100% and 85%, respectively. Pendragon
Capital Limited has therefore taken the value of $538,050 as the preferred value of the
Performance Rights.
30
SCHEDULE 5 – TERMS AND CONDITIONS OF PERFORMANCE RIGHTS
AND OPTIONS PLAN
The principle terms of the Performance Rights and Options Plan (Plan) are summarised
below:
(a) Eligibility
Participants in the Plan may be:
(i) a Director (whether executive or non-executive) of the Company or any
Associated Body Corporate of the Company (each, a Group Company);
(ii) a full or part time employee of any Group Company;
(iii) a casual employee or contractor of a Group Company to the extent
permitted by ASIC Class Order 14/1000 as amended or replaced (Class
Order); or
(iv) a prospective participant, being a person to whom the offer is made but
who can only accept the offer if an arrangement has been entered into
that will result in the person becoming a participant under subparagraphs
(i), (ii), or (iii) above,
who is declared by the Board to be eligible to receive grants of Performance
Rights under the Plan (Eligible Participants).
(b) Offer
The Board may, from time to time, in its absolute discretion, make a written offer
to any Eligible Participant (including an Eligible Participant who has previously
received an offer) to apply for a Performance Right or an Options (Award or
Awards as the context requires), upon the terms set out in the Plan and upon such
additional terms and conditions as the Board determines (Offer).
(c) Plan limit
The Company must have reasonable grounds to believe, when making an offer,
that the number of Shares to be received on exercise of Awards offered under an
offer, when aggregated with the number of Shares issued or that may be issued
as a result of offers made in reliance on the Class Order at any time during the
previous 3 year period under an employee incentive scheme covered by the
Class Order or an ASIC exempt arrangement of a similar kind to an employee
incentive scheme, will not exceed 5% of the total number of Shares on issue at the
date of the offer.
(d) No consideration
Performance Rights granted under the Plan will be issued for nil cash
consideration. Unless the Options are quoted on the ASX, Options issued under
the Plan will be issued for no more than nominal cash consideration.
(e) Vesting Conditions
An Award may be made subject to vesting conditions as determined by the Board
in its discretion and as specified in the offer for the Awards (Vesting Conditions).
31
(f) Vesting
The Board may in its absolute discretion (except in respect of a change of control
occurring where Vesting Conditions are deemed to be automatically waived) by
written notice to a Participant (being an Eligible Participant to whom Awards have
been granted under the Plan or their nominee where the Awards have been
granted to the nominee of the Eligible Participant (Relevant Person)), resolve to
waive any of the Vesting Conditions applying to Awards due to:
(i) special circumstances arising in relation to a Relevant Person in respect
of those Awards, being:
(A) a Relevant Person ceasing to be an Eligible Participant due to:
(I) death or total or permanent disability of a Relevant
Person; or
(II) retirement or redundancy of a Relevant Person;
(B) a Relevant Person suffering severe financial hardship;
(C) any other circumstance stated to constitute “special
circumstances” in the terms of the relevant offer made to and
accepted by the Participant; or
(D) any other circumstances determined by the Board at any time
(whether before or after the offer) and notified to the relevant
Participant which circumstances may relate to the Participant, a
class of Participant, including the Participant or particular
circumstances or class of circumstances applying to the
Participant,
(Special Circumstances), or
(ii) a change of control occurring; or
(iii) the Company passing a resolution for voluntary winding up, or an order is
made for the compulsory winding up of the Company.
