Lipa Pharmaceuticals Limited (ACN 070 106 526) No 2, in the matter of Lipa Pharmaceuticals Limited (ACN 070 106 526)
[2007] FCA 1628
•22 October 2007
FEDERAL COURT OF AUSTRALIA
Lipa Pharmaceuticals Limited (ACN 070 106 526) No 2, in the matter of Lipa Pharmaceuticals Limited (ACN 070 106 526) [2007] FCA 1628
IN THE MATTER OF LIPA PHARMACEUTICALS LIMITED (ACN 070 106 526)
NSD1724 OF 2007
EMMETT J
22 OCTOBER 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1724 OF 2007
IN THE MATTER OF LIPA PHARMACEUTICALS LIMITED (ACN 070 106 526)
LIPA PHARMACEUTICALS LIMITED
PlaintiffJUDGE:
EMMETT J
DATE OF ORDER:
22 OCTOBER 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to subsection 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth) (the Act), the scheme of arrangement between Lipa Pharmaceuticals Limited (ABN 21 070 106 526) (Lipa) and the holders of ordinary shares in Lipa, in the form annexed hereto, be approved.
2.Pursuant to section 411(12) of the Act, Lipa be exempted from compliance with section 411(11) of the Act.
3.These Orders be entered forthwith.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
Scheme of Arrangement
between
Lipa Pharmaceuticals Limited
ABN 20 070 106 526
The holders of fully paid ordinary shares in Lipa Pharmaceuticals Limited
as at the Record DateCONTENTS
CONTENTS 2
1. PRELIMINARY 3
2. CONDITIONS 4
3. SCHEME 5
4. SCHEME CONSIDERATION 7
5. DEALINGS IN LIPA SHARES 7
6. QUOTATION OF SHARES 8
7. GENERAL 8
8. DEFINITIONS AND INTERPRETATION 9
SCHEME OF ARRANGEMENT
pursuant to section 411 of the Corporations Act
between
Lipa Pharmaceuticals Limited ABN 20 070 106 526 (Lipa)
and
the holders of fully paid ordinary shares in Lipa as at the Record Date1. PRELIMINARY
1.1 LipaLipa is a public company incorporated in Australia and registered in New South Wales, having its registered office at 21 Reaghs Road, Minto, New South Wales. Lipa is a public company limited by shares under section 112(1) of the Corporations Act and Lipa’s Shares are quoted on the official list of ASX.
1.2 CK Life Newco
CK Life Newco is Apil Healthcare Int'l Pty Limited which is an Australian limited liability company which is a wholly owned subsidiary of CK Life Sciences Int'l., (Holdings) Inc., a company listed on the Growth Enterprise Market of the Stock Exchange of Hong Kong.
1.3 Effect of Scheme
If the Scheme becomes Effective, then:
(a)in consideration of the transfer of the Scheme Shares to CK Life Newco, CK Life Newco will provide, or procure the provision of, the Scheme Consideration to Scheme Participants in accordance with the terms of the Scheme; and
(b)Lipa will enter the name of CK Life Newco in the Register in respect of all of the Scheme Shares transferred to CK Life Newco in accordance with the terms of the Scheme; and
(c)all of the Scheme Shares held by Scheme Participants will be transferred to CK Life Newco and Lipa will become a wholly-owned subsidiary of CK Life Newco.
1.4 Scheme Implementation Agreement
CK Life Newco and Lipa have agreed, in accordance with the Scheme Implementation Agreement, to implement the terms of the Scheme and to perform their respective obligations under the Scheme.
1.5 Deed Poll
CK Life Newco 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 Implementation Agreement and do all things necessary or expedient on its part to implement the Scheme.
2. CONDITIONS
2.1 Conditions of SchemeThe Scheme is conditional on:
(a)all of the conditions precedent in clause 2.1 of the Scheme Implementation Agreement having been satisfied or waived in accordance with the terms of the Scheme 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;
(b)as at 8.00am on the Second Court Hearing Date neither the Scheme Implementation Agreement nor the Deed Poll have been terminated; and
(c)no votes being cast at the Scheme Meeting whether in person, by proxy or by its corporate representative, in respect of any Lipa Shares in which CK Life Newco or its Associates have a Relevant Interest.
