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Serabi Gold plc ("Serabi" or the "Company"): Proposals for the Conditional Subscription for 270,000,000 Ordinary Shares at 6 Pence per Share; Approval of a Waiver of an Obligation Under Rule 9 of the City Code on Takeovers and Mergers; Notice of General M
By: Marketwired .
Dec. 11, 2012 02:00 AM
LONDON -- (Marketwire) -- 12/11/12 -- Serabi Gold plc (AIM: SRB) (TSX: SBI), the Brazilian focused gold exploration and development company, advises that, following a previous announcement that on 1 October 2012 that Company had entered into a conditional underwritten share placement to raise gross proceeds of UK£ 16,2 million, it has now issued and posted to all shareholders notice of a General Meeting of shareholders to approve a waiver of an obligation under Rule 9 of the City Code on Takeovers and Mergers ("the Waiver"). The General Meeting is scheduled to take place at 10.00 am on 16 January 2013 at the offices of Farrer & Co LLP at 66 Lincoln's Inn Fields, London WC2A 3LH.
Further details of the Subscription Agreement and Loan Agreement together with the Notice of General Meeting to approve the Waiver are contained in the circular being posted to Shareholders today (the "Document"). The Document and this announcement have been posted on the Company's website at www.serabigold.com and are also available on SEDAR at www.sedar.com.
Fratelli Investments and parties acting in concert with it, currently owns 19,257,317 Existing Ordinary Shares which represents 21.1 per cent. of the Existing Ordinary Share Capital. In the event that there are no other subscribers for the new Ordinary Shares, the Concert Party will on Completion be interested in up to a maximum of 291,744,816 Ordinary Shares, representing 80.2 per cent. of the Second Diluted Enlarged Ordinary Share Capital. Without a waiver of the obligations under Rule 9 of the City Code, the Subscription could require the Concert Party to make a general offer for the entire issued and to be issued share capital of the Company not already held by the Concert Party. The Panel has agreed with the Company to grant such a waiver, subject to the passing at the General Meeting by Independent Shareholders (being Shareholders other than the members of the Concert Party) of the Whitewash Resolution, to be taken on a poll.
2. THE SUBSCRIPTION
(a) A subscription for 90,403,000 new Ordinary Shares at the Subscription Price of 6 pence per new Ordinary Share which will, in aggregate with Fratelli Investments' existing shareholding, provide Fratelli Investments with 29.9 per cent. of the Enlarged Ordinary Share Capital of the Company immediately on Completion; and
(b) A conditional subscription for up to a further 179,597,000 new Ordinary Shares at a subscription price of 6 pence per new Ordinary Share, such number to be reduced by any subscriptions for new Ordinary Shares from third party investors.
The Subscription Price of 6 pence per new Ordinary Share represented a 25 per cent. discount to the 30 day volume weighted average closing mid-market price of an Ordinary Share as at 30 September 2012. Completion of the Subscription is conditional upon:
(a) Approval of the Independent Shareholders of the Company on a poll at a general meeting of the waiver of any obligations of Fratelli Investments to make a general offer to Shareholders pursuant to Rule 9 of the City Code; and
Under the Subscription Agreement, Fratelli Investments may notify Serabi that it wishes to terminate the Subscription Agreement with immediate effect in the event that:
(a) Serabi notifies Fratelli Investments that there is a material adverse change in the financial condition of the Company and/or any of its subsidiaries; or
The Company has additionally undertaken to Fratelli Investments under the Subscription Agreement to procure that each member of the Serabi Group shall, prior to completion of the Subscription, except with the prior written consent of Fratelli Investments (such consent not to be unreasonably withheld or delayed):
(a) Until the earlier of:
(i) the completion of the Subscription;
(ii) the voting down of the whitewash resolution in the Document; and
(iii) such date that the Board of the Company reasonably believes that the whitewash resolution in the Document will be voted down
not create, allot or issue (or enter into any negotiations or reach any agreement (legally or otherwise) to create, allot or issue) any shares or securities or grant any option, warrant or right to subscribe or convert any securities into shares, or require the allotment or issue of any such shares or securities whether conditional or otherwise at an issue price of less than 6 pence per Ordinary Share;
(b) Not dispose of the whole or part of its undertaking or enter into any negotiations, or reach any agreement, with regard to any such disposal (whether conditional or otherwise). For the avoidance of doubt, this shall include not entering into or agreeing to enter into any off-take or other agreement relating to any future production of the Group; and
(c) Not enter into any contract or arrangement that is not on an arm's length basis.
