Australian Securities Commission v Marlborough Gold Mines Ltd

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

GENERAL DIVISION WAD 323 of 2010

IN THE MATTER OF ALDRIDGE URANIUM LIMITED (ACN 144 941 097)

INTRODUCTION 1 The applicant, Aldridge Uranium Limited (Aldridge) proposes a Scheme of Arrangement between it and its ordinary shareholding members (the Scheme) pursuant to Pt 5.1 of the Corporations Act 2001 (Cth) (CA). Aldridge applies for orders that a meeting of the shareholders of Aldridge be convened (Scheme Meeting), and that the Explanatory Statement required by s 412(1)(a) of the CA in the form of a 'Scheme Booklet' to accompany the notice of meeting, be approved. 2 The application was heard on 3 November 2010 and I made orders substantially in terms of the proposed minute of orders. I now provide these reasons for doing so. 3 The purpose of the Scheme is to implement the acquisition of Aldridge by AWH Corporation Limited (AWH) and Vetter Uranium Limited, a company incorporated in the British Virgin Islands (Vetter) so that Aldridge becomes an incorporated joint venture vehicle for a uranium exploration project in Central Anatolia, Turkey (the Project).

Aldridge 4 On 30 June 2010, Aldridge was registered as an unlisted public company, limited by shares. 5 Aldridge holds 94 Turkish uranium licences, either directly through its wholly owned Turkish subsidiary company, A Der Madencilik (A Der), which holds 10 licences, or beneficially through Aldridge Mineral Madencilik Ltd Sti (AMM) which in turn, holds 84 licences. It is a condition precedent to the Scheme that AMM delivers to AWH the documents necessary to transfer to A Der the legal and equitable title to the 84 licences that AMM holds. 6 As at 2 November 2010, Aldridge had on issue a total of 30,014,996 shares. If the Scheme is approved a further 500,000 shares will be issued to a consulting geophysicist as a 'finder's fee'. A total of 2,891,000 options to purchase Aldridge shares have been issued. The options and shares are not listed on the Australian Stock Exchange (ASX). 7 The Scheme, if approved, will apply to holders of shares in Aldridge only. Aldridge optionholders will be the subject of separate negotiation. Aldridge expects they will exercise their Aldridge Options or dispose of their Aldridge Options through private treaty arrangements with AWH prior to the 'Record Date'. That date is five business days after the date on which an office copy of the Scheme Order is lodged with the Australian Securities and Investments Commissioner (ASIC) after the Second Court Hearing Date, pursuant to s 411(10) CA.

AWH 8 AWH was incorporated on 28 November 2006 and is listed on the ASX. As at 2 November 2010 AWH had on issue a total of 1,290,976,845 fully paid ordinary shares and 60,000,000 AWH options exercisable at $0.035 and expiring 31 December 2011. 9 Relevantly, no Class A Performance Shares were on issue. Class A Performance Shares are fully paid shares attaching certain rights as set out in Cl 1 of Sch 2 of the Scheme of Arrangement. Under the proposed Scheme, AWH will issue to Scheme participants one 'Class A Performance Share' for every Aldridge share transferred to AWH. The Scheme will be described in more detail below at [11]-[14].

Vetter 10 Vetter was incorporated on 30 September 2010 in the British Virgin Islands as part of the corporate restructuring and re-organisation of Aldridge. As at 2 November 2010, Vetter had on issue a total of 100 fully paid ordinary shares. Mr Gavin Rodie, the sole director of Vetter is a director of Aldridge. He also holds all of the shares issued by Vetter. Vetter owns a single share in Aldridge.

