Last checked at 1 Nov 2010 15:51
Kryso Resources plc
('Kryso' or 'the Company')
AIM: KYS
Placing of shares to China Nonferrous Metals Int'l Mining Co., LtdDirectors' authority to allot relevant securities and disapplication of pre-emption rightsAmendment to Articles of AssociationandNotice of General Meeting
Further to the announcement of proposed financing on 28 July 2010, the Company announces that a circular has today been posted to Shareholders in relation to, inter alia, a Placing of 73,333,333 new Ordinary Shares and convening a general meeting of the Company to be held at the offices of Speechly Bircham LLP, 6 New Street Square, London EC4A 3LX at 10 a.m. on Tuesday, 16 November 2010 in connection with that transaction. The circular will also be available from the Company's website, www.kryso.com.
Trevor Davenport, Non-Executive Chairman of Kryso, comments:
"The Directors recommend that all shareholders vote in favour of the Resolutions in respect of the Placing and in respect of the other business of the General Meeting."
For further information please contact:
Dr. Trevor Davenport/Craig Brown, Kryso Resources plcTel: +44 (0) 20 7371 0600
Katy Mitchell, WH Ireland LimitedTel: +44 (0) 161 832 2174
Christian Dennis/Jeremy King, Optiva Securities LimitedTel: +44 (0) 20 3137 1902
1. Introduction
On 28 July 2010, the Company announced that it had, on 27 July 2010, entered into a conditional subscription agreement (the Agreement) with China Nonferrous Metals Int'l Mining Co., Ltd. (CNMIM) whose principal shareholder is China Nonferrous Metals Mining (Group) Co., Ltd. (China Nonferrous). China Nonferrous is a major Chinese mining company headquartered in Beijing.
Conditional on the satisfaction of various conditions set out below (the Conditions), the Agreement provides for a placing (the Placing) of 73,333,333 new ordinary shares to CNMIM at a price of 15p per share (the Placing Shares) to raise £10,999,999.95 before expenses.
The Placing is subject to a number of conditions, including:
CNMIM having concluded its legal, financial and technical due diligence to its satisfaction during the period of one month from the date of the Agreement. This was confirmed by CNMIM on 1 September 2010; the resolutions proposed in the attached notice of general meeting being passed; approval of the subscription from all appropriate authorities in the PRC. This was confirmed on 27 October 2010; admission (Admission) to trading on AIM of the Placing Shares; no material adverse effect or material breach of warranty or covenant having occurred prior to Admission; and no insolvency event, revocation or material adverse amendment of any existing exploration licence or unlifted suspension of the Company's shares from trading having occurred prior to Admission.The Agreement also provides for the issue to CNMIM of one warrant for each Placing Share, conditional on completion of the Placing and each entitling CNMIM to subscribe for one new ordinary share in the Company at 21p per share (the Warrants).
Subject to satisfaction of the Conditions, including shareholder approval of the Placing and completion of the Placing, CNMIM has agreed to use its best endeavours to procure an offer of debt financing (the Investor Financing) for the Company within three months of the board approval of the bankable feasibility study (BFS) for not less than 70% of the funding cost of the Pakrut gold project, which funds would be used for the purposes of constructing and commissioning a mine at the Pakrut gold project.
On 27 September 2010, pursuant to the Agreement, CNMIM had procured a payment of £200,000 (the Cash Advance) to the Company in order to extend the long stop date under the Agreement, which is the date on which the Agreement would terminate unless all conditions for completion of the Placing have been satisfied or waived. The Cash Advance is treated as an advance payment of the purchase price for the Placing and shall be deducted from the purchase price payable at completion. In the event that the Agreement is terminated without completion of the Placing or if completion does not otherwise occur, the Company is obliged to issue to CNMIM 1,333,333 ordinary shares in the Company in respect of the Cash Advance, or, in the event that such shares are not duly issued, to repay the Cash Advance to CNMIM.
Accordingly the Company is seeking the necessary authority to allot shares in the Company or grant rights to subscribe for or convert any security into shares in the Company pursuant to section 551 of the Companies Act (the 2006 Act) and the power to disapply statutory pre-emption rights under section 561 of the 2006 Act in order to undertake the Placing and, in the event that completion of the Placing does not occur, to undertake the placing of 1,333,333 ordinary shares in respect of the Cash Advance.
