Salt Asia Holdings Pty Ltd ACN 078 013 895 [2004] FCA 122

FEDERAL COURT OF AUSTRALIA

Salt Asia Holdings Pty Ltd ACN 078 013 895 [2004] FCA 122

CORPORATIONS – validation of issue of shares – redeemable preference shares – issued in absence of requisite provision in company constitution – proprietary company – two shareholders only involved – application not contentious – no prejudice to any other party – possible prejudice if issue not validated – no countervailing public policy considerations – carelessness in issue process – no blatant or reckless disregard – no unworthy purpose – criteria generally applicable to exercise of discretion – issue of shares validated

Corporations Law s 200

Corporations Act 2001 (Cth ) s 254E

Onslow Salt Pty Ltd [2003] FCA 429 cited SALT ASIA HOLDINGS PTY LTD ACN 078 013 895 W3031 OF 2003 FRENCH J 23 FEBRUARY 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 3031 OF 2003

IN THE MATTER OF

SALT ASIA HOLDINGS PTY LTD ACN 078 013 895

APPLICANT

JUDGE: FRENCH J

DATE OF ORDER: 23 FEBRUARY 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. Pursuant to s 254E of the Corporations Act 2001, the issues of redeemable preference shares (Preference Shares) by the applicant as follows: (a) 4,550,000 shares (share numbers 1 – 4,550,000) to Akzo Nobel Chemicals International BV on 1 October 1997 (referred to in a resolution of directors dated 15 July 1997); (b) 1,400,000 shares (share numbers 4,550,001-5,950,000) to Hanwha (HK) Co Ltd on 1 October 1997 (referred to in a resolution of directors dated 15 July 1997); (c) 1,050,000 shares (share numbers 5,950,001 to 7,000,000) to PT Sempurna Caturguna on 1 October 1997 (referred to in a resolution of directors dated 15 July 1997); (d) 3,750,000 shares (share numbers 7,000,001-10,575,000) to Akzo Nobel Chemicals International BV on 19 January 1998 (referred to in a resolution of directors dated 15 July 1997); (e) 1,100,000 shares (share numbers 10,575,001-11,675,000) to Hanwha (HK) Co Ltd on 19 January 1998 (referred to in a resolution of directors dated 15 July 1997); (f) 3,250,000 shares (share numbers 23,225,001-26,475,000) to Akzo Nobel Chemicals International BV on 30 April 1998 (referred to in a resolution of directors dated 15 July 1997); (g) 2,613,845 shares (share numbers 23,225,001-25,838,845) issued to Akzo Nobel Chemicals International BV on 21 March 2000; (h) 1,293,103 shares (share numbers 25,838,846-27,131,948) issued to Hanwha (HK) Co Ltd on 21 March 2000; and (i) 1,420,000 shares (share numbers 27,131,949-28,551,948) issued to Akzo Nobel Chemicals International BV on 7 January 2002, each be validated and confirmed on the following terms ('Terms'): (i) The Preference Shares do not confer any dividend rights. (ii) The Preference Shares confer upon the holders the same rights as the holder of ordinary shares to receive notices, reports and profit and loss accounts and balance sheets, and to attend general meetings and vote. (iii) The Preference Shares are liable to be redeemed only at the company's option. Upon redemption the company must pay the holder of the Preference Shares a sum equal to the issue price. (iv) If there is a return of capital, the holder of the Preference Shares will be entitled to receive a sum equal to the issue price before any return of money is made to holders of ordinary shares or other classes of shares ranking behind the Preference Shares. In this respect, Preference Shares rank equally with all other preference shares. (v) Preference shares confer on their holders no further rights to participate in any surpluses and/or profits of the company. (vi) The issue of any further preference share shall not be deemed to have varied the rights of the Preference Shares. 2. Upon lodgment of a copy of these orders with the Australian Securities and Investments Commission the Terms shall be validly contained in the Constitution of the Applicant. 3. A copy of these orders be lodged with the Australian Securities and Investments Commission for the purposes of and pursuant to s 254E(2) of the Corporations Act 2001. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.