The Australian Gas Light Company, in the matter of The Australian Gas Light Company No. 2
[2006] FCA 1371
•9 OCTOBER 2006
FEDERAL COURT OF AUSTRALIA
The Australian Gas Light Company, in the matter of The Australian Gas Light Company No. 2 [2006] FCA 1371
THE AUSTRALIAN GAS LIGHT COMPANY (ABN 95 052 167 405), IN THE MATTER OF THE AUSTRALIAN GAS LIGHT COMPANY
NSD 1568 OF 2006
ALINTA LIMITED (ACN 087 857 001), IN THE MATTER OF ALINTA LIMITED
NSD 1580 OF 2006
EMMETT J
9 OCTOBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1568 OF 2006
in the matter of:
THE AUSTRALIAN GAS LIGHT COMPANY
(ABN 95 052 167 405)
PlaintiffJUDGE:
EMMETT J
DATE OF ORDER:
9 OCTOBER 2006
WHERE MADE:
SYDNEY
THE COURT:
1.Notes the undertaking given by Alinta Mergeco Limited ACN 119 985 590, in the form in Schedule 1.
2.Notes the undertaking given by the Australian Gas Light Company, in the form in Schedule 2.
3.Refuses leave for Australian Pipeline Limited to appear.
4.Orders that pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) (‘the Act’), the scheme of arrangement between The Australian Gas Light Company (ABN 95 052 167 405) (‘AGL’) and the holders of AGL shares, in the form in Schedule 3, be approved.
5.Orders that pursuant to section 411(12) of the Act, AGL be exempted from compliance with section 411(11) of the Act.
6.Orders that these orders be entered forthwith.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1580 OF 2006
IN THE MATTER OF:
ALINTA LIMITED
(ABN 087 857 001)
PlaintiffJUDGE:
EMMETT J
DATE OF ORDER:
9 OCTOBER 2006
WHERE MADE:
SYDNEY
THE COURT:
1.Notes the undertaking given by Alinta Mergeco Limited ACN 119 985 590, in the form in Schedule 1.
2.Refuses leave for Australian Pipeline Limited to appear.
3.Orders that, pursuant to sections 411(4)(b) and 411(6) of the Corporations Act 2001 (Cth) (‘the Act’), the scheme of arrangement between Alinta Limited (ACN 087 857 001) (‘Alinta’) and the holders of Alinta shares, in the form in Schedule 4, be approved.
4.Orders that, pursuant to section 411(12) of the Act, the Plaintiff be exempted from compliance with section 411(11) of the Act in relation to the Scheme.
5.Orders that these Orders be entered forthwith.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1568 OF 2006
in the matter of:
THE AUSTRALIAN GAS LIGHT COMPANY
(ABN 95 052 167 405)
PlaintiffNSD1580 OF 2006
in the matter of:
ALINTA LIMITED
(ABN 087 857 001)
PlaintiffJUDGE:
EMMETT J
DATE:
9 OCTOBER 2006
PLACE:
SYDNEY
REASONS FOR JUDGMENT
APPLICATION BY AUSTRALIAN PIPELINE LIMITED
I have before me two applications for approval of schemes of arrangement, one by Australian Gas Light Company (‘AGL’) and one by Alinta Limited (‘Alinta’). When the matters were called on for hearing, Australian Pipeline Limited (‘APL’) sought leave to appear on the hearing of the approval applications, with a view to seeking orders that approval be subject to certain conditions. The conditions involve requirements for the disposition of units in Australian Pipeline Trust (‘APT’) held by one or other of the applicant companies or their subsidiaries. The basis upon which APL seeks to be heard is APL’s assertion that certain of the units were acquired in contravention of the Corporations Act 2001 (Cth) (‘the Act’). APL claims to be an interested party as the responsible entity for the management of APT.
The issues that APL seeks to raise in opposing approval of the schemes, otherwise than on conditions, are very similar to those raised in proceedings NSD1710/2006 and NSD1855/2006, which are also fixed for hearing today. In NSD1855/2006, Alinta seeks judicial review of decisions of the Takeovers Panel requiring it to dispose of units. In NSD1710/2006, APL seeks orders under the Act for disposition of units. While the issues that APL seeks to ventilate in the approval proceedings are not identical with the issues in the other proceedings they very much overlap.
It is clearly desirable for the applications for approval of the schemes to be considered expeditiously. The issues that would be raised by APL are complex and require consideration of evidence which is, at least in some respects, disputed. While it would be possible, it would be difficult to resolve those issues in the course of the hearing of the scheme applications.
Undertakings have now been proffered on behalf of AGL and Alinta Merge Co Limited that are designed to preserve the status quo in relation to the units in APT that are the subject of the attack by APL. APL has intimated to the Court that, upon those undertakings being given, the questions that it wishes to ventilate can be appropriately dealt with in the other two proceedings and that it would not otherwise be deprived of relief that it might be able to obtain if it succeeded in having the schemes approved subject to conditions.
In the circumstances, I consider that it is appropriate to accept the undertakings that have been proffered on behalf of AGL and Alinta Mergeco Limited. On that basis, I do not consider that there is any utility in granting leave to APL to appear on the hearing of the applications to approve the schemes and I propose to refuse leave.
APPLICATIONS FOR APPROVAL OF THE SCHEMES
The applications for approval of two schemes of arrangement are made pursuant to s 411(4) of the Act. On 28 August 2006, I made orders that each of the applicants, AGL and Alinta, convene meetings of their respective members to consider the proposed schemes. The matters have proceeded in parallel because each scheme is dependent upon the other. Following the orders made on 28 August 2006 for the convening of meetings of members, the Court made a further order on 21 September 2006 concerning a supplementary booklet to be sent to the shareholders of AGL.
I am satisfied from the evidence that has been filed in both matters that all of the orders that I made on 28 August 2006 and those made by Lindgren J on 21 September 2006 have been satisfied so far as concerns the requirement for the convening of meetings of members of the two companies. The proposed meetings have both been advertised in accordance with the requirements of the Act. The meetings convened pursuant to the orders of the Court were duly held and resolutions were passed by the majorities referred to in s 411 approving the respective schemes. I have evidence concerning those resolutions and the majorities by which the resolutions were passed at several meetings that were held.
Each of the schemes was conditional upon certain events either happening or not happening. I have evidence in the form of certificates provided by the directors of the respective companies that all conditions precedent have been satisfied save for the condition of the Court’s approval of the schemes.
Copies of the scheme booklets, required by the Act to be sent to members by each of the companies, were registered by the Australian Securities and Investments Commission (‘the Commission’) prior to being sent out and I have evidence in the form of letters from the Commission indicating that the Commission has no objection to either of the schemes. I note that the Commission expressly acknowledged that it was aware of APL’s objection to the approval of the schemes otherwise than upon certain conditions. However, as I have already noted, I refused leave to APL to be heard in these matters.
Neither of the schemes will result in any amendment to the constitution of either company and, accordingly, it is appropriate to exempt the applicants from compliance with the requirements of s 411(11) of the Act. I am satisfied that it is appropriate for the Court to approve each scheme.
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: 12 October 2006
In matter NSD1568/2006
Counsel for the Applicant: Mr AG Bell SC Solicitor for the Applicant: Gilbert + Tobin Counsel for Australian Pipeline Limited: Mr PM Wood with Ms KM Richardson Solicitors for Australian Pipeline Limited: Chang Pistilli & Simmons Date of Hearing: 9 October 2006 Date of Judgment: 9 October 2006 In matter NSD1580/2006
Counsel for the Applicant: Mr AJ Sullivan QC with Mr M Moshinsky Solicitor for the Applicant: Blake Dawson Waldron Counsel for Australian Pipeline Limited: Mr PM Wood with Ms KM Richardson Solicitors for Australian Pipeline Limited: Chang Pistilli & Simmons Date of Hearing: 9 October 2006 Date of Judgment: 9 October 2006 SCHEDULE 1
UNDERTAKING
On 9 October 2006, Alinta Mergeco Limited ACN 119 985 590 (Alinta Mergeco) undertakes to the Court:
1.That on a without admission basis and subject to the Pleading Condition being satisfied by no later than 12 noon on Wednesday 11 October 2006 and the AGL Scheme becoming effective pursuant to section 411(10) of the Corporations Act, Alinta Mergeco agrees unless the Court orders otherwise;
(a)Not to dispose of or otherwise deal with any of the Impugned APT Units; and
(b)Not to exercise any rights attaching to any Impugned APT Units, including voting any of those Impugned APT Units at a general or extraordinary meeting of APT unit holders,
In each circumstance in the period commencing on the Implementation Date and ending at such time as the Section 606 Proceedings have been finally determined.
Definitions:
AGL Scheme means the Scheme of Arrangement set out in Schedule 3 to the AGL Supplementary Scheme Booklet dated 21 September 2006.
Implementation Date has the same meaning as in the AGL Scheme.