2. Authority to allot shares and power to disapply statutory pre-emption rights
Resolution 1 will be proposed as an Ordinary Resolution to provide the Directors with authority to allot shares in the Company or grant rights to subscribe for or convert any security into shares in the Company up to an aggregate nominal amount of £2,016,666.66. This authority restates and replaces the Directors' existing authority granted at the Company's general meeting held on 3 July 2009, which has expired.
Pursuant to clause 5 of the Agreement, if any of the options and warrants existing at Admission are exercised (a Relevant Exercise) after Admission, CNMIM will have the right to require the Company to allot and issue to it shares at the average closing mid-market price of the last 15 trading days prior to the Relevant Exercise to maintain its percentage holding in the Company prior to the Relevant Exercise. In addition, any proposed offering of share capital or other equity securities (within the meaning of section 560 of the 2006 Act) by the Company will be subject to pre-emptive rights entitling CNMIM to purchase that portion of the offered share capital or other equity securities as will enable it to maintain its pro rata ownership of the Company at the price no less favourable than the subscription price or exercise price which the Company proposes to issue or grant.
In order to provide the Directors with the power to allot equity securities for cash without first offering those equity securities to Shareholders in accordance with section 561(1) of the Act, Resolution 2 (which is subject to Resolution 1 being passed) will be proposed as a Special Resolution to provide the Directors (in addition to their existing powers) with power to allot equity securities as if section 561(1) of the 2006 Act did not apply to such allotments limited to:
(i) the issue to CNMIM of 73,333,333 shares in the Company on completion of the Agreement;
(ii) the issue to CNMIM of shares in the Company pursuant to exercise of the Warrants and the issue to CNMIM of such Warrants;
(iii) the issue to CNMIM of the number of equity securities in order for the Company to comply with its obligations under clause 5 of the Agreement so that the shareholding of CNMIM in the Company is not diluted by a Relevant Exercise or any proposed offering of share capital or other equity securities;
(iv) the issue to CNMIM or its nominee of up to 1,333,333 Ordinary Shares in the event completion of Placing does not occur; and
(v) the issue of any shares pursuant to the exercise of any options granted under the Company's unapproved employee share option scheme up to an aggregate number of 5,000,000 shares. Pursuant to the Agreement, any such issuance of shares under the option scheme shall be limited to 5,000,000 shares prior to 27 July 2011, save where the prior written consent of CNMIM has been obtained.
3. Articles of Association
As a requirement of the Agreement, CNMIM will have the right, subject to completion of the Placing, to appoint and maintain up to two directors to the board of the Company, the second of whom will take the role of non-executive Chairman who will have a casting vote at a board or committee meeting. Accordingly, amendments to the articles of association of the Company are being proposed which, inter alia, would allow the Board to elect a Chairman of its meetings and determine the period for which he is respectively to hold such office and allow the Chairman to have a casting vote at a board or committee meeting. These amendments are set out in Resolution 3, which is proposed as a special resolution.
A copy of the full terms of the proposed new articles of association will be available for inspection at the registered office of the Company and on the Company's website, www.kryso.com.
4. General Meeting
You will find set out at the end of this document, a notice convening a general meeting of the Company to be held at the offices of Speechly Bircham LLP, 6 New Street Square, London EC4A 3LX at 10a.m. on 16 November 2010 for the purpose of considering, and if thought fit, passing the following Resolutions
(i) to give the Directors authority to allot shares in the Company or grant rights to subscribe for or convert any security into shares in the Company up to an aggregate nominal value of £2,016,666.66;
(ii) to give the Directors the power to disapply statutory pre-emption rights in connection with issues of shares referred to in paragraph 2 above; and
(iii) to amend the articles of association of the Company as per paragraph 3 above.
To be passed, Resolution 1 requires a majority of more than 50 per cent. of the Shareholders voting on a poll in person or by proxy in favour of this resolution.
To be passed, Resolutions 2 and 3 require a majority of 75 per cent. or more of Shareholders voting in person or by proxy in favour of the respective Resolutions (either on a show of hands or on a poll).
KRYSO RESOURCES PLC
(Incorporated and registered in England and Wales with registered no. 5190505)
Notice of General Meeting
Notice is hereby given that a General Meeting (the "Meeting") of Kryso Resources plc (the "Company") will be held at the offices of Speechly Bircham LLP, 6 New Street Square, London EC4A 3LX, at 10.00 am on Tuesday, 16 November 2010.
