Equigold NL, in the matter of Equigold NL (No 3)
[2008] FCA 894
•3 June 2008
FEDERAL COURT OF AUSTRALIA
Equigold NL, in the matter of Equigold NL (No 3) [2008] FCA 894
EQUIGOLD NL
NSD 544 OF 2008
EMMETT J
3 JUNE 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 544 OF 2008
IN THE MATTER OF EQUIGOLD NL
EQUIGOLD NL
Plaintiff
JUDGE:
EMMETT J
DATE OF ORDER:
3 JUNE 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to subsection 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act), the scheme of arrangement between Equigold NL ABN 42 060 235 145 (Equigold) and the holders of ordinary shares in Equigold, other than the holders of Excluded Shares in respect of those Excluded Shares, in the form annexed hereto and marked “A” be approved.
2.Pursuant to subsection 411(12) of the Corporations Act, Equigold be exempted from compliance with subsection 411(11) of the Corporations Act in relation to Order 1.
3.These Orders be entered forthwith.
In these Orders, an Excluded Share is a fully paid ordinary share in Equigold held by Lihir Australian Holdings Pty Ltd ACN 121 554 443 as at the record date for the Scheme.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Scheme of Arrangement
Equigold NL
ACN 060 235 145
Scheme ParticipantsLevel 36, Grosvenor Place
225 George Street
Sydney NSW 2000
Australia
T 61 2 9258 6000
F 61 2 9258 6999
Reference
PHM ATCU SZD
02-1426-6484
©Blake Dawson 2008Contents
CONTENTS 21. PRELIMINARY 3
2. CONDITIONS 4
3. SCHEME 4
4. SCHEME CONSIDERATION 6
5. DEALINGS IN EQUIGOLD SHARES 9
6. QUOTATION OF SHARES 9
7. GENERAL 10
8. DEFINITIONS AND INTERPRETATION 11
SCHEME OF ARRANGEMENT
pursuant to section 411 of the Corporations Act
between
Equigold NL ACN 060 235 145 (Equigold)
and
each Scheme Participant1. PRELIMINARY
1.1 Equigold
Equigold is a public company incorporated in Australia and registered in Western Australia, having its registered office at Level 1, 7 Sleat Road, Applecross, Western Australia, 6153. Equigold is a no liability company under section 112(2) of the Corporations Act and Equigold Shares are quoted on the official list of ASX. As at the date of this Scheme, 212,428,255 Equigold Shares were on issue.
1.2 LGL and Lihir Acquirer
Lihir Gold Limited is a public company incorporated in Papua New Guinea and is a company limited by shares (LGL). LGL Shares are quoted on ASX, PoMSOX and TSX and American Depository Receipts representing LGL Shares are quoted on NASDAQ. As at the date of this Scheme, LGL has 1,903,911,260 ordinary shares, 585,984 restricted executive shares and 161,527,405 class B shares on issue. Lihir Australian Holdings Pty Limited ACN 121 554 443 (Lihir Acquirer) is a wholly-owned subsidiary of LGL and is incorporated in Australia and registered in Victoria having its registered office at Level 9, AAMI Building, 500 Queen Street, Brisbane, Queensland 4000, Australia. It is a proprietary company under section 112(1) of the Corporations Act.
1.3 Effect of Scheme
If the Scheme becomes Effective, then:
(a) in consideration of the transfer of each Equigold Share to Lihir Acquirer, LGL will provide, or procure the provision of, the Scheme Consideration to Scheme Participants in accordance with the terms of the Scheme;
(b) Equigold will enter the name of Lihir Acquirer in the Register in respect of all of the Equigold Shares transferred to Lihir Acquirer in accordance with the terms of the Scheme; and
(c) all of the Equigold Shares held by Scheme Participants will be transferred to Lihir Acquirer and Equigold will become a wholly-owned subsidiary of Lihir Acquirer with LGL as the ultimate parent entity.
