Marengo Mining Ltd, in the matter of Marengo Mining Ltd [2012] FCA 1220

Federal Court of Australia|2012-11-05|Before: Barker J

Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act) the plaintiff convene a meeting of the holders of fully paid ordinary shares in the plaintiff at the Lower Pavilion, Next Generation Club, Kings Park, 21 Kings Park Road, West Perth, Western Australia at 4.00 pm (WST) on Thursday 6 December 2012 for the purpose of considering and, if thought fit, agreeing (with or without modification) to the Scheme (Scheme Meeting).
Pursuant to s 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.
Pursuant to s 1319 of the Act and for the purposes of regulation 7.11.37(3)(b) of the Corporations Regulations 2001 (Cth) (the Corporations Regulations), the specified time for the purposes of identification of securities holdings for the Scheme Meeting, shall be 4.00 pm (WST) on Tuesday 4 December 2012 (Snap-Shot Date), with power to the chairman of the Scheme Meeting in his absolute discretion to allow late proxies up to the commencement of the meeting.
The plaintiff be exempted from compliance with the requirements of Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (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.
Vincent Ian Masterton-Hume or, failing him, Leslie Sidney George Emery, shall act as chairman of the Meeting and report the results of the Scheme Meeting to this Court.

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 287 of 2012

IN THE MATTER OF MARENGO MINING LTD MARENGO MINING LTD (ACN 099 496 474)

JUDGE: BARKER J DATE: 5 NOVEMBER 2012 PLACE: PERTH

ORDER TO CONVENE MEETING PURSUANT TO S 411(1) CORPORATIONS ACT 1 On 29 October 2012, on the application of the plaintiff made by originating process dated 24 October 2012, I ordered pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act) that: 1. the plaintiff convene a meeting of its shareholders to consider a scheme of arrangement; and 2. that the explanatory statement required by s 412(1)(a) of the Act to accompany the scheme meeting be approved. 2 It is well understood that an application for an order to convene a scheme meeting of this nature is the first stage of a three part process provided for by Pt 5.1 of the Act: Re Stockbridge Ltd (1993) 9 ACSR 637; Re Foundation Healthcare Ltd [2002] FCA 742; (2002) 42 ACSR 252. 3 Decisions such as Re International Goldfields Ltd [2003] WASC 86 (Re International Goldfields) and Re Westfield Holdings Ltd (No 2901/04) [2004] NSWSC 458; (2004) 49 ACSR 734 set out what must be demonstrated in order to satisfy a court to grant the required orders.

