ASG Group Limited, in the matter of ASG Group Limited [2016] FCA 1374

FEDERAL COURT OF AUSTRALIA

ASG Group Limited, in the matter of ASG Group Limited [2016] FCA 1374 File number(s): WAD 484 of 2016

Judge(s): SIOPIS J

Date of judgment: 2 November 2016

Catchwords: CORPORATIONS – application for the convening of a meeting of members to consider a scheme of arrangement – exclusivity provisions – performance risk.

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

Date of hearing: 2 November 2016

Registry: Western Australia

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Corporations and Corporate Insolvency

Category: Catchwords

Number of paragraphs: 28

Counsel for the Plaintiff: Mr M Lundberg and Mr AD Gorovtsov

Solicitor for the Plaintiff: King & Wood Mallesons

Counsel for Nomura Research Institute Ltd: Mr C Belyea

Solicitor for Nomura Research Institute Ltd: Clayton Utz

ORDERS WAD 484 of 2016

IN THE MATTER OF ASG GROUP LIMITED (ACN 070 045 117)

ASG GROUP LIMITED (ACN 070 045 117)

Plaintiff

JUDGE: SIOPIS J DATE OF ORDER: 2 NOVEMBER 2016

THE COURT ORDERS THAT:

1. The Plaintiff convene a meeting of holders of fully paid ordinary shares (Shares) in the capital of the Plaintiff (Shareholders) as at 4 pm AWST on 6 December 2016 for the purpose of considering and, if thought fit, approving (with or without amendment) the proposed scheme of arrangement (Scheme) which is Annexure C to the draft scheme booklet and explanatory statement, being Annexure "SBM-6" to the second affidavit of Shaun Barry McRobert sworn 31 October 2016 (Scheme Booklet), and such meeting to be held at 10.00 am at Parmelia Hilton Perth Hotel, 14 Mill Street, Perth, Western Australia on 8 December 2016 or such other date as the Court may approve (Scheme Meeting). 2. Subject to these orders, the Scheme Meeting is to be convened, held and conducted in accordance with: (a) the provisions of Part 2G.2 of the Corporations Act 2001 (Cth) 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) Section 1319 of the Corporations Act 2001 (Cth), on the basis that Corporations Regulations 5.6.11 to 5.6.11A and 5.6.13A to 5.6.36A do not apply to the meeting; and (c) the notice of meeting in the form or to the effect of the notice contained in Annexure D of the Scheme Booklet. 3. Ian Gordon Campbell or, failing him, Stephen Edward Oliver Johnston is to be appointed to act as chairperson of the Scheme Meeting (Chairperson) and report the result of the Scheme Meeting to this Court. 4. The Chairperson can adjourn the Scheme Meeting in his discretion. 5. Three Shareholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum for the Scheme Meeting. 6. Voting on the resolution to approve the Scheme is to be conducted by way of poll. 7. At the Scheme Meeting each Shareholder present and entitled to vote, will be entitled to one vote for each fully paid ordinary share in the capital of the Plaintiff that the Shareholder is registered as holding at 4 pm AWST on 6 December 2016. 8. The Scheme Booklet, which contains an explanatory statement required by Section 412(1)(a) of the Corporations Act 2001 (Cth), be and is hereby approved (subject to the word "third" being replaced with the word "fourth" in the definition of "Implementation Date"). 9. Subject to registration of the Scheme Booklet with the Australian Securities and Investments Commission (ASIC) pursuant to Section 412(6) of the Corporations Act 2001 (Cth), the Plaintiff is to provide the Scheme Booklet, substantially in the form approved under Order 8 above, together with a personalised proxy form in respect of the Scheme Meeting, being substantially in the form of Annexure "SBM-7" to the second affidavit of Shaun Barry McRobert sworn 31 October 2016, to the Shareholders who appear on the register of members by no later than 7 November 2016: (a) in the case of each Shareholder who has a registered address in Australia, by dispatching by pre-paid post, parcel post or courier; (b) in the case of each Shareholder who has a registered address outside Australia, by dispatching by pre-paid airmail or air courier; and (c) in the case of each Shareholder who has nominated an electronic address for the purpose of receiving notifications of notices of any meetings from Link Market Services Pty Ltd, by sending an email containing a URL link to the Scheme Booklet and a personalised Proxy Form to the email address nominated by that Shareholder. 10. If an email notification of a failure to deliver an email to a Shareholder's nominated electronic address pursuant to Order 9(c) of these orders is received, there be dispatched by prepaid post, parcel post or courier to, the address of each such Shareholder as set out in the register of members, a copy of the Scheme Booklet and a personalised Proxy Form. 11. Dispatch of the documents referred to in paragraphs 9 to 10 of these Orders in accordance with their terms is to be taken to be sufficient notice of the Scheme Meeting. 12. Leave be given to the Plaintiff to make application for orders under Sections 411(4) and 411(6) of the Act following the Scheme Meeting for approval of the Scheme to be heard at 10:15am on Monday, 12 December 2016 or such other date as the Court sees fit to set for such purpose. 13. The Plaintiff is to give notice of the hearing of the application pursuant to Section 411(4)(b) of the Corporations Act 2001 (Cth) for orders approving the Scheme by publishing an advertisement in the public notices column of "The Australian" and "The West Australian" newspapers substantially in the form of Annexure A to these orders, such advertisement to be published on or before 6 December 2016 and the Plaintiff otherwise be exempted from compliance with rule 3.4 of the Federal Court (Corporations) Rules 2000. 14. There be liberty to apply upon the giving of 48 hours' notice to ASIC. 15. An office copy of these orders shall be lodged with ASIC as soon as practicable after these orders are made. Annexure A ASG GROUP LIMITED ACN 070 045 117 Notice of hearing to approve Scheme of Arrangement pursuant to section 411 of the Corporations Act 2001 (Cth) TO all the members of ASG Group Limited (ASG) TAKE NOTICE that at 10:15 am on 12 December 2016 the Federal Court of Australia at the Peter Durack Commonwealth Law Courts Building, 1 Victoria Avenue, PERTH WA 6000 will hear an application by ASG seeking the approval of a scheme of arrangement between ASG and its ordinary shareholders to be proposed by resolution at the meeting of its members to be held at 10.00 am on 8 December 2016 at Parmelia Hilton Perth Hotel, 14 Mill Street, Perth, Western Australia. If you wish to oppose the approval of the proposed scheme of arrangement, you must file and serve on ASG a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on ASG at its address for service at least 1 day before the date fixed for the hearing of the application. The address for service of ASG is c/- King & Wood Mallesons, Level 30, QV.1 Building, 250 St Georges Terrace, PERTH WA 6000. King & Wood Mallesons, solicitors for ASG, the plaintiff. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.