Invictus Gold Limited, in the matter of Invictus Gold Limited [2013] FCA 1132

FEDERAL COURT OF AUSTRALIA

Invictus Gold Limited, in the matter of Invictus Gold Limited [2013] FCA 1132 Citation: Invictus Gold Limited, in the matter of Invictus Gold Limited [2013] FCA 1132

Parties: INVICTUS GOLD LIMITED (ACN 145 891 907)

File number: WAD 381 of 2013

Judge: BARKER J

Date of judgment: 24 October 2013

Catchwords: CORPORATIONS – schemes of arrangement – application for orders that company convene meetings

Legislation: Corporations Act 2001 (Cth) s 411, s 411(1), s 411(2)

Cases cited: Re Arthur Yates & Co Ltd [2002] NSWSC 40; (2001) 36 ACSR 758

Date of hearing: 24 October 2013

Place: Perth

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 22

Counsel for the Plaintiff: Mr M Feutrill

Solicitor for the Plaintiff: GTP Legal

IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 381 of 2013

IN THE MATTER OF INVICTUS GOLD LIMITED (ACN 145 891 907) BETWEEN: INVICTUS GOLD LIMITED (ACN 145 891 907)

Plaintiff

JUDGE: BARKER J DATE OF ORDER: 24 OCTOBER 2013 WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The plaintiff convene: a) a meeting of holders of fully paid ordinary shares in the capital of the plaintiff other than Impact (Shareholders) to be held in Perth, Western Australia on 10 December 2013 at 11:00am or on such other date and such other time as the Court may approve (Share Scheme Meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed between the plaintiff and its Shareholders (Share Scheme) which is annexure D to the draft scheme booklet and explanatory statement, being annexure RJB1 to the affidavit of Mr Richard John Basham sworn on 9 October 2013 and filed herein (Scheme Booklet). b) a meeting of holders of options to subscribe for shares in the plaintiff of the classes set out in the Scheme Booklet, other than Impact, (Optionholders) to be held in Perth, Western Australia on or about 10 December 2013 at 11:30 am or on such other date and such other time as the Court may approve (Option Scheme Meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed between the plaintiff and its Optionholders (Option Scheme) which is annexure E to the draft Scheme Booklet, as amended in the manner set out in annexure GTP8 of the affidavit of Mr Grant Thomas Paterson sworn 23 October 2013; (together, the Scheme Meetings). 2. Subject to these orders, the Scheme Meetings are to be: a) convened, held and conducted 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; b) convened, held and conducted pursuant to section 1319 of the Act, on the basis that Corporations Regulations 2001 (Cth) 5.6.11 to 5.6.12 and 5.6.13A to 5.6.36A do not apply to the Scheme Meetings; and c) convened using the notice of meeting substantially in the form of the notice contained in annexure H of the Scheme Booklet, for the Share Scheme Meeting and annexure I of the Scheme Booklet, for the Option Scheme Meeting. 3. Mr Richard John Basham or, failing him, Mr Michael John Busbridge is to be appointed to act as chairperson of the Scheme Meetings and report the results of the Scheme Meetings to this Court. 4. The chairperson can adjourn the Scheme Meetings in his discretion. 5. Two Shareholders or two Optionholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum for each of the Share Scheme Meeting and Option Scheme Meeting. 6. Voting on the resolution to approve the Share Scheme, for the Share Scheme Meeting and to approve the Option Scheme, for the Option Scheme Meeting, is to be conducted by way of poll. 7. Subject to adopting the amendments to the body of the text set out in annexure GTP4, adopting the amendments to the independent experts' reports set out in annexure GTP5, substituting Annexure E with the option scheme amended as set out in annexure GTP8 and substituting Annexure G with the option scheme deed poll amended as set out in annexure GTP9 of the affidavit of Mr Grant Thomas Paterson sworn 23 October 2013, the Scheme Booklet, which contains an explanatory statement required by section 412(1)(a) of the Act, be and is approved. 8. Subject to registration of the Scheme Booklet with the Australian Securities and Investments Commission pursuant to section 412(6) of the Act, the plaintiff is to dispatch, on or before 6 November 2013 or such other date as directed by the Court, the Scheme Booklet, substantially in the form approved and order 7 above, to the Shareholders and Optionholders who appear on the register of members and register of optionholders on the day before the date of dispatch by ordinary pre-paid post (or by airmail to overseas holders) and such dispatch is to be taken to be sufficient notice of the meetings. 9. The matter is to be relisted on 17 December 2013 at 9:15am for such application as appropriate following the Scheme Meetings. 10. If the matter is relisted, the plaintiff is to give notice of the hearing of the application pursuant to section 411(4)(b) of the Act for orders approving the Share Scheme or Option Scheme or both by publishing an advertisement in the public notices column of "The Australian" and "The West Australian" newspapers substantially in accordance with Form 6 of the Federal Court (Corporations) Rules 2000 (Cth), such advertisement to be published on 11 December 2013 and the plaintiff otherwise be exempted from compliance with rule 3.4 of the Federal Court (Corporations) Rules 2000 (Cth). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.