The nature of the proposed transaction 4 As disclosed in the affidavit of Mark Andrew Churchward sworn 24 October 2012 and formally read at the hearing of the application, the plaintiff is proposing to undergo a corporate restructure and to re-domicile to Canada by the proposed scheme of arrangement. To implement the proposed scheme, the plaintiff has entered into a scheme implementation agreement dated 24 September 2012 as amended by deeds of variation dated 10 October 2012 and 18 October 2012 with Marengo Mining Canada Limited 822513-3 (Marengo Canada). Pursuant to the scheme implementation agreement and the proposed scheme, Marengo Canada will acquire all of the issued shares in the plaintiff. In consideration for each share in the plaintiff held by a member, Marengo Canada will issue either a common share in the capital of Marengo Canada or a CHESS Depositary Interest in a Marengo Canada Share (CDI) or a PETS Depositary Interest in a Marengo Canada Share (PDI). 5 It is understood that a CDI is a beneficial interest in securities traded on the Australian Securities Exchange (ASX) under the CHESS electronic transfer and settlement system operated by the ASX. Subject to the Port Moresby Stock Exchange (POMSoX) agreeing, a PDI is a beneficial interest in securities traded on the POMSoX under the PETS electronic transfer system operated by the POMSoX. CDIs and PDIs are issued to enable the electronic transfer and settlement on the ASX and POMSoX, respectively, of shares issued by foreign companies such as Marengo Canada, who are not CHESS or PETS participants. CDI and PDI holders receive all the economic benefits of actual ownership of the underlying Marengo Canada Shares through nominee systems. If POMSoX does not agree to change the POMSoX Rules to accommodate the listing of PDIs before 5pm on the day before the second court hearing proposed in relation to this scheme of arrangement, the Papua New Guinea scheme participants will be issued one CDI for one Marengo share. 6 The reconstruction and effective re-domicile of the plaintiff is to be implemented by way of a scheme of arrangement pursuant to Pt 5.1 of the Act between the plaintiff and holders of fully paid ordinary shares in the plaintiff as at the record date under the proposed scheme, whereby the plaintiff will become a wholly owned subsidiary of Marengo Canada pursuant to a 1:1 exchange of each Marengo share for a Marengo Canada share. This is what is colloquially known as a "top-hat" scheme, in that the shares following the restructure held by the new company - in this case Marengo Canada - will reflect precisely the shares currently held in the plaintiff: see Re Brambles Industries Ltd (ACN 000 129 868) [2006] FCA 1273; (2006) 59 ACSR 501 and Brambles Industries Ltd, in the matter of Brambles Industries Ltd and the Corporations Act 2001 (Cth) (No 2) [2006] FCA 1719 for another illustration of the top-hat scheme. 7 In Hostworks Group Limited ACN 008 010 820, in the matter of Hostworks Group Limited ACN 008 010 820 [2008] FCA 64, at [26], the Court accepted that Pt 5.1 encapsulate an arrangement which 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. On that basis, the proposed scheme falls within the statutory definition of "arrangement" in s 9 of the Act for the purposes of Pt 5.1 and s 411. 8 In this case, the arrangement includes one by which all members of the plaintiff transfer their shares in exchange for shares in a new holding company, along the lines considered in Re Victorian Grain Services Ltd [2000] VSC 334; (2000) 35 ACSR 198. 9 The proposed scheme is subject to the satisfaction of a number of conditions precedent under cl 2 of the scheme implementation agreement, which are summarised in s 6.3 and s 6.6 of the scheme booklet, which conditions include: (1) all regulatory approvals to be obtained, including all necessary consents and approvals from the Australian Securities Investment Commission (ASIC), ASX, the Toronto Stock Exchange (TSX), the POMSoX and the Papua New Guinea Securities Commission; (2) approval for the quotation of the CDIs (for Marengo Canada shares) on the official list of the ASX being obtained subject only to the scheme being approved by the Court under s 411 and taking effect and such other conditions as are set by the Court and are acceptable to the boards of the plaintiff and Marengo Canada; (3) approval for the listing of the Marengo Canada shares on the TSX being obtained subject only to the scheme being approved by the Court under s 411 and taking effect and such other conditions as are set by the Court and are acceptable to the boards of the two companies; (4) POMSoX agreeing to amend the POMSoX Rules to accommodate the listing of depository interests on POMSoX before 5pm on the day before the proposed second court hearing; (5) approval for quotation of the PDIs on the official list of POMSoX being obtained subject only to the scheme being approved by the Court under s 411, the scheme taking effect and such other conditions as are set by the Court and are acceptable to the two boards; (6) all holders of options and performance rights in the plaintiff accepting the separate non-scheme offers to acquire options and rights as described in s 1.6 of the scheme booklet; (7) an independent expert's report being obtained by the plaintiff which concludes the scheme is in the best interests of the shareholders; (8) the shareholders in the plaintiff approving the proposed scheme at the scheme meeting by the requisite majorities under the Act; (9) that the Court approving the proposed scheme in accordance with s 411(4)(b); and (10) lodgement with the ASIC of an office copy of the scheme approval order referred to above. 10 The proposed scheme is also subject to the scheme implementation agreement and the deed poll being and remaining at all times in full force and effect. Clause 2.1 of the proposed scheme contains the conditions for precedent.

scheme booklet 11 As to the scheme booklet, the plaintiff has prepared this and it is attached to the affidavit of Mr Churchward. 12 The plaintiff proposes that the proposed scheme booklet will constitute the explanatory statement for the proposed scheme for the purposes of s 412(1) of the Act, to be registered with ASIC pursuant to s 412(6). 13 The proposed Scheme Booklet contains information provided by: 1. the plaintiff, in all sections other than s 4 and annexure 5; 2. Marengo Canada, in s 4; and 3. BDO Corporate Finance (WA) Pty Ltd ABN 27 124 031 045 (BDO), the independent expert for the proposed scheme in annexure 5 of the scheme booklet. 14 Other than s 4 and annexure 5 of the proposed scheme booklet, the plaintiff has undertaken due diligence and verification in relation to the information in the proposed scheme booklet, as described in Mr Churchward's affidavit and as considered appropriate in Re Excel Coal Limited, in the matter of Excel Coal Limited [2006] FCA 1240 at [6].

