FEDERAL COURT OF AUSTRALIA Industrea Limited, in the matter of Industrea Limited (No 2) [2012] FCA 1287 Citation: Industrea Limited, in the matter of Industrea Limited (No 2) [2012] FCA 1287 Parties: INDUSTREA LIMITED ACN 010 720 117 File number: NSD 1465 of 2012 Judge: JAGOT J Date of judgment: 15 November 2012 Legislation: Corporations Act 2001 (Cth) Date of hearing: 15 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 7 Counsel for the Plaintiff: Mr F Gleeson SC and Ms V Whittaker Solicitor for the Plaintiff: Norton Rose Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1465 of 2012 IN THE MATTER OF INDUSTREA LIMITED ACN 010 720 117 INDUSTREA LIMITED ACN 010 720 117 Plaintiff JUDGE: JAGOT J DATE OF ORDER: 15 NOVEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to section 411(4)(b) of the Corporations Act 2001 (Cth) (Act), the scheme of arrangement between Industrea Limited (Industrea) and its shareholders, in the form contained in Annexure B to the Scheme Booklet which is Exhibit 1 in the proceedings (Scheme), be approved subject to altering the definition of "Deed Poll" in clause 1.1 of the Scheme by deleting "[insert date]" and inserting "2 October 2012", so that the Scheme is altered and approved in the form of Annexure A to these orders. 2. Pursuant to section 411(12) of the Act, Industrea be exempted from compliance with section 411(11) of the Act in respect of the Scheme. 3. These Orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Annexure A Scheme of Arrangement Industrea Limited (ABN 22 010 720 117) (Industrea) Scheme Participants Details Parties Industrea and Scheme Participants Industrea Name Industrea Limited ABN 22 010 720 117 Address 532 Seventeen Mile Rocks Road Sinnamon Park QLD 4073 Australia Email phourigan@industrea.com.au Attention Philip Hourigan General Counsel / Company Secretary Scheme Participants Each person registered as a holder of fully paid ordinary shares in Industrea as at 7.00pm on the Record Date Governing law Queensland, Australia General terms 1 Definitions and interpretation 1.1 Definitions In this Scheme: ACCC means the Australian Competition and Consumer Commission. ASIC means the Australian Securities and Investments Commission. ASX means ASX Limited or Australian Securities Exchange, as appropriate. Business Day means a business day as defined in the Listing Rules. CHESS means the Clearing House Electronic Subregister System operated by ASX Settlement Pty Ltd and ASX Clear Pty Limited. Corporations Act means the Corporations Act 2001 (Cwlth). Court means the Federal Court of Australia (Sydney), or such other court of competent jurisdiction under the Corporations Act agreed in writing by GE and Industrea. Deed Poll means the deed poll dated 2 October 2012 executed by GE and GE Subsidiary substantially in the form of Annexure A of the Scheme Booklet or as otherwise agreed by GE and Industrea under which GE and GE Subsidiary covenant in favour of each Scheme Participant to perform their obligations under this Scheme. Effective means the coming into effect, pursuant to section 411(10) of the Corporations Act, of the order of the Court made under section 411(4)(b) in relation to this Scheme, but in any event at no time before an office copy of the order of the Court is lodged with ASIC. Effective Date means the date on which the Scheme becomes Effective. Encumbrance means any mortgage, lien, charge, pledge, assignment by way of security, security interest, title retention, preferential right or trust arrangement, claim, covenant, profit À prendre, easement or any other security arrangement having the same effect. End Date means: (a) 15 December 2012; or (b) 15 February 2013 if: (i) any of the Regulatory Conditions are not satisfied by the date in paragraph (a); and (ii) GE confirmed in writing to Industrea that the relevant Condition Precedent remains capable of satisfaction and that it reasonably believes that the relevant Condition Precedent will be satisfied by that date; and (iii) Industrea, acting in good faith, has agreed to extend the date in paragraph (a) to 15 February 2013; or (c) such other date as is agreed by GE and Industrea. Excluded Shares means any Industrea Shares held by GE or its related bodies corporate or associates (as those terms are defined in the Corporations Act) as at the Record Date. FIRB means the Foreign Investment Review Board. GE means General Electric Company. GE Subsidiary means GE Mining Services Holdings Pty Ltd (ACN 160 220 762). Immediately Available Funds means a bank cheque or other form of cleared funds acceptable to Industrea. Implementation Date means the fifth Business Day following