FEDERAL COURT OF AUSTRALIA Application by Normandy NFM Limited (Trading as Newmont NFM) [2003] FCA 335 CORPORATIONS LAW – scheme of arrangement – criteria for Court's approval of scheme of arrangement – whether scheme of arrangement fair and reasonable – no question of principle Corporations Act 2001 (Cth) s 411(4)(v), 411(11), 411(12) Securities Act 1933 (US) APPLICATION BY NORMANDY NFM LIMITED (TRADING AS NEWMONT NFM) IN THE MATTER OF NORMANDY NFM LIMITED T/AS NEWMONT NFM – ABN 039 007 680 093 N 3008 OF 2003 HELY J 11 APRIL 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 3008 OF 2003 BETWEEN: APPLICATION BY NORMANDY NFM LIMITED (TRADING AS NEWMONT NFM) IN THE MATTER OF NORMANDY NFM LIMITED T/AS NEWMONT NFM ABN 039 007 688 093 APPLICANT JUDGE: HELY J DATE OF ORDER: 11 APRIL 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to s 411(4)(b) of the Corporations Act 2001(Cth) the scheme of arrangement between Normandy NFM Limited (ABN 039 007 688 093) (NFM) and the holders of NFM shares, in the form annexed hereto, be approved. 2. Pursuant to s 411(12) of the Corporations Act 2001 (Cth) that NFM be exempted from compliance with s 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. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 3008 OF 2003 BETWEEN: APPLICATION BY NORMANDY NFM LIMITED (TRADING AS NEWMONT NFM) IN THE MATTER OF NORMANDY NFM LIMITED T/AS NEWMONT NFM ABN 039 007 688 093 APPLICANT JUDGE: HELY J DATE: 11 APRIL 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 21 February 2003 I made orders convening meetings of minority shareholders and of the majority shareholders in Normandy NFM Limited for the purpose of considering a scheme of arrangement proposed to be made between the company and its members. I am satisfied that the meeting which was held on 2 April 2003 was convened in accordance with those orders, and in particular that the advertisements which I ordered to be published, were published as required. 2 I am satisfied that at the meetings of shareholders held on 2 April 2003, the scheme was approved by the requisite majorities. At the meeting of minority shareholders, 297 shareholders voted in favour of the scheme resolutions and 24 against. That represents a majority of 92.5 per cent in number. The majority approving the scheme held 6,771,515 shares which represents 99.3 per cent of the total number of shares which were voted at the meeting. 3 I am satisfied that the scheme is fair and reasonable from the viewpoint of an intelligent and honest person, that is a person who might approve of it. The factors that cause me to be satisfied in that respect are the following: - first, the expert's report describes the consideration offered by the scheme as "extremely attractive" to minority shareholders; - second, the scheme was approved by a large majority of members at the minority shareholders meeting; and - third, nobody has appeared to oppose the scheme notwithstanding that this hearing has been advertised. 4 I should indicate that before making those observations I was informed that the company may seek to rely upon the Court's order approving the scheme for the purposes of the Securities Act 1933 (US). 5 In those circumstances, I make orders in accordance with the short minutes of order which I have signed and placed with the papers. Those orders provide for the approval of the scheme. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 15 April 2003 Counsel for the Applicant: Mr M Oakes SC Solicitor for the Applicant: Gilbert & Tobin Date of Hearing: 11 April 2003 Date of Judgment: 11 April 2003