1.4 Merger Implementation Agreement
LGL, Lihir Acquirer and Equigold have agreed, by executing the Merger Implementation Agreement, to implement the terms of the Scheme and to perform their respective obligations under the Scheme.
1.5 Deed Poll
LGL has entered into the Deed Poll in favour of Scheme Participants pursuant to which it has covenanted to provide to each Scheme Participant the Scheme Consideration to which such Scheme Participant is entitled under the Scheme and to carry out its other obligations under the Scheme.2. CONDITIONS
2.1 Conditions of Scheme
The Scheme is conditional on all of the conditions precedent in clause 2.1 of the Merger Implementation Agreement having been satisfied or waived in accordance with the terms of the Merger Implementation Agreement, which conditions precedent include the Court approving the Scheme in accordance with section 411(4)(b) of the Corporations Act, and any other conditions made or required by the Court under section 411(6) of the Corporations Act being satisfied.
2.2 Effect of conditions
The fulfilment of the conditions in clause 2.1 is a condition precedent to the operation of the provisions of clauses 3, 4 and 6.
2.3 Certificate
Equigold and Lihir Acquirer will each provide to the Court at the Second Court Hearing a certificate confirming that all the conditions precedent in clause 2.1 of the Merger Implementation Agreement and the Scheme (other than in relation to the Scheme being approved by the Court pursuant to section 411(4)(b) of the Corporations Act) have been satisfied or waived in accordance with the terms of the Merger Implementation Agreement.
2.4 Conclusive evidence
The giving of a certificate by each of Lihir Acquirer and Equigold under clause 2.3 will, in the absence of manifest error, be conclusive evidence of the satisfaction or waiver of the conditions precedent referred to in the certificate.
2.5 End Date
The Scheme will lapse and be of no further force or effect if the Effective Date has not occurred on or before the End Date.3. SCHEME
3.1 Lodgement of Court order
Following the approval of the Scheme by the Court in accordance with section 411(4)(b) of the Corporations Act, Equigold will, as soon as possible, lodge with ASIC under section 411(10) of the Corporations Act an office copy of the Court order approving the Scheme.
3.2 Transfer of Equigold Shares held by Scheme Participants
On the Implementation Date and subject to the provision of the Scheme Consideration by LGL in accordance with the Deed Poll:
(a) the Equigold Shares held by Scheme Participants, together with all rights and entitlements attaching to them as at that date, will be transferred to Lihir Acquirer without the need for any further acts by Scheme Participants (other than acts performed pursuant to clause 3.6(b) or by Equigold as attorney and agent for the Scheme Participants, including under clauses 3.6 or 7.1);
(b) Equigold will either effect a valid transfer or transfers of the Equigold Shares to Lihir Acquirer under section 1074D of the Corporations Act or deliver to Lihir Acquirer duly completed and executed share transfer forms (or a master transfer form) in accordance with section 1071B of the Corporations Act and Lihir Acquirer will execute and deliver those share transfer form(s) to Equigold; and
(c) subject to execution and delivery of a share transfer form under clause 3.2(b) (if applicable) Equigold will enter the name of Lihir Acquirer in the Register in respect of all the Equigold Shares transferred to Lihir Acquirer in accordance with the terms of the Scheme.
3.3 Agreement by Scheme Participants
The Scheme Participants agree to the transfer of all of their Equigold Shares to Lihir Acquirer in accordance with the terms of the Scheme. The Scheme Participants will accept the New Lihir Shares issued by way of Scheme Consideration subject to the LGL Constitution and agree to be bound by the LGL Constitution.
3.4 Warranties by Scheme Participants
Each Scheme Participant is deemed to have warranted to Equigold and appointed and authorised Equigold as its attorney and agent to warrant to Lihir Acquirer, that all its Equigold Shares (including any rights and entitlements attaching to those shares) which are transferred to Lihir Acquirer under the Scheme will, at the date of the transfer of the Equigold Shares to Lihir Acquirer, be fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, whether legal or otherwise, and any restrictions on their transfer and that it has the full power and capacity to sell and transfer its Equigold Shares (including any rights and entitlements attaching to those shares) to Lihir Acquirer under the Scheme.
