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[2007] FCA 1416
Federal Court of Australia
2007-08-17
Emmett J
Original judgment source is linked above.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Scheme of Arrangement Alinta Limited The holders of fully paid ordinary shares issued in the capital of Alinta Limited
CONTENTS
SCHEME OF ARRANGEMENT MADE UNDER SECTION 411 OF THE CORPORATIONS ACT 2001 (CTH) PARTIES Alinta Limited ABN 11 119 985 590 of Alinta Plaza, 12-14 The Esplanade, Perth, Western Australia, 6000 (Alinta) The holders of fully paid ordinary shares issued in the capital of Alinta
RECITALS A. Alinta is a public company incorporated in the State of Western Australia. It is admitted to the Official List of ASX and Alinta Shares are quoted on the stock market conducted by ASX. B. Alinta has 495,218,848 Alinta Shares on issue as at 27 June 2007. C. Alinta, the Bidder and the Covenantors have entered into the Amended and Restated Scheme Implementation Agreement pursuant to which, among other things, Alinta has agreed to propose and (subject to the satisfaction of certain conditions) implement this Share Scheme. D. If this Share Scheme becomes Effective, then: (a) the APA Distribution will occur; (b) the Scheme Shares will be transferred to the Bidder; and (c) Alinta and the Bidder will provide the Relevant Consideration Alternative to the Share Scheme Participants for each Alinta Share held by those Share Scheme Participants, each step to be taken in accordance with the provisions of this Share Scheme. E. The Bidder and the Covenantors have entered into the Deed Poll for the purpose of covenanting in favour of the Alinta Shareholders to perform their obligations under the Share Scheme and the Amended and Restated Scheme Implementation Agreement. OPERATIVE PROVISIONS
2.2 Certificates in relation to conditions (a) Alinta must provide to the Court on the Second Court Date a certificate which is authorised by the Alinta Board and signed by at least one Alinta Director (or such other evidence as the Court may request) stating, to the best of its knowledge, whether or not the conditions precedent set out in clause 3.2 (other than clause 3.2(b)) of the Amended and Restated Scheme Implementation Agreement, have been satisfied or, subject to the terms of the Amended and Restated Scheme Implementation Agreement, waived or taken to be waived. (b) Alinta must procure the Bidder to provide to the Court on the Second Court Date a certificate which is authorised by the Bidder Board and signed by at least one Bidder Director (or such other evidence as the Court may request) stating, to the best of its knowledge, whether or not the conditions precedent set out in clause 3.2 (other than clause 3.2(b)) of the Amended and Restated Scheme Implementation Agreement, have been satisfied or, subject to the terms of the Amended and Restated Scheme Implementation Agreement, waived or taken to be waived. (c) The certificates referred to in clauses 2.2(a) and (b) together constitute conclusive evidence that such conditions precedent are satisfied, waived or taken to be waived. 2.3 Effective Date This Share Scheme takes effect on the Effective Date. 2.4 End date Subject to any extension under clause 3.7 of the Amended and Restated Scheme Implementation Agreement, and, if required, approval by the Court, this Share Scheme lapses and has no further force or effect if the Effective Date is not on or before 30 November 2007. 3. SHARE SCHEME 3.1 The Share Scheme (a) Subject to provision by the Bidder of the Share Scheme Consideration in accordance with clause 3.5, the Scheme Shares, together with all rights and entitlements attaching to those shares as at the Implementation Date (not including entitlement to the APA Distribution), will, without the need for any further act by any Share Scheme Participant (other than acts performed by Alinta or its directors as attorney or agent for Share Scheme Participants under clauses 3.2 and 51.), be transferred to the Bidder, and the transfer will be deemed to be effective, on the Implementation Date following the APA Distribution. (b) Alinta will, subject to the terms of the Share Scheme, provide each Share Scheme Participant with the APA Distribution for each Scheme Share held by that Share Scheme Participant, prior to the transfer of the Scheme Shares to the Bidder (in accordance with clause 3.6). (c) Alinta will procure the Bidder, subject to the terms of the Share Scheme, to provide each Share Scheme Participant with the Share Scheme Consideration for each Scheme Share held by that Share Scheme Participant. 