Talison Lithium Limited, in the matter of Talison Lithium Limited [2012] FCA 1422

FEDERAL COURT OF AUSTRALIA

Talison Lithium Limited, in the matter of Talison Lithium Limited [2012] FCA 1422 Citation: Talison Lithium Limited, in the matter of Talison Lithium Limited [2012] FCA 1422

Parties: TALISON LITHIUM LIMITED (ACN 140 122 078)

File number: WAD 275 of 2012

Judge: SIOPIS J

Date of judgment: 25 October 2012

Catchwords: CORPORATIONS – schemes of arrangement – approval for the holding of scheme meetings

Legislation: Corporations Act 2001 (Cth) Ch 2E, ss 210, 260A(1), 411(1)

Cases cited: Re Hills Motorway Ltd (No 4500/02) (2003) 43 ACSR 101

Date of hearing: 25 October 2012

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 20

Counsel for the Plaintiff: Mr SK Dharmananda SC

Solicitor for the Plaintiff: Clayton Utz

Counsel for Rockwood Holdings Inc: Mr RW Douglas

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 275 of 2012

IN THE MATTER OF TALISON LITHIUM LIMITED (Acn 140 122 078) TALISON LITHIUM LIMITED (ACN 140 122 078)

Plaintiff

JUDGE: SIOPIS J DATE OF ORDER: 25 OCTOBER 2012 WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (Act):