3.5 Beneficial entitlement by Lihir Acquirer
From the Effective Date, Lihir Acquirer shall be beneficially entitled to the Equigold Shares transferred to it under the Scheme pending registration by Equigold of Lihir Acquirer in the Register as the holder of those Equigold Shares.
3.6 Appointment of Lihir Acquirer as sole proxy
From the Effective Date until Equigold registers Lihir Acquirer as the holder of all the Equigold Shares in the Register, each Scheme Participant:
(a) is deemed to have appointed Equigold as attorney and agent (and directed Equigold in such capacity) to appoint the Chairman of Lihir Acquirer as its sole proxy and where applicable, corporate representative, to attend shareholders meetings, exercise the votes attaching to Equigold Shares registered in its name and sign any shareholders resolution, and no Scheme Participant may itself attend or vote at any of those meetings or sign any resolutions, whether in person, by proxy or by corporate representative (other than pursuant to this clause 3.6(a)); and
(b) must take all other actions in the capacity of the registered holder of Equigold Shares as Lihir Acquirer directs.
Equigold undertakes in favour of each Scheme Participant that it will appoint the Chairman of Lihir Acquirer as that Scheme Participant’s proxy or, where applicable, corporate representative in accordance with clause 3.6(a).
3.7 Appointment of Equigold as sole attorney and agent
Each Scheme Participant without the need for any further act, irrevocably appoints Equigold and each of the directors and officers of Equigold, jointly and severally, as the Scheme Participant's attorney and agent for the purpose of:
(a) in the case of Equigold Shares in a CHESS holding:(i) causing a message to be transmitted to ASTC in accordance with ASTC Settlement Rules so as to transfer the Equigold Shares held by the Scheme Participant from the CHESS subregister of Equigold to the issuer sponsored subregister operated by Equigold notwithstanding that, at the time of such transfer, Lihir has not provided the Scheme Consideration which is due under this Scheme to the Scheme Participants; and
(ii) completing and signing on behalf of Scheme Participants any required form of transfer of Equigold Shares;
(b) in the case of Equigold Shares registered in the issuer sponsored subregister operated by the Equigold share registry, completing and signing on behalf of Scheme Participants any required form of transfer;
(c) in all cases, executing any document (including any other instrument of transfer necessary to give effect to the registration of Lihir Acquirer as the holder of all the Equigold Shares held by the Scheme Participants) or doing any other act necessary or desirable to give full effect to the Scheme and the transactions contemplated by it; and
(d) executing any instrument appointing Lihir Acquirer as sole proxy for or, where applicable, corporate representative of each Scheme Participant as contemplated by clause 3.6.4. SCHEME CONSIDERATION
4.1 Scheme Consideration
On the Implementation Date and subject to clauses 4.3, 4.4 and 4.7, in consideration of the transfer of the Equigold Shares to Lihir Acquirer, LGL must allot and issue to each Scheme Participant 33 New Lihir Shares for every 25 Equigold Shares held by the Scheme Participant at the Record Date.
4.2 Provision of New Lihir Shares as Scheme Consideration
Subject to clauses 4.3, 4.4 and 4.7, the obligation of LGL to procure the allotment and issue of the New Lihir Shares pursuant to clause 4.1 will be satisfied by LGL, on the Implementation Date:
(a) entering the name and address of each Scheme Participant in the LGL share register in respect of the New Lihir Shares which that Scheme Participant is entitled to receive under the Scheme; and
(b) sending or procuring the despatch by pre-paid ordinary post (or, if the address of the Scheme Participant in the Register is outside Australia, by pre-paid airmail post) to each Scheme Participant to their address recorded in the Register at the Record Date, a holding statement for the New Lihir Shares issued to that Scheme Participant in accordance with the Scheme.