The Scheme 11 The aim of the proposed Scheme is to facilitate the acquisition of Aldridge by AWH and Vetter, such that Aldridge will become the incorporated joint venture vehicle for AWH and Vetter to own and pursue development of the Project. The Scheme was approved by the board of Aldridge and the directors have unanimously recommended that Aldridge shareholders vote in favour of the Scheme . 12 It is proposed that under the Scheme, Aldridge shareholders at the Record Date will transfer: (a) 35% of their shareholding in Aldridge to AWH and receive for each share: (i) 2.973 AWH shares; and (ii) 1 Class A Performance Share (together the AWH Scheme Consideration), such consideration to be issued and held by Vetter until the expiry of the ASX-imposed 12 month escrow period; and (b) their remaining shares to Vetter and receive one Vetter share for each Aldridge share transferred (the Vetter Scheme Consideration). 13 Further, upon the delivery of an estimated resource of 20 million pounds (Mlb) of contained uranium compliant with the Australasian Code for Reporting of Exploration Results, Mineral Resources and Ore Reserves (JORC Code, 2004 Edition), each Class A Performance Share will convert into 1,687 AWH shares (JORC is an acronym for The Joint Ore Reserves Committee of The Australasian Institute of Mining and Metallurgy, Australian Institute of Geoscientists and Minerals Council of Australia). If the resource is less than 20Mlb but greater than 15Mlb of contained uranium then the consideration of the AWH shares will be pro-rata on the basis of 0.34 AWH shares for every 1Mlb of uranium delivered over 15Mlb. If the resource is less than 15 Mlb of contained uranium, then no additional AWH shares will be issued for each Class A Performance Share. The JORC Code provides minimum standards for public reporting to ensure that investors and their advisers have all the information they would reasonably require to form a reliable opinion on the results and estimates being reported. It was incorporated into the listing rules of the ASX and New Zealand Stock Exchange (NZX) in 2004 and compliance is mandatory on all companies listed on the ASX and NZX. 14 The proposed Scheme is subject to the affirmative resolution under s 411(4)(a)(ii) CA of Aldridge shareholders at the meeting that would be convened under orders sought from this Court pursuant to s 411(1) CA, and to the approval of this Court under s 411(4)(b) and (6) CA. If the Scheme is so approved: (a) Aldridge will become the incorporated joint venture vehicle for AWH and Vetter to own and pursue development of the Project; and (b) AWH and Vetter will become the only two shareholders of Aldridge, and all current Aldridge shareholders will relinquish their Aldridge shares to AWH and Vetter and become shareholders in Vetter, upon implementation of the Scheme, and in AWH following expiration of the ASX-imposed 12 month escrow period.

Statutory Framework 15 The application is made pursuant to Pt 5.1 of Ch 5 CA headed 'External Administration'. The relevant parts of s 411 are in the following terms: 411 Administration of compromises etc. (1) Where a compromise or arrangement is proposed between a Part 5.1 body and its creditors or any class of them or between a Part 5.1 body and its members or any class of them, the Court may, on the application in a summary way of the body or of any creditor or member of the body, or, in the case of a body being wound up, of the liquidator, order a meeting or meetings of the creditors or class of creditors or of the members of the body or class of members to be convened in such manner, and to be held in such place or places (in this jurisdiction or elsewhere), as the Court directs and, where the Court makes such an order, the Court may approve the explanatory statement required by paragraph 412(1)(a) to accompany notices of the meeting or meetings. ... (2) The Court must not make an order pursuant to an application under subsection (1) … unless: (a) 14 days notice of the hearing of the application, or such lesser period of notice as the Court or ASIC permits, has been given to ASIC; and (b) the Court is satisfied that ASIC has had a reasonable opportunity: (i) to examine the terms of the proposed compromise or arrangement to which the application relates and a draft explanatory statement relating to the proposed compromise or arrangement; and (ii) to make submissions to the Court in relation to the proposed compromise or arrangement and the draft explanatory statement. (3) In subsection (2), draft explanatory statement, in relation to a proposed compromise or arrangement between a body and its creditors or any class of them or between a body and its members or any class of them, means a statement: (a) explaining the effect of the proposed compromise or arrangement and, in particular, stating any material interests of the directors of the body, whether as directors, as members or creditors of the body or otherwise, and the effect on those interests of the proposed compromise or arrangement in so far as that effect is different from the effect on the like interests of other persons; and (b) setting out such information as is prescribed and any other information that is material to the making of a decision by a creditor or member of the body whether or not to agree to the proposed compromise or arrangement, being information that is within the knowledge of the directors of the body and has not previously been disclosed to the creditors or members of the body. … (4) A compromise or arrangement is binding on the creditors, or on a class of creditors, or on the members, or on a class of members, as the case may be, of the body and on the body or, if the body is in the course of being wound up, on the liquidator and contributories of the body, if, and only if: (a) at a meeting convened in accordance with an order of the Court under subsection (1) or (1A): (i) in the case of a compromise or arrangement between a body and its creditors or a class of creditors - the compromise or arrangement is agreed to by a majority in number of the creditors, or of the creditors included in that class of creditors, present and voting, either in person or by proxy, being a majority whose debts or claims against the company amount in the aggregate to at least 75% of the total amount of the debts and claims of the creditors present and voting in person or by proxy, or of the creditors included in that class present and voting in person or by proxy, as the case may be; and (ii) in the case of a compromise or arrangement between a body and its members or a class of members - a resolution in favour of the compromise or arrangement is: (A) unless the Court orders otherwise - passed by a majority in number of the members, or members in that class, present and voting (either in person or by proxy); and (B) if the body has a share capital - passed by 75% of the votes cast on the resolution; and (b) it is approved by order of the Court. … (6) The Court may grant its approval to a compromise or arrangement subject to such alterations or conditions as it thinks just. … (10) An order of the Court made for the purposes of paragraph (4)(b) does not have any effect until an office copy of the order is lodged with ASIC, and upon being so lodged, the order takes effect, or is taken to have taken effect, on and from the date of lodgment or such earlier date as the Court determines and specifies in the order. (11) Subject to subsection (12), a copy of every order of the Court made for the purposes of paragraph (4)(b) must be annexed to every copy of the constitution of the body issued after the order has been made. (12) The Court may, by order, exempt a body from compliance with subsection (11) or determine the period during which the body must comply with that subsection. … (17) The Court must not approve a compromise or arrangement under this section unless: (a) it is satisfied that the compromise or arrangement has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6; or (b) there is produced to the Court a statement in writing by ASIC stating that ASIC has no objection to the compromise or arrangement; but the Court need not approve a compromise or arrangement merely because a statement by ASIC stating that ASIC has no objection to the compromise or arrangement has been produced to the Court as mentioned in paragraph (b). 16 Section 412 CA requires that an explanatory statement be sent with the notice convening a meeting under s 411. The explanatory statement must explain the effect of the arrangement and in particular state any material interests of the directors, whether as directors, members or creditors of the company, or otherwise, and the effect on those interests of the arrangement in so far as the effect is different from the effect on the like interests of other persons. It must also set out the prescribed information and any other information material to the making of a decision by a member whether or not to agree to the arrangement. 17 Pursuant to s 413 CA the Court may make an order providing, inter alia, for the transfer from one company to another of the whole or a part of the undertaking and of property or liabilities. Section 414 provides for the compulsory acquisition by the transferee of shares held by dissenting shareholders. It is a precondition to the exercise of that power that the scheme has, within four months after the making of the offer relating to the scheme, been approved by members holding shares in the relevant class carrying at least 90% of the votes attached to shares in that class. 18 Regulation 5.1.01 of the Corporations Regulations in conjunction with Sch 8 sets out the specific content of the explanatory statement required by s 411 and s 412 CA.