Impugned APT Units means such number of APT Units that The Australian Gas Light Company is the registered holder of on the Implementation Date which exceed 20% of the units on issue in APT on the Implementation Date.
Pleading Condition means Australian Pipeline Limited ACN 091 344 704 pleading in its Points of Claim in the Section 606 Proceedings the matters specified in paragraphs 9-25 of its submissions headed “APL’s Written Outline Submission in Relation to Approving the Proposed Schemes of Arrangement on Conditions” dated 6 October 2006.
Section 606 Proceedings means the Federal Court of Australia proceedings 1710 of 2006.
SCHEDULE 2
AMENDED UNDERTAKING
On 10 October 2006, the Australian Gas Light Company (AGL) undertakes to the Court:
1.That on a without admissions basis AGL, being the registered holder of 84,412,117 units in Australian Pipeline Trust ARSN 091 678 778 (the Units), agrees, that in the period up to the Implementation Date and subject to the AGL Scheme becoming effective pursuant to section 411(10) of the Corporations Act, not to dispose of or otherwise deal with any of the Units unless the Court otherwise orders.
Definitions:
AGL Scheme means the Scheme of Arrangement set out in Schedule 3 to the AGL Supplementary Scheme Booklet dated 21 September 2006.
Implementation Date has the same meaning as in the AGL Scheme.
SCHEDULE 3
Contents Page
Parties
Recitals
1 Definitions and interpretation
2 Conditions
3 Scheme
4 Dealings in AGL Shares
5 General provisions
6 General
SCHEME OF ARRANGEMENT MADE UNDER SECTION 411 OF THE CORPORATIONS ACT 2001 (CTH)
Date:
Parties
1.The Australian Gas Light Company ACN 052 167 405 of 72 Christie Street, St Leonards, NSW, 2065 (AGL)
2.The holders of fully paid ordinary shares issued in the capital of The Australian Gas Light Company
Recitals
AAGL is a public company incorporated in the State of New South Wales. It is admitted to the official list of ASX and AGL Shares are quoted on the stock market conducted by ASX.
BAGL has 455,910,464 AGL Shares on issue.
CAlinta Group holds the Excluded AGL Shares and will continue to hold those shares as at the Effective Date.
DAGL Energy is a company incorporated in the State of New South Wales. It is a wholly owned subsidiary of AGL.
ENew Alinta Co and New Alinta Co Sub, a wholly owned subsidiary of New Alinta Co, are companies incorporated in the State of Victoria.
FAGL, AGL Energy, Alinta and New Alinta Co have entered into the Merger Implementation Agreement and the Transaction Implementation Deed pursuant to which, among other things, AGL has agreed to propose and subject to the satisfaction of certain conditions implement this Scheme and Alinta has agreed to propose and subject to the satisfaction of certain conditions implement the Alinta Scheme. New Alinta Co Sub is a party to the Transaction Implementation Deed.
GIf this Scheme becomes effective, then:
(a)the Scheme Shares will be transferred to New Alinta Co Sub;
(b)New Alinta Co will provide the Scheme Consideration to the Scheme Participants;
(c)New Alinta Co will undertake the Buy Back of all New Alinta Co Converting Shares; and
(d)AGL Energy will allot and issue AGL Energy Shares to the Scheme Participants (or to the Nominee in respect of Scheme Participants who are Ineligible Overseas AGL Shareholders) by way of consideration for the Buy Back of the New Alinta Co Converting Shares,
each step to be taken in accordance with the provisions of this Scheme.
HAGL Energy has entered into the AGL Energy Deed Poll for the purpose of covenanting in favour of the Scheme Participants to perform its obligations under this Scheme, the Merger Implementation Agreement, the Buy Back Agreement and the Transaction Implementation Deed.
INew Alinta Co has entered into the New Alinta Co Deed Poll for the purpose of covenanting in favour of the Scheme Participants and the Alinta Scheme Participants to perform its obligations under this Scheme and the Alinta Scheme (as the case may be), the Merger Implementation Agreement, the Buy Back Agreement and the Transaction Implementation Deed.
JAGL has procured or proposes to procure that the Nominee covenants in favour of Scheme Participants and Alinta Scheme Participants to perform its obligations under this Scheme and the Alinta Scheme in accordance with the Nominee Deed Poll.
The parties agree
1. Definitions and interpretation
1.1 Definitions
In this Scheme, unless the contrary intention appears or the context requires otherwise:
AGL Board means the board of directors of AGL from time to time.
AGL Constitution means the constitution of AGL.
AGL Directors means the directors of AGL as at the date of the Booklet.
AGL Energy means AGL Energy Limited ACN 115 061 375.
AGL Energy Deed Poll means the deed poll dated 28 August 2006 executed by AGL Energy in favour of the Scheme Participants (subject to any amendments permitted by its terms).
AGL Energy Share means a fully paid ordinary share in the capital of AGL Energy.
AGL Share means a fully paid ordinary share in the capital of AGL.
AGL Share Register means the register of AGL Shareholders maintained under section 169 of the Corporations Act.
AGL Shareholder means a person who is registered in the AGL Share Register as the holder of AGL Shares.
Alinta means Alinta Limited ACN 087 857 001.
Alinta Group means Alinta and its Subsidiaries.
Alinta Scheme means the scheme of arrangement between Alinta and its shareholders made under section 411 of the Corporations Act 2001 (Cth) dated on or about the date of this Scheme, subject to any alterations or conditions made or required by the Court pursuant to section 411 of the Corporations Act.
Alinta Scheme Consideration means “Scheme Consideration”, as that term is defined in the Alinta Scheme.
Alinta Scheme Participant means "Scheme Participant", as that term is defined in the Alinta Scheme.
Alinta Scheme Shares means “Scheme Shares”, as that term is defined in the Alinta Scheme.
Alinta Share Register means the register of Alinta shareholders maintained under section 169 of the Corporations Act.
APT means Australian Pipeline Trust ARSN 091 678 778.
ASIC means the Australian Securities & Investments Commission.
ASX means the Australian Stock Exchange Limited ABN 98 008 624 691.
Booklet means the booklet dated 29 August 2006 approved by the Court under section 411(1) of the Corporations Act for distribution to AGL Shareholders explaining the Scheme and containing, among other things, the explanatory statement as required by Part 5.1 of the Corporations Act in relation to the Scheme.
Business Day means a business day as defined in the Listing Rules.
Buy Back means the buy back, in accordance with clause 0, of all the New Alinta Co Converting Shares in consideration for the issue of AGL Energy Shares.
Buy Back Agreement means the agreement of that name between New Alinta Co, AGL Energy and the holders of New Alinta Co Converting Shares to be entered into under and in accordance with the constitution of New Alinta Co.
Buy Back Participant means the New Alinta Co Converting Shareholders on the Buy Back Record Date.
Buy Back Record Date means the time on the Implementation Date immediately after the New Alinta Co Converting Share Register has been updated under clause 3.6(b) to record the information about the holders of those shares following the issue of the New Alinta Co Converting Shares in accordance with this Scheme.
CHESS means the Clearing House Electronic Subregister System.
Corporations Act means the Corporations Act 2001 (Cth) and the regulations made under that Act.
Court means the Federal Court of Australia.
Effective Date means the date on which the office copy of the Court order approving the Scheme under section 411(4)(b) of the Corporations Act is lodged with ASIC pursuant to section 411(10) of the Corporations Act, or if an earlier date is specified in the Court order for the coming into effect of the Scheme, that earlier date.
Excluded AGL Shares means 78,904,997 AGL Shares out of the 90,904,997 AGL Shares which, at 22 June 2006, were registered in the name of, and beneficially owned by Alinta Group Holdings Pty Limited ABN 34 117 660 081 (formerly called Zeboh Pty Limited).
GST has the same meaning as GST in the GST Act.
GST Act means A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Implementation Date means 10 Business Days after the Effective Date and the effective date of the Alinta Scheme (which will be the same day) or such other date as agreed by AGL and Alinta.
Ineligible Overseas AGL Shareholder means a Scheme Participant whose Registered Address is in any jurisdiction other than:
(a) Australia and its external territories;
(b) New Zealand;
(c) the United States of America;
(d) Hong Kong;
(e) Japan;
(f) Singapore; or
(g) the United Kingdom;
(Overseas AGL Shareholder), other than an Overseas AGL Shareholder in respect of whom New Alinta Co and AGL Energy are satisfied that the laws of the Overseas AGL Shareholder's country of residence (as shown in the AGL Share Register) would permit the issue of the Scheme Consideration and AGL Energy Shares to the Overseas AGL Shareholder, either unconditionally or after compliance with conditions which New Alinta Co and AGL Energy in their sole discretion regard as acceptable and not unduly onerous.
Listing Rules means the listing rules of ASX from time to time as modified by any express written waiver or exemption given by ASX.