independent expert's report 15 The scheme booklet, as noted, will contain at annexure 5 an independent expert's report prepared by BDO. In it BDO considers the advantages of the proposed scheme outweigh the disadvantages and has concluded that in its opinion the proposed scheme is in the best interests of the shareholders of the plaintiff. 16 I am satisfied, having perused the text of the independent expert's report, that it should be included in the scheme booklet to be dispatched to members of the plaintiff. 17 I also note the affidavit of Sherif Andrawes filed 24 October 2012, an expert from BDO, supports the making of this part of the order.

Options, rights and warrants 18 The plaintiff has on issue 9,650,000 options to acquire Marengo shares, 47,400,000 (options) performance rights to acquire Marengo shares (performance rights) and 56,860,750 warrants to acquire Marengo shares (warrants) outstanding pursuant to a warrant indenture dated 11 August 2010 (warrant indenture). 19 The plaintiff and Marengo Canada propose to enter into private treaties with each Marengo option holder to acquire their options. Under the private treaty agreements, Marengo Canada will issue to each option holder one option in Marengo Canada for each option held, such options in Marengo Canada to be on substantially similar terms as the options acquired. As a result, a separate creditors scheme embracing all option holders is not proposed. 20 The plaintiff and Marengo Canada also propose to enter into private treaties with each Marengo performance right holder to acquire their performance rights. Under the private treaty agreements, Marengo Canada will issue to each performance right holder one performance right in Marengo Canada for each performance right held, such performance right in Marengo Canada to be on substantially similar terms as the performance rights acquired. As a result, a separate creditors scheme embracing all performance rights holders is not proposed. 21 The plaintiff and Marengo Canada also propose to enter into a supplemental warrant indenture to reflect the terms of the entitlements of each holder of warrants pursuant to the warrant indenture and the scheme. The supplemental warrant indenture is contemplated in the current warrant indenture as summarised in s 1.6 of the proposed scheme booklet. Where a warrant is exercised after the record date for the scheme, a Marengo Canada share will be issued.

Performance risk 22 A number of cases have raised the question concerning the ability of scheme shareholders to enforce entitlements under a scheme of arrangement that is approved by the Court. See for example Corporations Act, in the matter of Kaz Group Limited [2004] FCA 738 at [4]-[6] and Re APN News & Media Ltd [2007] FCA 770; (2007) 62 ACSR 400 at [17] (Re APN News & Media). 23 In this case, the plaintiff submits, and I accept, that the proposed scheme effectively eliminates any performance risk. This is because the consideration is scrip for scrip, and the terms of the proposed scheme provide for reciprocal exchange, whereby issue of the Marengo Canada scrip precedes transfer of the Marengo shares, thus effectively eliminating performance risk. 24 Marengo Canada is also bound under the scheme implementation agreement and has executed a deed poll in favour of scheme shareholders. The deed poll is annexure 3 to the scheme booklet. It is submitted by plaintiff, and I accept, that both of these agreements reinforce Marengo Canada's implementation obligations. 25 Thus on the implementation date the necessary transfer entries in the plaintiff register in favour of Marengo Canada will occur immediately after the entries causing the scheme participants to be issued with the Marengo Canada shares and to become members of that company. This will be followed forthwith by dispatch of securities title documentation. 26 Accordingly, I accept that these arrangements satisfactorily deal with the performance risk issues mentioned in authorities such as Re APN News & Media, Re Buka Minerals NL (1983) 8 ACLR 507, In the matter of Coles Group Ltd [2007] VSC 389 and Re Coles Group Ltd (No 2) [2007] VSC 523; (2007) 215 FLR 411.

Break fee and exclusivity provisions 27 Under the scheme implementation agreement, the plaintiff has not agreed to pay any break fee to Marengo Canada nor to exclusivity provisions, including no-shop, no-talk and no due diligence restrictions; nor to notification and matching right requirements in the event that a competing proposal is received. This all follows because there is no change of control in the proposed scheme, due to its "top-hat" feature. 28 I accept the plaintiff's submission that no matters of concern are raised here, similar to the deal protection issues raised by the Court in Re APN News & Media.