the Record Date, provided that this date must not be prior to 1 October 2012, without GE's prior written consent. Independent Expert's Report means the report of Deloitte Corporate Finance in relation to the Scheme and included in the Scheme Booklet. Industrea means Industrea Limited (ABN 22 010 720 117). Industrea Share means an ordinary share in the capital of Industrea. Industrea Shareholder means each person registered in the Register as a holder of Industrea Shares. Listing Rules means the Listing Rules of ASX. Merger means the combination of Industrea and GE through the implementation of the Scheme. MOFCOM means the Ministry of Commerce of the People's Republic of China. Record Date means the fifth Business Day following the Effective Date. Register means the register of members of Industrea maintained by or on behalf of Industrea in accordance with section 168(1) of the Corporations Act. Registered Address means, in relation to an Industrea Shareholder, the address shown in the Register. Regulatory Authority includes: (a) ASX, ACCC, ATO, ASIC, FIRB and regulatory bodies performing similar functions in other countries; (b) a government or governmental, semi-governmental or judicial entity, body or authority; (c) a minister, department, office, commission, delegate, instrumentality, agency, board, authority or organisation of any government; and (d) any regulatory organisation established under statute; (e) any similar entities that a government controls or owns, including any state-owned or state-operated companies or enterprises; (f) any international organisations such as the United Nations or the World Bank; (g) any self-regulatory organisation; (h) any court, arbitrator or expert (public or private), whether in Australia or in an overseas jurisdiction. Regulatory Approval means ACCC approval and approvals from MOFCOM and Regulatory Authorities in Brazil, Indonesia and Chile and any other formal or informal approval of a Regulatory Authority to the Merger or any aspect of it which: (a) GE, acting reasonably, determines is necessary to implement the Merger; or (b) the parties agree is desirable, such agreement not to be unreasonably withheld by Industrea if Industrea is satisfied, acting reasonably, that the obtaining of the relevant approval will not adversely affect the timetable of the Merger. Regulatory Conditions means: (a) (FIRB approval) either: (i) the Treasurer (or his delegate) has provided unconditional written advice that there are no objections under Australia's foreign investment policy to the proposed Merger; or (ii) following notice of the proposed Merger having been given by GE to the Treasurer under the Foreign Acquisitions and Takeovers Act 1975 (Cwlth), the Treasurer has ceased to be empowered to make any order under Part II of that Act because of lapse of time; (b) (Competition and Consumer Act 2010) the Australian Competition and Consumer Commission has provided GE with unconditional notice in writing stating that it does not intend to: (i) oppose, or to intervene in relation to; or (ii) impose any condition or require any undertaking in order for it not to oppose, or intervene in relation to, the Merger. (c) (MOFCOM antitrust approval) MOFCOM has notified GE that: (i) MOFCOM will neither issue a prohibition decision under Article 28 of Antimonopoly Law of the People's Republic of China (AML) in relation to the proposed Merger; (ii) nor will MOFCOM issue a conditional decision under Article 29 of AML in relation to the proposed Merger and (d) (Regulatory Approvals) all other Regulatory Approvals are obtained; Scheme means this scheme of arrangement between Industrea and Scheme Participants under which all of the Scheme Shares will be transferred to GE Subsidiary under Part 5.1 of the Corporations Act as described in clause 6 of this Scheme, in consideration for the Scheme Consideration, subject to any amendments or conditions made or required by the Court pursuant to section 411(6) of the Corporations Act to the extent they are approved in writing by Industrea and GE in accordance with clause 8.2 of this Scheme. Scheme Booklet means the explanatory memorandum, approved by the Court to be despatched to Industrea Shareholders in advance of the Scheme Meeting, which includes the Scheme, the Deed Poll, an explanatory statement complying with the requirements of the Corporations Act, the Independent Expert's Report and notice of meeting and proxy form in respect of the Scheme. Scheme Consideration means $1.27 cash per Scheme Share to be provided by GE to Scheme Participants under the terms of this Scheme for the transfer to GE Subsidiary of their