This Notice concerns matters described in a circular to shareholders of the Company from the Chairman dated 1 November 2010 (the "Circular") concerning the subscription by China Nonferrous Metals Int'l Mining Co., Ltd. (the "Investor") for new ordinary shares of £0.01 each in the capital of the Company and the grant by the Company to the Investor of warrants to subscribe for new ordinary shares of £0.01 each in the capital of the Company. Words and expressions not otherwise defined in this Notice shall have the same meanings as in the Circular.
You will be asked to consider and, if thought fit, to pass the following resolutions of which resolution 1 will be proposed as an ordinary resolution and resolutions 2 and 3 as special resolutions.
1. That the directors be and are they hereby generally and unconditionally authorised in accordance with section 551 of the Companies Act 2006 (the "Act") to exercise all the powers of the Company to allot shares in the Company and to grant rights to subscribe for or convert any security into shares in the Company up to an aggregate nominal amount of £2,016,666.66, provided that the authority hereby conferred shall:
(a) operate in substitution for and to the exclusion of any previous authority given to the directors pursuant to section 80 of the Companies Act 1985 or section 551 of the Act;
(b) be exercised only in connection with any of the allotments contemplated in resolution 2 below; and
(c) expire on whichever is earlier of the conclusion of the next Annual General Meeting of the Company or the date falling 15 months from the date of the passing of this resolution unless such authority is renewed, varied, or revoked by the Company in general meeting, save that the Company may before such expiry make an offer or agreement which would or might require shares in the Company to be allotted, or rights to subscribe for or to convert any security into shares in the Company to be granted, after such expiry and the directors may allot shares in the Company in pursuance of such offer or agreement as if the authority hereby conferred had not expired.
2. That, subject to the passing of resolution 1 above, the directors be and they are hereby empowered pursuant to sections 570 and 573 of the Act to allot equity securities (as defined in section 560 of the Act) for cash as if section 561(1) of the Act did not apply to any such allotment pursuant to the general authority conferred on them by resolution 1 above (as varied from time to time by the Company in general meeting) and/or by way of a sale of treasury shares PROVIDED THAT such power shall be limited to:
(a) the allotment to the Investor pursuant to the Agreement of up to 73,333,333 new ordinary shares of £0.01 each in the capital of the Company;
(b) the allotment to the Investor of up to 73,333,333 new ordinary shares of £0.01 each in the capital of the Company pursuant to the exercise of any of the Warrants (or, if higher, such other number of new ordinary shares as shall be necessary in order for the Investor to exercise its Warrants in full) and the allotment to the Investor of such Warrants;
(c) the allotment to the Investor pursuant to the Agreement of such equity securities as shall be necessary for the Company to comply with its obligations under clause 5 of the Agreement up to an aggregate nominal amount of £500,000;
(d) the allotment to the Investor or to a nominee of the Investor pursuant to the Agreement of up to 1,333,333 new ordinary shares of £0.01 each in the capital of the Company; and
(e) the allotment of any ordinary shares of £0.01 each pursuant to the exercise of any options granted under the Company's unapproved employee share option scheme, adopted by the board of directors of the Company on 24 November 2004 (as amended from time to time) up to an aggregate nominal amount of £50,000.
and the power hereby conferred shall operate in substitution for and to the exclusion of any previous power given to the directors pursuant to section 95 of the Companies Act 1985 or sections 570 or 573 of the Act and shall expire on whichever is the earlier of the conclusion of the next Annual General Meeting of the Company or the date falling 15 months from the date of the passing of this resolution unless such power is renewed or extended prior to or at such meeting, except that the Company may before the expiry of any power contained in this resolution make an offer or agreement which would or might require equity securities to be allotted after such expiry and the directors may allot equity securities in pursuance of such offer or agreement as if the power conferred hereby had not expired.
3. That the articles of association of the Company be and are hereby amended as follows:
(a) article 4 (authorised capital) be deleted in its entirety;
(b) article 149 be deleted in its entirety and replaced with:
"The Board may elect a Chairman of its meetings and determine the period for which he is respectively to hold such office. If at any meeting the Chairman (or any alternate Director appointed by him) is not present within five minutes after the time appointed for holding the meeting, the Directors present may choose one of their number to be chairman of the meeting."