Warranty 29 Clause 8.6 of the scheme of arrangement proposed contains a provision to the effect that scheme shareholders are deemed to have warranted to Marengo Canada that their shares are transferred fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and restrictions on transfer of any kind and that they have full power and capacity to sell and transfer their shares to Marengo Canada under the proposed scheme. 30 The warranty clause carries the necessary appropriate qualification "to the extent permitted by law" and a usual warranty of unencumbered title in terms accepted as fair, and s 6.2 of the proposed scheme booklet draws attention to the warranty. 31 I accept the submission of the plaintiff that the warranty clause and disclosure in the scheme booklet is consistent with the approach of the Court in such authorities as Investa Properties Limited, in the matter of Investa Properties Limited [2007] FCA 1104 and Re APN News & Media at [59]-[62] as accepted by Barrett J in Macquarie Private Capital A Ltd [2008] NSWSC 323 at [13]-[14]. See also Re AXA Asia Pacific Holdings Ltd [2011] VSC 4 at [31]-[32] and Anzon Energy Limited, in the matter of Anzon Energy Limited [2007] FCA 2080 at [25].

foreign shareholders 32 Shareholders in the plaintiff who have addresses in the register outside of Australia, Canada, New Zealand, Papua New Guinea or the United States, who are considered thereby ineligible foreign shareholders will have the Marengo Canada shares to which they would be entitled to receive under the proposed scheme issued to a nominee appointed by the plaintiff, who will sell those Marengo Canada shares and the proceeds, after deducting any applicable brokerage, stamp duty and other taxes and charges, will be disbursed to each respective ineligible foreign shareholder. These shareholders I accept in the circumstances of this case, do not comprise a separate class requiring separate treatment: see Sovereign Life Assurance Company v Dodd [1892] 2 QB 573 and as discussed in Re Rural Press Ltd [2007] FCA 314; (2007) 61 ACSR 373. I am assured separately that this class of ineligible foreign shareholders is very small indeed, perhaps approximately 0.5%.

Timetable 33 The proposed timetable has been clearly set out and is plainly achievable.

Meeting 34 The plaintiff will be required to hold a scheme meeting of all its members at which they must approve a resolution approving the proposed scheme by the requisite majorities. 35 It is proposed the scheme meeting will be held on 6 December 2012 at 4pm in West Perth, Western Australia. Appropriate notification will be given by the notice of scheme meeting and other appropriate documents and will be appropriate chaired.

asic and asx 36 The plaintiff's solicitors have provided ASIC with a draft of the scheme booklet as of 25 September 2012. Subsequent communications have led to relevant amendments to the scheme booklet. The usual letter from ASIC has been provided which indicates that it does not currently propose to appear or intervene to oppose the proposed scheme at the first court hearing. 37 The plaintiff submits, and I accept, that on the material before the Court, the Court may be satisfied that ASIC has been given sufficient notice for the purposes of s 411(2)(a). 38 I also note that the plaintiff's solicitors applied to ASX seeking various confirmations under the listing rules and various waivers to the listing rules.

constitution 39 There is nothing in the plaintiff's Constitution which is contrary to any term of the proposed scheme.

disclosure checklists 40 The proposed scheme booklet, being an explanatory statement for the purposes of s 412(1) of the Act, must contain information prescribed by the Act and by the Corporations Regulations 2001 (Cth). 41 The Court has been provided with a checklist of that information, cross-referenced to the disclosures in the proposed scheme booklet. I am satisfied that the disclosure requirements have been met. I also accept the proposed scheme compliance with ASIC's Regulatory Guide 60.

US Securities Act 42 I also note that the plaintiff intends to rely upon the Court's approval for the purposes of the exemption under s 3(a)(10) of the Securities Act of 1933 (USA) in connection with the implementation of the scheme.