The Company has entered into conditional agreements with brokers to use their reasonable endeavours to place the Third Party Shares with institutional and other investors (other than the Concert Party) at the Subscription Price. Further details of these arrangements are set out in paragraph 6.1.10 of Part IV of the Document.
Immediately on completion of the Subscription, Fratelli Investments will receive an underwriting fee to be satisfied by the issue of New Warrants to subscribe for new Ordinary Shares. The number of New Warrants will be calculated on the basis of one New Warrant for every ten Third Party Shares subscribed for. The New Warrants will be exercisable at a subscription price of 10 pence per Ordinary Share for a period of two years from the date of completion of the Subscription.
3. THE LOAN AGREEMENT
4. RULE 9 OF THE TAKEOVER CODE
Under Rule 9 of the Takeover Code, where any person acquires, whether by a single transaction or a series of transactions over a period of time, interests in securities which (taken together with securities in which he is already interested and in which persons acting in concert with him are interested) carry 30 per cent. or more of the voting rights of a company which is subject to the Takeover Code, that person is normally required by the Panel to make a general offer to all the remaining shareholders of that company to acquire their shares. Similarly, when any person individually or a group of persons acting in concert, already holds interests in securities which in aggregate carry not less than 30 per cent. of the voting rights of such a company but does not hold shares carrying more than 50 per cent. of such voting rights, that person may not normally acquire further securities without making a general offer to the shareholders of that company to acquire their shares. An offer under Rule 9 must be made in cash and at the highest price paid by the person required to make the offer, or any person acting in concert with him, for any interest in shares of the company during the 12 months prior to the announcement of the offer.
For the purposes of the Takeover Code, Fratelli Investments together with its Connected Persons and other persons acting in concert with it, full details of whom are set out in the Document, form the Concert Party. The Concert Party is currently beneficially interested in 19,257,317 Ordinary Shares, representing approximately 21.1 per cent. of the Existing Ordinary Share Capital. Immediately following completion of the Subscription, the minimum and maximum interests of the Concert Party are set out below:
Maximum Minimum Maximum Minimum Interest Interest Interest Interest in the in in in Diluted Second Enlarged Enlarged Enlarged Diluted Ordinary Ordinary Ordinary Enlarged Concert Party Member Share Share Share Ordinary Capital on Capital on Capital on Share Completion Completion Completion Capital on Completion ---------- ---------- ---------- ---------- (Notes (Notes (Notes (Notes 3,6) 3,7) 4,6) 5,7) ---------- ---------- ---------- ---------- Fratelli Investments Limited (Note 1) 29.90% 79.61% 33.60% 79.69% Piero Solari Donaggio (Note 2) - - - - Sandro Solari Donaggio (Note 2) - - - - Carlo Solari Donaggio (Note 2) - - - - Nicolas Bañados (Note 8) 0.44% 0.44% 0.48% 0.50% Jorge Arancibia Pascal (Note 9) 0.01% 0.01% 0.01% 0.01% Total 30.35% 80.07% 34.08% 80.20% ---------- ---------- ---------- ---------- Note 1 Fratelli Investments Limited is a 99.9 per cent. owned subsidiary of Inversiones Menevado Dos Limitada which is itself a 99.97 per cent. owned subsidiary of Inversiones Menevado Limitada which is itself a 96.92 per cent. owned subsidiary of Inversiones Megeve Capital Limitada. The shareholders of Inversiones Megeve Capital Limitada comprise Asesorias e Inversiones Barolo Limitada, which is controlled by Piero Solari Donaggio and his dependants, Asesorias e Inversiones Brunello Limitada, which is controlled by Sandro Solari Donaggio and his dependants and Asesorias e Inversiones Sangiovese Limitada, which is controlled by Carlo Solari Donaggio and his dependants. Further details are set out below in paragraph 3 of Part B of this Part II of the Document. Note 