Powertel Ltd ACN 001 760 103 No 2

[2007] FCA 772

FEDERAL COURT OF AUSTRALIA

Powertel Ltd ACN 001 760 103 No 2 [2007] FCA 772

Corporations Act 2001 (Cth), s 411

POWERTEL LTD ACN 001 760 103

NSD352 OF 2007

EMMETT J
30 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD352 OF 2007

POWERTEL LTD ACN 001 760 103 Plaintiff
JUDGE:	EMMETT J
DATE OF ORDER:	30 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) the scheme of arrangement between PowerTel Limited (PowerTel) and its members, in the form annexed hereto and marked "A", be approved.

2.Pursuant to section 411(12) of the Corporations Act 2001 (Cth), PowerTel be exempted from compliance with section 411(11) of the Corporations Act 2001 (Cth).

3.These orders be entered forthwith.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

"A"

SCHEME OF ARRANGEMENT

PowerTel Limited

and

The holders of fully paid ordinary shares in PowerTel Limited as at the Scheme Record Date

CONTENTS

Clause
Number             Heading  Page

1  Definitions and Interpretation  1

2  Preliminary  5

3  Conditions Precedent  6

4  Implementation of the Scheme  7

5  Dealings in PowerTel Shares  9

6  General Scheme Provisions  11

Scheme of Arrangement Pursuant to section 411 of the Corporations Act 2001 (Cth)
Parties	PowerTel Limited (ABN 69 001 760 103) of Level 11, 55 Clarence Street, Sydney 2000 (PowerTel)
The holders of fully paid ordinary shares in PowerTel Limited as at the Scheme Record Date

Operative provisions

1.        Definitions and Interpretation
Definitions
1.1      In this document, unless the context otherwise requires:

Act means the Corporations Act 2001 (Cth).
ASIC means the Australian Securities and Investments Commission.
ASTC means ASX Settlement and Transfer Corporation Pty Ltd ABN 49 008 504 532.
ASX means ASX Limited (ACN 008 624 691) or the securities market which it operates, as the context requires.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Sydney.
CHESS means the Clearing House Electronic Subregister System for the electronic transfer of securities, operated by ASTC.
Conditions Precedent means the conditions precedent set out in clause 3.1.
Court means a court of competent jurisdiction under the Act.
Deed Poll means the deed poll dated 19 March 2007 executed by Telecom under which it has, amongst other things, covenanted in favour of PowerTel's Shareholders to perform its obligations under the Scheme.
Dispatch Date means the day that the Scheme Booklet is despatched to PowerTel's Shareholders.
Effective means, when used in relation to the Scheme, the coming into effect, under section 411(10) of the Act, of the Court order made under section 411(4)(b) of the Act in relation to the Scheme.
Effective Date means the date on which the Scheme becomes Effective.
First Court Hearing Date means the date the Court hears the application to order the convening of the Scheme Meeting under section 411(1) of the Act.
Implementation Date means the second Business Day following the Scheme Record Date or such other date as Telecom and PowerTel agree in writing.
Listing Rules means the listing rules of ASX as amended from time to time.
Marketable Parcel has the meaning given to that term in the ASX Market Rules.
Merger Implementation Agreement means the Merger Implementation Agreement dated 31 January 2007 between PowerTel and Telecom.
PowerTel means PowerTel Limited ABN 69 001 760 103.
PowerTel Shareholder means each person who is registered in the Register as a holder of PowerTel's Shares.
PowerTel's Share Registry means Computershare Investor Services Pty Limited.
PowerTel Shares means issued fully paid ordinary shares in PowerTel.
Register means the register of PowerTel Shareholders.
Registered Address means in relation to a PowerTel Shareholder, the address shown in the Register.
Related Body Corporate has the meaning given in section 50 of the Act.
Scheme means this scheme of arrangement, subject to any alterations or conditions made or required by the Court under section 411(6) of the Act.
Scheme Booklet means the document despatched to PowerTel Shareholders and approved by the Court, including amongst other things this document, an explanatory statement in relation to the Scheme issued under section 412 of the Act and registered with ASIC, an independent expert's report, copies of each of the Merger Implementation Agreement and the Deed Poll and a notice convening the Scheme Meeting (together with proxy forms).
Scheme Consideration means $2.30  in respect of each PowerTel Share held by a Scheme Shareholder as at the Scheme Record Date.
Scheme Meeting means the PowerTel Shareholders' meeting or meetings ordered by the Court to be convened under section 411(1) of the Act in relation to the Scheme.
Scheme Order means an order of the Court made for the purposes of section 411(4)(b) of the Act in relation to the Scheme.
Scheme Record Date means 7.00pm on the fifth Business Day after the Effective Date.
Scheme Shareholder means a holder of Scheme Shares as at 7.00 pm on the Scheme Record Date.
Scheme Shares means all PowerTel Shares as at 7.00 pm on the Scheme Record Date other than PowerTel Shares held by Telecom.
Second Court Hearing Date means the first day of hearing of an application made to the Court for orders pursuant to section 411(4)(b) of the Act approving the Scheme.
Sunset Date means the date on which the Scheme will lapse as set out in clause 3.2.
Telecom means Telecom Enterprises Australia Pty Limited (ACN 062 920 601).