Merger Implementation Agreement means the agreement dated 22 June 2006 between AGL, AGL Energy, Alinta and New Alinta Co to carry into effect the Scheme.
Net Merger Value means $2,348 million plus the amount of the distribution declared on 30 May 2006 of 6 cents per APT unit reinvested by AGL in accordance with APT’s distribution reinvestment plan and the amount of any further distribution declared by APT and reinvested by AGL in the same manner prior to the Implementation Date.
New Alinta Co means Alinta Mergeco Limited ACN 119 985 590.
New Alinta Co Converting Share means a fully paid converting share in the capital of New Alinta Co.
New Alinta Co Converting Share Register means the register of New Alinta Co Converting Shareholders maintained under section 169 of the Corporations Act.
New Alinta Co Converting Shareholder means a person who is registered in the New Alinta Co Converting Share Register as the holder of New Alinta Co Converting Shares.
New Alinta Co Deed Poll means the deed poll dated 28 August 2006 executed by New Alinta Co in favour of the Scheme Participants and Alinta Scheme Participants (subject to any amendments permitted by its terms).
New Alinta Co Ordinary Share means a fully paid ordinary share in the capital of New Alinta Co.
New Alinta Co Ordinary Share Register means the register of the holders of New Alinta Co Ordinary Shares maintained under section 169 of the Corporations Act.
New Alinta Co Sub means Numar Pty Limited ACN 118 926 131.
Nominee has the meaning given to that term in clause 3.5(b).
Nominee Deed Poll means the deed poll which AGL has procured or proposes to procure the Nominee to enter into in favour of Scheme Participants and Alinta Scheme Participants (subject to any amendments permitted by its terms).
Official List means the official list of the ASX.
Record Date means 7:00pm on the fifth Business Day after the Effective Date, or such other date as may be agreed by AGL and Alinta.
Registered Address means, in relation to a Scheme Participant, the address of that Scheme Participant shown in the AGL Share Register on the Record Date.
Scheme means the scheme of arrangement between AGL and AGL Shareholders as set out in this document, subject to any alterations or conditions made or required by the Court pursuant to section 411 of the Corporations Act.
Scheme Consideration means, in respect of each AGL Share:
(a)the fraction of a New Alinta Co Ordinary Share given by the Net Merger Value divided by $10.80 divided by the number of Scheme Shares on issue at the Record Date; and
(b)one New Alinta Co Converting Share,
each to be allotted and issued subject to, and as provided for by, this Scheme.
Scheme Meetings means the meetings of AGL Shareholders ordered by the Court to be convened under section 411(1) of the Corporations Act to consider the Scheme being:
(a)a meeting of the holders of AGL Shares other than the holders of the Excluded AGL Shares; and
(b) a meeting of the holders of the Excluded AGL Shares.
Scheme Participant means a person registered on the AGL Share Register at the Record Date as the holder of a Scheme Share after registration of all transfer and transmission applications as provided for in clause 0.
Scheme Share means all AGL Shares on issue at the Record Date other than the Excluded AGL Shares.
Second Court Date means the date on which the application made to the Court for an order for the purposes of section 411(4)(b) of the Corporations Act approving this Scheme is first heard.
Subsidiary of an entity means another entity which is a subsidiary of the first within the meaning of Part 1.2, Division 6 of the Corporations Act or is a subsidiary or otherwise controlled by the first within the meaning of any approved accounting standard.
Transaction Implementation Deed means the deed dated 22 June 2006 between AGL, Alinta, New Alinta Co, AGL Energy and New Alinta Co Sub.
1.2 Interpretation
In this Scheme, unless the contrary intention appears or the context requires otherwise:
(a)words and phrases (other than those defined in clause 1.1) have the same meaning (if any) given to them in the Corporations Act;
(b) the singular includes the plural and vice versa;
(c) each gender includes the other gender;
(d)references to persons includes references to individuals, corporations, other bodies corporate or bodies politic;
(e)references to paragraphs or clauses are to a paragraph or clause of this document;
(f)a reference to a statute, regulation or agreement is to such a statute, regulation or agreement as from time to time amended;
(g)a reference to a person includes a reference to a person’s executors, administrators, successors, substitutes (including, without limitation, persons taking by novation) and assigns;
(h)if a time period is specified and dates from a given date or the day of an act or event, it is to be calculated exclusive of that day;
(i)a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
(j)a reference to any time is a reference to that time in Sydney, Australia;
(k)a reference to ‘dollars’ or ‘$’ is to the lawful currency of the Commonwealth of Australia;
(l)a reference to a document is that document as varied, novated, ratified or replaced from time to time;
(m)the interpretation of a substantive provision is not affected by any heading; and
(n)‘includes’ in any form is not a word of limitation.
1.3 Business Day
Except where otherwise expressly provided, where the day on which any act, matter or thing is to be done is a day other than a Business Day, that act, matter or thing shall be done on the next Business Day.
2 Conditions
2.1 Conditions precedent to the Scheme
This Scheme is conditional upon the satisfaction of each of the following conditions precedent:
(a)each condition precedent set out in clause 3.1 of the Merger Implementation Agreement, other than the condition precedent set out in clause 3.1(a), is satisfied or, subject to the terms of the Merger Implementation Agreement, waived or taken to have been waived;
(b)Alinta Group Holdings Pty Limited ABN 34 117 660 081 (formerly called Zeboh Pty Limited) is registered in the AGL Share Register as the holder of the Excluded AGL Shares on the Second Court Date; and
(c)the Effective Date for this Scheme occurs on the same date as the date on which an office copy of the Court order approving the Alinta Scheme, under section 411(4)(b) of the Corporations Act, is lodged with ASIC pursuant to section 411(10) of the Corporations Act, or if an earlier date is specified in the Court order for the coming into effect of the Alinta Scheme, that earlier date.
2.2 Certificate in relation to conditions
AGL must provide to the Court on the Second Court Date a certificate which is authorised by the AGL Board and signed by at least one AGL Director (or such other evidence as the Court may request) confirming whether or not the conditions precedent set out in clause 3.1 of the Merger Implementation Agreement, other than the condition precedent set out in clause 3.1(a), have been satisfied or, subject to the terms of that agreement, waived or taken to be waived. The certificate constitutes conclusive evidence that such conditions precedent are satisfied, waived or taken to be waived.
2.3 Effective Date
This Scheme takes effect on the Effective Date.
2.4 End Date
This Scheme lapses and has no further force or effect if the Effective Date is not on or before 31 December 2006 (or such later date agreed by AGL and Alinta in writing and, if required, approved by the Court).
3 Scheme
3.1 The Scheme
(a)The Scheme Shares, together with all rights and entitlements attaching to those shares as at the Implementation Date, will, without the need for any further act by any Scheme Participant (other than acts performed by AGL or its directors as attorney or agent for Scheme Participants under clauses 0 and 0), be transferred to New Alinta Co Sub on the Implementation Date (but only after the New Alinta Co Ordinary Share Register has been updated to record the issue of the Alinta Scheme Consideration pursuant to clause 0 of the Alinta Scheme) and the transfer will be deemed to be effective immediately after the time on the Implementation Date that the New Alinta Co Ordinary Share Register has been updated to record the issue of the Alinta Scheme Consideration pursuant to clause 0 of the Alinta Scheme.
(b)Each Scheme Participant shall, subject to the terms of the Scheme, for each Scheme Share held by that Scheme Participant be issued with the fraction of a New Alinta Co Ordinary Share given by the Net Merger Value divided by $10.80 divided by the number of Scheme Shares on issue at the Record Date.
(c)Each Scheme Participant shall, subject to the terms of the Scheme, be issued with one New Alinta Co Converting Share for each Scheme Share held by that Scheme Participant.
(d)New Alinta Co will not issue fractional New Alinta Co Ordinary Shares under the Scheme. If a Scheme Participant becomes entitled to a fraction of a New Alinta Co Ordinary Share then the number of New Alinta Co Ordinary Shares to be issued to that Scheme Participant will, subject to paragraph (e), be rounded up or down to the nearest whole number of New Alinta Co Ordinary Shares, with fractions of 0.5 rounded up to the nearest whole number of New Alinta Co Ordinary Shares.
(e)If either AGL or Alinta reasonably believes that an AGL Shareholder has manipulated its holding of AGL Shares to take advantage of the rounding up (for example by splitting one holding of AGL Shares into a number of holdings of AGL Shares) then all fractional entitlements of that AGL Shareholder will be aggregated and rounded down, in all cases, to the nearest whole number of New Alinta Co Ordinary Shares.
3.2 Buy Back of New Alinta Co Converting Shares
(a)On the Implementation Date, after AGL has registered New Alinta Co Sub as the holder of the Scheme Shares in the AGL Register under clause 3.6(c), New Alinta Co will Buy Back all the New Alinta Co Converting Shares that are held by the New Alinta Co Converting Shareholders on the Buy Back Record Date.
