Federal Court Orders Company to Hold Scheme of Arrangement Meetings

OUTCOME: Allowed

FEDERAL COURT OF AUSTRALIA

[COMPANY] 119 985 590 [2007] FCA 938 In the matter of [COMPANY] (No 2) (2006) 60 ACSR 406 referred to IN the MATTER of [COMPANY] [NAME] NSD1134 OF 2007

EMMETT J

2 JULY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1134 OF 2007

IN the MATTER of [COMPANY] [NAME] [COMPANY] [NAME]

Plaintiff

JUDGE: EMMETT J DATE OF ORDER: 2 JULY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to section 411(1) of the [NAME] 2001 (Cth) ([NAME]), the Plaintiff ([NAME]) convene: (a) a meeting ([NAME]) of the holders of ordinary shares in [NAME] ([NAME]) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement ([NAME]) substantially in the form set out in annexure A of Exhibit 1; and (b) a meeting (Option Scheme Meeting) of persons holding options ([NAME]) to subscribe for ordinary shares in [NAME] ([NAME] [NAME]) for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement (Option Scheme) substantially in the form set out in annexure A of Exhibit 1. (together, the Meetings).

2. The [NAME] be held at 10.00am WST (12.00pm AEST), on 15 August 2007 at the Perth Convention Exhibition Centre, [ADDRESS], Perth, Western Australia.

3. The Option Scheme Meeting be held on 15 August 2007 directly after a General Meeting following the [NAME] has concluded or adjourned, and no earlier than 12.30pm WST (2.30pm AEST) at the Perth Convention Exhibition Centre, [ADDRESS], Perth, Western Australia.

4. Pursuant to section 411(1) of the [NAME], the explanatory statements for the [NAME] and the Option Scheme forming part of Exhibit 1 (Booklet) be approved.

5. On or before 16 July 2007 there be despatched by prepaid ordinary post (or in the case of overseas members, by airmail), to the registered address of each [NAME] appearing in the register of [NAME] and of each [NAME] appearing in the register of [NAME] [NAME]:

(a) a document substantially in the form or to the effect of the Booklet, and

(b) either or both of the following, as applicable:

(i) a proxy form in respect of the [NAME] substantially in the form or to the effect of the proxy form for the [NAME] contained in Exhibit 1; and

(ii) a proxy form in respect of the Option Scheme Meeting substantially in the form or to the effect of the proxy form for the Option Scheme Meeting contained in Exhibit 1; and

(c) an election form substantially in the form or to the effect of the election form contained in Exhibit 1; and

(d) a pre-addressed reply paid envelope for return of the relevant proxy form.

6. The Chairman of the Meetings be [NAME], and in his absence, [NAME].

7. The Chairman appointed to the Meetings has the power to adjourn the Meetings in his absolute discretion.

8. A person's entitlement to vote at the [NAME] be determined by reference to the register of [NAME] as at 5.00pm WST (7.00pm AEST) on 13 August 2007.

9. A person's entitlement to vote at the Option Scheme Meeting be determined by reference to the register of [NAME] [NAME] as at 5.00pm WST (7.00pm AEST) on 13 August 2007.

10. The number of votes which may be cast by each [NAME] be equal to the value of the Base Consideration and the APA Distribution (both as defined in the Booklet) after adding back the amount of any Transaction Dividend or capital reduction deducted from them, multiplied by the number of [NAME] held by that [NAME], less the exercise prices of those [NAME].

11. The Base Consideration and the APA Distribution be valued on the following basis for the purposes of paragraph 10: (a) for any part of the Base Consideration or APA Distribution that consists of a cash amount or [NAME] (as defined in the Booklet), that cash amount or the face value of those [NAME]; (b) for any part of the Base Consideration or APA Distribution that consists of securities listed on [COMPANY], the value of those securities based on the volume weighted average price of those securities on [COMPANY] over the 5 business day period immediately before 13 August 2007. 12. [NAME] and [NAME] [NAME] be required to lodge any proxy forms to appoint a proxy to vote at the Meetings on their behalf (including any power of attorney under which such forms are signed) or, if voting by attorney, a copy of the instrument effecting the appointment of such attorney, in the manner set out below by no later than 12.00pm WST (2.00pm AEST) on 13 August 2007: (a) in person, to the office of [COMPANY] at [ADDRESS] [POSTCODE]; (b) by mail, addressed to [COMPANY], GPO Box 242, Melbourne VIC [POSTCODE]; or (c) by fax, to +61 3 9473 2013.

13. All voting at the Meetings be by poll as declared by the Chairman. 14. [NAME] advertise the Meetings substantially in the form of Annexure 1 of this Order in The Australian newspaper on or before 24 July 2007. 15. [NAME] publish in The Australian newspaper a notice substantially in the form of: (a) Annexure 2 of this Order on or before 8 August 2007; and (b) (in the event the [NAME] approve the [NAME] Scheme in accordance with the provisions of section 411(4) of the [NAME]) Annexure 3 of this Order on or before 16 August 2007, and [NAME] shall otherwise be exempted from compliance with the requirement to publish a notice at least 5 days before the date fixed for the hearing of the application pursuant to rule 3.4 of the Federal Court (Corporations) Rules 2000.