3.2 Transfer of Scheme Shares For the purpose of transferring the Scheme Shares to the Bidder in accordance with clause 3.1(a), each Share Scheme Participant irrevocably appoints Alinta and each Alinta Director severally as its true and lawful attorney, and Alinta accepts such appointment, with effect from the Effective Date with power: (a) in the case of Scheme Shares in a CHESS Holding: (i) to cause a message to be transmitted to ASTC in accordance with ASTC Settlement Rules so as to transfer to the Bidder the Scheme Shares held by the Share Scheme Participant from the CHESS sub-register of Alinta to the issuer sponsored sub-register operated by Alinta; or (ii) to complete and sign on behalf of Share Scheme Participants any required form of transfer to the Bidder of such Scheme Shares (which may be a master transfer of all Scheme Shares); (b) in the case of Scheme Shares that are registered in the issuer sponsored sub-register of the Alinta Share Register, to complete and sign on behalf of Share Scheme Participants any required form for the transfer to the Bidder of such shares (which may be a master transfer of all Scheme Shares); and (c) in the case of all Scheme Shares, to exercise all powers and rights which the Share Scheme Participant could lawfully exercise as the registered holder of the Scheme Shares including without limitation attending and voting at any meeting of Alinta (which meeting the Share Scheme Participant undertakes not to otherwise attend or vote at in person or by proxy or other representative), requisitioning any meeting of Alinta and doing all things incidental and ancillary to any of the foregoing and it is acknowledged and agreed that in exercising such powers the attorney may act in the interests of the Bidder, and will act at its direction, as the intended registered holder of those shares. 3.3 Transfer Documentation On the Implementation Date, after the Bidder (as transferee) executes the share transfer forms (or master share transfer form) referred to in clauses 3.2(a) and 3.2(b) and delivers that executed form or those executed forms to Alinta for registration, Alinta must immediately register the Bidder as the holder of the Scheme Shares in the Alinta Share Register. 3.4 Elections of Relevant Consideration Alternative (a) Subject to clauses 3.4(b), (c) and (d), each Share Scheme Participant may elect to receive (in addition to the APA Distribution) one of the following forms of consideration: (i) the Default Consideration; (ii) the Maximum Preference Shares Consideration; (iii) the Maximum Cash Consideration; (iv) the Maximum Securities Consideration; or (v) the Cash Out Alternative, by completing the election form which accompanies the Booklet and returning it to the address specified in the election form so that it is received prior to the Record Date. (b) Only a Small Alinta Shareholder may elect the Cash Out Alternative and any such election by a Share Scheme Participant who is not a Small Alinta Shareholder will not be a valid election. (c) A NZ Shareholder may not elect the Maximum Preference Shares Consideration and any such election will not be a valid election (and other elections by a NZ Shareholder will be subject to paragraph 1(i) of schedule 1). (d) An Ineligible Overseas Shareholder may not make an election and any election purportedly made by it will not be a valid election. (e) Any Share Scheme Participant who has not made a valid election in accordance with clauses 3.4(a), (b) or (c), and any Ineligible Overseas Shareholder, is for the purpose of the Share Scheme deemed to have validly elected to receive the Default Consideration (in addition to the APA Distribution) (in the case of Ineligible Overseas Shareholders, subject to clause 3.8 and subject to paragraph 1(i) of schedule 1 and, in the case of NZ Shareholders, subject to paragraph 1(i) of schedule 1). (f) Any Share Scheme Participant validly electing to receive the Maximum Cash Consideration may make a further election that any Unmarketable Parcel that would have been issued or transferred to the Share Scheme Participant under the Maximum Cash Consideration or the APA Distribution will instead be issued to the Nominee and the provisions of clause 3.8 will apply. (g) Subject to clauses 3.4(h) and 3.4(i), a valid election made by a Share Scheme Participant in accordance with this clause 3.4 will be deemed to apply in respect of the Share Scheme Participant's registered holding of Alinta Shares as at the Record Date, regardless of whether the Share Scheme Participant's holding of Alinta Shares at such time is