(b)AGL Energy must issue to each Buy Back Participant one AGL Energy Share for each New Alinta Co Converting Share that is bought back from a Buy Back Participant under the Buy Back.
3.3 Transfer of Scheme Shares
For the purpose of transferring the Scheme Shares to New Alinta Co Sub in accordance with clause 3.1(a), each Scheme Participant irrevocably appoints AGL and each AGL Director severally as its true and lawful attorney, with effect from the Effective Date with power:
(a) in the case of Scheme Shares in a CHESS Holding:
(i)to cause a message to be transmitted to ASTC in accordance with ASTC Settlement Rules so as to transfer to New Alinta Co Sub the Scheme Shares held by the Scheme Participant from the CHESS sub-register of AGL to the issuer sponsored sub-register operated by AGL notwithstanding that, at the time of such transfer, the Scheme Consideration which is due under this Scheme has not been provided to the Scheme Participants; or
(ii)to complete and sign on behalf of Scheme Participants any required form of transfer to New Alinta Co Sub of such shares (which may be a master transfer of all Scheme Shares);
(b)in the case of Scheme Shares that are registered in the issuer sponsored sub-register operated by the AGL Share Registry, to complete and sign on behalf of Scheme Participants any required form for the transfer to New Alinta Co Sub of such shares (which may be a master transfer of all Scheme Shares); and
(c)in the case of all Scheme Shares, to exercise all powers and rights which the Scheme Participant could lawfully exercise as the registered holder of the Scheme Shares including without limitation attending and voting at any meeting of AGL (which meeting the Scheme Participant undertakes not to otherwise attend or vote at in person or by proxy or other representative), requisitioning any meeting of AGL and doing all things incidental and ancillary to any of the foregoing and it is acknowledged and agreed that in exercising such powers the attorney may act in the interests of New Alinta Co Sub as the intended registered holder of those shares.
3.4 Issue of Scheme Consideration
New Alinta Co must allot and issue the Scheme Consideration to the Scheme Participants in accordance with, but subject to the terms of, this Scheme on the Implementation Date.
3.5 Ineligible Overseas AGL Shareholders
(a)The right to receive Scheme Consideration in accordance with clause 0 will not be available to an Ineligible Overseas AGL Shareholder.
(b)The Scheme Consideration that would, but for clause 3.5(a), have been issued to an Ineligible Overseas AGL Shareholder will instead be issued to a person nominated by AGL and Alinta (Nominee) and the following provisions of this clause 3.5 shall apply.
(c)Where the Nominee is issued with New Alinta Co Ordinary Shares under paragraph (b), AGL shall cause the Nominee:
(i)as soon as reasonably practicable, but in any event within 20 Business Days after the Implementation Date, to offer all such New Alinta Co Ordinary Shares for sale on ASX in such manner, at such price or prices and on such other terms as the Nominee determines in good faith (and at the risk of the Ineligible Overseas AGL Shareholder). For the avoidance of doubt, such a sale may be made during the period when the New Alinta Co Ordinary Shares are being quoted for trading on ASX on a deferred settlement basis; and
(ii)within 5 Business Days after the receipt by the Nominee of the whole of the proceeds of sale of all such New Alinta Co Ordinary Shares, to remit the proceeds of such sale of all such New Alinta Co Ordinary Shares (after deduction of any fees and taxes or other charges or costs of sale) to AGL.
(d)Within 5 Business Days after the receipt by AGL of the remittance under clause 0, AGL must do all things required to ensure the payment by cheque in Australian dollars to each Ineligible Overseas AGL Shareholder of that proportion of the net proceeds of sale (after deduction of any fees and taxes or other charges or costs of sale) of all such New Alinta Co Ordinary Shares as is equal to the proportion that the number of New Alinta Co Ordinary Shares issued to the Nominee under clause 00 in respect of that Ineligible Overseas AGL Shareholder bears to the total number of New Alinta Co Ordinary Shares issued to the Nominee under clause 3.5(b) in respect of all such Ineligible Overseas AGL Shareholders.
(e)Where AGL Energy Shares are issued to the Nominee by way of consideration for the Buy Back of New Alinta Co Converting Shares that are issued to the Nominee under clause 00, AGL shall cause the Nominee:
(i)as soon as reasonably practicable, but in any event within 20 Business Days after the Implementation Date, to offer all such shares for sale on ASX in such manner, at such price or prices and on such other terms as the Nominee determines in good faith (and at the risk of the Ineligible Overseas AGL Shareholder). For the avoidance of doubt such a sale may be made during the period when the AGL Energy Shares are being quoted for trading on a deferred settlement basis; and
(ii)within 5 Business Days after the receipt by the Nominee of the whole of the proceeds of sale of all such AGL Energy Shares, to remit the proceeds of such sale of all such AGL Energy Shares (after deduction of any fees and taxes or other charges or costs of sale) to AGL.
(f)Within 5 Business Days after the receipt by AGL of the remittance under clause 3.5(e)(ii), AGL must do all things required to ensure the payment by cheque in Australian dollars to each Ineligible Overseas AGL Shareholder of that proportion of the net proceeds of sale (after deduction of any fees and taxes or other charges or costs of sale) of all such AGL Energy Shares as is equal to the proportion that the number of the New Alinta Co Converting Shares issued to the Nominee under clause 00 in respect of that Ineligible Overseas AGL Shareholder bears to the total number of New Alinta Co Converting Shares issued to the Nominee under clause 3.5(b) in respect of all such Ineligible Overseas AGL Shareholders.
(g)Each Ineligible Overseas AGL Shareholder appoints AGL as its agent to receive on its behalf any financial services guide or other notices which may be given by the Nominee to Ineligible Overseas AGL Shareholders.
3.6 Registration and Holding Statements
(a)New Alinta Co must register, or cause to be registered, the Scheme Participants (other than the Ineligible Overseas AGL Shareholders) and the Nominee (in respect of the Ineligible Overseas AGL Shareholders), as the holders of the New Alinta Co Ordinary Shares to which they become entitled under this Scheme on either an uncertificated issuer sponsored sub-register of New Alinta Co Ordinary Shares operated by New Alinta Co or on an uncertificated CHESS sub-register of New Alinta Co Ordinary Shares operated by New Alinta Co, as determined by New Alinta Co in its absolute discretion, such registration to occur on the Implementation Date, immediately after the transfer of the Scheme Shares to New Alinta Co Sub takes effect under clause 0.
(b)New Alinta Co must register, or cause to be registered, the Scheme Participants (other than the Ineligible Overseas AGL Shareholders) and the Nominee (in respect of the Ineligible Overseas AGL Shareholders), as the holders of the New Alinta Co Converting Shares, to which they become entitled under this Scheme on the New Alinta Co Converting Share Register such registration to occur on the Implementation Date, immediately after the transfer of the Scheme Shares to New Alinta Co Sub takes effect under clause 3.1(a).
(c)On the Implementation Date, immediately after Alinta has in accordance with clause 3.5(b) of the Alinta Scheme registered New Alinta Co Sub as the holder of the Alinta Scheme Shares in the Alinta Share Register, New Alinta Co Sub must (as transferee) execute the share transfer forms (or master share transfer form) referred to in clauses 3.3(a) and 3.3(b) and must deliver that executed form or those executed forms to AGL for registration, and AGL must then immediately register New Alinta Co Sub as the holder of the Scheme Shares in the AGL Share Register.
(d)AGL Energy must register, or cause to be registered, the Buy Back Participants as the holders of the AGL Energy Shares to which they become entitled under the Buy Back on either an uncertificated issuer sponsored sub-register of AGL Energy Shares operated by AGL Energy or on an uncertificated CHESS sub-register of AGL Energy Shares operated by AGL Energy, as determined by AGL Energy in its absolute discretion, such registration to occur within 5 Business Days after the Buy Back Record Date.
(e)On, or as soon as practicable after, the Implementation Date, New Alinta Co must forward holding statements or notices confirming the issue and allotment of New Alinta Co Ordinary Shares to the Scheme Participants, including to the Nominee in respect of the Ineligible Overseas AGL Shareholders, who become entitled to those securities under this Scheme.
(f)No share certificates or holding statements are to be sent to the Scheme Participants, including the Nominee in respect of the Ineligible Overseas AGL Shareholders, for the New Alinta Co Converting Shares that are to be issued to them under the Scheme.
(g)Within 5 Business Days after the Buy Back Record Date, AGL must cause AGL Energy to forward holding statements or notices confirming the issue and allotment of the AGL Energy Shares to the Buy Back Participants who become entitled to those securities under the Buy Back.
(h)Holding statements or notices confirming the issue and allotment of New Alinta Co Ordinary Shares and AGL Energy Shares are to be sent respectively to the Scheme Participants (other than Ineligible Overseas AGL Shareholders) or to the Nominee (in respect of the Ineligible Overseas AGL Shareholders) as the case may be and to the Buy Back Participants by prepaid post to their Registered Address and in the case of Scheme Participants and Buy Back Participants that are joint holders of AGL Shares such holding statements or notices must be forwarded to the holder whose name appears first in the AGL Share Register on the Record Date.