(g) Lapse of an Award
An Award will lapse upon the earlier to occur of:
(i) an unauthorised dealing in, or hedging of, the Award occurring;
(ii) a Vesting Condition in relation to the Award is not satisfied by its due date,
or becomes incapable of satisfaction, as determined by the Board in its
absolute discretion, unless the Board exercises its discretion to waive the
Vesting Condition and vest the Award;
(iii) in respect of unvested Awards only, an Eligible Participant ceases to be
an Eligible Participant, unless the Board exercises its discretion to vest the
Award in the circumstances set out in paragraph (f) or the Board resolves,
in its absolute discretion, to allow the unvested Awards to remain
unvested after the Relevant Person ceases to be an Eligible Participant;
(iv) in respect of vested Awards only, a relevant person ceases to be an
Eligible Participant and the Award granted in respect of that person is not
32
exercised within one (1) month (or such later date as the Board
determines) of the date that person ceases to be an Eligible Participant;
(v) the Board deems that an Award lapses due to fraud, dishonesty or other
improper behaviour of the Eligible Participant;
(vi) the Company undergoes a change of control or a winding up resolution
or order is made and the Board does not exercise its discretion to vest the
Award; and
(vii) the expiry date of the Award.
(h) Shares
Shares resulting from the exercise of the Awards shall, subject to any Sale
Restrictions (refer paragraph (i)) from the date of issue, rank on equal terms with
all other Shares on issue.
(i) Sale Restrictions
The Board may, in its discretion, determine at any time up until exercise of Awards,
that a restriction period will apply to some or all of the Shares issued to an Eligible
Participant (or their eligible nominee) on exercise of those Awards up to a
maximum of five (5) years from the grant date of the Awards. In addition, the
Board may, in its sole discretion, having regard to the circumstances at the time,
waive any such restriction period determined.
(j) No Participation Rights
There are no participating rights or entitlements inherent in the Awards and holders
will not be entitled to participate in new issues of capital offered to Shareholders
during the currency of the Awards.
(k) Change in exercise price or number of underlying securities
Unless specified in the offer of the Awards and subject to compliance with the ASX
Listing Rules, an Award does not confer the right to a change in exercise price or
in the number of underlying Shares over which the Award can be exercised.
(l) Reorganisation
If, at any time, the issued capital of the Company is reorganised (including
consolidation, subdivision, reduction or return), all rights of a holder of an Award
are to be changed in a manner consistent with the Corporations Act and the ASX
Listing Rules at the time of the reorganisation.
(m) Trust
The Board may, at any time, establish a trust for the sole purpose of acquiring and
holding Shares in respect of which a Participant may exercise, or has exercised,
vested Awards, including for the purpose of enforcing the disposal restrictions and
appoint a trustee to act as trustee of the trust. The trustee will hold the Shares as
trustee for and on behalf of a Participant as beneficial owner upon the terms of
the trust. The Board may at any time amend all or any of the provisions of the Plan
to effect the establishment of such a trust and the appointment of such a trustee.
33
(n) Amendments
Subject to express restrictions set out in the Plan and complying with the
Corporations Act, ASX Listing Rules and any other applicable law, the Board may,
at any time, by resolution amend or add to all or any of the provisions of the Plan,
including giving any amendment retrospective effect.
34
LODGE YOUR PROXY APPOINTMENT ONLINE
ONLINE PROXY APPOINTMENT
www.advancedshare.com.au/investor-login
MOBILE DEVICE PROXY APPOINTMENT
Lodge your proxy by scanning the QR code below, and enter
your registered postcode.
It is a fast, convenient and a secure way to lodge your vote.
Important Note: Due to the ongoing COVID-19 pandemic and uncertainty regarding the level of travel restrictions around the time of the meeting, the Company has
determined that Shareholders will only be able to attend and participate in the meeting through an online platform provided by Advanced Share Registry.
ANNUAL GENERAL MEETING PROXY FORM
I/We being shareholder(s) of The Agency Group Australia Limited and entitled to attend and vote hereby:
APPOINT A PROXY
The Chair of the PLEASE NOTE: If you leave the section blank,
Meeting
OR the Chair of the Meeting will be your proxy.
or failing the individual(s) or body corporate(s) named, or if no individual(s) or body corporate(s) named, the Chair of the Meeting, as
my/our proxy to act generally at the Meeting on my/our behalf, including to vote in accordance with the following directions (or, if no
STEP 1
directions have been given, and to the extent permitted by law, as the proxy sees fit), at the Annual General Meeting of the Company to
be held virtually on 28 January 2022 at 10:00am (WST) and at any adjournment or postponement of that Meeting.