Scheme Documentation 19 The Scheme Booklet provided by Aldridge for the information of its shareholders comprises the Explanatory Statement required to be presented for dispatch approval by the Court pursuant to s 411(1) and s 412(1)(a) CA. 20 The Scheme Booklet contains: (a) important Notes and Statements relating broadly to the purpose of the Scheme Booklet; (b) important dates for the implementation of the Scheme; (c) a message from the President and Chief Executive Officer of Aldridge, Dr Hikmet Akin, introducing the Scheme Booklet and outlining the reconstruction; (d) a message from the Chairman of AWH; (e) comprehensive notes to members about how to vote on the Scheme; (f) frequently asked questions and answers in relating to schemes of arrangement generally and Aldridge's proposed Scheme in particular; (g) an Overview of the Reconstruction and the Scheme; (h) recommendations of the Aldridge Board including the potential advantages and disadvantages of the Scheme and the implications for Aldridge if the Scheme does not proceed; (i) detailed profiles of Aldridge, AWH (including recent share prices of AWH), Vetter and the Aldridge reconstructed group; (j) a summary of the joint venture arrangement; (k) notes on the Implementation of the Scheme; (l) notes on risk factors; (m) notes on tax implications for Scheme participants; (n) additional information required under s 412(1) CA and Pt 3 of Sch 8 CA, including the interests of each of relevant companies and/or their directors in the securities of the others; and (o) a glossary. 21 In addition, annexed to the Scheme Booklet is: (a) the Scheme of Arrangement (Annexure 1); (b) Terms of the Amended Scheme Agreement (Annexure 2); (c) AWH Deed Poll (Annexure 3); (d) Vetter Deed Poll (Annexure 4); (e) Independent Expert's Report (Annexure 5); (f) Independent Tax Opinion (Annexure 6); (g) Notice of Meeting and Form of Proxy (Annexure 7); (h) Aldridge Uranium Limited- Investigating Accountant's Report (Annexure 8); and (i) AWH Corporation Limited- Audited Financial Accounts for the period ending 30 June 2010 (Annexure 9).