greater or less than the Share Scheme Participant's holding of Alinta Shares at the time the election is made. (h) A Share Scheme Participant who is noted on the Register as holding one or more parcels of Alinta Shares as trustee for or nominee for, or otherwise on account of, another person, may make separate elections in accordance with this clause 3.4 in relation to each of those parcels of Alinta Shares, and an election made in respect of one such parcel shall not be taken to extend to the other parcels. (i) The DESP Trustee may make separate elections in accordance with this clause 3.4 in relation to each parcel of Alinta Shares it holds as trustee for a DESP Participant (including electing the Cash Out Alternative in respect of any parcel of 1,000 Alinta Shares or less), and an election made in respect of one such parcel shall not be taken to extend to the other parcels. 3.5 Provision of Share Scheme Consideration Alinta must: (a) procure the Bidder to provide, or procure the provision of, (i) the cash component of the Share Scheme Consideration to Alinta; and (ii) any component of the Relevant Consideration Alternative comprising BBI EPS and B&B Fund Securities to each Share Scheme Participant, on the Implementation Date (subject to clause 3.10(d)); and (b) provide the cash component of the Relevant Consideration Alternative to each Share Scheme Participant, in accordance with, and subject to the terms of, this Share Scheme and the Deed Poll. 3.6 APA Distribution (a) Prior to Implementation, Alinta may pay a Transaction Dividend or capital reduction representing payment of some or all of APA Distribution in the form of a distribution in specie of APA Group Securities or a distribution of the net proceeds of sale of any APA Group Securities (or a combination of both). If that occurs, the APA Distribution will be reduced by the total amount of that Transaction Dividend or capital reduction divided by the number of Alinta Shares and Alinta Options on issue on the Record Date (including by reducing the number of APA Group Securities available for distribution pro-rata to Alinta Shareholders under the APA Distribution). (b) Subject to clause 3.6(a), Alinta will provide, or procure the provision of, the APA Distribution to each Share Scheme Participant in accordance with, and subject to the terms of, this Share Scheme on the Implementation Date prior to the transfer of the Scheme Shares to the Bidder. Alinta's obligation to provide, or procure the provision of, the APA Distribution to a Share Scheme Participant is satisfied by: (i) subject to clause 3.6(c), in respect of providing any cash component of such APA Distribution, sending or procuring the dispatch to each Share Scheme Participant by pre-paid post to his or her address recorded in the Register at the Record Date, a pre-printed cheque for such cash amount due to that Share Scheme Participant under the Share Scheme; and (ii) in respect of the provision of any component of such APA Distribution which is to be provided in APA Group Securities, procuring the due execution of a transfer of such APA Group Securities to each Share Scheme Participant (or the Nominee in respect of Participating Alinta Shareholders), but on, or as soon as practicable after, the Implementation Date Alinta must also request the entry of that Share Scheme Participant's name (or the Nominee's name in respect of Ineligible Overseas Shareholders and Participating Alinta Shareholders) in the register of members of Australian Pipeline Trust ARSN 091 678 778 and APT Investment Trust ARSN 115 585 441. (c) From the time on the Implementation Date (prior to the transfer of the Scheme Shares to the Bidder) that the capital reduction and dividend which effect the APA Distribution take effect, Alinta will hold the relevant securities or funds as trustee for the relevant Share Scheme Participants in accordance with their respective entitlements (subject to the terms of this Share Scheme), and the placement of the relevant funds in a trust account on the Implementation Date shall be sufficient performance of the obligation to provide any cash component of the APA Distribution for the purposes of the requirement that the APA Distribution be provided on the Implementation Date prior to the transfer of the Scheme Shares to the Bidder (but the cheques referred to in clause 3.6(b)(i) must be despatched on, or as soon as practicable after, the Implementation Date). 3.7 BBI EPS The right to receive any component of a Relevant Consideration Alternative comprising BBI EPS will not be available to NZ Shareholders or Ineligible Overseas Shareholders. Instead, in the case of those shareholders, that component will be replaced by BBI Securities as referred to in schedule 1. 