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
Lipa and CK Life Newco will each provide to the Court at the Second Court Hearing a certificate confirming whether or not all the conditions precedent in the Scheme Implementation Agreement (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.
2.4 Conclusive evidence
The giving of a certificate by each of Lipa and CK Life Newco 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 orderFollowing the approval of the Scheme by the Court in accordance with section 411(4)(b) of the Corporations Act, Lipa will, as soon as possible, and in any event no later than 5.00pm on the Business Day following that approval or such later time as may be agreed between Lipa and CK Life Newco, 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 Scheme Shares held by Scheme Participants
On the Implementation Date and subject to payment of the Scheme Consideration by the CK Life Newco in accordance with the Deed Poll:
(a)the Scheme Shares held by Scheme Participants, together with all rights and entitlements attaching to them as at that date, will be transferred to CK Life Newco without the need for any further acts by Scheme Participants;
(b)to transfer all of the Scheme Shares held by Scheme Participants to CK Life Newco, Lipa will either effect a valid transfer or transfers of the Scheme Shares under section 1074D of the Corporations Act or deliver to CK Life Newco duly completed and executed share transfer forms (or a master transfer form) in accordance with section 1071B of the Corporations Act and CK Life Newco will execute and deliver those share transfer form(s) to Lipa; and
(c)as soon as practicable after receipt of the transfer forms, Lipa will enter the name of CK Life Newco in the Register in respect of all the Scheme Shares transferred to CK Life Newco 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 Scheme Shares (together with all rights and entitlements attaching to the Scheme Shares) to CK Life Newco in accordance with the terms of the Scheme.
3.4 Warranties by Scheme Participants
Each Scheme Participant is deemed to have warranted to Lipa and appointed and authorised Lipa as its attorney and agent to warrant to CK Life Newco, that all its Scheme Shares (including any rights and entitlements attaching to those shares) which are transferred to CK Life Newco under the Scheme will, at the date of the transfer of the Scheme Shares to CK Life Newco, 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 Scheme Shares (including any rights and entitlements) to CK Life Newco under the Scheme.
3.5 Beneficial entitlement by CK Life Newco
From the Implementation Date, CK Life Newco shall be beneficially entitled to the Scheme Shares (together with all rights and entitlements attached to the Scheme Shares) transferred to it under the Scheme pending registration by Lipa of CK Life Newco in the Register as the holder of those Scheme Shares.
3.6 Appointment of CK Life Newco as sole proxy
From the Effective Date until Lipa registers CK Life Newco as the holder of all the Scheme Shares in the Register, each Scheme Participant:
(a)is deemed to have irrevocably appointed Lipa as attorney and agent (and directed Lipa in such capacity) to appoint the Chairman of CK Life Newco as its sole proxy and where applicable, corporate representative, to attend shareholders meetings, exercise the votes attaching to Scheme 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 Scheme Shares as CK Life Newco directs.
Lipa undertakes in favour of each Scheme Participant that it will appoint the Chairman of CK Life Newco as that Scheme Participant’s proxy or, where applicable, corporate representative in accordance with clause 3.6(a).
3.7 Appointment of Lipa as sole attorney and agent
Each Scheme Participant without the need for any further act, irrevocably appoints Lipa and each of the directors and officers of Lipa, jointly and severally, as the Scheme Participant's attorney and agent for the purpose of:
(a)in the case of Scheme Shares in a CHESS holding:
(i)causing a message to be transmitted to ASTC in accordance with the ASTC Settlement Rules so as to transfer the Scheme Shares held by the Scheme Participant from the CHESS subregister of Lipa to the issuer sponsored subregister operated by Lipa; and
(ii)completing and signing on behalf of Scheme Participants any required form of transfer of Scheme Shares;
(b)in the case of Scheme Shares registered in the issuer sponsored subregister, completing and signing on behalf of Scheme Participants any required form of transfer; and
(c)in all cases, executing any document necessary or expedient to give effect to the Scheme (including any other instrument of transfer necessary to give effect to the registration of CK Life Newco as the holder of all the Scheme Shares held by the Scheme Participants and any instrument appointing CK Life Newco as sole proxy for or, where applicable, corporate representative of each Scheme Participant as contemplated by clause 3.6) or doing any other act necessary or desirable to give full effect to the Scheme and the transactions contemplated by it.