Scheme Shares. Scheme Implementation Agreement means the scheme implementation agreement dated 15 May 2012 between Industrea and GE under which, amongst other things, Industrea has agreed to propose this Scheme to Industrea Shareholders, and each of GE and Industrea has agreed to take certain steps to give effect to this Scheme. Scheme Meeting means the meeting of Industrea Shareholders, ordered by the Court to be convened pursuant to section 411(1) of the Corporations Act at which Industrea Shareholders will vote on this Scheme. Scheme Participant means each person who is an Industrea Shareholder as at 7.00pm on the Record Date other than the holders of Excluded Shares (if any). Scheme Share means an Industrea Share held by a Scheme Participant and, for the avoidance of doubt, includes any Industrea Shares issued on or before the Record Date. Second Court Date means the day on which an application is made to the Court to make an order pursuant to section 411(4)(b) of the Corporations Act approving the Scheme. Share Scheme Transfer means, for each Scheme Participant, a duly completed and executed proper instrument of transfer of the Scheme Shares held by that Scheme Participant for the purposes of section 1071B of the Corporations Act, which may be a master transfer of all Scheme Shares. Subsidiary has the meaning given to it in the Corporations Act. Treasurer means the Treasurer of the Commonwealth of Australia. Trust Account means the trust account, with one of Australia and New Zealand Banking Group, Commonwealth Bank of Australia, National Australia Bank or Westpac Banking Corporation, at a branch in New South Wales, Queensland or Victoria, operated by or on behalf of Industrea to hold the Scheme Consideration on trust for the purpose of paying the Scheme Consideration to the Scheme Participants in accordance with clause 6.3 of this Scheme. 1.2 Reference to certain general terms Unless the contrary intention appears, a reference in this Scheme to: (a) (variations or replacement) a document (including this document), agreement or instrument is a reference to that document, agreement or instrument as amended, consolidated, supplemented, novated or replaced; (b) (clauses, annexures and schedules) a clause, annexure or schedule is a reference to a clause in or annexure or schedule to this document; (c) (reference to statutes) a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (d) (law) law means common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them); (e) (singular includes plural) the singular includes the plural and vice versa; (f) (party) a party means a party to this Scheme; (g) (person) the word "person" includes an individual, a firm, a body corporate, a partnership, a joint venture, an unincorporated body or association, or any Regulatory Authority; (h) (executors, administrators, successors) a particular person includes a reference to the person's executors, administrators, successors, substitutes (including persons taking by novation) and assigns; (i) (dollars) Australian dollars, dollars, A$ or $ is a reference to the lawful currency of Australia; (j) (calculation of time) a period of time dating from a given day or the day of an act or event, is to be calculated exclusive of that day; (k) (reference to a day) a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later; (l) (meaning not limited) the words "include", "including", "for example" or "such as" when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind; and (m) (time of day) time is a reference to Queensland, Australia time. 1.3 Headings Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this Scheme. 2 Preliminary 2.1 Industrea Industrea is: (a) a public company limited by shares; (b) incorporated in Australia and registered in Queensland; and (c) admitted to the official list of the ASX and Industrea Shares are officially quoted on the stock market conducted by ASX. As at 3 October 2012, Industrea's issued securities comprise 370,268,218 Industrea Shares. 2.2 GE and GE Subsidiary GE and GE Subsidiary are companies limited by shares. 2.3 If Scheme becomes Effective If this Scheme becomes Effective: (a) in consideration of the transfer of each Scheme Share to GE Subsidiary, Industrea will procure GE to provide the Scheme Consideration to Industrea on behalf of each Scheme Participant in accordance with the terms of this Scheme; (b) all Scheme Shares will be transferred to GE Subsidiary on the Implementation Date; and (c) Industrea will enter the name of GE Subsidiary in the Register in respect of all Scheme Shares transferred to GE Subsidiary in accordance with the terms of this Scheme. 