2 Piero Solari Donaggio, Sandro Solari Donaggio and Carlo Solari Donaggio are the sole directors and the ultimate beneficial shareholders of Fratelli Investments. Note 3 The Enlarged Ordinary Share Capital comprises the Existing Ordinary Shares and the Subscription Shares. Note 4 The Diluted Enlarged Ordinary Share Capital comprises the Existing Ordinary Shares, the Subscription Shares, the new Ordinary Shares issued on exercise of the Existing Warrants and the new Ordinary Shares issued on exercise of the New Warrants. Note 5 The Second Diluted Enlarged Ordinary Share Capital comprises the Existing Ordinary Shares, the Subscription Shares and the new Ordinary Shares issued on exercise of the Existing Warrants. Note 6 Assumes that third parties subscribe for all the Third Party Shares and that Fratelli Investments subscribes for the Minimum Subscription and receives the maximum number of New Warrants as an underwriting fee. Note 7 Assumes that there are no third party subscribers for the Subscription Shares and Fratelli Investments therefore subscribes for all the Subscription Shares issued by the Company pursuant to the Subscription Agreement. Note 8 Nicolas Banados, an attorney-in-fact of Fratelli Investments, directly owns 144,282 Ordinary Shares. In addition, Nicolas Banados is the beneficial owner of 50 per cent. of the share capital of Asesorias e Inversiones Asturias Limitada which beneficially owns 25 per cent. of the units in Fondo de Inversion Privado Santa Monica. Asesorias e Inversiones Asturias Limitada is interested in 159,665 Ordinary Shares and Fondo de Inversion Privado Santa Monica is interested in 1,300,000 Ordinary Shares and 216,666 Existing Warrants. Accordingly, Nicolas Banados is interested in aggregate, directly and indirectly, in 1,603,947 Ordinary Shares and 216,666 Existing Warrants. Note 9 Jorge Arancibia Pascal, an attorney-in-fact of Fratelli Investments, is the beneficial owner of 85 per cent. of the share capital of Asesorias e Inversiones Hipa Limitada which is interested in 37,370 Ordinary Shares.
Full details of the Concert Party's interest are set out in Part A of Part II of the Document.
As set out in Part D of Part II of the Document, the Concert Party currently own 2,487,499 Existing Warrants which were subscribed for by the Concert Party pursuant to the share placement by the Company on 24 January 2012. At such time the Concert Party's maximum interest in Serabi, assuming full exercise of its holding of the Existing Warrants, would have been less than 29.9 per cent. Accordingly, there was no requirement at the time of issue of the Existing Warrants to the Concert Party to seek a waiver from the Panel as there would have been no obligation to make a mandatory offer for the Company following the exercise of the Existing Warrants. Furthermore, the new Ordinary Shares to be issued on the exercise of the Existing Warrants on completion of the Proposals as set out in the Document, would represent only 1 per cent. of the Diluted Enlarged Ordinary Share Capital. Accordingly, the Independent Directors, who have been so advised by Beaumont Cornish, believe that the inclusion of the Existing Warrants within the Waiver is fair and reasonable and in the best interests of the Independent Shareholders and the Company as a whole. In giving its advice, Beaumont Cornish has taken account of the commercial assessments of the Independent Directors.
The Takeover Panel has agreed to waive the obligation of the Concert Party to make a general offer that would otherwise arise as a result of its participation in the Subscription, subject to the approval of Independent Shareholders. Accordingly, the Resolution is being proposed at the General Meeting to approve the Waiver and will be taken on a poll. No member of the Concert Party will be entitled to vote on that resolution and accordingly no member of the Concert Party will do so.
If on Completion of Subscription the Concert Party holds less than 50 per cent. of the Company's voting share capital but more than 30 per cent., any further increases in the Concert Party's interests in Ordinary Shares following Completion will be subject to the provisions of Rule 9.