Chair’s voting intentions in relation to undirected proxies: The Chair intends to vote all undirected proxies in favour of all Resolutions. In
exceptional circumstances, the Chair may change his/her voting intentions on any Resolution. In the event this occurs, an ASX
announcement will be made immediately disclosing the reasons for the change.
Chair authorised to exercise undirected proxies on remuneration related resolutions: Where I/we have appointed the Chair of the
Meeting as my/our proxy (or the Chair becomes my/our proxy by default), I/we expressly authorise the Chair to exercise my/our proxy on
Resolutions 1 & 5 (except where I/we have indicated a different voting intention below) even though these resolutions are connected
directly or indirectly with the remuneration of a member(s) of key management personnel, which includes the Chair.
VOTING DIRECTIONS
Resolutions For Against Abstain*
1 Adoption of Remuneration Report ◼ ◼ ◼
◼ ◼ ◼
STEP 2
2 Re-election of Director – Andrew Jensen
3 Ratification of prior issue of Options ◼ ◼ ◼
4 Approval of 7.1A Mandate ◼ ◼ ◼
5 Approval of issue of Performance Rights to Director - Paul Niardone ◼ ◼ ◼
* If you mark the Abstain box for a particular Resolution, you are directing your proxy not to vote on your behalf on a show of hands
or on a poll and your votes will not be counted in computing the required majority on a poll.
SIGNATURE OF SHAREHOLDERS – THIS MUST BE COMPLETED
Shareholder 1 (Individual) Joint Shareholder 2 (Individual) Joint Shareholder 3 (Individual)
STEP 3
Sole Director and Sole Company Secretary Director/Company Secretary (Delete one) Director
This form should be signed by the shareholder. If a joint holding, all the shareholder should sign. If signed by the shareholder’s attorney,
the power of attorney must have been previously noted by the registry or a certified copy attached to this form. If executed by a company,
the form must be executed in accordance with the company’s constitution and the Corporations Act 2001 (Cth).
Email Address
Please tick here to agree to receive communications sent by the Company via email. This may include meeting notifications, dividend
remittance, and selected announcements.
THE AGENCY GROUP AUSTRALIA LIMITED - ANNUAL GENERAL MEETING
Due to the ongoing COVID-19 pandemic and uncertainty regarding the level of travel restrictions around the time of the meeting, the Company has determined that
Shareholders will only be able to attend and participate in the Meeting through an online platform provided by Advanced Share Registry.
To facilitate such participation, voting on each Resolution will occur by a poll rather than a show of hands.
A live webcast and electronic voting via www.advancedshare.com.au/virtual-meeting will be offered to allow Shareholders to attend the Meeting and vote online.
Please refer to the Meeting ID and Shareholder ID on the proxy form to login to the website.
Shareholders may submit questions ahead of the Meeting via the portal.
HOW TO COMPLETE THIS SHAREHOLDER PROXY FORM
CHANGE OF ADDRESS CORPORATE REPRESENTATIVES
This form shows your address as it appears on Company’s share register. If this If a representative of a nominated corporation is to attend the Meeting the
information is incorrect, please make the correction on the form. Shareholders appropriate “Certificate of Appointment of Corporate Representative” should
sponsored by a broker should advise their broker of any changes. be produced prior to admission in accordance with the Notice of Meeting. A
Corporate Representative Form may be obtained from Advanced Share
APPOINTMENT OF A PROXY Registry.
If you wish to appoint the Chair as your proxy, mark the box in Step 1. If you
wish to appoint someone other than the Chair, please write that person’s name
SIGNING INSTRUCTIONS ON THE PROXY FORM
in the box in Step 1. A proxy need not be a shareholder of the Company. A proxy Individual:
may be an individual or a body corporate. Where the holding is in one name, the security holder must sign.