4. SCHEME CONSIDERATION
4.1 Scheme ConsiderationOn the Implementation Date, CK Life Newco must pay the Scheme Consideration to the Scheme Participants in accordance with the Deed Poll.
4.2 Joint holders
In the case of Scheme Shares held in joint names the Scheme Consideration is payable to the joint holders and must be paid to the holder whose name appears first in the Register as at the Record Date.
5. DEALINGS IN LIPA SHARES
5.1 Determination of Scheme ParticipantsFor the purpose of establishing who are the Scheme Participants, dealings in Scheme 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 Scheme Shares at 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: Lipa 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: Lipa will not accept for registration or recognise for any purpose any transmission applications or transfers in respect of Scheme Shares received after the Record Date, other than a transfer to CK Life Newco in accordance with the Scheme and any subsequent transfer by CK Life Newco, or its successors in title.
(c)Maintaining of the Register: For the purpose of determining entitlements to the Scheme Consideration, Lipa will, until the Scheme Consideration has been provided, maintain the Register in accordance with the provisions of this clause 5 and the Register in this form will solely determine entitlements to the Scheme Consideration.
(d)Scheme Participant details: Lipa must procure that as soon as possible after the Record Date and in any event at least two Business Days before the Implementation Date, details of the names, registered addresses and holdings of Scheme Shares of every Scheme Participant as shown in the Register at the Record Date are available to CK Life Newco in such form as CK Life Newco may reasonably require.
(e)Effect of the Record Date: All statements of holding for Scheme Shares (other than statements of holding in favour of CK Life Newco) will cease to have any effect from the Record Date as documents of title in respect of those Scheme Shares. As from the Record Date, each entry current at that date on the Register relating to Scheme Shares will cease to be of any effect other than as evidence of entitlement to the Scheme Consideration in respect of the Scheme Shares relating to that entry.
6. QUOTATION OF SHARES
Lipa will apply for termination of the official quotation of Lipa Shares on ASX and the removal of Lipa from the official list of ASX with effect from the Business Day after the date on which all transfers of the Scheme Shares to CK Life Newco have been duly registered by Lipa in accordance with this Scheme.
7. GENERAL
7.1 Appointment of attorneyEach Scheme Participant, without the need for any further act, irrevocably appoints Lipa 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 Scheme Shares held by Scheme Participants for the purposes of section 1071B of the Corporations Act (which may be a master transfer of all the Scheme Shares held by Scheme Participants) and any instrument appointing CK Life Newco as sole proxy for or, where applicable, corporate representative of each Scheme Participant as contemplated by clause 3.6.
7.2 Lipa and Scheme Participants bound
The Scheme binds Lipa and all Scheme Participants and will, for all purposes, have effect notwithstanding any provision in the constitution of Lipa.
7.3 Further assurances
Lipa 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 consents to Lipa doing all things expedient, 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 Lipa, 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 Lipa's registered office or at the share registry of Lipa.
7.6 Alterations and conditions
Lipa may, with the consent of CK Life Newco, 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
CK Life Newco will pay any stamp duty payable on the transfer by Scheme Participants of the Scheme Shares to CK Life Newco.
7.8 Governing law
This Scheme is governed by the laws of New South Wales. The parties submit to the non-exclusive jurisdiction of the courts in New South Wales.
8. DEFINITIONS AND INTERPRETATION
8.1 DefinitionsIn this Scheme, except where the context otherwise requires:
ASIC means the Australian Securities and Investments Commission.
Associate has the meaning given to it in the Corporations Act.
ASX means ASX Limited (ACN 008 624 691).
ASTC means ASX Transfer and Settlement Corporation Pty Limited.
Business Day means a business day as defined in the Listing Rules published by ASX.
CHESS means the Clearing House Electronic Subregister System, which facilitates electronic security transfer in Australia.
CK Life Newco means Apil Healthcare Int'l Pty Limited which is an Australian limited liability Company which is a wholly owned subsidiary of CK Life Sciences Int'l., (Holdings) Inc., a company listed on the Growth Enterprise Market of the Stock Exchange of Hong Kong.
Corporations Act means the Corporations Act 2001 (Cth).
Court means the Supreme Court of News South Wales or the Federal Court of Australia (as agreed by the parties).