2.4 Scheme Implementation Agreement Industrea and GE have agreed by executing the Scheme Implementation Agreement to implement the terms of this Scheme. 2.5 Deed Poll GE and GE Subsidiary have executed the Deed Poll for the purpose of covenanting in favour of the Scheme Participants to perform (or procure the performance of) their obligations as contemplated by this Scheme, including to provide the Scheme Consideration. 3 Conditions precedent 3.1 Conditions precedent to Scheme This Scheme is conditional on, and will have no force or effect until, the satisfaction of each of the following conditions precedent: (a) as at 8.00am on the Second Court Date, the Scheme Implementation Agreement not having been terminated; (b) all of the conditions precedent in section 9.8(2) of the Scheme Booklet having been satisfied or waived ; (c) the Court having approved this Scheme, with or without any modification or condition, pursuant to section 411(4)(b) of the Corporations Act, and if applicable, Industrea and GE having accepted in writing any modification or condition made or required by the Court under section 411(6) of the Corporations Act by 8:00am on the Second Court Date; and (d) the coming into effect, pursuant to section 411(10) of the Corporations Act, of the orders of the Court made under section 411(4)(b) of the Corporations Act (and, if applicable, section 411(6) of the Corporations Act) in relation to this Scheme by the End Date or such later date as GE and Industrea agree. 3.2 Conditions precedent and operation of clause 5 The satisfaction of each condition of clause 3.1 of this Scheme is a condition precedent to the operation of clause 5 of this Scheme. 3.3 Certificate in relation to conditions precedent Industrea and GE must provide to the Court on the Second Court Date a certificate confirming (in respect of matters within their knowledge) whether or not all of the conditions precedent set out in clause 3.1 of this Scheme (other than the conditions precedent in clause 3.1(c) and clause 3.1(d) of this Scheme) have been satisfied or waived as at 8.00am on the Second Court Date. The certificates referred to in this clause 3.3 will constitute conclusive evidence of whether the conditions precedent referred to in clause 3.1 of this Scheme (other than the conditions precedent in clause 3.1(c) and 3.1(d) of this Scheme) have been satisfied or waived as at 8.00am on the Second Court Date. 4 Scheme 4.1 Effective Date Subject to clause 4.2, this Scheme will come into effect pursuant to section 411(10) of the Corporations Act on and from the Effective Date. 4.2 End Date This Scheme will lapse and be of no further force or effect if the Effective Date does not occur on or before the End Date. 5 Implementation of Scheme 5.1 Lodgement of Court orders with ASIC If the conditions precedent set out in clause 3.1 of this Scheme (other than the condition precedent in clause 3.1(d) of this Scheme) are satisfied, Industrea must lodge with ASIC in accordance with section 411(10) of the Corporations Act an office copy of the Court order approving this Scheme as soon as possible, and in any event by no later than 5.00pm on the first Business Day after the day on which the Court approves this Scheme. 5.2 Transfer and registration of Industrea Shares On the Implementation Date, but subject to the provision of the Scheme Consideration for the Scheme Shares in accordance with clauses 6.1 to 6.3 of this Scheme and GE having provided Industrea with written confirmation thereof: (a) the Scheme Shares, together with all rights and entitlements attaching to the Scheme Shares as at the Implementation Date, will be transferred to GE Subsidiary without the need for any further act by any Scheme Participant (other than acts performed by Industrea as attorney and agent for Scheme Participants under clause 8.1 of this Scheme) by: (i) Industrea delivering to GE Subsidiary a duly completed and executed Share Scheme Transfer executed on behalf of the Scheme Participants; and (ii) GE Subsidiary duly executing the Share Scheme Transfer and delivering it to Industrea for registration; and (b) as soon as practicable after receipt of the duly executed Share Scheme Transfer, Industrea must enter the name of GE Subsidiary in the Register in respect of all Scheme Shares transferred to GE Subsidiary in accordance with the terms of this Scheme. 5.3 Entitlement to Scheme Consideration On the Implementation Date, in consideration for the transfer to GE Subsidiary of the Scheme Shares, each Scheme Participant will be entitled to receive the Scheme Consideration in respect of each of their Scheme Shares in accordance with clause 6 of this Scheme. 