If however, on Completion of the Subscription the Concert Party holds more than 50 per cent. of the Company's voting share capital, the Concert Party may be able to increase its aggregate shareholding in the Company without incurring any obligation under Rule 9 to make a general offer to the Company's other Shareholders. Under the Takeover Code, whilst each member of the Concert Party continues to be treated as acting in concert, each member will be able to increase further his respective percentage shareholding in the voting rights of the Company without incurring an obligation under Rule 9 to make a general offer to Shareholders to acquire the entire issued share capital of the Company. However, individual members of the Concert Party will not be able to increase their percentage shareholding through or between a Rule 9 threshold, without the consent of the Panel.
5. INTENTIONS OF THE CONCERT PARTY
The Company, Beaumont Cornish and Fratelli Investments have entered into the Lock-in and Relationship Agreement dated 10 December 2012 which governs the relationship between the Company and Fratelli Investments and the acquisition and disposal and dealings in Ordinary Shares following Admission by members of Fratelli Investments. Details of the Lock-in and Relationship Agreement are set out in paragraph 6.1.7 of Part IV of the Document.
6. RELATED PARTY TRANSACTIONS
7. ADMISSION TO AIM
8. GENERAL MEETING
Serabi Gold plc
Copies of this release are available from the Company's website at www.serabigold.com.
Neither the Toronto Stock Exchange, nor any other securities regulatory authority, has approved or disapproved of the contents of this news release.
Beaumont Cornish, which is authorised and regulated in the United Kingdom by the FSA, is acting for the Company and no one else in connection with the Proposals and will not be responsible to any person other than the Company for providing the regulatory and legal protections afforded to clients of Beaumont Cornish nor for providing advice in relation to the contents of this announcement or the Document or any matter, transaction or arrangement referred to in it. Beaumont Cornish has not authorised the contents of, or any part of, this announcement or the Document and no liability whatsoever is accepted by Beaumont Cornish for the accuracy of any information or opinion contained in this announcement or the Document or for the omission of any information.
Each member of the Concert Party along with the directors of Fratelli Investments accepts responsibility for the information contained in this announcement relating to the Concert Party or otherwise expressly referable to the Concert Party. To the best of the knowledge and belief of each member of the Concert Party along with the directors of Fratelli Investments (who have taken all reasonable care to ensure such is the case) the information contained in this announcement for which they are responsible is in accordance with the facts and there are no other facts the omission of which is likely to affect the import of such information.
Qualified Persons Statement
Forward Looking Statements
APPENDIX 1 SUBSCRIPTION STATISTICS Number of Ordinary Shares in issue at the date of this 91,268,529 announcement Number of new Ordinary Shares to be issued pursuant to the 270,000,000 Subscription Issue Price per Subscription Share 6 pence Gross proceeds of the Subscription £ 16.2 million Estimated net proceeds of the Subscription (excluding any £ 16.0 million broker commissions) Enlarged Ordinary Share Capital following Completion 361,268,529 Number of new Ordinary Shares to be issued pursuant to the 74.7 per cent. Subscription as a percentage of the Enlarged Ordinary Share Capital Market capitalisation of the Company at the Subscription £ 21.7 million Price following Completion EXPECTED TIMETABLE OF PRINCIPAL EVENTS Event Date Record Date for Canadian shareholders 12 December 2012 Latest time and date for receipt of Proxy 10.00 a.m. on 14 January 2013 Forms in respect of the General Meeting Time and date of General Meeting 10.00 a.m. on 16 January 2013 Admission effective and commencement of 8.00 a.m. on 22 January 2013 dealings in the Subscription Shares on AIM CREST accounts credited for new Ordinary 22 January 2013 Shares in uncertificated form Despatch of definitive share certificates for 30 January 2013 the new Ordinary Shares in certificated form by no later than (1) All times shown in this announcement are London GMT times unless otherwise stated. The dates and times given are indicative only and are based on the Company's current expectations and may be subject to change. If any of the times and/or dates above change the revised times and/or dates will be notified to Shareholders by announcement through the Regulatory News Service of the London Stock Exchange. (2) If the General Meeting is adjourned, the latest time and date for receipt of Forms of Proxy