3.8 Ineligible Overseas Shareholders and Cash Out Facility (a) The right to receive: (i) APA Group Securities under the APA Distribution in accordance with clause 3.6; and (ii) the components of the Default Consideration comprising B&B Fund Securities in accordance with clauses 3.1(b), 3.1(c) and 3.5, will not be available to an Ineligible Overseas Shareholder. (b) A Small Alinta Shareholder who validly elects the Cash Out Alternative (Electing Small Alinta Shareholder) will have the: (i) APA Group Securities that they are entitled to receive in accordance with clause 3.6; and (ii) components of the Default Consideration comprising BBI EPS and B&B Fund Securities that they are entitled to receive in accordance with clauses 3.1(b), 3.1(c) and 3.5, sold in accordance with the provisions of this clause 3.8. (c) The securities that: (i) but for an election under clause 3.4(f), would have been issued or transferred to a Share Scheme Participant (Electing Unmarketable Parcel Shareholder); (ii) but for clause 3.8(a), would have been issued or transferred to an Ineligible Overseas Shareholder; (iii) but for an election under clause 3.8(b), would have been issued or transferred to an Electing Small Alinta Shareholder, will instead be issued or transferred to the Nominee and the following provisions of this clause 3.8 will apply. (d) Where the Nominee is issued with BBI EPS, B&B Fund Securities or APA Group Securities under clause 3.8(c) (Nominee Cash Out Securities), Alinta must procure the Bidder to cause the Nominee:
(i) as soon as reasonably practicable, but in any event within 5 Business Days after the Implementation Date, to offer the Nominee Cash Out Securities for sale on ASX or via one or more bookbuilds or other sale processes in such manner, at such price or prices and on such other terms as the Nominee determines in good faith (and at the risk of the Electing Small Alinta Shareholder, Electing Unmarketable Parcel Shareholder and Ineligible Overseas Shareholder (Participating Alinta Shareholder)) but not so as to dispose of APA Group Securities such that any one person has a relevant interest in more than 5% of the issued capital of the APA Group, except that any person who has a substantial holding in the APA Group at the First Court Date can acquire up to an additional 5% of the issued capital of the APA Group if that acquisition is approved by the ACCC . For the avoidance of doubt, the Nominee may offer the Nominee Cash Out Securities for sale during the period when any of the securities are being quoted for trading on ASX on a deferred settlement basis; and (ii) within 5 Business Days after the receipt by the Nominee of the whole of the proceeds of sale of all of the Nominee Cash Out Securities, to remit to the Bidder the net proceeds of the sale of the Nominee Cash Out Securities (after deducting brokerage in relation to the sale of Nominee Cash Out Securities attributable to Ineligible Overseas Shareholders which are not Small Ineligible Overseas Shareholders, and after deducting any other fees, taxes (other than stamp duty) and charges, other than brokerage in relation to the sale of Nominee Cash Out Securities attributable to other Participating Alinta Shareholders) and any income referable to those Nominee Cash Out Securities. (e) Within 5 Business Days after the receipt by the Bidder of the remittance under clause 3.8(d)(ii), Alinta must procure the Bidder to do all things required to ensure payment by cheque in Australian dollars to each Participating Alinta Shareholder of the sum of the following amounts:
(i) a proportion of the net proceeds of sale (less any deducted fees, taxes and charges, other than stamp duty and brokerage) and income derived from BBI EPS equal to the proportion that the number of BBI EPS issued to the Nominee under this clause 3.8 in respect of that Participating Alinta Shareholder (if any) bears to the total number of BBI EPS issued to the Nominee under this clause 3.8 in respect of all such Participating Alinta Shareholders; (ii) a proportion of the net proceeds of sale (less any deducted fees, taxes and charges, other than stamp duty and brokerage) and income derived from BBI Securities equal to the proportion that the number of BBI Securities issued to the Nominee under this clause 3.8 in respect of that Participating Alinta Shareholder bears to the total number of BBI Securities issued to the Nominee under this clause 3.8 in respect of all