5.4 Title and rights in Industrea Shares Subject to the provision of the Scheme Consideration for the Scheme Shares as contemplated by clause 6 of this Scheme, on and from the Implementation Date, GE Subsidiary will be beneficially entitled to the Scheme Shares transferred to it under the Scheme, pending registration by Industrea of GE Subsidiary in the Register as the holder of the Scheme Shares. 5.5 Scheme Participants' agreements Under this Scheme, each Scheme Participant agrees to the transfer of their Scheme Shares, together with all rights and entitlements attaching to those Scheme Shares, in accordance with the terms of this Scheme. 5.6 Warranty by Scheme Participants Each Scheme Participant is taken to have warranted to Industrea, GE and GE Subsidiary that: (a) all their Scheme Shares (including any rights and entitlements attaching to those shares) transferred to GE Subsidiary under the Scheme will, as at the date of the transfer, be fully paid and free from all Encumbrances; and (b) they have full power and capacity to sell and to transfer their Scheme Shares (including any rights and entitlements attaching to those shares) to GE Subsidiary under the Scheme. Industrea undertakes that it will provide such warranty to GE and GE Subsidiary as agent and attorney of each Scheme Participant. 5.7 Transfer free of encumbrances To the extent permitted by law, all Industrea Shares (including any rights and entitlements attaching to those shares) which are transferred to GE Subsidiary under this Scheme will, at the date of the transfer of them to GE Subsidiary, vest in GE Subsidiary free from all Encumbrances and interests of third parties of any kind, whether legal or otherwise, and free from any restrictions on transfer of any kind not referred to in this Scheme. 5.8 Appointment of GE as sole proxy Subject to the provision of the Scheme Consideration for the Scheme Shares as contemplated by clauses 5.2 and 6.3 of this Scheme, on and from the Implementation Date until Industrea registers GE Subsidiary as the holder of all of the Industrea Shares in the Register, each Scheme Participant: (a) is deemed to have irrevocably appointed Industrea as attorney and agent (and directs Industrea in such capacity) to appoint GE Subsidiary and each of its directors from time to time (jointly and each of them individually) as its sole proxy and where applicable, corporate representative, to attend shareholders' meetings, exercise the votes attaching to Industrea Shares registered in its name and sign any shareholders resolution, and no Scheme Participant may itself attend or vote at any of those meetings or sign any resolutions, whether in person, by proxy or by corporate representative (other than pursuant to this clause 5.8(a)); and (b) must take all other actions in the capacity of the registered holder of Industrea Shares as GE Subsidiary directs. Industrea undertakes in favour of each Scheme Participant that it will appoint Subsidiary and each of its directors from time to time (jointly and each of them individually) as that Scheme Participant's proxy or, where applicable, corporate representative in accordance with clause 5.8(a) of this Scheme. 6 Scheme Consideration 6.1 Consideration under the Scheme On the Implementation Date, Industrea must procure GE to pay (or procure the payment of) the Scheme Consideration to the Scheme Participants in accordance with clauses 6.2 and 6.3 of this Scheme. 6.2 Satisfaction of obligations The obligation of Industrea to procure payment pursuant to clause 6.1 of this Scheme will be satisfied by Industrea procuring GE no later than 2 Business Days before the Implementation Date to deposit (or procure the deposit) in Immediately Available Funds into the Trust Account the aggregate amount of the Scheme Consideration payable to all Scheme Participants (except that the amount of any interest on the amount deposited will be to GE's account). 6.3 Payment of Scheme Consideration (a) On the Implementation Date, subject to GE complying with its obligations under clause 6.2 of this Scheme, Industrea must pay to each Scheme Participant an amount equal to the Scheme Consideration for each Scheme Share transferred to GE Subsidiary on the Implementation Date by that Scheme Participant. (b) Unless otherwise directed by the Scheme Participants before the Record Date, the amounts referred to in this clause 6.3 of this Scheme must be paid by direct credit or by sending a cheque drawn on an Australian bank in Australian currency on the Implementation Date to each Scheme Participant by pre-paid ordinary post (or, if the address of the Scheme Participant in the Register is outside Australia, by pre-paid airmail post) to their address recorded in the Register at 7.00pm on the Record Date. 6.4 Unclaimed monies Industrea may cancel a cheque issued under clause 6.3 of this Scheme if the cheque: (a) is returned to Industrea; or (b) has not been presented for payment within six months after the date on which the cheque was sent. During the period of one year commencing on the Implementation Date, on request from a Scheme Participant, Industrea must reissue a cheque that was previously cancelled under this clause 6.4. 