for the adjourned meeting will be notified to Shareholders by announcement through the Regulatory News Service of the London Stock Exchange. APPENDIX 2 DEFINITIONS The following words and expressions apply throughout this announcement and the Document unless the context requires otherwise: "2009 Annual Report" the Company's annual report and accounts for the financial year ended 31 December 2009 "2010 Annual Report" the Company's annual report and accounts for the financial year ended 31 December 2010 "2011 Annual Report" the Company's annual report and accounts for the financial year ended 31 December 2011 "Act" Companies Act 2006 (as amended) "Admission" admission of the Subscription Shares to trading on AIM becoming effective in accordance with the AIM Rules for Companies "AIM" AIM, a market of that name operated by the London Stock Exchange "AIM Rules for the rules which set out the obligations and Companies" responsibilities in relation to companies whose shares are admitted to AIM as published by the London Stock Exchange from time to time "AIM Rules for the rules which set out the eligibility, obligations Nominated Advisers" and certain disciplinary matters in relation to nominated advisers as published by the London Stock Exchange from time to time "Beaumont Cornish" Beaumont Cornish Limited whose registered office is at Cedar House, Sandbrook Business Park, Sandbrook Way, Rochdale, OL11 1LQ "Board" or the existing directors of the Company whose names "Directors" appear on page 5 of the Document "Business Day" any day (other than a Saturday, Sunday or a public holiday) on which banks are generally open in the City of London for the transaction of normal banking business "certificated" or a share or other security recorded on the relevant "in certificated register of the relevant company as being held in form" certificated form and title to which may be transferred by means of a stock transfer form "City Code" or the City Code on Takeovers and Mergers, as updated from "Takeover Code" time to time "Company" or Serabi Gold plc "Serabi" "Completion" the Subscription being completed and Admission taking place "Concert Party" Fratelli Investments Limited, its Connected Persons and other persons acting in concert with it, as described in Part II of the Document "Connected Persons" has the meaning set out in section 252 and section 254 of the Act and includes a spouse, children under 18 and any company in which the relevant person is interested in shares comprising at least one-fifth of the share capital of that company "CREST" the relevant system, as defined in the CREST Regulations, and the holding of shares in uncertificated form in respect of which Euroclear is the operator (as defined in the CREST Regulations) "CREST Regulations" the Uncertificated Securities Regulations 2001 (SI 2001 No. 3755) (as amended) "C$" the legal currency of Canada "Deferred Shares" the deferred shares of 9.5 pence each in the capital of the Company "Diluted Enlarged 381,715,728 Ordinary Shares comprising the Existing Ordinary Share Ordinary Shares, the Subscription Shares, 2,487,499 new Capital" Ordinary Shares to be issued on full exercise of the Existing Warrants and 17,959,700 new Ordinary Shares to be issued on full exercise of the New Warrants "Disclosure Date" 6 December 2012, being the last practicable date prior to the publication of this announcement and the Document "Document" the circular to Shareholders in relation to the Proposals including the Notice of General Meeting "Enlarged Ordinary the issued equity share capital of the Company Share Capital" immediately following Admission comprising the Existing Ordinary Share and the Subscription Shares "Euroclear" Euroclear UK & Ireland Limited, a company incorporated in England and Wales with registration number 2878738, whose registered address is at 33 Cannon Street, London EC4M 5SB "Existing Ordinary the existing 91,268,529 issued Ordinary Shares as at Shares" the date of this announcement and the Document "Existing Ordinary the issued equity share capital of the Company as at Share Capital" the date of this announcement and the Document "Existing Warrants" the existing 2,487,499 warrants to subscribe for new Ordinary Shares owned by Fratelli Investments and Fondo de Inversion Privado Santa Monica as at the date of the Document "Form of Proxy" the form of proxy to be used by Shareholders in respect of the General Meeting "Fratelli Fratelli Investments Limited, a company registered in Investments" the Bahamas with registered number 136,354 B "FSA" the United Kingdom Financial Services Authority "FSMA" the Financial Services and Markets Act 2000 of the United Kingdom (as amended) "General Meeting" the general meeting of the Company convened for 10.00 a.m. on 16 January 2013, the notice convening which is set out at the end of the Document "Greenwood" Greenwood Investments Limited "Group" the Company