Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Climax Mining Ltd, in the matter of Climax Mining Ltd (No 2) [2006] FCA 1444
IN THE MATTER OF CLIMAX MINING LTD (ACN 000 250 500) CLIMAX MINING LTD (ACN 000 250 500) NSD 1734 OF 2006
LINDGREN J
7 NOVEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1734 OF 2006
IN THE MATTER OF CLIMAX MINING LTD (ACN 000 250 500) CLIMAX MINING LTD (ACN 000 250 500)
Plaintiff
JUDGE: LINDGREN J DATE OF ORDER: 3 november 2006
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. Pursuant to ss 411(4) and (6) of the Corporations Act 2001 ('the Act'), the Scheme of Arrangement between the plaintiff and its shareholders which is annexed hereto and marked 'A' be and is hereby approved. 2. Pursuant to ss 411(4) and (6) of the Act, the Scheme of Arrangement between the plaintiff and its listed option holders which is annexed hereto and marked 'B' be and is hereby approved. 3. The plaintiff be exempt from compliance with s 411(11) of the Act. 4. The exhibits be returned to the plaintiff. 5. 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 NSD 1734 OF 2006
IN THE MATTER OF CLIMAX MINING LTD (ACN 000 250 500) CLIMAX MINING LTD (ACN 000 250 500)
Plaintiff
JUDGE: LINDGREN J
DATE: 7 NOVEMBER 2006
PLACE: SYDNEY
REASONS FOR JUDGMENT No 2 (Second court hearing) 1 On 1 October 2006 I published reasons for judgment (Climax Mining Ltd, in the matter of Climax Mining Ltd [2006] FCA 1276) explaining why I ordered that meetings of shareholders and option holders in Climax be convened. (I will use the same abbreviated forms of reference as in the earlier reasons). 2 There is now evidence that both meetings were duly convened and held on 30 October 2006; that the shareholders, by the required majority, agreed to the Share Scheme; and that the option holders, by the required majority, agreed to the Option Scheme. 3 A minor point is that Dr Victor Rudenno, a director of Interfinancial Limited, who had provided a verified report that was before the Court on the first court hearing, discovered an error in his report. However, correction of the error made the Share Scheme even more beneficial to shareholders. In his original report, Dr Rudenno stated that the total consideration they were to receive was 42.6 cents per share, which represented a premium of 27.4 percent. The figures should have been 49.7 cents per share, and a premium of 48.8 percent. 4 At the Share Scheme meeting, the error and Dr Rudenno's correction of it were announced by the Chairman to the shareholders present, and it was explained that the correction reflected an increase in the consideration payable to shareholders. 5 Obviously, as Dr Rudenno has now deposed, he remained of the opinion that the Share Scheme was fair and reasonable. The Chairman also pointed this out to shareholders attending the meeting. 6 ASIC has advised under s 411(17)(b) of the Act, that it has no objection to the Schemes, on the basis that it is satisfied that they have not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6 of the Act. 7 There is no reason why the acquisition by Oceana, supported by the directors and now agreed to by the shareholders and option holders of Climax, should not proceed. 8 For the above reasons the Court will approve of both Schemes.
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