4.3 Ineligible Overseas Shareholders
Subject to clause 4.7, LGL's obligations to provide New Lihir Shares to a Scheme Participant who is an Ineligible Overseas Shareholder will be satisfied by LGL issuing the New Lihir Shares to which the Scheme Participant would have been entitled (were they not an Ineligible Overseas Shareholder) to a person appointed by LGL (Nominee), and procuring that the Nominee:
(a) in the ordinary course of trading on ASX, sells for the benefit of the Ineligible Overseas Shareholder those New Lihir Shares issued to the Nominee under this clause 4.3 in such manner and on such terms and condition as the Nominee thinks fit in its absolute discretion (and at the risk of the Ineligible Overseas Shareholder);
(b) as soon as reasonably practicable, accounts to the Ineligible Overseas Shareholder for the net proceeds of sale (on an averaged basis so that all Ineligible Overseas Shareholders receive the same price per New Lihir Share, subject to rounding down to the nearest whole cent) and any income referable to those New Lihir Shares, after deduction of any applicable brokerage, taxes and charges; and
(c) as soon as reasonably practicable, remits the net proceeds of the Ineligible Overseas Shareholder’s entitlement under this clause 4.3 in full satisfaction of the Ineligible Overseas Shareholder’s rights to receive New Lihir Shares under clause 4.1. These proceeds are to be despatched in the form of a bank cheque drawn on an Australian bank in Australian currency.
The Nominee will be an authorised representative of a holder of an Australian financial services licence.
4.4 Breach of law
Where issue of New Lihir Shares to which a Scheme Participant would otherwise be entitled would result in a breach of law, LGL will, in full satisfaction of that Scheme Participant’s rights to the New Lihir Shares under clause 4.1:
(a) procure the issue of the maximum possible number of New Lihir Shares to the Scheme Participant without giving rise to such breach; and
(b) subject to clause 4.7, procure the issue to the Nominee of the remaining New Lihir Shares to which the Scheme Participant would have been entitled (if the issue did not result in a breach of law), and procure that the Nominee:(i) in the ordinary course of trading on ASX, sells for the benefit of that Scheme Participant those New Lihir Shares issued to the Nominee under this clause 4.4(b) in such manner and on such terms and condition as the nominee thinks fit in its absolute discretion (and at the risk of the Scheme Participant);
(ii) as soon as reasonably practicable, accounts to the Scheme Participant for the net proceeds of sale and any income referable to those New Lihir Shares, after deduction of any applicable brokerage, taxes and charges; and
(iii) as soon as reasonably practicable, remits the net proceeds of sale and any income referable to those New Lihir Shares to that Scheme Participant, after deduction of any applicable brokerage, taxes and charges. These proceeds are to be despatched in the form of a bank cheque drawn on an Australian bank in Australian currency.
4.5 Sending cheques
The despatch to a Scheme Participant of any bank cheque for net sale proceeds pursuant to clauses 4.3 or 4.4 must be by pre-paid ordinary post (or, if the address of the Scheme Participant in the Register is outside Australia, by pre-paid airmail post) in an envelope addressed to their address shown in the Register as at the Record Date.
4.6 Joint holders
In the case of Equigold Shares held in joint names:
(a) any bank cheque required to be paid to Scheme Participants by LGL must be payable to the joint holders and be forwarded to the holder whose name appears first in the Register as at the Record Date; and
(b) holding statements for New Lihir Shares issued to Scheme Participants must be issued in the names of the joint holders and sent to the holder whose name appears first in the Register as at the Record Date.
4.7 Fractional entitlements
(a) If the number of Equigold Shares held by a Scheme Participant is such that the aggregate entitlement of that Scheme Participant to New Lihir Shares is not a whole number, then the entitlement in each case will be rounded up if the fractional entitlement is equal to or greater than one half of a New Lihir Share.