and/or its subsidiaries as the context requires "IFRS" the International Financial Reporting Standards as adopted by the International Accounting Standards Board "Independent the Directors, other than Eduardo Rosselot Directors" "Independent all Shareholders other than members of the Concert Shareholders" Party "Loan Agreement" the US$6 million loan facility dated 1 October 2012 provided to the Company by Fratelli Investments, details of which are set out in Part IV of the Document "Lock-in and the agreement dated 10 December 2012 between (1) the Relationship Company (2) Beaumont Cornish and (3) Fratelli Agreement" Investments, further details of which are set out in Part IV of the Document "London Stock London Stock Exchange plc Exchange" "NCL" NCL Ingenieria y Construccion SA "New Warrants" up to 17,959,700 new Warrants to subscribe for new Ordinary Shares at a price of 10 pence per Ordinary Shares to be issued to Fratelli Investments pursuant to the Subscription Agreement "Notice of General the notice of the General Meeting set out at the end of Meeting" the Document "Official List" the list maintained by the United Kingdom Listing Authority in accordance with section 74(1) of FSMA for the purposes of Part VI of FSMA "Options" the existing options to subscribe for new Ordinary Shares, further details of which are set out in paragraph 2.6 of Part IV of the Document "Ordinary Shares" the ordinary shares of 5 pence each in the capital of the Company "Panel" Panel on Takeover and Mergers "PEA" the preliminary economic assessment of re-starting mining operations at Palito prepared by NCL in June 2012 in accordance with the Canadian Securities Administrators' National Instrument 43-101 - Standards of Disclosure for Mineral Projects "PEA Announcement" the regulatory announcement released by the Company on 13 June 2012 setting out, inter alia, details of the PEA "Proposals" the Subscription, the Waiver and Admission "QCA Code" the Corporate Governance Guidelines for Smaller Quoted Companies published by the Quoted Companies Alliance "Resolution(s)" the resolutions set out in the Notice of General Meeting at the end of the Document "Rule 9" Rule 9 of the Takeover Code "Rule 9 Offer" the requirement for a general offer to be made in accordance with Rule 9 "Second Diluted 363,756,028 Ordinary Shares comprising the Existing Enlarged Ordinary Ordinary Shares, the Subscription Shares and 2,487,499 Share Capital" new Ordinary Shares to be issued on exercise of the Existing Warrants "Shareholders" Person(s) who is/are registered holder(s) of Ordinary Shares from time to time "Subscription" the conditional subscription by Fratelli Investments to subscribe for and underwrite a placement of up to 270,000,000 new Ordinary Shares, further details of which are set out in Part I of the Document "Subscription the agreement dated 1 October 2012 between (1) the Agreement" Company and (2) Fratelli Investments, further details of which are contained in Part IV of the Document "Subscription Price" 6 pence per Subscription Share "Subscription 270,000,000 new Ordinary Shares to be issued pursuant Shares" to the Subscription Agreement "Third Party Shares" up to 179,597,000 Subscription Shares available for subscription by third party investors "TSX" Toronto Stock Exchange "UK Listing the FSA acting in its capacity as the competent Authority" authority for the purposes of Part VI of the Financial Services and Markets Act 2000 "UK" or "United the United Kingdom of Great Britain and Northern Kingdom" Ireland "uncertificated" or a share or other security recorded on the relevant "in register of the relevant company concerned as being uncertificated form" held in uncertificated form in CREST and title to which, by virtue of the CREST Regulations, may be transferred by means of CREST "United States" or the United States of America, its territories and "US" possessions, any State of America and the District of Columbia "US$" or "US the legal currency of the United States Dollars" "VAT" value added tax "Waiver" the waiver granted by the Panel (subject to the passing of the Whitewash Resolution) in respect of the obligation of the Concert Party to make a mandatory offer for the entire issued share capital of the Company not already held by the Concert Party which might otherwise be imposed on the Concert Party under Rule 9 of the Takeover Code as a result of the issue of Subscription Shares under the Subscription, as more particularly described in paragraph 7of Part I of the Document "Warrants" the warrants to subscribe for new Ordinary Shares further details of which are set out in paragraph 2.5 of Part IV of the Document "Whitewash the ordinary resolution of the Independent Shareholders Resolution" to be taken on a poll concerning the Waiver to be proposed at the General Meeting and set out in the Notice of General Meeting
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