In the matter of Phylogica Ltd [2004] FCA 1768

FEDERAL COURT OF AUSTRALIA

In the matter of Phylogica Ltd [2004] FCA 1768 CORPORATIONS – application for validation of share issue – issue of a different class of shares varying existing rights – procedures and requirements of Corporations Act 2001 (Cth) not complied with – notice of deemed variation not given to shareholders or lodged with ASIC – validation and ancillary orders sought Corporations Act 2001 (Cth) ss 246B, 246C(5), 246F(3), 254E, 1322(4), 1322(6)

Alpha Resources Ltd v Corporate Affairs Commission (1987) 5 ACLC 844 cited Farnell Electronic Components Pty Ltd, Re (1997) 15 ACLC 1676 cited Golden Gate Petroleum Ltd, Re (2004) 50 ACSR 659 applied Insurance Australia Group Ltd, Re (2003) 128 FCR 581 cited Onslow Salt Pty Ltd, Re (2003) 198 ALR 344 cited Wave Capital Ltd, Re (2003) 47 ACSR 418 cited IN THE MATTER OF PHYLOGICA LTD WAD 281 of 2004 RD NICHOLSON J 13 DECEMBER 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 218 OF 2004

IN THE MATTER OF PHYLOGICA LTD

(ACN 098 391 961)

APPLICANT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 13 DECEMBER 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. Pursuant to section 1322(4)(c) of the Act, the Applicant and its directors and officers be relieved from any civil liability in respect of any contravention of: (a) section 246F(3)(a), with respect to any failure to lodge ASIC forms 2205 and 210 in regard to the issue of Class A Performance Shares in the Company on 25 May 2004 (Class A Shares). (b) sections 246B(1) and (3), with respect to any failure to implement the procedure for variation of the rights of the ordinary shareholders and to notify those shareholders of the variation within 7 days after the variation was made. 2. Pursuant to section 1322(4)(d) of the Act, the period set out in section 246F(3) to make lodgement with ASIC of forms 2205 and 210 including documents providing for all the rights of the Class A Shares be extended to close of business on the second business day after the date of this order. 3. Pursuant to section 254E(1) of the Act, the issue of: (a) 1,176,472 Class A Shares to Mr Saliba Sassine; (b) 588,236 Class A Shares to Ms Ursula Rosemarie Kees; (c) 588,236 Class A Shares to Mr Richard Miles Hopkins; (d) 294,118 Class A Shares to the University of Western Australia; (e) 294,118 Class A Shares to Ms Rolee Akhaury Kumar; (f) 125,000 Class A Shares to Mr Graeme Raymond Boden; (g) 1,470,590 Class A Shares to the Fox Chase Cancer Center; (h) 1,470,590 Class A Shares to Mr Bruce Fielding McHarrie; (i) 1,470,590 Class A Shares to Mr Wayne Robert Thomas; (j) 16,470,608 Class A Shares to the Telethon Institute for Child Health Research; (k) 3,235,298 Class A Shares to Sassine and Associates Pty Ltd; (l) 3,235,298 Class A Shares to Paul Michael Watt, issued on 25 May 2004, each be validated and confirmed on the terms and conditions set out in Annexure GRB5 to the Affidavit of Graeme Raymond Boden sworn on 9 December 2004 and filed in this matter and contained in schedule A in these orders. 4. The Applicant lodge a copy of these Orders with ASIC for the purposes of and pursuant to section 254E(2) forthwith. 5. The Applicant and all other interested parties have liberty to apply to vary these orders.