such Participating Alinta Shareholders; (iii) a proportion of the net proceeds of sale (less any deducted fees, taxes and charges, other than stamp duty and brokerage) and income derived from BBP Securities equal to the proportion that the number of BBP Securities issued to the Nominee under this clause 3.8 in respect of that Participating Alinta Shareholder bears to the total number of BBP Securities issued to the Nominee under this clause 3.8 in respect of all such Participating Alinta Shareholders; (iv) a proportion of the net proceeds of sale (less any deducted fees, taxes and charges, other than stamp duty and brokerage) and income derived from BBW Securities equal to the proportion that the number of BBW Securities issued to the Nominee under this clause 3.8 in respect of that Participating Alinta Shareholder bears to the total number of BBW Securities issued to the Nominee under this clause 3.8 in respect of all such Participating Alinta Shareholders; and (v) a proportion of the net proceeds of sale (less any deducted fees, taxes and charges, other than stamp duty and brokerage) and income derived from APA Group Securities equal to the proportion that the number of APA Group Securities transferred to the Nominee under this clause 3.8 in respect of that Participating Alinta Shareholder bears to the total number of APA Group Securities transferred to the Nominee under this clause 3.8 in respect of all such Participating Alinta Shareholders, provided that the amount payable to an Ineligible Overseas Shareholder who is not a Small Ineligible Overseas Shareholder (Other Ineligible Overseas Shareholder) shall be reduced by a pro rata amount of the brokerage paid by the Nominee in relation to the sale of Nominee Cash Out Securities attributable to all Other Ineligible Overseas Shareholders (with such pro rating to be performed based on the values of the Nominee Cash Out Securities attributable to each Other Ineligible Overseas Shareholder, subject to such arrangements as Alinta and the Bidder agree are reasonable regarding rounding). (f) Each Participating Alinta Shareholder appoints Alinta as its agent to receive on its behalf any financial services guide or other notices which may be given by the Nominee to that Share Scheme Participant. 3.9 Fractional entitlements (a) If the number of Scheme Shares held by a Share Scheme Participant is such that the aggregate entitlement of that Share Scheme Participant to each or any of BBI EPS, BBI Securities, BBP Securities and BBW Securities is not a whole number, then (subject to the terms of schedule 1) the entitlement in each case must be rounded up or down to the nearest whole number, with fractions of 0.5 being rounded up. Entitlements to be issued to the Nominee will be treated as a single entitlement for this purpose rather than as individual entitlements in respect of each relevant Participating Alinta Shareholder. (b) If the Bidder reasonably believes that a Share Scheme Participant has manipulated its holding of Scheme Shares to take advantage of rounding or of any other allocation mechanism (for example by splitting one holding of Scheme Shares into a number of holdings of Scheme Shares) then the entitlements of that Share Scheme Participant (and any other Share Scheme Participant(s) that the Bidder reasonably believes to be involved in such manipulation) will be aggregated and treated as though the suspected manipulation had not occurred for the purposes of the relevant rounding or other allocation decision. (c) Clauses 3.9(a) and 3.9(b) above are subject to the overriding principle that in no event shall the total numbers of BBI EPS or B&B Fund Securities issued under this Share Scheme exceed the numbers referred to in paragraph 1(h) of schedule 1, and in the event that clauses 3.9(a) and 3.9(b) above would otherwise have that effect, fractional entitlements will be adjusted in good faith by the Bidder and Alinta so that as many as possible of the available securities (but no more than the available securities) are allocated under this Share Scheme. (d) If the number of Scheme Shares held by a Share Scheme Participant is such that the aggregate entitlement of that Share Scheme Participant to APA Group Securities is not a whole number, then the entitlement will be rounded down to the nearest whole number of securities and the cash component of the APA Distribution provided to that Share Scheme Participant will be increased by an amount equal to the rounded fraction multiplied by the value of an APA Group Security based on the volume weighted average price on ASX on the