(i)Each Scheme Participant agrees for all purposes to becoming a member of New Alinta Co without the need for further act on its part and each of them agrees to be bound by the Constitution of New Alinta Co.
(j)Each Buy Back Participant agrees for all purposes to becoming a member of AGL Energy without the need for further act on its part and each of them agrees to be bound by the Constitution of AGL Energy.
4 Dealings in AGL Shares
4.1 Dealings in AGL Shares by Scheme Participants
For the purposes of establishing who is a Scheme Participant, dealings in AGL Shares will be recognised by AGL provided that:
(a)in the case of dealings of the type to be effected on CHESS, the transferee is registered as the holder of the relevant AGL Shares on or before the Record Date; or
(b)in all other cases, registrable transfer or transmission applications in respect of those dealings are received at the place where the AGL Share Register is kept on or before the Record Date,
and AGL will not accept for registration or recognise for the purpose of establishing who are Scheme Participants any transfer or transmission application in respect of AGL Shares received after the Record Date.
4.2 AGL Share Register
For the purpose of determining entitlements to participate in this Scheme, AGL must maintain the AGL Share Register in accordance with the provisions of this clause 4 and the AGL Share Register in this form and the terms of this Scheme solely determine the entitlements to the Scheme Consideration.
4.3 Registration of holdings
AGL must register any registrable transfer or transmission applications received in accordance with clause 4.1(b) on or before the Record Date.
4.4 Holding statements no effect from Record Date
From the Record Date, all holding statements for Scheme Shares as at the Record Date will cease to have effect as documents of title, and each entry on the AGL Share Register at the Record Date will cease to have any effect other than as evidence of the entitlements of Scheme Participants to the Scheme Consideration.
4.5 AGL to provide contact information for Scheme Participants
As soon as practicable after the Record Date and in any event at least 3 Business Days before the Implementation Date, AGL will give to New Alinta Co or procure that New Alinta Co be given details of the name, Registered Address and the number of AGL Shares held by each Scheme Participant, as shown in the AGL Share Register at the Record Date, in whatever form New Alinta Co reasonably requires.
4.6 Excluded AGL Shares
Alinta must ensure that Alinta Group Holdings Pty Limited ABN 34 117 660 081 (formerly called Zeboh Pty Limited) is registered in the AGL Share Register as the holder of the Excluded AGL Shares on the Record Date.
5 General provisions
5.1 Appointment of agent and attorney
Each Scheme Participant without the need for any further act on their part, irrevocably appoints AGL and any of its directors as its agent and attorney for the purpose of:
(a)executing any document or doing any other act necessary to give effect to the terms of this Scheme;
(b)enforcing the New Alinta Co Deed Poll against New Alinta Co;
(c)enforcing the AGL Energy Deed Poll against AGL Energy;
(d)enforcing the Nominee Deed Poll against Nominee; and
(e)approving the Buy Back, including voting at any meeting of New Alinta Co convened for that purpose, consenting to that meeting being held on short notice and executing any documents necessary or desirable to give effect to the Buy Back of the New Alinta Co Converting Shares issued to them under the Scheme and undertakes not to otherwise attend or vote in person or by proxy or other representative at such meeting,
and AGL accepts such appointment. AGL, as agent of each Scheme Participant, may sub‑delegate its functions under this clause 0 to all or any of its directors and secretaries (jointly or severally).
5.2 Enforcement of Deeds Poll
AGL undertakes in favour of each Scheme Participant that it will enforce the New Alinta Co Deed Poll against New Alinta Co, the AGL Energy Deed Poll against AGL Energy and the Nominee Deed Poll against the Nominee in each case on behalf of and as agent and attorney for the Scheme Participants.
5.3 Free of encumbrances
Each Scheme Participant is deemed to have warranted to New Alinta Co Sub and New Alinta Co that all their Scheme Shares (including any rights attaching to those shares) that are transferred to New Alinta Co Sub under this Scheme are, at the date of transfer, 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 to transfer their Scheme Shares together with any rights attaching to those shares.
5.4 Instructions to AGL
All binding instructions or notifications between a Scheme Participant (other than an Ineligible Overseas AGL Shareholder) and AGL relating to Scheme Shares or a Scheme Participant’s status as an AGL Shareholder (including, without limitation, any instructions relating to communications from AGL and whether dividends are to be paid by cheque or into a specified bank account) will, to the extent permitted, from the Record Date be deemed, by reason of the Scheme, to be similarly binding instructions or notifications to, and accepted by, New Alinta Co and AGL Energy in respect of respectively the New Alinta Co Ordinary Shares, the New Alinta Co Converting Shares and the AGL Energy Shares that are issued to the Scheme Participants under the Scheme or Buy Back until those instructions or notifications are, in each case, revoked or amended in writing addressed to, as applicable, New Alinta Co or AGL Energy (at its registered address from time to time).
5.5 Scheme Participants’ consent
Each Scheme Participant:
(a)consents to AGL doing all things necessary and executing all deeds, instruments, transfers or other documents as may be necessary, incidental or expedient to the implementation and performance of the Scheme and AGL, as agent of each Scheme Participant may sub-delegate its functions under this clause 0 to any of its directors and officers, jointly and severally;
(b)acknowledges that the Scheme binds AGL and all of the AGL Shareholders from time to time (including those who do not attend the Scheme Meetings, do not vote at that meeting or vote against the Scheme); and
(c)agrees to the transfer of their AGL Shares, together with all rights and entitlements attaching to those AGL Shares as at the Implementation Date, to New Alinta Co Sub, in accordance with the Scheme.
5.6 Amendments to the Scheme
If the Court proposes to approve the Scheme subject to any alterations or conditions, AGL may, by its counsel or solicitors, and with the consent of New Alinta Co and AGL Energy, consent to those alterations or conditions on behalf of all persons concerned, including a Scheme Participant.
5.7 Dealings in New Alinta Co Converting Shares
Except for or in connection with the Buy Back Agreement that is entered into in respect of the New Alinta Co Converting Shares that are issued under the Scheme, AGL will procure that, prior to completion of the Buy Back, New Alinta Co does not accept for registration or recognise any dealings in respect of New Alinta Co Converting Shares (or any interest in such shares) and no such dealings are permitted.
6 General
6.1 Inconsistencies
To the extent of inconsistency between this Scheme and the AGL Constitution, this Scheme overrides the AGL Constitution and binds AGL and all AGL Shareholders.
6.2 Further assurance
AGL will execute all deeds and other documents and do all acts and things necessary or expedient for the implementation and performance of this Scheme and will, on behalf of Scheme Participants, procure New Alinta Co and AGL Energy to execute all documents and do all acts and things necessary or desirable for the implementation and performance of the steps attributed to New Alinta Co and AGL Energy under this Scheme and the Buy Back.
6.3 Costs
Any costs, and any stamp duty and any related fines or penalties, which are payable on or in respect of this Scheme or on any document referred to in this Scheme or the Buy Back Agreement will be paid as provided for in clauses 33.2 and 33.3 of the Merger Implementation Agreement. For the avoidance of doubt, the Scheme Participants do not have to pay any stamp duty, related fines or penalties which are payable on or in respect of this Scheme or any document referred to in this Scheme or the Buy Back Agreement.
6.4 GST
AGL must pay to the Scheme Participants an amount equal to any GST for which the Scheme Participants are liable on any supply by the Scheme Participants under or in connection with the Scheme, without deduction or set off of any other amount.
6.5 Governing law
This Scheme is governed by the laws of the State of New South Wales, Australia.
6.6 Official quotation of AGL Energy Shares
AGL will procure that, on or before the date that the Booklet is despatched to AGL Shareholders, AGL Energy applies to ASX for admission of AGL Energy to the official list of ASX and for AGL Energy Shares to be quoted on ASX (initially on a deferred settlement basis), in each case conditional upon the Court approving this Scheme and the Alinta Scheme pursuant to section 411(4)(b) of the Corporations Act.
6.7 Notices
Any notice or other communication to AGL in respect of this Scheme must be in legible writing and in English and:
(a) addressed as shown below:
Attention: Company Secretary
Address: 72 Christie Street, St Leonards NSW 2065Fax no: +61 2 9921 2552;
(b)must be signed by the person making the communication or by a person duly authorised by that person;
(c)must be delivered or posted by prepaid post to the address, or sent by fax to the fax number, of AGL in accordance with clause 6.7(a); and
(d) will be regarded as received by AGL:
(i)if sent by fax, at the local time (in the place of receipt of that fax) which then equates to the time at which that fax is sent as shown on the transmission report which is produced by the machine from which that fax is sent and which confirms transmission of that fax in its entirety, unless that local time is not a Business Day, or is after 5:00pm on a Business Day, in which case that communication will be regarded as received at 9:00am on the next Business Day; and
(ii)in any other case, on delivery at the address of AGL as provided in clause 6.7(a), unless that delivery is not made on a Business Day, or after 5:00pm on a Business Day, in which case that communication will be regarded as received at 9:00am on the next Business Day.