Interpretation
1.2      In this document:

(a)       unless the context otherwise requires, a reference:

(i)       to the singular includes the plural and vice versa;

(ii)       to a gender includes all genders;

(iii)to a document (including this document) is a reference to that document (including any Schedules and Annexures) as amended, consolidated, supplemented, novated or replaced;

(iv)      to a law:

(A)includes a reference to any constitutional provision, subordinate legislation, treaty, decree, convention, statute, regulation, rule, ordinance, proclamation, by-law, judgment, rule of common law or equity or rule of any applicable stock exchange;

(B)is a reference to that law as amended, consolidated, supplemented or replaced; and

(C)is a reference to any regulation, rule, ordinance, proclamation, by-law or judgment made under that law;

(v)      to time is a reference to Sydney time;

(b)headings are for convenience only and are ignored in interpreting this document;

(c)the word "including" or "includes" means "including but not limited to" or "including without limitation"; and

(d)where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

Business Day

1.3Where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day.

2         Preliminary
PowerTel

2.1PowerTel is a public company incorporated in Australia and registered in New South Wales and is a company limited by shares.  Its registered office is at Level 11, 55 Clarence Street, Sydney 2000.

2.2PowerTel has been admitted to the official list of ASX and PowerTel Shares have been granted official quotation on the stock market conducted by ASX.

2.3As at 9 March 2007, 139,146,059 PowerTel Shares were on issue.

Telecom

2.4Telecom is a proprietary company registered in New South Wales and is a company limited by shares. 

2.5Telecom's address is care of AAPT Limited, Level 23, 680 George Street, Sydney NSW 2000.

Summary of the Scheme

2.6If the Scheme becomes Effective then:

(a)all the Scheme Shares, and all the rights and entitlements attaching to them as at the Implementation Date, will be transferred to Telecom and Telecom will pay or procure the payment of the Scheme Consideration to Scheme Shareholders in accordance with the provisions of the Scheme; and

(b)PowerTel will enter the name and address of Telecom in the Register as the holder of the Scheme Shares.

Merger Implementation Agreement

2.7PowerTel and Telecom have entered into the Merger Implementation Agreement, to facilitate the implementation of the Scheme.  In particular, PowerTel and Telecom have agreed that each of them must use its reasonable endeavours to give effect to the Scheme and to execute all documents and do all acts and things as may be necessary or desirable for the implementation of the Scheme.

Deed Poll

2.8Telecom has executed the Deed Poll in favour of the Scheme Shareholders, under which it has covenanted to perform the obligations contemplated of it under the Scheme (including to pay the Scheme Consideration in accordance with the Scheme).

3         Conditions Precedent

Conditions
3.1      The Scheme is conditional on each of the following conditions precedent:

(a)as at 8:00 am on the Second Court Hearing Date, the Merger Implementation Agreement has not been terminated;

(b)as at 8:00 am on the Second Court Hearing Date, all of the conditions set out in clause 3.1 of the Merger Implementation Agreement, other than those in clauses 3.1(c) and (d), having been satisfied or waived in accordance with the terms of the Merger Implementation Agreement;

(c)the Scheme has been approved by the requisite majority of PowerTel Shareholders in accordance with section 411(4)(a) of the Act at the Scheme Meeting;

(d)the Court has approved the Scheme, with or without modification, under section 411(4)(b) of the Act; and

(e)such other conditions made or required by the Court under section 411(6) of the Act in relation to the Scheme have been satisfied,

and the obligations of Telecom and PowerTel under clauses 4.2 to 4.5 and 5 of the Scheme will be of no force or effect unless and until the Conditions Precedent are satisfied.