Deed Poll means the deed poll made by CK Life Newco in favour of Scheme Participants, a copy of which is to be annexed to the Scheme Booklet.
Effective 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) 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 31 December 2007 or such other date as agreed in writing between Lipa and CK Life Newco.
Implementation Date means 3 Business Days (or earlier if agreed) following the Record Date or such later date as ordered by the Court or agreed between the parties.
Lipa Share means a fully paid ordinary share in Lipa.
Lipa Shareholder means each person who is registered in the register of members of Lipa as the holder of an Lipa Share.
Record Date means 5.00pm on the fifth Business Day following the Effective Date or such other date and time as Lipa and CK Life Newco agree in writing.
Register means the share register of Lipa and Registry has a corresponding meaning.
Scheme means 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 Lipa and CK Life Newco which if implemented will give effect to the merger between CK Life Newco and Lipa as described in clause 3 of the Scheme Implementation Agreement.
Scheme Booklet means the explanatory statement with respect to the Scheme to be approved by the Court and despatched to Lipa Shareholders.
Scheme Consideration means $0.95 cash to be paid for each Scheme Share pursuant to the Scheme.
Scheme Implementation Agreement means the scheme implementation agreement between CK Life Sciences Int'l., (Holdings) Inc. And Lipa dated 3 August 2007.
Scheme Meeting means the meeting(s) to be convened by the Court in relation to the Scheme pursuant to section 411(1) of the Corporations Act
Scheme Participant means each holder of Scheme Shares as at the Record Date (other than CK Life Newco to the extent that it holds Lipa Shares).
Scheme Shares means all the Lipa Shares on issue at the Record Date, other than any Lipa Shares held by CK Life Newco Group on the Record Date.
Second Court Hearing means the first day on which an application made to the court for an order pursuant to section 411(4)(b) of the Corporations Act approving the Scheme is heard.
Subsidiary has the meaning given to that term in the Corporations Act.
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 the time in Sydney, Australia.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1724 OF 2007
IN THE MATTER OF LIPA PHARMACEUTICALS LIMITED (ACN 070 106 526)
LIPA PHARMACEUTICALS LIMITED
PlaintiffJUDGE:
EMMETT J
DATE:
22 OCTOBER 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 14 September 2007 the Court ordered, pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act), that Lipa Pharmaceuticals Limited (the Company) convene a meeting of the holders of ordinary shares in its capital, for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement between the Company and its shareholders. The meeting was convened and the Company has now applied to the Court for approval of the scheme pursuant to s 411 of the Act.
I am satisfied from the affidavits of Tom McDonald, sworn 20 October 2007, David Ronald Zwi, sworn 22 October 2007, Peter Drew, sworn 19 October 2007, Philip Moulton Maxwell, sworn 22 October 2007, Anne Caroline Sullivan, sworn 22 October 2007 and Anthony Simms, sworn 19 September 2007, that the meeting was convened in accordance with the orders made by the Court on 14 September 2007.
At the meeting, 70,504,084 votes, representing 98.51% of the votes cast, were cast in favour of the resolution by 638 shareholders, representing 89.4% of the shareholders voting. 1,067,752 votes, representing 1.49% of the votes cast, were cast against the resolution by 75 shareholders. A number of shareholders abstained. It follows, therefore, that the resolution was passed by the requisite majority contemplated by s 411 of the Act.
The evidence to which I have referred includes evidence that Australian Securities and Investments Commission (the Commission) has indicated by letter of 19 October 2007 to the Company’s solicitors that the Commission has no objection to the scheme on the basis that it is satisfied that the scheme has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6 of the Act. The Commission therefore indicated that it did not propose to appear to make submissions or intervene to oppose the scheme at the hearing today.
The hearing has been duly advertised and when the matter was called, there was no appearance except by senior counsel on behalf of the Company. The evidence to which I have referred also indicates that no one has given notice to the Company’s solicitors of an intention to appear on the hearing of today’s application.
In all of the circumstances, I am satisfied that the scheme should be approved.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate:
Dated: 12 November 2007
Counsel for the Applicant: Mr I M Jackman SC Solicitor for the Applicant: Blake Dawson Waldron Date of Hearing: 22 October 2007 Date of Judgment: 22 October 2007
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