Business Day which is two Business Days prior to the Implementation Date. (e) Any cash amount payable to a Share Scheme Participant, whether by the Bidder, Alinta or the Nominee, shall be rounded down to the nearest whole cent. 3.10 Registration and holding statements (a) Alinta must procure the Bidder to register, or cause to be registered, the Share Scheme Participants, as the holders of the BBI EPS and B&B Fund Securities to which they become entitled under this Share Scheme (other than securities to be issued to the Nominee) on: (i) if the Scheme Shares were held by the Share Scheme Participant on the Record Date on an uncertificated issuer sponsored sub-register of Scheme Shares, an uncertificated issuer sponsored sub-register of BBI EPS and B&B Fund Securities (respectively); or (ii) if the Scheme Shares were held by the Share Scheme Participant on the Record Date on an uncertificated CHESS Sub-register of Scheme Shares, on an uncertificated CHESS Sub-register of BBI EPS and B&B Fund Securities (respectively), in either case, such registration to occur on the Implementation Date immediately after the transfer of the Scheme Shares to the Bidder in accordance with clause 3.1(a). (b) Alinta must procure the Bidder to register, or cause to be registered, the Nominee, as the holder of each of the BBI EPS and B&B Fund Securities to be issued to it under this Share Scheme on an uncertificated issuer sponsored sub-register or on an uncertificated CHESS Sub-register, as determined by the Bidder in its absolute discretion, such registration to occur on the Implementation Date immediately after the transfer of the Scheme Shares to the Bidder takes effect under clause 3.1(a). (c) On the Implementation Date, Alinta must procure the Bidder to (as transferee) execute the share transfer forms (or master share transfer form) referred to in clauses 3.2(a) and 3.2(b) and must deliver that executed form (or those executed forms) to Alinta for registration, and Alinta must then immediately register the Bidder as the holder of the Scheme Shares in the Alinta Share Register. (d) On, or as soon as practicable after, the Implementation Date, Alinta must procure the Bidder to send, or cause to be sent, holding statements or notices confirming the issue and allotment of BBI EPS and B&B Fund Securities to: (i) the Share Scheme Participants who become entitled to those securities under this Share Scheme; and (ii) the Nominee who is to be issued those securities under this Share Scheme, by prepaid post to their Registered Address (or, in the case of the Nominee, the address notified by the Nominee to the Bidder). 3.11 Interest (a) Any interest earned on the proceeds of sale of APA Group Securities, B&B Fund Securities or BBI EPS following sale by the Nominee will be paid to and retained by the Bidder. (b) For the avoidance of doubt, any interest accruing on any Alinta trust account in which Share Scheme Consideration or APA Distribution moneys are held shall be and remain the property of Alinta.
3.12 Joint holders In the case of Scheme Shares held in joint names, any uncertificated holding statements for, or notices confirming the issue or payment of, in each case, BBI EPS and B&B Fund Securities to be issued to Share Scheme Participants, any cash component to be paid to Share Scheme Participants and any proceeds of sale to be paid to Share Scheme Participants under clause 3.8, will be issued or paid in the names of the joint holders and will be forwarded to the Registered Address.
3.13 New B&B Fund Securities to rank equally Each BBI Security, BBP Security and BBW Security issued under the Share Scheme will rank pari passu in all respects (including as to distributions) with all other BBI Securities, BBP Securities and BBW Securities (as the case may be) at the date of issue (provided that they will not rank for the distributions for the half year to 30 June 2007). 3.14 Withholding tax Any amount payable to a Share Scheme Participant (including under clauses 3.6 or 3.8) shall be reduced by the amount of any withholding or other tax which Alinta or the Bidder believes, based on professional advice, is required by any taxation or other law to be withheld in respect of such amount, and payment of such amount to the relevant taxation or other authority within any required statutory period shall fully and finally discharge the Bidder's and Alinta's obligations in respect of such amount (although Alinta must procure the Bidder on request, or if required by law, to provide a receipt or other evidence of such payment to each affected Share Scheme Participant).