Sunset Date

3.2The Scheme will lapse and have no further force or effect if the Effective Date does not occur by 5.00pm on 1 June 2007 or such other date and time agreed in writing between Telecom and PowerTel.

Certificate

3.3Telecom and PowerTel will each provide to the Court on the Second Court Hearing Date a certificate as at 9.00am on the Second Court Hearing Date confirming (in respect of matters within their knowledge) whether or not all of the conditions set out in clause 3.1 of the Merger Implementation Agreement (other than other than those in clauses 3.1(c) and (d)) have been satisfied or waived in accordance with the terms of the Merger Implementation Agreement.

4         Implementation of the Scheme
Lodgement

4.1PowerTel must lodge with ASIC, pursuant to section 411(10) of the Act, an office copy of the Scheme Order promptly after, and in any event by 5:00 pm on the first Business Day after, the day on which the Court makes that order.

Transfer of Scheme Shares

4.2Subject to the payment of the Scheme Consideration in accordance with clauses 4.3 to 4.5, all of the Scheme Shares (together with all rights and entitlements attaching to the Scheme Shares) will be transferred to Telecom on the Implementation Date without the need for any further act by any Scheme Shareholder, by PowerTel effecting a valid transfer or transfers of the Scheme Shares to Telecom under section 1074D of the Act or, if that procedure is not available for any reason, by:

(a)PowerTel immediately delivering to Telecom duly completed and executed share transfer forms (which may be a master transfer of all or part of the Scheme Shares) to transfer all of the Scheme Shares to Telecom;

(b)Telecom executing and delivering the share transfer forms to PowerTel; and

(c)PowerTel entering the name and address of Telecom in the Register as the holder of all of the Scheme Shares.

Payment of Scheme Consideration

4.3In consideration for the transfer to Telecom of each Scheme Share on the Implementation Date PowerTel must procure Telecom, on the Implementation Date, to pay the Scheme Consideration to each Scheme Shareholder.

Share Scheme Consideration

4.4PowerTel's obligation under clause 4.3 must be satisfied by procuring Telecom, on or before the Implementation Date, to deposit the aggregate amount of the Scheme Consideration payable to all Scheme Shareholders in cleared funds in a trust account jointly operated by PowerTel and Telecom, to be held on trust for the purpose of sending the Scheme Consideration to the Scheme Shareholders (except that any interest on the amount deposited will be to Telecom’s account).

4.5PowerTel, subject to Telecom depositing the Scheme Consideration in accordance with clause 4.4, will (and will procure Telecom to) on the Implementation Date, dispatch or procure the dispatch, to each Scheme Shareholder by prepaid post to their Registered Address, a pre-printed cheque in the name of the Scheme Shareholder (drawing on the trust account referred to in clause 4.4) for the amount equal to the number of Scheme Shares held by the Scheme Shareholder multiplied by the Scheme Consideration.  In the case of joint holders of PowerTel Shares, the cheque must be sent to the holder whose name and address appears first in the Register at the Record Date.

5         Dealings in PowerTel Shares
Dealings prior to Scheme Record Date

5.1For the purpose of establishing the persons who are Scheme Shareholders, dealings in PowerTel 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 PowerTel Shares by the Scheme Record Date; and

(b)in all other cases, registrable transfers or transmission applications in respect of those dealings are received at the PowerTel Share Registry by the Scheme Record Date.

5.2PowerTel will register registrable transfers or transmission applications of the kind referred to in clause 5.1(b) by the Scheme Record Date provided that nothing in this clause 5.2 requires PowerTel to register a transfer that would result in a Scheme Shareholder holding a parcel of Scheme Shares that is less than a Marketable Parcel. 

5.3PowerTel will not accept for registration, nor recognise for any purpose, any transfer or transmission application in respect of PowerTel Shares received after the Scheme Record Date (other than the transfers under clause 4.2 and any subsequent transfers by Telecom or its successors in title).