Second hearing 43 At this stage I am satisfied that the scheme is of such a nature and is cast is such terms that if it achieves the statutory majorities at the members' meeting, the Court will be likely to grant approvals on a unopposed basis, this being a relevant consideration to the grant by the Court of the orders now sought: see for example, Re International Goldfields and authorities there referred to: Felix Resources Limited; In the matter of Felix Resources Limited (No 3) [2009] FCA 1483 at [21]; Re Application of NRMA LTD [No 2] [2000] NSWSC 408; (2000) 156 FLR 412. 44 While it is not necessary for the Court at this point to form any view, concerning the matter raised by s 411(17)(a) of the Act, a matter which is more appropriately addressed at the time approval is sought under s 411(4)(b), this would also appear to be a case in which that consideration will not be relevant.

conclusion and order 45 For these reasons I was satisfied that the orders to convene the first meeting under s 411 should appropriately be made to provide the members of the plaintiff with the opportunity to vote on the proposed scheme of arrangement. 46 The Court orders that:

Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act) the plaintiff convene a meeting of the holders of fully paid ordinary shares in the plaintiff at the Lower Pavilion, Next Generation Club, Kings Park, 21 Kings Park Road, West Perth, Western Australia at 4.00 pm (WST) on Thursday 6 December 2012 for the purpose of considering and, if thought fit, agreeing (with or without modification) to the Scheme (Scheme Meeting).
Pursuant to s 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.
Pursuant to s 1319 of the Act and for the purposes of regulation 7.11.37(3)(b) of the Corporations Regulations 2001 (Cth) (the Corporations Regulations), the specified time for the purposes of identification of securities holdings for the Scheme Meeting, shall be 4.00 pm (WST) on Tuesday 4 December 2012 (Snap-Shot Date), with power to the chairman of the Scheme Meeting in his absolute discretion to allow late proxies up to the commencement of the meeting.
The plaintiff be exempted from compliance with the requirements of Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (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.
Vincent Ian Masterton-Hume or, failing him, Leslie Sidney George Emery, shall act as chairman of the Meeting and report the results of the Scheme Meeting to this Court.
The chairman appointed for the Scheme Meeting has the exclusive power to decide whether to adjourn the meeting in his absolute discretion.
The proposed scheme booklet comprising the explanatory statement and its annexures and the proposed proxy form for the Scheme Meeting which are annexures MAC-9 and MAC-11 to the affidavit of Mark Andrew Churchward sworn 24 October 2012 (Churchward Affidavit), which scheme booklet comprises the explanatory statement as required by s 412(1)(a) of the Act, be and is hereby approved (subject to any minor amendments required or approved by the Australian Securities and Investments Commission (ASIC) for purposes of registration thereof under s 412(6) of the Act).
No later than 6.00 pm (WST) on Tuesday 6 November 2012, the plaintiff (subject to the registration of the Scheme Booklet by ASIC pursuant to s 412(6) of the Act) dispatch documents comprising the: (a) Scheme booklet; and (b) Notice of Court ordered Scheme Meeting and Proxy Form, which are annexures MAC-9 and MAC-11 to the Churchward Affidavit 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.
Leave be given to the plaintiff to make application for orders under s 411(4) and s 411(6) of the Act following the Scheme Meeting for approval of the Scheme to be heard at 10.15 am on Tuesday 18 December 2012 or such other date as the Court sees fit to set for such purpose.
The plaintiff publish notice of the hearing of that application in the form or to the effect of the advertisement (scheduled below for convenience) in annexure SGS-7 to the affidavit of Sarah Jane Gaffney-Smith affirmed 24 October 2012 once in The West Australian newspaper at least 5 days before the date fixed for the hearing of that application.
There be liberty to apply upon the giving of 18 hours notice to ASIC.
An office copy of this order shall be lodged with ASIC as soon as practicable after these orders are made. SCHEDULE NOTICE OF HEARING TO APPROVE COMPROMISE OR ARRANGEMENT Take notice that at 10.15 am on Tuesday 18 December 2012 the Federal Court of Australia at the Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, Perth, will hear an application by Marengo Mining Limited (Marengo) seeking the approval of a Scheme of Arrangement proposed between Marengo and its members, if such Scheme of Arrangement is approved by those members at the Court ordered meeting convened to be held on Thursday 6 December 2012. If you wish to oppose the approval of the Scheme of Arrangement, you must file and serve on Marengo 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 Marengo at its address for service at least one day before the day fixed for the hearing of the application. The address for service for Marengo is at Gilbert + Tobin, Lawyers, 1202 Hay Street, West Perth WA 6005 (Attention: Sarah Gaffney-Smith). Gilbert + Tobin, Lawyers 1202 Hay Street West Perth WA 6005 I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (21 paragraphs)

Legislation Cited (3)

Cases Cited (21)