(b) If LGL and Equigold are of the opinion that several Scheme Participants, each of which holds a holding of Equigold Shares which results in a fractional entitlement to New Lihir Shares, have, before the Record Date, been party to a shareholding splitting or division in an attempt to obtain an advantage by reference to the rounding provided for in the calculation of each Scheme Participant’s entitlement to the Scheme Consideration, LGL and Equigold may give notice to those Scheme Participants:(i) setting out the names and registered addresses of all of them;
(ii) stating that opinion; and
(iii) attributing to one of them specifically identified in the notice the Equigold Shares held by all of them,
and, after the notice has been so given, the Scheme Participant specifically identified in the notice shall, for the purposes of the Scheme, be taken to hold all those Equigold Shares and each of the other Scheme Participants whose names are set out in the notice shall, for the purposes of the Scheme, be taken to hold no Equigold Shares.
4.8 New Lihir Shares to rank equally
(a) New Lihir Shares issued to Scheme Participants will be validly issued and will rank equally in all respects with all existing Lihir Shares.
(b) On issue, each New Lihir Share issued to Scheme Participants will be fully paid and free from any mortgage, charge, lien, encumbrance or other security interest.5. DEALINGS IN EQUIGOLD SHARES
5.1 Determination of Scheme Participants
For the purpose of establishing who are the Scheme Participants, dealings in Equigold Shares will only be recognised if:
(a) in the case of dealings of the type to be effected using CHESS, the transferee is registered in the Register as the holder of the relevant Equigold Shares at or before the Record Date; and
(b) in all other cases, registrable transmission applications or transfers in registrable form in respect of those dealings are received at or before the Record Date at the place where the Register is kept.
5.2 Register
(a) Transmission applications or transfers received at or before the Record Date: Equigold must register registrable transmission applications or transfers of the kind referred to in clause 5.1(b) by the Record Date.
(b) Transmission applications or transfers received after the Record Date: Equigold will not accept for registration or recognise for any purpose any transmission applications or transfers in respect of Equigold Shares received after the Record Date, other than a transfer to Lihir Acquirer in accordance with the Scheme.
(c) Maintaining of the Register: For the purpose of determining entitlements to participate in the Scheme, Equigold will, until the Scheme Consideration has been provided, maintain the Register in accordance with the provisions of this clause 5 and, subject to clause 4.7, the Register in this form will solely determine entitlements to the Scheme Consideration.
(d) Scheme Participant details: Equigold must procure that by 9.00am on the Implementation Date, details of the names, registered addresses and holdings of Equigold Shares of every Scheme Participant as shown in the Register at the Record Date are available to LGL in such form as LGL may reasonably require.
(e) Effect of the Record Date: All statements of holding for Equigold Shares (other than statements of holding in favour of Lihir Acquirer) will cease to have any effect from the Record Date as documents of title in respect of those Equigold Shares. As from the Record Date, each entry current at that date on the Register relating to Equigold Shares will cease to be of any effect other than as evidence of entitlement to the Scheme Consideration in respect of the Equigold Shares relating to that entry.6. QUOTATION OF SHARES
6.1 Suspension of trading in Equigold Shares
It is expected that suspension of trading on ASX in Equigold Shares will occur from the close of trading in marketable securities on ASX on the Effective Date.
6.2 Termination from official quotation of Equigold Shares
Equigold will apply for termination of the official quotation of Equigold Shares on ASX and the removal of Equigold from the official list of ASX with effect from the Business Day after the date on which all transfers of the Scheme Shares to Lihir Acquirer have been duly registered by Equigold in accordance with this Scheme.
6.3 Quotation of New Lihir Shares
LGL will apply for official quotation of the New Lihir Shares on ASX, POMSoX and TSX and will request that those shares be quoted on a deferred settlement basis as soon as practicable after the Effective Date and on a normal settlement basis as from the first Business Day after the Implementation Date, which approval for quotation may be conditional on the issue of those shares and other conditions customarily imposed by ASX (or POMSoX or TSX or as appropriate) including implementation of the Scheme.7. GENERAL
7.1 Appointment of attorney
Each Scheme Participant, without the need for any further act, irrevocably appoints Equigold and all of its directors and officers (jointly and severally) as its attorney and agent for the purpose of executing any document necessary to give effect to the Scheme including a proper instrument of transfer of Equigold Shares held by Scheme Participants for the purposes of section 1071B of the Corporations Act (which may be a master transfer of all the Equigold Shares held by Scheme Participants) and any instrument appointing Lihir Acquirer as sole proxy for or, where applicable, corporate representative of each Scheme Participant as contemplated by clause 3.6.