Dealings after Scheme Record Date

5.4For the purpose of determining entitlements to the Scheme Consideration, PowerTel will, until the Scheme Consideration has been paid in accordance with the Scheme, maintain or procure the maintenance of the Register in accordance with this clause 5, and the Register will solely determine entitlements to the Scheme Consideration. 

5.5From the Scheme Record Date, all certificates and holding statements for Scheme Shares existing at the Scheme Record Date will cease to have effect from that date, as documents of title in respect of those Scheme Shares and, as from that date, each entry on the Register at the Scheme Record Date relating to Scheme Shares will cease to have any effect other than as evidence of the entitlement to the Scheme Consideration, other than for the purpose of registering dealings in PowerTel Shares in accordance with clauses 5.1 to 5.3. 

Provision of information

5.6As soon as possible after the Scheme Record Date and in any event at least two Business Dates before the Implementation Date, PowerTel must give to Telecom details of the names, Registered Addresses and holdings of Scheme Shares of every Scheme Shareholder as shown in the Register at the Scheme Record Date in such form as Telecom may reasonably require.

Quotation of PowerTel Shares

5.7PowerTel will apply for suspension of trading of PowerTel Shares on the ASX to occur after the close of trading on the Effective Date.  It is expected that trading on the ASX of PowerTel Shares will be suspended from the close of trading on the Effective Date.

5.8Provided that the Scheme has been fully implemented in accordance with its terms, PowerTel will apply for the termination of the official quotation of PowerTel Shares and to have itself removed from the official list of the ASX after the Implementation Date.

6         General Scheme Provisions
Scheme alterations and conditions

6.1If the Court proposes to approve the Scheme subject to any alterations or conditions, PowerTel may, by its counsel or solicitors but subject to the prior approval of Telecom (which approval must not be unreasonably withheld or delayed), consent on behalf of all persons concerned to those alterations or conditions.

Covenants by Scheme Shareholders
6.2      Each Scheme Shareholder:

(a)agrees to the transfer of their Scheme Shares to Telecom, in accordance with the Scheme;

(b)agrees to the variation, cancellation or modification (if any) of the rights attached to their PowerTel Shares constituted by or resulting from the Scheme;

(c)consents to PowerTel doing all things necessary or expedient for or incidental to the implementation of the Scheme;

(d)without the need for any further act, irrevocably appoints PowerTel and each of the directors and officers of PowerTel, jointly and severally, as the Scheme Shareholder's attorney and agent for the purpose of:

(i)        in the case of Scheme Shares in a CHESS Holding:

(A)causing a message to be transmitted to ASTC in accordance with ASTC Settlement Rules to transfer the Scheme Shares held by the Scheme Shareholder from the CHESS subregister of PowerTel to the issuer sponsored subregister operated by PowerTel at any time after Telecom has provided the Scheme Consideration which is due under this Scheme to the Scheme Shareholders; and

(B)completing and signing on behalf of Scheme Shareholders any required form of transfer of Scheme Shares; and

(ii)in the case of Scheme Shares registered in the issuer sponsored subregister operated by the PowerTel Share Registry, completing and signing on behalf of Scheme Shareholders any required form of transfer; and

(iii)in all cases, executing any document or doing any other act necessary or desirable to give full effect to the Scheme and the transactions contemplated by it.

Warranties by Scheme Shareholders

6.3Each Scheme Shareholder is deemed to have warranted to PowerTel and is deemed to have authorised PowerTel to warrant to Telecom as attorney and agent for the Scheme Shareholder by virtue of this clause, that all of its Scheme Shares which are transferred to Telecom under the Scheme will, at the date of transfer of them to Telecom, be fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, and that they have full power and capacity to sell and to transfer all their Scheme Shares to Telecom.

Authority given to Telecom

6.4Each Scheme Shareholder, without the need for any further act, irrevocably appoints PowerTel and all of its directors, secretaries and officers (jointly and severally) as its attorney and agent to do and execute all acts, matters, things and documents necessary to give effect to the Scheme including without limitation, a proper instrument of transfer of its Scheme Shares for the purposes of section 1071B of the Corporations Act which may be a master transfer of all the Scheme Shares.