ASIC Consideration 22 Pursuant to s 411(2) CA, the appropriate final draft of the Scheme Booklet was submitted to ASIC for its consideration. 23 By letter to Aldridge's solicitors dated 3 November 2010, ASIC confirmed: (a) It has had a reasonable opportunity to examine the proposed Scheme and make submissions to the Court; (b) It permits a lesser period of notice of the hearing of the application than 14 days, as envisaged in s 411(2) CA; (c) It does not propose to attend the hearing of the application for orders that a scheme meeting be held; and (d) It would provide an updated indication of its intent at the second Court hearing date.

CONSIDERATION 24 The word 'arrangement' is of wide import and covers the proposed 'acquisition' and 'implementation' arrangements (s 9 CA; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 501). In Re Hostworks Group Ltd [2008] FCA 64 (at [26]), the Court observed that 'an arrangement may extend to any subject matter which is something a company is able to agree with its members, and is likened to a contract between a company and its members'. 25 I am satisfied the Scheme falls within the statutory definition and that Pt 5.1 CA applies. In addition each of Aldridge and AWH are 'companies' within the meaning of Pt 5.1 CA and Vetter is a member of Aldridge. 26 This ex parte application is the first stage of a three part process under Pt 5.1 CA comprising of the Court's approval of the meeting, the members' or creditors' approval of the Scheme and the Court's approval of the Scheme. When an application is made for leave to convene a scheme meeting the practice of the Court is to scrutinise the scheme documents and to refuse those orders if it considers the scheme unlikely to receive approval from the shareholders (Re Bond Corporation Holdings Ltd (1991) 5 ACSR 304; Re NRMA Ltd (No 1) (2000) 156 FLR 349). However, the granting of orders convening a meeting does not amount to the Court's imprimatur of the Scheme. 27 There is a clear distinction between the Court's role upon an application to convene meetings and its role upon an application for approval of the scheme after those meetings. If the arrangement is one that seems fit for consideration by the meeting of members and is a commercial proposition likely to gain the Court's approval if passed by the necessary majorities, then leave will ordinarily be given (Re Foundation Healthcare Ltd [2002] FCA 742; Re ACM Gold Ltd (1992) 34 FCR 530 per O'Loughlin J). 28 The Court is not required to analyse the effects of the scheme upon individual members (Re Foundation Healthcare Ltd at [36]). 29 In determining whether orders should be made convening a scheme meeting, a threshold requirement is the Court's satisfaction that the explanatory statement contains all the prescribed information in the Act and Regulations. I am satisfied that the explanatory statement in this case makes adequate disclosure of matters relevant to the members making a decision whether to approve the Scheme. 30 A scheme of arrangement typically has elements that are compulsory for members, even those who may not vote in favour of the scheme, such as the requirement in this Scheme that all members transfer their Aldridge shares to Vetter and AWH in exchange for shares in AWH and Vetter (see Re Victorian Grain Services Ltd (2000) 35 ACSR 198; Re Investa Properties Ltd [2007] FCA 1104). 31 On its face, the proposed Scheme has the potential to yield some benefits to the members. These are outlined in the Scheme Booklet, as are the disadvantages of entering into the Scheme. In particular, it is noted that the independent expert engaged by Aldridge concluded the proposal was not fair but reasonable. In forming its fairness opinion, the expert did not include the valuation of the Class A Performance Shares because the Class A Performance Shares will only convert to AWH shares in the event the Project is found to have a JORC compliant resource estimate in excess of 15Mlb of contained uranium. The independent expert's report is annexed to the Scheme Booklet. The directors note in their recommendation (also included in the Scheme Booklet) that if this milestone is achieved, additional value is likely to be attributable to Scheme. 32 Aldridge's constitution does not prohibit the entering into of the Scheme. 33 Unless a scheme is so blatantly unfair or otherwise inappropriate that it should not be allowed to proceed further, the Court, at the stage of ordering a meeting to approve a scheme does not ordinarily go very far into the question of whether the arrangement is one which warrants the approval of the Court (Re NRMA Ltd at 359). That question is to be answered when the scheme returns to the Court for final approval. 34 The Scheme in this case is not so obviously unfair or otherwise inappropriate. 