By order of the Board
Craig BrownCompany secretaryKRYSO RESOURCES PLCRegistered in England and Wales No. 5190505
1 November 2010
Notes to the Notice of General Meeting
1. A shareholder who is entitled to attend and vote at the meeting may appoint one or more proxies to exercise all or any of his rights to attend, speak and vote on his behalf at the meeting. A proxy need not be a shareholder of the Company. A shareholder may appoint more than one proxy in relation to the meeting provided that each proxy is appointed to exercise the rights attached to a different share or shares held by that shareholder. A proxy form which may be used to make such appointment and give proxy instructions accompanies this notice.
2. To be valid, a form of proxy for use at the meeting, together with the power of attorney or other authority (if any) under which it is signed, or a notarially certified copy of such power or authority, must be deposited in hard copy form by post or courier or by hand at the Company's registrars, Neville Registrars Limited, Neville House, 18 Laurel Lane, Halesowen, West Midlands B63 3DA at least 48 hours before the time for holding the meeting.
3. Completion and return of a form of proxy will not preclude a shareholder from attending and voting at the meeting in person if he subsequently decides to do so.
4. The following principles shall apply in relation to the appointment of multiple proxies:
4.1 the Company will give effect to the intentions of shareholders and include votes wherever and to the fullest extent possible;
4.2 where a proxy does not state the number of shares to which it applies (a "blank proxy") then, subject to the following principles where more than one proxy is appointed, that proxy is deemed to have been appointed in relation to the total number of shares registered in the name of the appointing shareholder (the "shareholder's entire holding"). In the event of a conflict between a blank proxy and a proxy which does state the number of shares to which it applies (a "specific proxy"), the specific proxy shall be counted first, regardless of the time it was sent or received (on the basis that as far as possible, the conflicting forms of proxy should be judged to be in respect of different shares) and remaining shares will be apportioned to the blank proxy (pro rata if there is more than one);
4.3 where there is more than one proxy appointed and the total number of shares in respect of which proxies are appointed is no greater than the shareholder's entire holding, it is assumed that proxies are appointed in relation to different shares, rather than that conflicting appointments have been made in relation to the same shares. That is, there is only assumed to be a conflict where the aggregate number of shares in respect of which proxies have been appointed exceeds the shareholder's entire holding;
4.4 when considering conflicting proxies, later proxies will prevail over earlier proxies, and which proxy is later will be determined on the basis of which proxy is last sent (or, if the Company is unable to determine which is last sent, last received). Proxies in the same envelope will be treated as sent and received at the same time, to minimise the number of conflicting proxies;
4.5 if conflicting proxies are sent or received at the same time in respect of (or deemed to be in respect of) an entire holding, none of them shall be treated as valid;
4.6 where the aggregate number of shares in respect of which proxies are appointed exceeds a shareholder's entire holding and it is not possible to determine the order in which they were sent or received (or they were all sent or received at the same time), the number of votes attributed to each proxy will be reduced pro rata;
4.7 where the application of paragraph 4.6 above gives rise to fractions of shares, such fractions will be rounded down;
4.8 if a shareholder appoints a proxy or proxies and then decides to attend the meeting in person and vote, on a poll, using his poll card, then the vote in person will override the proxy vote(s). If the vote in person is in respect of the shareholder's entire holding then all proxy votes will be disregarded. If, however, the shareholder votes at the meeting in respect of less than the shareholder's entire holding, then if the shareholder indicates on his polling card that all proxies are to be disregarded, that shall be the case; but if the shareholder does not specifically revoke proxies, then the vote in person will be treated in the same way as if it were the last received proxy and earlier proxies will only be disregarded to the extent that to count them would result in the number of votes being cast exceeding the shareholder's entire holding; and
4.9 in relation to paragraph 4.8 above, in the event that a shareholder does not specifically revoke proxies, it will not be possible for the Company to determine the intentions of the shareholder in this regard. However, in light of the aim to include votes wherever and to the fullest extent possible, it will be assumed that earlier proxies should continue to apply to the fullest extent possible.
5. In accordance with Regulation 41 of the Uncertificated Securities Regulations 2001, only those shareholders entered on the Company's register of members not later than 10.00 am on 14 November 2010 or, if the meeting is adjourned, shareholders entered on the Company's register of members not later than 48 hours before the time fixed for the adjourned meeting shall be entitled to attend and vote at the meeting.
Copyright Business Wire 2010