Status of Scheme Shares

6.5On and from the Implementation Date and pending registration by PowerTel of the name and address of Telecom in the Register as the holder of the Scheme Shares:

(a)Telecom will be beneficially entitled to the Scheme Shares transferred to it under the Scheme; and

(b)each Scheme Shareholder irrevocably appoints Telecom and all of its directors, secretaries and officers (jointly and severally) as its sole proxy and, where appropriate, its corporate representative to attend shareholders' meetings of PowerTel, exercise the votes attached to the Scheme Shares registered in the name of the Scheme Shareholder and sign any shareholders' resolution of PowerTel, and the Scheme Shareholder may not itself attend or vote at any such meetings or sign any such resolutions, whether in person, by proxy or by corporate representative.

Effect of Scheme

6.6The Scheme binds PowerTel and all PowerTel Shareholders from time to time (including those who do not attend the Scheme Meeting, do not vote at that meeting or vote against the Scheme) and, to the extent of any inconsistency, overrides the constitution of PowerTel.

No liability when acting in good faith

6.7Neither PowerTel nor Telecom, nor any their respective officers, will be liable for anything done or omitted to be done in the performance of this Scheme in good faith.

Notices

6.8Where a notice, transfer, transmission application, direction or other communication referred to in the Scheme is sent by post to PowerTel, it will not be deemed to be received in the ordinary course of post or on a date other than the date (if any) on which it is actually received at PowerTel's registered office or at the PowerTel's Share Registry.

Further assurances

6.9PowerTel will do all things and execute all deeds, instruments, transfers and other documents as may be necessary or desirable to give full effect to the Scheme and the transactions contemplated by it.

Stamp duty

6.10Telecom will pay any stamp duty payable on the transfer by Scheme Shareholders of the Scheme Shares to Telecom. 

Governing law

6.11This Scheme is governed by the laws of New South Wales.  Each party irrevocably and unconditionally:

(a)submits to the non-exclusive jurisdiction of the courts of New South Wales; and

(b)waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD352 OF 2007

POWERTEL LTD ACN 001 760 103 Applicant
JUDGE:	EMMETT J
DATE:	30 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 19 March 2007 the Court ordered, pursuant to s 411 of the Corporations Act 2001 (Cth) (the Corporations Act), that the plaintiff, PowerTel Limited (the Plaintiff), convene a meeting of its members for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement proposed to be made between the Plaintiff and its members. The meeting was to be held at 10.00 am on 23 April 2007. The Plaintiff now applies to the Court for an order, pursuant to s 411(4)(b) of the Corporations Act, that the scheme be approved. In my reasons of 19 March 2007 for making the order, I indicated that the scheme was one which would be likely to be approved if the members of the Company agreed to it by the requisite majority.

2. I have now considered the further evidence of Simon Edward McEgan, John Craig Conde, Guy Sanderson, Richard William Hannan, Doris Grave and Maria Coffill O’Brien. That evidence satisfies me that the meeting was convened in accordance with the Court’s order. It also satisfies me that the resolution agreeing to the scheme was passed by a resolution in respect of which 94.04% of members present voted in favour and 99.92% of the votes of members voting were cast in favour of the resolution. While some proxies were rejected, the rejected proxies were immaterial in terms of the outcome. Further, I have seen a letter from the Australian Securities and Investments Commission (the Commission) confirming that the Commission is satisfied that the scheme does not have the effect of avoiding any of the provisions of Chapter 6 of the Corporations Act.

3. The scheme was conditional upon a number of matters. I have seen evidence that the conditions have either been satisfied or waived. I have also seen the original Deed Poll dated 19 March 2007 by Telecom Enterprises Australia Pty Limited in favour of each scheme shareholder. In the circumstances, I am persuaded that the proposed scheme should be approved pursuant to s 411(4)(b) of the Corporations Act. I am also satisfied that the Plaintiff should be exempted from compliance with s 411(11) of the Corporations Act. Accordingly, I make orders in terms of the short minutes of order which I have initialled dated with today’s date and placed with the papers.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:        23 May 2007

Counsel for the Applicant:	I M Jackman SC
Solicitor for the Applicant:	Baker & McKenzie
Counsel for Telecom Enterprises Australia Pty Limited:	M J Leeming SC
Solicitor for the Respondent:	Freehills
Date of Hearing:	30 April 2007
Date of Judgment:	30 April 2007