6.8 Lodgement of Court Order with ASIC
AGL must lodge with ASIC an office copy of the Court order that approves this Scheme under section 411(4)(b) of the Corporations Act by 5.00pm on the second Business Day after the day on which the Court approves this Scheme.
SCHEDULE 4
CONTENTS
1.INTERPRETATION 2
1.1Definitions 2
1.2Interpretation 5
1.3Business Day 5
2.CONDITIONS 6
2.1Conditions precedent to the Scheme 6
2.2Certificate in relation to conditions 6
2.3Effective Date 6
2.4End date 6
3.SCHEME
3.1The Scheme 6
3.2Transfer of Scheme Shares 7
3.3Issue of Scheme Consideration 7
3.4Ineligible Overseas Alinta Shareholders 7
3.5Registration and holding statements 8
4.DEALINGS IN ALINTA SHARES 9
4.1Dealings in Alinta Shares by Scheme Participants 9
4.2Alinta Share Register 10
4.3Registration of holdings 10
4.4Holding statements no effect from Record Date 10
4.5Alinta to provide contact information for Scheme Participants 10
5.GENERAL PROVISIONS 10
5.1Appointment of agent and attorney 10
5.2Enforcement of Deeds Poll 10
5.3Free of encumbrances 11
5.4Instructions to Alinta 11
5.5Scheme Participants’ consent 11
5.6Amendments to the Scheme 11
5.7GST 12
6.MISCELLANEOUS
6.1Inconsistencies 12
6.2Further assurance 12
6.3Costs 12
6.4Governing law 12
6.5Notices 12
6.6Lodgement of Court Order with ASIC 13
SCHEME OF ARRANGEMENT MADE UNDER SECTION 411
OF THE CORPORATIONS ACT 2001 (CTH)
DATE
PARTIESAlinta Limited ACN 087 857 001 of Level 7, 1 William Street, Perth, Western Australia, 6000 (Alinta)
The holders of fully paid ordinary shares issued in the capital of Alinta Limited
RECITALS
A.Alinta is a public company incorporated in the State of Western Australia. It is admitted to the official list of ASX and Alinta Shares are quoted on the stock market conducted by ASX.
B.Alinta has 264,641,420 Alinta Shares on issue.
C.New Alinta Co and New Alinta Co Sub, a wholly owned subsidiary of New Alinta Co, are companies incorporated in the State of Victoria.
D.Alinta, AGL, AGL Energy and New Alinta Co have entered into the Transaction Implementation Deed (to which New Alinta Co Sub is also a party) and the Merger Implementation Agreement pursuant to which, among other things, Alinta has agreed to propose and (subject to the satisfaction of certain conditions) implement this Scheme and AGL has agreed to propose and (subject to the satisfaction of certain conditions) implement the AGL Scheme.
E.If this Scheme becomes effective, then:
(a) the Scheme Shares will be transferred to New Alinta Co Sub; and
(b)New Alinta Co will provide the Scheme Consideration to the Scheme Participants,
each step to be taken in accordance with the provisions of this Scheme.
F.New Alinta Co has entered into the New Alinta Co Deed Poll for the purpose of covenanting in favour of the Scheme Participants and the AGL Scheme Participants to perform its obligations under the Scheme, the AGL Scheme, the Merger Implementation Agreement and the Transaction Implementation Deed.
G.Alinta has procured or proposes to procure that the Nominee covenants in favour of Scheme Participants and the AGL Scheme Participants to perform its obligations under this Scheme and the AGL Scheme in accordance with the Nominee Deed Poll.
OPERATIVE PROVISIONS
1.INTERPRETATION
1.1 Definitions
In this Scheme, unless the contrary intention appears or the context requires otherwise:
AGL means The Australian Gas Light Company ACN 052 167 405 of 72 Christie Street, St Leonards, NSW 2065.
AGL Energy means AGL Energy Limited ACN 115 061 375.
AGL Scheme means the scheme of arrangement between AGL and its shareholders made under section 411 of the Corporations Act 2001 (Cth) dated on or about the date of this Scheme, subject to any alterations or conditions made or required by the Court pursuant to section 411 of the Corporations Act.
AGL Scheme Participant means "Scheme Participant" as that term is defined in the AGL Scheme.
Alinta Board means the board of directors of Alinta.
Alinta Constitution means the constitution of Alinta.
Alinta Director means a director of Alinta.
Alinta Share means a fully paid ordinary share in the capital of Alinta.
Alinta Share Register means the register of Alinta shareholders maintained under section 169 of the Corporations Act.
ASIC means the Australian Securities and Investments Commission.
ASX means the Australian Stock Exchange Limited ABN 98 008 624 691.
Booklet means the booklet dated 28 August 2006 approved by the Court under section 411(1) of the Corporations Act for distribution to Alinta Shareholders explaining the Scheme and containing, among other things, the explanatory statement as required by Part 5.1 of the Corporations Act in relation to the Scheme.
Business Day means a business day as defined in the Listing Rules.
CHESS means the Clearing House Electronic Sub-register System.
Corporations Act means the Corporations Act 2001 (Cth) and the regulations made under that Act.
Court means the Federal Court of Australia.
Effective Date means the date on which the office copy of the Court order approving the Scheme under section 411(4)(b) of the Corporations Act is lodged with ASIC pursuant to section 411(10) of the Corporations Act, or if an earlier date is specified in the Court order for the coming into effect of the Scheme, that earlier date.
GST has the same meaning as GST in the GST Act.
GST Act means the A New Tax System (Goods & Services Tax) Act 1999 (Cth).
Implementation Date means 10 Business Days after the Effective Date and the effective date of the AGL Scheme (which will be the same day) or such other date as agreed by AGL and Alinta.
Ineligible Overseas AGL Shareholder has the meaning set out in the AGL Scheme.
Ineligible Overseas Alinta Shareholder means a Scheme Participant whose Registered Address is in any jurisdiction other than:
(a)Australia and its external territories;
(b)New Zealand;
(c)the United States of America;
(d)Hong Kong;
(e)Japan;
(f)Singapore;
(g)the United Kingdom;
(Overseas Alinta Shareholder), other than an Overseas Alinta Shareholder in respect of whom New Alinta Co is satisfied that the laws of the Overseas Alinta Shareholder's country of residence (as shown in the Share Register) would permit the issue of New Alinta Co Ordinary Shares to the Overseas Alinta Shareholder, either unconditionally or after compliance with conditions which New Alinta Co in its sole discretion regards as acceptable and not unduly onerous.
Listing Rules means the listing rules of ASX from time to time as modified by any express written waiver or exemption given by ASX.
Merger Implementation Agreement means the agreement dated 22 June 2006 between AGL, AGL Energy, Alinta and New Alinta Co to carry into effect the Scheme.
New Alinta Co means Alinta Mergeco Limited ACN 119 985 590.
New Alinta Co Converting Share means a fully paid converting share in the capital of New Alinta Co.
New Alinta Co Converting Share Register means the register of New Alinta Co Converting Shareholders maintained under section 169 of the Corporations Act.
New Alinta Co Converting Shareholder means a person who is registered in the New Alinta Co Converting Share Register as the holder of New Alinta Co Converting Shares.
New Alinta Co Deed Poll means the deed poll dated 28 August 2006 executed by New Alinta Co in favour of the Scheme Participants and AGL Scheme Participants (subject to any amendments permitted by its terms).
New Alinta Co Ordinary Share means a fully paid ordinary share in the capital of New Alinta Co.
New Alinta Co Ordinary Share Register means the register of the holders of New Alinta Co Ordinary Shares maintained under section 169 of the Corporations Act.
New Alinta Co Sub means Numar Pty Limited ACN 118 926 131.
Nominee has the meaning given to that term in clause 0.
Nominee Deed Poll means the deed poll which Alinta has procured or proposes to procure the Nominee to enter into in favour of Scheme Participants and AGL Scheme Participants (subject to any amendments permitted by its terms).
Official List means the official list of ASX.
Record Date means 7:00pm on the fifth Business Day after the Effective Date, or such other date as may be agreed by AGL and Alinta.
Registered Address means, in relation to a Scheme Participant, the address of that Scheme Participant shown in the Alinta Share Register on the Record Date.
Scheme means the scheme of arrangement between Alinta and Alinta Shareholders as set out in this document, subject to any alterations or conditions made or required by the Court pursuant to section 411 of the Corporations Act.
Scheme Consideration means one New Alinta Co Ordinary Share in respect of each Alinta Share to be allotted and issued subject to, and as provided for by, this Scheme.