(a) the plaintiff, Talison Lithium Limited (Talison) convene a meeting (Share Scheme Meeting) of the holders of ordinary shares in Talison (the Talison Shareholders), for the purpose of considering and, if thought fit, approving a scheme of arrangement (with or without modification) proposed to be made between Talison and Talison Shareholders (Share Scheme), the terms of which are contained at Annexure D to the scheme booklet containing the explanatory statement in relation to the share scheme which is annexure PRO1 in these proceedings (the Scheme Booklet); (b) the Share Scheme Meeting is to be held on Thursday, 29 November 2012 at 10.00 am (Perth time) at the Duxton Hotel, 1 St Georges Terrace, Perth, Western Australia; (c) Peter Charles Robinson or, failing him, Peter Robert Oliver, act as chairperson of the Share Scheme Meeting and report the result of the Share Scheme Meeting to this Court; (d) the chairperson has the power to adjourn the Share Scheme Meeting for such time that the chairperson considers appropriate; and (e) a Talison Shareholder with a registered address otherwise than in Australia (Other Talison Shareholder) may appoint more than 2 proxies in respect of the Share Scheme Meeting. If an Other Talison Shareholder appoints more than 2 proxies, the appointment must specify the number of the Other Talison Shareholder's votes each proxy must exercise otherwise the appointment will be discharged. 2. Pursuant to s 411(a) of the Act: (a) Talison convene a meeting (Option Scheme Meeting) of the holders of options to acquire ordinary shares in Talison (the Talison Optionholders), for the purpose of considering and, if thought fit, approving a scheme of arrangement (with or without modification) proposed to be made between Talison and Talison Optionholders (Option Scheme), the terms of which are contained in Annexure F of the scheme booklet; (b) the Option Scheme Meeting be held on Thursday, 29 November 2012 at 10.30 am (or, if later, immediately following the conclusion of the Share Scheme Meeting) at the Duxton Hotel, 1 St Georges Terrace, Perth, Western Australia; (c) Peter Charles Robinson or, failing him, Peter Robert Oliver, act as chairperson of the Option Scheme Meeting; and (d) the chairperson have the power to adjourn the Option Scheme Meeting for such time that the chairperson considers appropriate. 3. The explanatory statement in the Scheme Booklet is approved for distribution to Talison Shareholders and Talison Optionholders. 4. Pursuant to s 1319 of the Act, r 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) shall not apply to the Share Scheme Meeting or the Option Scheme Meeting (the Scheme Meetings), except in so far as that rule applies regulation 5.6.13 of the Corporations Regulations 2001 (Cth) to the Scheme Meetings. Subject to these Orders and pursuant to s 1319 of the Act, each Scheme Meeting is to be: (a) convened, held and conducted in accordance with the provisions of Pt 2G.2 of the Act that apply to members of a company and the provisions of Talison's constitution that are not inconsistent therewith and that apply to meetings of members, provided that at the Option Scheme Meeting each Talison Optionholder will have voting power commensurate with the value of their Talison Options as provided for in section 6.5 of the Scheme Booklet; (b) convened, held and conducted on the basis that Corporations Regulations 5.6.12 and 5.6.14 to 5.6.36A do not apply to the meeting; and (c) convened using the notices of meeting in the form or to the effect of the notices contained in Annexures H and I of the Scheme Booklet. 5. Subject to registration of the Scheme Booklet with the Australian Securities and Investments Commission (ASIC) pursuant to s 412(b) of the Act, Talison is to despatch to each Talison Shareholder and each Talison Optionholder with a registered address in Australia (Australian Holder): (i) a document substantially in the form of the Scheme Booklet; (ii) a proxy form; and (iii) a reply-paid (for use in Australia only) envelope addressed to Computershare Investor Services Pty Limited, by ordinary pre-paid post from Australia addressed to the relevant address set out in the Talison register of members. 6. Subject to registration of the Scheme Booklet with ASIC pursuant to s 412(b) of the Act, Talison is to dispatch to each Talison Shareholder and each Talison Optionholder with a registered address otherwise than in Australia (Non-Australian Holder): (i) a document substantially in the form of the Scheme Booklet; (ii) a proxy form; and (iii) a reply-paid (for use in Canada only) envelope addressed to Computershare Investor Services Inc, by: (iv) ordinary pre-paid post to each Non-Australian Holder with a registered address in Canada; and (v) pre-paid airmail or air courier to each Non-Australian Holder with a registered outside Canada, in each case from Canada addressed to the relevant address set out in the Talison register of members. 7. Despatch of the documents referred to in paragraphs 5 and 6 of these Orders in accordance with the delivery methods stated therein on or before 6 November 2012 is to be taken to be sufficient notice of the Scheme Meetings. 8. The time by which Talison Shareholders and Talison Optionholders must return their proxy forms for the Share Scheme Meeting and the Option Scheme Meeting (the Scheme Meetings) respectively be 12 noon (Perth time) on 27 November 2012. 9. All voting at the Share Scheme Meeting and the Option Scheme Meeting (the Scheme Meetings) be by poll declared by the chairperson. 10. If the matter is relisted, the plaintiff is to give notice of the hearing of the application pursuant to s 411(4) of the Act and that notice be published once in "The Australian" newspaper by an advertisement substantially in the form of "Annexure A" to these Orders, such advertisement to be published on or before 30 November 2012 and Talison be otherwise exempted from compliance with r 3.4 of the Federal Court (Corporations) Rules 2000 (Cth). 11. The proceeding be adjourned to 4 December 2012 at 10.15 am for hearing of any application to approve the Share Scheme and Option Scheme. Annexure A Talison Lithium Limited Notice of Hearing to Approve Schemes of Arrangement pursuant to section 411 of the Corporations Act 2001 (Cth) To all members and optionholders of Talison Lithium Limited ACN 140 122 078 (Talison) TAKE NOTICE that at 10.15 am on 4 December 2012, the Federal Court of Australia at Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, Perth WA 6000 will hear an application by Talison seeking the approval of: (a) the arrangement between Talison and its ordinary shareholders, if agreed to by a meeting of ordinary shareholders to be held at the Duxton Hotel, 1 St Georges Terrace, Perth, Western Australia at 10.00 am (Perth time) on 29 November 2012 and (b) the arrangement between Talison and its optionholders, if agreed to by a meeting of optionholders to be held at the same address at 10.30 am (Perth time) (or immediately following the conclusion of the meeting of ordinary shareholders) on 29 November 2012. If you wish to oppose the approval of the above arrangements, you must file and serve on Talison a Notice of Appearance, in the prescribed form, together with any Affidavit on which you wish to rely on at the hearing. The Notice of Appearance and Affidavit must be served on Talison at its address for service by no later than 5.00 pm on 3 December 2012. The address for service of Talison is c/- Clayton Utz, Level 27, QV.1 Building, 250 St Georges Terrace, Perth WA 6000 (Reference: Heath Lewis) Facsimile: 08 9481 3095 Email: hlewis@claytonutz.com A copy of the Scheme Booklet is available at www.talisonlithium.com. ________________________________ Company Secretary Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.