RELEVANT CONSIDERATION ALTERNATIVES
Scheme of Arrangement (Option Scheme) Alinta Limited The holders of options to subscribe for fully paid ordinary shares in Alinta Limited
CONTENTS
SCHEME OF ARRANGEMENT MADE UNDER SECTION 411 OF THE CORPORATIONS ACT 2001 (CTH) PARTIES Alinta Limited ABN 11 119 985 590 of Alinta Plaza, 12-14 The Esplanade, Perth, Western Australia, 6000 (Alinta) The holders of options to subscribe for fully paid ordinary shares in Alinta
RECITALS A. Alinta is a public company incorporated in the State of Western Australia. It is admitted to the Official List of ASX and Alinta Shares are quoted on the stock market conducted by ASX. B. Alinta has 5,461,435 Alinta Options on issue as at 27 June 2007. C. Alinta, Bidder and the Covenantors have entered into the Amended and Restated Scheme Implementation Agreement pursuant to which, among other things, Alinta has agreed to propose and (subject to the satisfaction of certain conditions) implement the Share Scheme and this Option Scheme. D. If this Option Scheme becomes Effective, then: (a) the Alinta Options will be cancelled; and (b) Alinta will provide the Option Scheme Consideration to the Option Scheme Participants for each Alinta Option held by those Option Scheme Participants, each step to be taken in accordance with the provisions of this Option Scheme. E. Bidder and the Covenantors have entered into the Deed Poll for the purpose of covenanting in favour of the Alinta Optionholders to perform their obligations under the Option Scheme and the Amended and Restated Scheme Implementation Agreement. OPERATIVE PROVISIONS
3.2 Cancel Alinta Options Subject to Bidder providing the Option Scheme Consideration in accordance with clause 4, Alinta will do all things necessary to cancel the Alinta Options on the Implementation Date. 3.3 Alinta to provide contact information for Option Scheme Participants As soon as practicable after the Record Date and in any event by no later than the end of the second day after the Record Date, Alinta will give to Bidder or procure that Bidder is given details of the name, Registered Address and the number of Alinta Options held by each Option Scheme Participant, as shown in the Alinta Option Register at the Record Date, in whatever form Bidder reasonably requires. 4. Option scheme consideration On the Implementation Date, Alinta will procure Bidder to provide the Option Scheme Consideration to Alinta (as a loan), and Alinta will provide the Option Scheme Consideration to each Option Scheme Participant in accordance with, and subject to, the terms of this Option Scheme and the Deed Poll.
(A) within Australia - 3 Business Days after posting; or (B) to or from a place outside Australia - 7 Business Days after posting.
7.6 Lodgement of Court order with ASIC Unless Alinta and the Bidder otherwise agree, Alinta must lodge with ASIC an office copy of the Court order that approves this Option Scheme under section 411(4)(b) of the Corporations Act by 5:00pm on the first Business Day after the day on which the Court approves this Option Scheme.