7.2 Equigold and Scheme Participants bound
The Scheme binds Equigold and all Scheme Participants and will, for all purposes, have effect notwithstanding any inconsistent provision in the constitution of Equigold to the extent permitted by law.
7.3 Further assurances
Equigold will execute all documents and do all acts and things necessary or expedient for the implementation of, and performance of its obligations under, the Scheme.
7.4 Authority
Each of the Scheme Participants consent to Equigold doing all things necessary or incidental to the implementation of the Scheme.
7.5 Communications
Where a notice, transfer, transmission application, direction or other communication referred to in the Scheme is sent by post to Equigold, it will not be deemed to have been received in the ordinary course of post or on a date other than the date (if any) on which it is actually received at Equigold's registered office or at the share registry of Equigold. If communications are sent by fax, they are taken to be received at the time shown in the transmission report as the time that the whole fax was sent.
7.6 Alterations and conditions
Equigold may, with the consent of Lihir Acquirer (which consent will not be unreasonably withheld or delayed), by its counsel consent on behalf of all Scheme Participants to any modifications or conditions which the Court thinks fit to impose.
7.7 Stamp Duty
LGL will pay any stamp duty and any related fines, penalties and interest payable on, or in connection with the transfer by Scheme Participants of the Equigold Shares to Lihir Acquirer.
7.8 Governing law
This Scheme is governed by the laws of the State of Western Australia. The parties submit to the non-exclusive jurisdiction of the courts in the State of Western Australia and of the Commonwealth of Australia and courts of appeal from them.8. DEFINITIONS AND INTERPRETATION
8.1 Definitions
In this Scheme, except where the context otherwise requires:
ASIC means the Australian Securities and Investments Commission.
ASX means ASX Limited (ACN 008 624 691).
ASX Listing Rules means the official listing rules of ASX as from time to time amended or waived in their application to a party.
Business Day means a business day as defined in the ASX Listing Rules.
CHESS means the Clearing House Electronic Subregister System, which facilitates electronic security transfer in Australia.
Corporations Act means the Corporations Act 2001 (Cth).
Court means the Federal Court of Australia or any other court of competent jurisdiction (as agreed by the parties).
Deed Poll means the deed poll made by LGL in favour of Scheme Participants, a copy of which is annexed to the Scheme Booklet.
Effective when used in relation to the Scheme, means the coming into effect, pursuant to section 411(10) of the Corporations Act, of the order of the Court made under section 411(4)(b) of the Corporations Act in relation to the Scheme, but in any event at no time before an office copy of the order of the Court is lodged with ASIC.
Effective Date means the date on which the Scheme becomes Effective.
End Date means 30 September 2008 or such other date as agreed in writing between Equigold and Lihir Acquirer.
Equigold Shareholders means each person who is registered in the register of members of Equigold as the holder of Equigold Shares.
Equigold Shares means the fully paid ordinary shares in Equigold.
Implementation Date means the third Business Day (or earlier if agreed between Equigold, LGL and Lihir Acquirer) following the Record Date.
Ineligible Overseas Shareholder means an Overseas Shareholder, unless LGL determines that:
(a) it is lawful and not unduly onerous and not unduly impracticable to issue that Overseas Shareholder with New Lihir Shares when the Scheme becomes Effective; or
(b) it is lawful for that Overseas Shareholder to participate in the Scheme by the law of the relevant place outside Australia and New Zealand and their external territories.LGL means Lihir Gold Limited ARBN 069 803 998.
