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[2012] FCA 1090
Federal Court of Australia
2012-10-04
Jagot J
Original judgment source is linked above.
Annexure A INDUSTREA LIMITED Notice of Hearing to Approve Arrangement TO all creditors and members of INDUSTREA LIMITED ABN 22 010 720 117 (Industrea) TAKE NOTICE that at 9:15am on 15 November 2012 the Federal Court of Australia at Law Courts Building, Queens Square, Sydney NSW 2000 will hear an application by Industrea seeking the approval of the arrangement between Industrea and its shareholders if agreed to by resolution to be considered, and, if thought fit, passed (with or without modification) by the meeting of shareholders to be held at the Edinburgh Room, Level 4, Brisbane Club, 241 Adelaide Street, Brisbane, Queensland at 10:00am on Monday 12 November 2012 (Brisbane time). If you wish to oppose the approval of the above arrangement, you must file and serve on Industrea a Notice of Appearance, in the prescribed form, together with any Affidavit on which you wish to reply on at the hearing. The Notice of Appearance and Affidavit must be served on Industrea at its address for service by no later that 5:00pm on 14 November 2012. The address for service of Industrea is, c/o Norton Rose Australia, 225 George Street, Sydney NSW 2000 (Reference: Shaun Clyne) Facsimile: 0293308111 Email: shaun.clyne@nortonrose.com Company Secretary
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1465 of 2012
in the matter of INDUSTREA LIMITED ACN 010 720 117 INDUSTREA LIMITED ACN 010 720 117
JUDGE: JAGOT J DATE: 4 OCTOBER 2012 PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is an application under s 411 of the Corporations Act 2001 (Cth) for orders convening a meeting of the shareholders of Industrea Limited (Industrea) to vote on a proposed scheme of arrangement, as set out in the written submissions with which I have been provided. The purpose of the scheme is for General Electric Company to acquire all of the ordinary shares in Industrea through an indirect wholly-owned subsidiary, GE Mining Services Holdings Pty Limited, the consideration being a cash payment in the sum of approximately $470 million. 2 As the written submissions set out, the approach at a first court hearing is that the Court will not ordinarily summon a meeting unless the scheme is of such a nature and cast in such terms that if it receives the majority of votes the Court would be likely to approve it on the hearing of the application for approval of the scheme, assuming it is unopposed. 3 On the basis of the evidence that has been put before me, I am satisfied that all of the procedural requirements for the convening of the meeting have been satisfied and I am content to adopt as my reasons the written submissions which have been provided to me. The written submissions address the relevant issues, including the implementation of the scheme, the provision of a deed poll, the recommendation of the independent directors, the recommendation of the independent expert, the treatment of certain performance rights held by certain parties, performance risk, exclusivity provisions, the break fee, the deemed warranty by the shareholders, an issue relating to what was once a proposed sale of a division of Industrea known as IMS and otherwise letters to shareholders. 4 It seems to me that there are only three issues which require any further comment. The first is that the scheme implementation agreement still includes a reference to the proposed sale of the IMS division to a third party buyer, but that is not being pursued. The reason that information is still contained within the scheme booklet and in the scheme implementation agreement as explained in the evidence is the potential impact of removing that information on an approvals process which is underway in relation to an approval required from an authority known as MOFCOM in China. This is explained in part of the scheme booklet in relation to certain merger control procedures in China, it having been determined that the proposed acquisition of Industrea qualifies as a "concentration" and accordingly an approval from the relevant Chinese body, MOFCOM, is required. The approvals process is currently in its second stage. Thus far, MOFCOM has not indicated that it has identified any substantive issues with the proposed transaction and the approvals are part of the conditions precedent to the implementation of the scheme. The scheme implementation agreement has not been amended as such an amendment would be treated by MOFCOM as a change to the terms of the transaction, which would apparently result in the approvals process being restarted. 5 The second issue is that the documents have not been amended to remove references to the IMS sale. As explained in the written submissions, the reason for this is that the full scheme implementation agreement was not provided to the Australian Stock Exchange and will not be provided to shareholders because it has the potential for confusion, given that the IMS sale is not proceeding and the documents contain commercially sensitive information in relation to that sale. It seems to me that this is an adequate explanation and that there is no material risk of confusion in the minds of the shareholders on the basis of the information in the scheme booklet which makes it clear that that aspect of the proposal is not proceeding. 6 The third issue, as pointed out to me by senior counsel for Industrea, is that there is on the front page of the scheme booklet a large and bold statement "Vote yes" which I have not previously seen but apparently is now not unusually included in scheme booklets. I do not have any particular concern about the "Vote yes" statement given that underneath there is a reference to the fact that the directors do unanimously recommend that shareholders vote in favour of the scheme in the absence of a superior proposal, which is true, and that the independent expert has concluded that the scheme is in the best interests of the shareholders, which is also true. There are otherwise notations on the first page of the document to the effect that the scheme booklet should be read in its entirety and I do not see any material issue arising from the inclusion of the "Vote yes" statement. 7 Orders will be made accordingly. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.