FEDERAL COURT OF AUSTRALIA Promentum Limited ACN 003 322 512 [2007] FCA 590 Corporations Act 2001 (Cth), s 411 PROMENTUM LIMITED ACN 003 322 512, IN THE MATTER OF PROMENTUM LIMITED ACN 003 322 512 NSD355 OF 2007 EMMETT J 19 APRIL 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD355 OF 2007 IN THE MATTER OF PROMENTUM LIMITED ACN 003 322 512 PROMENTUM LIMITED ACN 003 322 512 Plaintiff JUDGE: EMMETT J DATE OF ORDER: 19 APRIL 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to section 411(4)(b) of the Corporations Act 2001, the scheme of arrangement between the plaintiff and its members in the form annexed hereto and marked "A" be approved. 2. Pursuant to section 411(12) of the Corporations Act 2001, the plaintiff be exempted from compliance with section 411(11) of the Corporations Act 2001 in relation to the order at paragraph 1. 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 NSD355 OF 2007 IN THE MATTER OF PROMENTUM LIMITED ACN 003 322 512 PROMENTUM LIMITED ACN 003 322 512 Plaintiff JUDGE: EMMETT J DATE: 19 APRIL 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 15 March 2007, the Court ordered, pursuant to s 411(1) of the Corporations Act 2001 (Cth) (the Act), that Promentum Limited (the Company), convene a meeting of its shareholders for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement in the form which was exhibited in the course of the application (the Scheme). The Scheme involved the acquisition of all of the issued shares in the Company by GEON Group Australia Pty Limited (GEON). 2 The meeting was convened in accordance with the orders made on 15 March 2007 and the Company now applies, pursuant to s 411(4)(b) of the Act, for approval of the Scheme. The Company was represented by senior counsel, and GEON was also represented on the hearing of the application. There was no appearance by any other person. 3 I have had regard to the evidence that was relied on in support of the application to the Court, for an order convening the meeting. I have also had regard to the following evidence: · Form 530, signed by David Anthony Wiggins, dated 18 April 2007; · affidavit of Laura Elizabeth Hartley, sworn 17 April 2007; · affidavit of Shanti Rama, sworn 17 April 2007; · further affidavit of David Anthony Wiggins concerning receipt of proxies sworn 18 April 2007; · affidavit of Edward Wilkie, sworn 18 April 2007 concerning the audit of proxies; · affidavit of Joe Tombino, sworn 18 April 2007; · affidavit of Edward Wilkie, sworn 18 April 2007; · affidavit of John Michael Churchill, sworn 18 April 2007 concerning the holding of the meeting and the passing of the resolution; · affidavit of William Mark Addison, sworn 12 April 2007; · further affidavit of William Mark Addison, sworn 19 April 2007. 4 The evidence indicates that at the meeting of shareholders, 98.9% of the members present in person or by proxy voted in favour of the resolution to agree to the Scheme. It is clear, therefore, that the Scheme was agreed to by significantly in excess of the majority required by s 411. 5 The Scheme was subject to certain conditions. I have evidence in the form of certificates provided on behalf of both the Company and GEON, concerning the satisfaction of the conditions precedent to the operation of the Scheme. I have also seen a letter from Australian Securities and Investments Commission (the Commission) dated 18 April 2007 confirming that the Commission is satisfied that the Scheme has 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, which is concerned with takeovers. The letter also indicates that the Commission does not propose to appear to make submissions or to intervene to oppose the Scheme at the hearing that was fixed for today. 6 Having regard to the resolution of the shareholders, and having regard to the conclusions that I reached on the making of the application to convene the meeting to consider the Scheme, I consider that it is appropriate for the Court to approve the Scheme pursuant to s 411(4)(b). It is also appropriate that the Company be exempted from compliance with s 411(11) of the Corporations Act in relation to the proposed Scheme. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 27 April 2007 Counsel for the Applicant: M Oakes SC Solicitor for the Applicant: Dibbs Abbott Stillman Lawyers Solicitor for GEON Group Australia Pty Ltd: Clayton Utz Date of Hearing: 19 April 2007 Date of Judgment: 19 April 2007