LGL Constitution means the LGL Constitution as amended from time to time.
Lihir Acquirer means Lihir Australian Holdings Pty Limited ACN 121 554 443.
Lihir Shares means ordinary shares in LGL.
Merger Implementation Agreement means the Merger Implementation Agreement between LGL, Lihir Acquirer and Equigold dated 20 March 2008, a copy of which is annexed to the Scheme Booklet.
NASDAQ means Nasdaq Stock Market Inc. National Market.
New Lihir Shares means fully paid ordinary shares in the capital of LGL to be issued under the Scheme.
Nominee has the meaning given to that term in clause 4.3.
Overseas Shareholder means a Equigold Shareholder who is (or is acting on behalf of) a citizen or resident of a jurisdiction other than residents of Australia or New Zealand and their respective external territories, or whose address shown in the Register is a place outside Australia or New Zealand and their respective external territories or who is acting on behalf of such a person.
PMSoX means the Port Moresby Stock Exchange Limited.
Record Date means 7.00pm on the fifth Business Day following the Second Court Hearing date or such other date and time as Equigold and Lihir Acquirer agree.
Register means the register of Equigold Shareholders maintained in accordance with the Corporations Act and Registry has a corresponding meaning.
Related Body Corporate has the meaning given to that term in the Corporations Act.
Scheme means this scheme of arrangement subject to any modifications or conditions made or required by the Court pursuant to Section 411(6) of the Corporations Act and agreed or consented to by Equigold and Lihir Acquirer.
Scheme Booklet means the explanatory statement that is registered by ASIC under section 412(6) of the Corporations Act in relation to the Scheme.
Scheme Consideration means the New Lihir Shares to be issued by LGL to each Scheme Participant in accordance with clause 4.1.
Scheme Participant means a holder of Equigold Shares as at the Record Date (other than Lihir Acquirer to the extent that it holds Equigold Shares as at the Record Date).
Second Court Hearing means the hearing of the application made to the Court for an order pursuant to sections 411(4)(b) and 411(6) of the Corporations Act approving the Scheme.
TSX means Toronto Stock Exchange.
8.2 Interpretation
In this Scheme, unless the context otherwise requires:
(a) headings and bolding are for convenience and do not affect interpretation;
(b) the singular includes the plural and vice versa;
(c) the word “person” includes a body corporate, a partnership, a joint venture, an unincorporated body or association, or any government agency;
(d) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes and assigns;
(e) words and phrases have the same meaning (if any) given to them in the Corporations Act;
(f) references to any legislation or regulations include any statutory modification of or substitution for such legislation or regulations;
(g) references to agreements or deeds are to agreements or deeds as amended from time to time;
(h) a reference to a clause, party, annexure, exhibit or schedule is a reference to a clause of, and a party, annexure, exhibit and schedule to, the Scheme and a reference to the Scheme includes any annexure, exhibit and schedule;(i) the words “including”, “for example” or “such as” when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind;
(j) a reference to a holder includes a joint holder;
(k) references to a currency are to Australian currency; and
(l) a reference to time is a reference to Australian Western Standard Time.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 544 OF 2008
IN THE MATTER OF EQUIGOLD NL
EQUIGOLD NL
Plaintiff
JUDGE:
EMMETT J
DATE:
3 JUNE 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 23 April 2008, the Court made orders for the plaintiff, Equigold NL (Equigold), to convene a meeting of certain of its members for the purposes of considering a proposed scheme of arrangement (the Scheme) between Equigold and most of its shareholders, being all shareholders other than holders in respect of shares held by Lihir Australian Holdings Pty Limited (the Lihir Acquirer). Those orders were varied on 30 April 2008 because of a difficulty in complying strictly with the date required for the dispatch of certain documents to members. The effect of the Scheme is that Equigold will become a wholly owned subsidiary of Lihir Gold Limited (LGL).