35 For those reasons I make orders convening a Scheme Meeting for members substantially in the terms of the proposed minute of orders. The following orders are made: 1. Pursuant to section 411(1) of the Corporations Act 2001("Act"), the Plaintiff convene a meeting of its Shareholders ("Scheme Meeting") at "The Celtic Club", 48 Ord Street, West Perth, Western Australia at 9.00 am (WST) on Friday, 3 December 2010 for the purpose of considering and if thought fit approving, with or without modification, the Scheme, a copy of which is attached as Annexure 1 to the final draft document entitled "Scheme Booklet" (Aldridge Uranium Limited (ACN 144 941 097)) ("Scheme Booklet") which is annexed as annexure "CM5" to the affidavit of Mr Calogero Monzu sworn 2 November 2010 in support of the Originating Process; 2. Pursuant to section 1319 of the Act, the Scheme Meeting be convened, held and conducted in accordance with the provisions of: (a) Part 2G.2 of the Act that apply to the members of a company and have not been displaced or modified by the Plaintiff's Constitution; and (b) the Plaintiff's Constitution that are not inconsistent with that Part and that apply to a meeting of members, save that all voting at the Scheme Meeting be by poll demanded by the Chairman; 3. Pursuant to section 1319 of the Act and for the purposes of Corporations Regulation 7.11.37(3)(b), the specified time for the purposes of identification of securities' holdings for the Scheme Meeting, shall be 5pm (WST) on Wednesday, 1 December 2010, with power to the Chairman of the Scheme Meeting in his absolute discretion to allow late proxies up to the commencement of the meeting; 4. The Plaintiff be exempted from compliance with the requirements of Rule 2.15 of the Federal Court (Corporations) Rules 2000 ("Rules"), save in so far as that Rule applies reg. 5.6.13 (without the Form 530 stipulated therein) of the Corporations Regulations to the Scheme Meeting; 5. Dr Hikmet Akin, or failing him, Mr Calogero Monzu shall act as Chairman of the Meeting and report the results of the Scheme Meeting to this Court; 6. The Chairman appointed for the Scheme Meeting has the exclusive power to adjourn the meeting or not in his absolute discretion; 7. The proposed Scheme Booklet comprising the Explanatory Statement and its annexures which is annexure "CM5" to the affidavit of Mr Calogero Monzu sworn 2 November 2010, which Scheme Booklet comprises the Explanatory Statement as required by section 412(1)(a) of the Corporations Act, be and is hereby approved to accompany the Notice of Court ordered Scheme Meeting and Proxy Form (subject to any minor amendments required or approved by the Australian Securities and Investments Commission ("ASIC") for purposes of registration thereof under section 412(6) of the Act); 8. No later than 5pm (WST) on Monday, 8 November 2010, the Plaintiff (subject to the registration of the Scheme Booklet by ASIC pursuant to section 412(6) of the Corporations Act) dispatch documents comprising the: (a) Scheme Booklet; and (b) Notice of Court ordered Scheme Meeting and Proxy Form, which are included as annexure "CM5", "CM10" and "CM11" to the affidavit of Mr Calogero Monzu sworn 2 November 2010, to all the Shareholders of the Plaintiff by ordinary pre-paid post (or, in the case of overseas members, by airmail) at their addresses appearing on the Plaintiff's register of members on the closest practicable business day before the dispatch of documents; 9. Leave be given to the Plaintiff to make application for orders under sections 411(4), 411(6) and 413(1)(f) of the Act following the Scheme Meeting for approval of the Scheme and its implementation, to be heard on Wednesday, 8 December 2010 or such other date as the Court sees fit to set for such purpose; 10. Leave be given to the Plaintiff publish notice of the hearing of that application in the form or to the effect of the advertisement in the Schedule hereto once in The West Australian newspaper at least 5 days before the date fixed for the hearing of that application; 11. There be liberty to apply upon the giving of 18 hours notice to ASIC; 12. An office copy of this order shall be lodged with ASIC as soon as practicable after these orders are made. 13. Such further orders as the Court deems fit. Schedule: NOTICE OF HEARING TO APPROVE COMPROMISE OR ARRANGEMENT Take notice that at 10:15am on 8 December 2010 the Federal Court of Australia at the Peter Durack Commonwealth Law Courts Building Queen Victoria Avenue Perth, will hear an application by Aldridge Uranium Limited (Aldridge) seeking the approval of a Scheme of Arrangement proposed between Aldridge and its members, if such Scheme of Arrangement is approved by those members at the Court ordered meeting convened to be held on 3 December 2010 at 9:00am. If you wish to oppose the approval of the Scheme of Arrangement, you must file and serve on Aldridge a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on Aldridge at its address for service at least one day before the day fixed for the hearing of the application. The address for service for Aldridge is Blakiston & Crabb, Lawyers, 1202 Hay Street, West Perth WA 6005.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.