Joint Holding:
DEFAULT TO THE CHAIR OF THE MEETING Where the holding is in more than one name, all of the security holders should
If you leave Step 1 blank, or if your appointed proxy does not attend the sign.
Meeting, then the proxy appointment will automatically default to the Chair of Power of Attorney:
the Meeting.
If you have not already lodged the Power of Attorney with Advanced Share
VOTING DIRECTIONS – PROXY APPOINTMENT Registry, please attach the original or a certified photocopy of the Power of
Attorney to this form when you return it.
You may direct your proxy on how to vote by placing a mark in one of the boxes
opposite each resolution of business. All your shares will be voted in Companies:
accordance with such a direction unless you indicate only a portion of voting Where the company has a Sole Director who is also the Sole Company
rights are to be voted on any resolution by inserting the percentage or number Secretary, this form must be signed by that person. If the company (pursuant
of shares you wish to vote in the appropriate box or boxes. If you do not mark to section 204A of the Corporations Act 2001) does not have a Company
any of the boxes on a given resolution, your proxy may vote as they choose to Secretary, a Sole Director can sign alone. Otherwise this form must be signed
the extent they are permitted by law. If you mark more than one box on a by a Director jointly with either another Director or a Company Secretary.
resolution, your vote on that resolution will be invalid.
Please sign in the appropriate place to indicate the office held.
PROXY VOTING BY KEY MANAGEMENT PERSONNEL
If you wish to appoint a Director (other than the Chair) or other member of the LODGE YOUR PROXY FORM
Company’s key management personnel, or their closely related parties, as your This Proxy Form (and any power of attorney under which it is
proxy, you must specify how they should vote on Resolutions 1 & 5, by marking signed) must be received at an address given below by 10:00am
the appropriate box. If you do not, your proxy will not be able to exercise your
(WST) on 26 January 2022, being not later than 48 hours before the
vote for Resolutions 1 & 5.
commencement of the Meeting. Proxy Forms received after that
PLEASE NOTE: If you appoint the Chair as your proxy (or if they are appointed time will not be valid for the scheduled Meeting.
by default) but do not direct them how to vote on a resolution (that is, you do
not complete any of the boxes “For”, “Against” or “Abstain” opposite that
ONLINE PROXY APPOINTMENT
resolution), the Chair may vote as they see fit on that resolution.
www.advancedshare.com.au/investor-login
APPOINTMENT OF A SECOND PROXY
BY MAIL
You are entitled to appoint up to two persons as proxies to attend the Meeting
and vote on a poll. If you wish to appoint a second proxy, an additional Proxy
Advanced Share Registry Limited
Form may be obtained by telephoning Advanced Share Registry Limited or you 110 Stirling Hwy, Nedlands WA 6009; or
may copy this form and return them both together. PO Box 1156, Nedlands WA 6909
To appoint a second proxy you must:
BY FAX
(a) On each Proxy Form state the percentage of your voting rights or number
+61 8 6370 4203
of shares applicable to that form. If the appointments do not specify the
percentage or number of votes that each proxy may exercise, each proxy
may exercise half your votes. Fractions of votes will be disregarded; and BY EMAIL
admin@advancedshare.com.au
(b) Return both forms together.
COMPLIANCE WITH LISTING RULE 14.11 IN PERSON
Advanced Share Registry Limited
In accordance to Listing Rule 14.11, if you hold shares on behalf of another
110 Stirling Hwy, Nedlands WA 6009
person(s) or entity/entities or you are a trustee, nominee, custodian or other
fiduciary holder of the shares, you are required to ensure that the person(s) or
entity/entities for which you hold the shares are not excluded from voting on
ALL ENQUIRIES TO
resolutions where there is a voting exclusion. Listing Rule 14.11 requires you to Telephone: +61 8 9389 8033
receive written confirmation from the person or entity providing the voting
instruction to you and you must vote in accordance with the instruction
provided.
By lodging your proxy votes, you confirm to the company that you are in
compliance with Listing Rule 14.11.