Peak Coal Limited (ACN 125 884 031), In the matter of Peak Coal Limited (ACN 125 884 031) [2010] FCA 6

FEDERAL COURT OF AUSTRALIA

Peak Coal Limited (ACN 125 884 031), In the matter of Peak Coal Limited (ACN 125 884 031) [2010] FCA 6 Citation: Peak Coal Limited (ACN 125 884 031), In the matter of Peak Coal Limited (ACN 125 884 031) [2010] FCA 6

Parties: PEAK COAL LIMITED (ACN 125 884 031)

File number: WAD 181 of 2009

Judge: MCKERRACHER J

Date of judgment: 12 January 2010

Catchwords: CORPORATIONS LAW – Scheme of Arrangement – s 411 of the Corporations Act 2001 (Cth) approval

Legislation: Corporations Act 2001 (Cth) Pt 5.1, Ch 6, Ch 6A, ss 411(2), 411(6), 411(17)

Cases cited: Re APN News & Media Ltd (2007) 62 ACSR 400 Re Stockbridge (1993) 9 ACSR 637

Date of hearing: 21 December 2009

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 20

Solicitor for the Plaintiff: Steinepreis Paganin

Counsel for the Plaintiff: JG Young

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

general division WAD 181 of 2009

In the Matter of Peak Coal Limited (ACN 125 884 031) BETWEEN: PEAK COAL LIMITED (ACN 125 884 031)