IN THE MATTER OF ALINTA LIMITED ABN 11 119 985 590 ALINTA LIMITED ABN 11 119 985 590
REASONS FOR JUDGMENT 1 On 2 July 2007 the Court ordered, pursuant to s 411 of the Corporations Act 2001 (Cth) (the Act), that Alinta Limited (the Company) convene meetings of its members and of certain optionholders for the purpose of considering proposed schemes of arrangement between the Company and its members on the one hand and the Company and the optionholders on the other. On 13 July 2007, the Court authorised the electronic notification of the meetings to those members who had consented to receive notices from the Company electronically. 2 The Company convened meetings in accordance with the procedures directed by the Court's orders. On 2 July, 2007 the Court also approved the proposed explanatory statement for the schemes (the scheme booklet) that was to be dispatched to members and optionholders. The form of explanatory memorandum dispatched to members is in the form of that approved by the Court subject to a number of typographical and other technical changes that are not material. 3 Various documents were dispatched to members of different categories and optionholders in accordance with the Court's orders. The scheme booklet, a share scheme proxy form, and a general meeting proxy form, together with a reply paid envelope, were sent to members whose registered addresses were in jurisdictions other than the United Kingdom, Hong Kong, New Zealand, or Australia and its external territories. The scheme booklet, share scheme proxy form, general meeting proxy form, election form, reply paid envelope and a letter advising on certain United States provisions was sent to those members who were identified as possibly holding shares on behalf of United States persons. 4 To those members who are also optionholders, the Company dispatched the scheme booklet, the share scheme proxy form, a general meeting proxy form, an election form, and a reply paid envelope. To those members, other than the ones that I have already described, the Company dispatched the scheme booklet, a share scheme proxy form, a general meeting proxy form, an election form, and a reply paid envelope. Finally, to optionholders who are not shareholders, the Company dispatched a scheme booklet, an option scheme proxy form, and a reply paid envelope. 5 In relation to those members who have consented to be notified by email, physical versions of the scheme booklet were not dispatched but those members were notified electronically in a way that would enable them to have access to the contents of the scheme booklet. 6 On 2 July 2007 the Company lodged with the Australian Securities and Investment Commission (the Commission), a sealed copy of the Court's orders. A copy of the proposed scheme booklet was then lodged with the Commission for registration under s 412(6) of the Act. By letter of 16 August 2007, the Commission has confirmed that it has no objection to the proposed scheme of arrangement between the Company and its members and the scheme of arrangement between the company and optionholders. That indication was given on the basis that the Commission was satisfied that neither scheme has been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Ch 6 of the Act. The letter indicated that the Commission had no intention of appearing to make submissions or intervene to oppose the schemes. 7 The meetings of members and optionholders were advertised in accordance with the Court's directions. At the meeting of members convened on 15 August 2007 to approve the scheme between the Company and members, 37,337 members were present in person or by proxy. At that meeting 292,254,775 votes, representing 97.01% of votes cast, were cast in favour of the resolution by 32,866 shareholders, representing 88.03% of the shareholders voting. At the meeting of optionholders held on the same day, 68 optionholders representing 78% of the total number of optionholders were present. At that meeting 5,900,831 votes, representing 99.6% of votes cast, were cast in favour of the resolution approving the scheme by 66 optionholders representing 97.06% of the optionholders. 8 Thus it is clear that both schemes have been agreed to by the requisite majorities contemplated by s 411 of the Act. 9 The hearing today was advertised in accordance with the Court's directions. As at this morning the Company's solicitors had received no notice from anybody indicating any intention to appear on the hearing of the application. No person appeared on the hearing today, other than senior counsel for the proposed consortium and senior counsel for the Company. 10 The Australian Competition and Consumer Commission has, by news release published on 13 August 2007, indicated that it will not intervene in the acquisition of Alinta by the proposed consortium. Further, there is evidence in the form of certificates on behalf of the Company and the consortium that all other conditions precedent to the schemes have been satisfied or waived. I have also seen evidence, of a sort, to indicate that funds are available to meet the payment of the cash component of the consideration payable by the consortium. 11 The case is one in which s 411(11) of the Act has no application and it is therefore appropriate for compliance with that requirement to be waived. In all of the circumstances, I consider it appropriate to approve the schemes as agreed to by the members of the option holders. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.
Counsel for the Applicant: T F Bathurst QC with S Nixon Solicitor for the Applicant: Blake Dawson Waldron Counsel for ES&L Pty Limited: I M Jackman SC Solicitor for ES&L Pty Limited: Freehills Date of Hearing: 17 August 2007 Date of Judgment: 17 August 2007