A meeting of shareholders was held on 30 May 2008. At the meeting, the resolution put concerning agreement to the Scheme was passed. A total of 145,767,610 votes were cast, of which 137,444,357 votes, representing 94.29% of all votes cast and 91.28% of shareholders who voted, were cast in favour of the resolution. While there were votes cast against the resolution, they represented only 5.71% of votes cast and 8.26% of shareholders who voted. Notwithstanding that some votes were cast against the resolution, no one has appeared to oppose the application presently being made by Equigold for approval of the Scheme, pursuant to s 411 of the Corporations Act 2001 (Cth) (the Act).
Had there been opposition to the approval of the Scheme, the fact that the votes cast in favour represent substantially less than 90% of the total votes that could have been cast, if all of the members of Equigold participated in the meeting, may have been a relevant factor. However, as I have said, since there is no opposition, the 90% figure that might have been relevant for compulsory acquisition in the event of an offer is irrelevant.
I am satisfied that on 1 and 2 May 2008 a Scheme Booklet, which included the Notice of Scheme Meeting and Explanatory Statement approved by the Australian Securities and Investment Commission (ASIC), together with a personalised proxy form and reply-paid envelope addressed to the share registrar, was dispatched by prepaid post, and in the case of shareholders outside Australia, by prepaid airmail, to all shareholders affected by the Scheme. That dispatch occurred in accordance with the orders made by the Court on 23 April 2008 as varied on 30 April 2008.
A notice of the hearing today was published in The Australian newspaper on 27 May 2008, in accordance with the orders made by the Court. By letter of 2 June 2008, ASIC has informed Equigold’s solicitors that it has no objection to the Scheme. That indication has been given pursuant to s 411(17)(b) of the Act, having regard to ASIC’s criteria for providing such a statement as set out in ASIC’s Regulatory Guide 142, Schemes of Arrangement and ASIC Review. The Court has been informed that LGL intends to rely upon the Court’s approval for the purposes of obtaining an exemption under s 3A(10) of the Securities Act of 1933 (US).
I have had regard to the affidavits of Nicola Enrico Antonio Giorgetta of 30 May 2008, David Andrew Cheng Kim Lim of 30 May 2008, Taylor Tracii Fam of 30 May 2008 and Stanley Robert Lewis of 2 June 2008. The evidence of those affidavits establishes the matters to which I have briefly referred.
I have also had regard to the affidavits that were read on 23 April 2008 in connection with the application by Equigold for orders convening the meeting of the shareholders of Equigold. On that occasion, those affidavits persuaded me that the terms of the Scheme, in the absence of opposition, were such that it would be likely to be approved by the Court if agreed to by the requisite majority of the members of Equigold, as contemplated by s 411. That evidence included evidence from appropriate experts concerning the consequences for shareholders in the event that the Scheme is approved.
The Scheme itself and the obligations of the parties involved in the Scheme were conditional upon certain events either occurring or not occurring. Clause 2.3 of the Scheme provides that each of Equigold and the Lihir Acquirer provide to the Court a certificate confirming that all of the conditions precedent in the Merger Implementation Agreement and the Scheme, other than approval of the Court, have been satisfied or waived in accordance with the Merger Implementation Agreement. I am satisfied from certificates tendered on behalf of Equigold signed by each of Equigold and the Lihir Acquirer, that the relevant provisions have either been satisfied or waived.
Section 411(11) of the Act provides that a copy of every order of the Court made under s 411 which is binding on members must be annexed to every copy of the constitution of the company issued after the order has been made. However, under s 411(12) the Court may, by order, exempt a body from complying with s 411(11). Equigold has asked the Court to make such an order and it is appropriate to do so. I propose to make an order under s 11(12).
In all of the circumstances, I am satisfied that the Scheme agreed to by the members should be approved pursuant to s 411.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 17 June 2008
Counsel for the Plaintiff: Mr I Jackman SC Solicitor for the Plaintiff: Corrs Chambers Westgarth Date of Hearing: 3 June 2008 Date of Judgment: 3 June 2008
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