6.5 Orders of a court In the case of notice having been given to Industrea (or the Registry) of an order made by a court of competent jurisdiction: (a) which requires payment to a third party of a sum in respect of Scheme Shares held by a particular Scheme Participant, which would otherwise be payable to that Scheme Participant in accordance with clause 6.3 of this Scheme, then Industrea must procure that payment is made in accordance with that order; or (b) which would prevent Industrea from dispatching payment to any particular Scheme Participant in accordance with clause 6.3 of this Scheme, Industrea will retain an amount, in Australian dollars, equal to the number of Scheme Shares held by that Scheme Participant multiplied by the Scheme Consideration until such time as payment in accordance with clause 6.3 of this Scheme is permitted by law. 6.6 Joint holders In the case of Scheme Shares held in joint names, any bank cheque required to be paid to Scheme Participants by GE must be payable to the joint holders and be forwarded to the holder whose name appears first in the Register as at 7.00pm on the Record Date. 6.7 Fractional entitlements and share splitting or division If the number of Scheme Shares held by a Scheme Participant at the Record Date is such that the aggregate entitlement of the Scheme Participant to Scheme Consideration is such that a fractional entitlement to a cent arises, then the entitlement of that Scheme Participant must be rounded up or down, with any such fractional entitlement of less than 0.5 being rounded down to the nearest whole cent (as applicable), and any such fractional entitlement of 0.5 or more being rounded up to the nearest whole cent. If GE is of the opinion (acting reasonably) that two or more Scheme Participants (each of whom holds Scheme Shares) have, before the Record Date, been party to splitting or division of their Scheme Shares in an attempt to obtain advantage by reference to the rounding referred to in clause 6.8, GE may give notice to those Scheme Participants: (a) setting out their names and registered addresses as shown in the Register; (b) stating that opinion; and (c) attributing to one of them specifically identified in the notice the Scheme Shares held by all of them, and, after such notice has been given, the Scheme Participant specifically identified in the notice as the deemed holder of all the specified Scheme Shares will, for the purposes of the other provisions of this Scheme, be taken to hold all of those Scheme Shares and each of the other Scheme Participants whose names and registered addresses are set out in the notice will, for the purposes of the other provisions of this Scheme, be taken to hold no Scheme Shares. Each of GE and GE Subsidiary, in complying with the other provisions of this Scheme relating to it in respect of the Scheme Participant specifically identified in the notice as the deemed holder of all the specified Scheme Shares, will be taken to have satisfied and discharged its obligations to the other Scheme Participants named in the notice under the terms of this Scheme. 7 Dealings in Scheme Shares 7.1 Determination of Scheme Participants To establish the identity of the Scheme Participants, dealings in Scheme Shares will only be recognised by Industrea if: (a) in the case of dealings of the type to be effected using CHESS, the transferee is registered in the Register as the holder of the relevant Scheme Shares on or before 7.00pm on the Record Date; and (b) in all other cases, registrable transmission applications or transfers in registrable form in respect of those dealings are received before the Record Date at the place where the Register is kept. 7.2 Register Industrea must register any registrable transmission applications or transfers of the Scheme Shares received in accordance with clause 7.1(b) of this Scheme on the Record Date. 7.3 No disposals after Effective Date If this Scheme becomes Effective, a holder of Scheme Shares (and any person claiming through that holder) must not dispose of or purport or agree to dispose of any Scheme Shares or any interest in them after the Record Date in any way except as set out in this Scheme and any such disposal will be void and of no legal effect whatsoever. Industrea will not accept for registration or recognise for any purpose any transmission, application or transfer in respect of Scheme Shares received after 7.00pm on the Record Date (except a transfer to GE Subsidiary pursuant to this Scheme and any subsequent transfer by GE Subsidiary or its successors in title). 