Scheme Meeting means the meeting of Alinta Shareholders ordered by the Court to be convened under section 411(1) of the Corporations Act to consider the Scheme.
Scheme Participant means a person registered on the Alinta Share Register at the Record Date as the holder of a Scheme Share after registration of all transfer and transmission applications as provided for in clause 0.
Scheme Share means all Alinta Shares on issue at the Record Date.
Second Court Date means the date on which the application made to the Court for an order for the purposes of section 411(4)(b) of the Corporations Act approving this Scheme is first heard.
Transaction Implementation Deed means the deed dated 22 June 2006 between AGL, Alinta, New Alinta Co, AGL Energy and New Alinta Co Sub.
1.2 Interpretation
In this Scheme, unless the contrary intention appears or the context requires otherwise:
(a)words and phrases (other than those defined in clause 0) have the same meaning (if any) given to them in the Corporations Act;
(b) the singular includes the plural and vice versa;
(c) each gender includes the other gender;
(d)references to persons includes references to individuals, corporations, other bodies corporate or bodies politic;
(e)references to paragraphs or clauses are to a paragraph or clause of this document;
(f)a reference to a statute, regulation or agreement is to such a statute, regulation or agreement as from time to time amended;
(g)a reference to a person includes a reference to a person's executors, administrators, successors, substitutes (including, without limitation, persons taking by novation) and assigns;
(h)if a time period is specified and dates from a given date or the day of an act or event, it is to be calculated exclusive of that day;
(i)a reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later;
(j)a reference to any time is a reference to that time in Sydney, Australia;
(k)a reference to ‘dollars’ or ‘$’ is to the lawful currency of the Commonwealth of Australia;
(l)a reference to a document is that document as varied, novated, ratified or replaced from time to time;
(m)the interpretation of a substantive provision is not affected by any heading; and
(n) ‘includes’ in any form is not a word of limitation.
1.3 Business Day
Except where otherwise expressly provided, where the day on which any act, matter or thing is to be done is a day other than a Business Day, that act, matter or thing shall be done on the next Business Day.
2.CONDITIONS
2.1Conditions precedent to the Scheme
This Scheme is conditional upon the satisfaction of each of the following conditions precedent:
(a)each condition precedent set out in clause 3.2 of the Merger Implementation Agreement, other than the condition precedent set out in clause 0, is satisfied or, subject to the terms of the Merger Implementation Agreement, waived or taken to have been waived; and
(b)the Effective Date for this Scheme occurs on the same date as the date on which an office copy of the Court order approving the AGL Scheme, under section 411(4)(b) of the Corporations Act, is lodged with ASIC pursuant to section 411(10) of the Corporations Act, or if an earlier date is specified in the Court order for the coming into effect of the AGL Scheme, that earlier date.
2.2Certificate in relation to conditions
Alinta must provide to the Court on the Second Court Date a certificate which is authorised by the Alinta Board and signed by at least one Alinta Director (or such other evidence as the Court may request) confirming whether or not the conditions precedent set out in clause 3.2 of the Merger Implementation Agreement, other than the condition precedent set out in clause 0, have been satisfied or, subject to the terms of that agreement, waived or taken to be waived. The certificate constitutes conclusive evidence that such conditions precedent are satisfied, waived or taken to be waived.
2.3Effective Date
This Scheme takes effect on the Effective Date.
2.4End date
This Scheme lapses and has no further force or effect if the Effective Date is not on or before 31 December 2006 (or such later date agreed by AGL and Alinta in writing and, if required, approved by the Court).
3.SCHEME
3.1The Scheme
(a)The Scheme Shares, together with all rights and entitlements attaching to those shares as at the Implementation Date, will, without the need for any further act by any Scheme Participant (other than acts performed by Alinta or its directors as attorney or agent for Scheme Participants under clauses 0 and 0), be transferred to New Alinta Co Sub on the Implementation Date and the transfer will be deemed to be effective on the Implementation Date.
(b)Each Scheme Participant shall, subject to the terms of the Scheme, be issued with one New Alinta Co Ordinary Share for each Scheme Share held by that Scheme Participant.
3.2Transfer of Scheme Shares
For the purpose of transferring the Scheme Shares to New Alinta Co Sub in accordance with clause 0, each Scheme Participant irrevocably appoints Alinta and each Alinta Director severally as its true and lawful attorney, with effect from the Effective Date with power:
(a) in the case of Scheme Shares in a CHESS Holding:
(i)to cause a message to be transmitted to ASTC in accordance with ASTC Settlement Rules so as to transfer to New Alinta Co Sub the Scheme Shares held by the Scheme Participant from the CHESS sub-register of Alinta to the issuer sponsored sub-register operated by Alinta notwithstanding that, at the time of such transfer, the Scheme Consideration which is due under this Scheme has not been provided to the Scheme Participants; or
(ii)to complete and sign on behalf of Scheme Participants any required form of transfer to New Alinta Co Sub of such shares (which may be a master transfer of all Scheme Shares);
(b)in the case of Scheme Shares that are registered in the issuer sponsored sub-register operated by the Alinta Share Registry, to complete and sign on behalf of Scheme Participants any required form for the transfer to New Alinta Co Sub of such shares (which may be a master transfer of all Scheme Shares); and
(c)in the case of all Scheme Shares, to exercise all powers and rights which the Scheme Participant could lawfully exercise as the registered holder of the Scheme Shares including without limitation attending and voting at any meeting of Alinta (which meeting the Scheme Participant undertakes not to otherwise attend or vote at in person or by proxy or other representative), requisitioning any meeting of Alinta and doing all things incidental and ancillary to any of the foregoing and it is acknowledged and agreed that in exercising such powers the attorney may act in the interests of New Alinta Co Sub as the intended registered holder of those shares.
3.3Issue of Scheme Consideration
New Alinta Co must allot and issue the Scheme Consideration to the Scheme Participants in accordance with, and subject to the terms of, this Scheme on the Implementation Date.
3.4Ineligible Overseas Alinta Shareholders
(a)The right to receive Scheme Consideration in accordance with clause 0 will not be available to an Ineligible Overseas Alinta Shareholder.
(b)The Scheme Consideration that would, but for clause 0, have been issued to an Ineligible Overseas Alinta Shareholder will instead be issued to a person nominated by Alinta and AGL (Nominee) and the following provisions of this clause 0 shall apply.
(c)Where the Nominee is issued with New Alinta Co Ordinary Shares under paragraph (b), Alinta shall cause the Nominee:
(i)as soon as reasonably practicable, but in any event within 20 Business Days after the Implementation Date, to offer all such New Alinta Co Ordinary Shares for sale on ASX in such manner, at such price or prices and on such other terms as the Nominee determines in good faith (and at the risk of the Ineligible Overseas Alinta Shareholder). For the avoidance of doubt, such a sale may be made during the period when the New Alinta Co Ordinary Shares are being quoted for trading on ASX on a deferred settlement basis; and
(ii)within 5 Business Days after the receipt by the Nominee of the whole of the proceeds of sale of all such New Alinta Co Ordinary Shares, to remit the proceeds of such sale of all such New Alinta Co Ordinary Shares (after deduction of any fees and taxes or other charges or costs of sale) to Alinta.
(d)Within 5 Business Days after the receipt by Alinta of the remittance under clause 0, Alinta must do all things required to ensure payment by cheque in Australian dollars to each Ineligible Overseas Alinta Shareholder of that proportion of the net proceeds of sale (after deduction of any fees and taxes or other charges or costs of sale) of all such New Alinta Co Ordinary Shares as is equal to the proportion that the number of New Alinta Co Ordinary Shares issued to the Nominee under clause 0 in respect of that Ineligible Overseas Alinta Shareholder bears to the total number of New Alinta Co Ordinary Shares issued to the Nominee under clause 3.4(b) in respect of all such Ineligible Overseas Alinta Shareholders.
(e)Each Ineligible Overseas Alinta Shareholder appoints Alinta as its agent to receive on its behalf any financial services guide or other notices which may be given by the Nominee to Ineligible Overseas Alinta Shareholders.
3.5Registration and holding statements
(a)New Alinta Co must register, or cause to be registered, the Scheme Participants (other than the Ineligible Overseas Alinta Shareholders) and the Nominee (in respect of the Ineligible Overseas Alinta Shareholders), as the holders of the New Alinta Co Ordinary Shares to which they become entitled under this Scheme on either an uncertificated issuer sponsored sub-register of New Alinta Co Ordinary Shares operated by New Alinta Co or on an uncertificated CHESS sub-register of New Alinta Co Ordinary Shares operated by New Alinta Co, as determined by New Alinta Co in its absolute discretion, such registration to occur on the Implementation Date immediately after the transfer of the Scheme Shares to New Alinta Co Sub takes effect under clause 0.