Plaintiff

JUDGE: MCKERRACHER J

DATE OF ORDER: 21 DECEMBER 2009

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. Leave be given to the Plaintiff to convene a meeting (Shareholders Meeting) of each person registered as a holder of ordinary shares issued by the Plaintiff (Shareholder) as at 8.30 am (WST) 26 January 2010 for the purpose of considering and, if thought fit, approving (with or without amendment) the scheme of arrangement (Share Scheme) which is Appendix 2 of the scheme booklet, being annexure GL-6 to the affidavit of George Lazarou sworn on 15 October 2009 (Scheme Booklet), such meeting to be held on 28 January 2010 at 8.30 am (WST) at the Seminar Room, Royal Perth Golf Club, Labouchere Road, South Perth, Western Australia. 2. Leave be given to the Plaintiff to convene a meeting (Optionholders Meeting) of each person registered as a holder of an option issued by the Plaintiff with an exercise price of 20 cents expiring on 31 December 2011 (Optionholder) as at 9.00 am (WST) 26 January 2010 for the purpose of considering and, if thought fit, approving (with or without amendment) the scheme of arrangement which is Appendix 3 of the Scheme Booklet (Option Scheme), such meeting to be held on 28 January 2010 at 9.00 am (WST) (or, if later, as soon as possible after the conclusion of the Shareholders Meeting) at the Seminar Room, Royal Perth Golf Club, Labouchere Road, South Perth, Western Australia. 3. The Shareholders Meeting be convened, held and conducted: (a) in accordance with the provisions of Part 2G.2 of the Corporations Act 2001 (Cth) (Act) that apply to members of a company and the provisions of the Plaintiff's constitution that are not inconsistent therewith and that apply to meetings of members; and (b) to the extent applicable, in accordance with Corporations Regulations 5.6.12 to 5.6.36. 4. The Optionholders Meeting be convened, held and conducted: (a) in accordance with the provisions of Part 2G.2 of the Act that apply to members of a company and the provisions of the Plaintiff's constitution that are not inconsistent therewith and that apply to meetings of creditors; (b) on the basis that a quorum for the purpose of the Optionholders Meeting shall be 2 Optionholders, present in person or by proxy or attorney and otherwise as if such Optionholders were a separate class of members; and (c) to the extent applicable, in accordance with Corporations Regulations 5.6.12 to 5.6.36. 5. Pursuant to Section 1319 of the Act, the Plaintiff be exempted from compliance with the requirements of Rule 2.15 of the Federal Court (Corporations) Rules 2000 and Regulation 5.6.36A of the Corporations Regulations 2001 (Cth). 6. That Mr Mark Joseph Ceglinski, or failing him, Mr George Lazarou, be appointed to act as Chairman of the Shareholders Meeting and of the Optionholders Meeting. 7. The Chairman appointed to the Shareholders Meeting and the Optionholders Meeting has the power to adjourn those meetings in his absolute discretion. 8. That Mr Mark Joseph Ceglinski, or failing him, Mr George Lazarou, is to report the results of the Shareholders Meeting and of the Optionholders Meeting to this Honourable Court. 9. The Scheme Booklet referred to in Appendix "A" (incorporating the amendments required by ASIC to the date hereof), being an explanatory statement required by section 412(1)(a) of the Act, be and is hereby approved (subject to any minor amendments required or approved by ASIC for the purposes of registration thereof under section 412(6) of the Act) which contains: (a) a letter from the chairman of the Plaintiff; (b) an overview of the schemes (Section 1); (c) a summary of the key features of the Share Scheme (Section 2); (d) a summary of the key features of the Option Scheme (Section 3); (e) an outline of the reasons for the schemes and an overview of the merged group (Section 4); (f) details of the implementation of the schemes (Section 5); (g) scheme recommendations and issue for consideration for scheme participants (Section 6); (h) background information on the Plaintiff (Section 7); (i) background information on Wildhorse Energy Limited (Section 8); (j) taxation information for scheme participants (Section 9); (k) additional information on the schemes (Section 10); (l) the scheme implementation agreement entered between the Plaintiff and Wildhorse Energy Limited (as replaced by the replacement implementation agreement) (Appendix 1); (m) the scheme of arrangement to be made between the Plaintiff and its members (Appendix 2); (n) the scheme of arrangement to be made between the Plaintiff and its optionholders (Appendix 3); (o) a deed poll in respect of the Share Scheme entered into by Wildhorse Energy Limited (Appendix 4); (p) a deed poll in respect of the Option Scheme entered into by Wildhorse Energy Limited (Appendix 5); (q) notice of the Shareholders Meeting and the proxy form (Appendix 6); (r) notice of the Optionholders Meeting and the proxy form (Appendix 7); (s) an independent expert's report in respect of the Share Scheme prepared by BDO Kendalls Corporate Finance (WA) Pty Ltd (Appendix 8); and (t) an independent expert's report in respect of the Option Scheme prepared by BDO Kendalls Corporate Finance (WA) Pty Ltd (Appendix 9). 10. The Plaintiff shall (subject to the registration of the explanatory statement by ASIC pursuant to Section 412(6) of the Act): (a) dispatch the Scheme Booklet to those Shareholders and Optionholders whose address is in the register maintained by Computershare Investor Services Pty Limited as at 5.00 pm (WST) on 18 December 2009 by ordinary pre-paid post (or by airmail to overseas holders) on or about 4 January 2009; and (b) dispatch to those Shareholders who may hold an unmarketable parcel of fully paid ordinary shares in Wildhorse Energy Limited following implementation of the Share Scheme, a form to elect, if they wish to do so, to have those shares issued to a nominee for sale on their behalf, in the manner described in Section 2.16 of the Scheme Booklet. 11. The attached notice (for the purpose of this order marked "B") be inserted in the public notices column of "The Australian" and "The West Australian", such advertisements to be published on or about 8 January 2010. 12. The attached notice (for the purpose of this order marked "C") be inserted in the public notices column of "The Australian" and "The West Australian", such advertisements to be published on or about 8 January 2010. 13. The attached notice (for the purpose of this order marked "D") be inserted in the public notices column of "The Australian" and "The West Australian", such advertisements to be published on or about 29 January 2010. 14. Subject to approval of the Share Scheme and the Option Scheme at the meetings convened under Orders 1 and 2 above, leave is granted to make an application for orders under Sub-sections 411(4) and (6) of the Act at 9.00 am on 4 February 2010 for approval of the Share Scheme and the Option Scheme. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.