7.4 Maintenance of Industrea Register For the purpose of determining entitlements to the Scheme Consideration, Industrea will maintain or procure the maintenance of the Register in accordance with the provisions of this clause 7 until the Scheme Consideration has been paid to the Scheme Participants and GE or GE Subsidiary (as applicable) has been entered in the Register as the holder of all the Scheme Shares. The Register in this form will solely determine entitlements to the Scheme Consideration. 7.5 Effect of certificates and holding statements Subject to provision of the Scheme Consideration and registration of the transfer to GE Subsidiary contemplated in clauses 5.2 and 6.2 of this Scheme, any statements of holding in respect of Scheme Shares will cease to have effect after 7.00pm on the Record Date as documents of title in respect of those shares (other than statements of holding in favour of GE Subsidiary and its successors in title). After 7.00pm on the Record Date, each entry current on the Register as at 7.00pm on the Record Date (other than entries in respect of GE Subsidiary or its successors in title) will cease to have effect except as evidence of entitlement to the Scheme Consideration. 7.6 Details of Scheme Participants Within three Business Days after the Record Date Industrea will ensure that details of the names, Registered Addresses and holdings of Scheme Shares for each Scheme Participant, as shown in the Register at 7.00pm on the Record Date, are available to GE in such form as GE reasonably requires. 7.7 Quotation of Industrea Shares (a) Suspension of trading on ASX in Industrea Shares will occur from the close of trading on ASX on the Effective Date. (b) After the Scheme has been fully implemented (including registration of the Share Scheme Transfer), Industrea will apply: (i) for termination of the official quotation of Industrea Shares on ASX; and (ii) to have itself removed from the official list of the ASX. 8 General Scheme provisions 8.1 Power of attorney Each Scheme Participant, without the need for any further act by any Scheme Participant, appoints Industrea and each of its directors and secretaries (jointly and each of them individually) as its attorney and agent for the purpose of executing any document necessary or expedient to give effect to this Scheme including the Share Scheme Transfer and Industrea accepts such appointment. 8.2 Variations, alterations and conditions Industrea may, with the consent of GE (which cannot be unreasonably withheld), by its counsel or solicitor consent on behalf of all persons concerned to any variations, alterations or conditions to this Scheme which the Court thinks fit to impose. 8.3 Further action by Industrea Industrea will execute all documents and do all things (on its own behalf and on behalf of each Scheme Participant) necessary or expedient to implement, and perform its obligations under, this Scheme. 8.4 Authority and acknowledgement Each of the Scheme Participants: (a) irrevocably consents to Industrea and GE doing all things necessary or expedient for or incidental to the implementation of this Scheme; and (b) acknowledges that this Scheme binds Industrea and all Scheme Participants (including those who do not attend the Scheme Meeting or do not vote at that meeting or vote against the Scheme at that Meeting) and, to the extent of any inconsistency and to the extent permitted by law, overrides the constitution of Industrea. 8.5 No liability when acting in good faith Neither Industrea nor GE, nor any of their respective officers, will be liable for anything done or omitted to be done in the performance of this Scheme in good faith. 8.6 Enforcement of Deed Poll Industrea undertakes in favour of each Scheme Participant to enforce the Deed Poll against GE and GE Subsidiary on behalf of and as agent and attorney for the Scheme Participants. 8.7 Stamp duty GE will pay all stamp duty (including any fines, penalties and interest) payable in connection with the Share Scheme Transfer. 