(b)On the Implementation Date, immediately after New Alinta Co has registered the AGL Scheme Participants (other than Ineligible Overseas AGL Shareholders) and the Nominee (in respect of Ineligible Overseas AGL Shareholders) as the holders of New Alinta Co Ordinary Shares on the New Alinta Co Ordinary Share Register and New Alinta Co Converting Shares on the New Alinta Co Converting Share Register in accordance with clause 3.6(a) and (b) of the AGL Scheme, New Alinta Co Sub must (as transferee) execute the share transfer forms (or master share transfer form) referred to in clauses 0 and 0 and must deliver that executed form or those executed forms to Alinta for registration, and Alinta must then immediately register New Alinta Co Sub as the holder of the Scheme Shares in the Alinta Share Register.
(c)On, or as soon as practicable after, the Implementation Date, New Alinta Co must forward holding statements or notices confirming the issue and allotment of New Alinta Co Ordinary Shares to the Scheme Participants, including to the Nominee in respect of the Ineligible Overseas Alinta Shareholders, who become entitled to those securities under this Scheme.
(d)Holding Statements or notices confirming the issue and allotment of New Alinta Co Ordinary Shares are to be sent to the Scheme Participants (other than Ineligible Overseas Alinta Shareholders) or to the Nominee (in respect of the Ineligible Overseas Alinta Shareholders) as the case may be by prepaid post to their Registered Address and in the case of Scheme Participants that are joint holders of Alinta Shares such holding statements or notices must be forwarded to the holder whose name appears first in the Alinta Share Register on the Record Date.
(e)Each Scheme Participant agrees for all purposes to becoming a member of New Alinta Co without the need for further act on its part and each of them agrees to be bound by the constitution of New Alinta Co.
4.DEALINGS IN ALINTA SHARES
4.1Dealings in Alinta Shares by Scheme Participants
For the purposes of establishing who is a Scheme Participant, dealings in Alinta Shares will be recognised by Alinta provided that:
(a)in the case of dealings of the type to be effected on CHESS, the transferee is registered as the holder of the relevant Alinta Shares on or before the Record Date; or
(b)in all other cases, registrable transfer or transmission applications in respect of those dealings are received at the place where the Alinta Share Register is kept on or before the Record Date,
and Alinta will not accept for registration or recognise for the purpose of establishing who are Scheme Participants any transfer or transmission application in respect of Alinta Shares received after the Record Date.
4.2Alinta Share Register
For the purpose of determining entitlements to participate in this Scheme, Alinta must maintain, or procure the maintenance of, the Alinta Share Register in accordance with the provisions of this clause 0, and the Alinta Share Register in this form and the terms of this Scheme solely determine the entitlements to the Scheme Consideration.
4.3Registration of holdings
Alinta must register any registrable transfer or transmission applications received in accordance with clause 0 on or before the Record Date.
4.4Holding statements no effect from Record Date
From the Record Date, all holding statements for Scheme Shares as at the Record Date will cease to have effect as documents of title, and each entry on the Alinta Share Register at the Record Date will cease to have any effect other than as evidence of the entitlements of Scheme Participants to the Scheme Consideration.
4.5Alinta to provide contact information for Scheme Participants
As soon as practicable after the Record Date and in any event at least 3 Business Days before the Implementation Date, Alinta will give to New Alinta Co or procure that New Alinta Co be given details of the name, Registered Address and the number of Alinta Shares held by each Scheme Participant, as shown in the Alinta Share Register at the Record Date, in whatever form New Alinta Co reasonably requires.
5.GENERAL PROVISIONS
5.1Appointment of agent and attorney
Each Scheme Participant without the need for any further act on their part, irrevocably appoints Alinta and any of its directors as its agent and attorney for the purpose of:
(a)executing any document or doing any other act necessary to give effect to the terms of this Scheme;
(b)enforcing the New Alinta Co Deed Poll against New Alinta Co; and
(c)enforcing the Nominee Deed Poll against Nominee,
and Alinta accepts such appointment. Alinta, as agent of each Scheme Participant, may sub-delegate its functions under this clause 0 to all or any of its directors and secretaries (jointly or severally).
5.2Enforcement of Deeds Poll
Alinta undertakes in favour of each Scheme Participant that it will enforce the New Alinta Co Deed Poll against New Alinta Co and the Nominee Deed Poll against the Nominee in each case on behalf of and as agent and attorney for the Scheme Participants.
5.3Free of encumbrances
Each Scheme Participant is deemed to have warranted to New Alinta Co Sub and New Alinta Co that all their Scheme Shares (including any rights attaching to those shares) that are transferred to New Alinta Co Sub under this Scheme are, at the date of transfer, 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 to transfer their Scheme Shares together with any rights attaching to those shares.
5.4Instructions to Alinta
All binding instructions or notifications between a Scheme Participant (other than an Ineligible Overseas Alinta Shareholder) and Alinta relating to Scheme Shares or a Scheme Participant's status as an Alinta Shareholder (including, without limitation, any instructions relating to communications from Alinta and whether dividends are to be paid by cheque or into a specified bank account, and the election of an Alinta Shareholder to participate in a dividend reinvestment plan) will, to the extent permitted, from the Record Date be deemed, by reason of the Scheme, to be similarly binding instructions or notifications to, and accepted by, New Alinta Co in respect of the New Alinta Co Ordinary Shares that are issued to the Scheme Participants under the Scheme (and the New Alinta Co dividend reinvestment plan) until those instructions or notifications are, in each case, revoked or amended in writing addressed to New Alinta Co (at its registered address from time to time).
5.5Scheme Participants' consent
Each Scheme Participant:
(a)consents to Alinta doing all things and executing all deeds, instruments, transfers or other documents as may be necessary, incidental or expedient to the implementation and performance of the Scheme and Alinta, as agent of each Scheme Participant may sub‑delegate its functions under this clause 0 to any of its directors and officers, jointly and severally;
(b)acknowledges that the Scheme binds Alinta and all of the Alinta Shareholders from time to time (including those who do not attend the Scheme Meetings, do not vote at that meeting or vote against the Scheme); and
(c)agrees to the transfer of their Alinta Shares, together with all rights and entitlements attaching to those Alinta Shares, to New Alinta Co Sub, in accordance with the Scheme.
5.6Amendments to the Scheme
If the Court proposes to approve the Alinta Scheme subject to any alterations or conditions, Alinta may, by its counsel or solicitors, and with the consent of New Alinta Co, consent to those alterations or conditions on behalf of all persons concerned, including a Scheme Participant.
5.7GST
Alinta must pay to the Scheme Participants an amount equal to any GST for which the Scheme Participants are liable on any supply by the Scheme Participants under or in connection with the Scheme, without deduction or set off of any other amount.
6.MISCELLANEOUS
6.1Inconsistencies
To the extent of inconsistency between this Scheme and the Alinta Constitution, this Scheme overrides the Alinta Constitution and binds Alinta and all Alinta Shareholders.
6.2Further assurance
Alinta will execute all deeds and other documents and do all acts and things necessary or expedient for the implementation and performance of this Scheme and will, on behalf of Scheme Participants, procure New Alinta Co to execute all documents and do all acts and things necessary or desirable for the implementation and performance of the steps attributed to New Alinta Co under this Scheme.
6.3Costs
Any costs, and any stamp duty and any related fines or penalties, which are payable on or in respect of this Scheme or on any document referred to in this Scheme will be paid as provided for in clauses 33.2 and 33.3 of the Merger Implementation Agreement. For the avoidance of doubt, the Scheme Participants do not have to pay any stamp duty, related fines or penalties which are payable on or in respect of this Scheme or any document referred to in this Scheme.
6.4Governing law
This Scheme is governed by the laws of the State of New South Wales, Australia.
6.5Notices
Any notice or other communication to Alinta in respect of this Scheme must be in legible writing and in English and:
(a) addressed as shown below:
Attention: Company Secretary
Address:Level 7, 1 William Street, Perth, WA 6000
Fax no: +61 8 9486 3030
(b)must be signed by the person making the communication or by a person duly authorised by that person;
(c)must be delivered or posted by prepaid post to the address, or sent by fax to the fax number, of Alinta in accordance with clause 0; and
(d) will be regarded as received by Alinta:
(i)if sent by fax, at the local time (in the place of receipt of that fax) which then equates to the time at which that fax is sent as shown on the transmission report which is produced by the machine from which that fax is sent and which confirms transmission of that fax in its entirety, unless that local time is not a Business Day, or is after 5:00pm on a Business Day, in which case that communication will be regarded as received at 9:00am on the next Business Day; and
(ii)in any other case, on delivery at the address of Alinta as provided in clause 0, unless that delivery is not made on a Business Day, or after 5:00pm on a Business Day, in which case that communication will be regarded as received at 9:00am on the next Business Day.
6.6Lodgement of Court order with ASIC
Alinta must lodge with ASIC an office copy of the Court order that approves this Scheme under section 411(4)(b) of the Corporations Act by 5:00pm on the second Business Day after the day on which the Court approves this Scheme.
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