8.8 Notices (a) If a notice, transfer, transmission application, direction or other communication referred to in this Scheme is sent by post to Industrea, it will not be taken to be received in the ordinary course of post or on a date and time other than the date and time (if any) on which it is actually received at Industrea's registered office or at the office of the registrar of Industrea Shares. (b) The accidental omission to give notice of the Scheme Meeting or the non-receipt of such a notice by any Shareholder will not, unless so ordered by the Court, invalidate the Scheme Meeting or the proceedings of the Scheme Meeting. 9 Governing law 9.1 Governing law This Scheme is governed by the law in force in Queensland, Australia. 9.2 Jurisdiction Each party irrevocably and unconditionally: (a) submits to the non-exclusive jurisdiction of the courts of that place; (b) waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1465 of 2012 IN THE MATTER OF INDUSTREA LIMITED ACN 010 720 117 INDUSTREA LIMITED ACN 010 720 117 Plaintiff JUDGE: JAGOT J DATE: 15 NOVEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is the second court hearing in relation to the scheme of arrangement proposed between Industrea Limited (Industrea) and its shareholders, as set out in the procedural summary and outline of the plaintiff's submissions. At the scheme meeting which was held on 12 November 2012 a significant majority of Industrea shareholders agreed to the scheme. A majority in number of shareholders present and voting (99.39%) voted in favour of the scheme resolution and the shareholders present and voting cast 95.27% of votes in favour of the scheme. 2 As also set out in the procedural summary, there is evidence which confirms that all procedural requirements in respect of s 411 of the Corporations Act 2001 (Cth) (the Act) have been satisfied. There is evidence relating to the lodgement of the scheme booklet with the Australian Securities and Investments Commission (ASIC) after the first court hearing, the dispatch of the scheme booklet to shareholders, and the receipt of proxy forms and collation of proxies. In this regard, there is evidence that a very small number of shareholders, 13 in total, were the subject of returned mail which represents only 0.18% of the relevant shareholders. As to the proxy forms, of the total of 1530 forms received 28 were invalid for a variety of reasons representing only 0.4% of the shareholders and the shares being held by them representing only 0.16% of Industrea's issued capital. 3 There is also evidence relating to the holding of the scheme meeting and voting on the proposed scheme as well as the advertising of the scheme approval application. In addition, there is evidence of the fact that in response to the relevant notices no communication has been received by the solicitor for the plaintiff of any intended appearance at this second court hearing and, indeed, the matter was called this morning and there has been no such appearance. 4 Otherwise, there is also in evidence the letter from ASIC in the usual terms in circumstances where ASIC has no objection to the proposed scheme of arrangement, being a letter dated 14 November 2012. The certificates confirming satisfaction of the various conditions precedent in the scheme implementation agreement to the effect that those conditions precedent have either been satisfied or are waived have also been tendered into evidence as exhibit 5. Otherwise, as per the first court hearing, there is evidence in relation to verification of the factual information in the scheme booklet as well as the expert report in which the independent expert concluded that the scheme is fair and reasonable and therefore in the best interests of the shareholders. 5 The only other matter to which my attention has been drawn is the fact that the definition of deed poll in cl 1.1 of the scheme omitted the execution date of the deed poll, that date being 2 October 2012, and I am requested to approve an amendment to cl 1.1 under s 411(6) of the Act by adding the date 2 October 2012. As submitted, this amendment is of a minor technical nature and, accordingly, it should be approved. 6 The relevant principles in this case are clearly satisfied. All conditions required by s 411 have been complied with. The majority of members have voted in good faith and have overwhelmingly voted in favour of the scheme and, in accordance with the independent expert's report, they too have taken the view that it is in their best interests that the scheme be approved. In these circumstances, orders should be made approving the scheme and exempting the plaintiff from compliance with s 411(11) as also sought. 7 Orders will be made accordingly. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 19 November 2012