16. Pursuant to section 1319 of the [NAME], [NAME] be exempted from compliance with the requirements of rule 2.15 of the Federal Court (Corporations) Rules 2000.

17. No person other than the solicitors for the plaintiff and the solicitors for [COMPANY] be permitted to inspect Exhibit 1, the affidavits of [NAME] sworn 29 June 2007 and 2 July 2007 or tab 1 of Exhibit PM1 prior to 4 July 2007.

18. The proceeding be stood over to 17 August 2007 at not before 10.30 am before Justice Emmett for the hearing of any application to approve the [NAME] and the Option Scheme.

19. These Orders to be entered forthwith. THE COURT DIRECTS THAT:

20. Exhibit 1 remain in the custody of Ms [NAME] until 4 pm on 3 July 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Annexure 1 Notice of Court ordered meeting to approve compromise or arrangement TO all the members and [NAME] of [COMPANY] [NAME] ([NAME]). TAKE NOTICE that pursuant to section 411(1) of the [NAME] 2001 (Cth) ([NAME]), the Federal Court of Australia (New South Wales District Registry) has ordered [NAME] to convene a meeting of its members ([NAME]) and a meeting of its [NAME] (Option Scheme Meeting) for the purpose of considering and, if thought fit, approving (with or without modification) two schemes of arrangement (Schemes). A general meeting of members will also be held to approve a proposed capital reduction in connection with the [NAME] (General Meeting). Each of the [NAME], the General Meeting and the Option Scheme Meeting will take place at the Riverside Theatre, Perth Convention Exhibition Centre, [ADDRESS], Perth, Western Australia, on 15 August 2007. The [NAME] will take place at 10.00am WST (12.00pm AEST). The General Meeting will take place directly after the [NAME] has concluded or adjourned, but no earlier than 12.00pm WST (2.00pm AEST). The Option Scheme Meeting will take place directly after the General Meeting has concluded or adjourned but no learier than 12.30pm WST (2.00pm AEST). If you wish to vote at the [NAME], General Meeting and/or Option Scheme Meeting, you must either: · attend the [NAME], General Meeting and/or Option Scheme Meeting, as applicable; or · send a completed proxy form for the appropriate meeting to [NAME] by mail or facsimile so that it is received prior to 12.00pm WST (2.00pm AEST) on 13 August 2007. The proxy forms for the [NAME], General Meeting and Option Scheme Meeting accompanied the explanatory statement required by section 412(1)(a) of the [NAME], which was sent to members and [NAME] of [NAME] on or before 16 July 2007. If you are a member or optionholder of [NAME] and you do not receive an explanatory statement or proxy forms, you may request that [NAME] send it to you. You may obtain an explanatory statement at the offices of [NAME], Level 11, 12-14 The Esplanade, Perth, Western Australia, 6005, or by calling the [NAME] Line on [PHONE] (from within Australia) or +61 2 8268 3641 (from outside Australia).

Annexure 2 Notice of hearing to approve compromise or arrangement TO all the members and [NAME] of [COMPANY] [NAME] ([NAME]). TAKE NOTICE that: (a) if the meeting of the members of [NAME] held at 10.00am WST (12.00pm AEST) on 15 August 2007 passes a resolution approving a compromise or arrangement between [NAME] and its members and the meeting of members of [COMPANY] to be held thereafter, but not before 12pm WST (2pm AEST) passes a resolution approving a capital reduction, [NAME] will apply to the Federal Court of Australia for an order to approve the proposed compromise or arrangement between [NAME] and its members; and (b) if the members of [NAME] approve the compromise or arrangement above and the meeting of the [NAME] of [NAME] held no earlier than 12.30pm WST (2.30pm AEST) on 15 August 2007 passes a resolution approving a compromise or arrangement between [NAME] and its [NAME], [NAME] will apply to the Federal Court of Australia for an order to approve the proposed compromise or arrangement between [NAME] and its [NAME]. The application(s) will be made at a hearing to be held at 10.30 amon 17 August 2007 at Commonwealth Law Courts Building, [ADDRESS], Sydney, NSW, 2000. If you wish to oppose the approval of either or both of these compromises or arrangements, you must file and serve on [NAME] 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 [NAME] at its address for service at least one day before the date fixed for the hearing of the application. Service on [NAME] may be made by delivery to [NAME], Level 39, [ADDRESS], Melbourne (marked to the attention of [NAME]), fax to (03) 9679 3111 (marked to the attention of [NAME]) or email to [EMAIL]. Name of person giving notice or person's legal practitioner: [NAME] of [NAME].

Annexure 3 Notice of hearing to approve compromise or arrangement TO all the members and [NAME] of [COMPANY] [NAME] ([NAME]). TAKE NOTICE that at 10.30 am on 17 August 2007 the Federal Court of Australia at Commonwealth Law Courts Building, [ADDRESS], Sydney, NSW, 2000 will hear an application by [NAME] seeking the approval of: (a) a compromise or arrangement between [NAME] and its members; and (b) a compromise or arrangement between [NAME] and its [NAME], as proposed by resolutions passed by meetings of the members and [NAME] of [NAME], respectively, held on 15 August 2007. If you wish to oppose the approval of either compromise or arrangement, you must file and serve on [NAME] 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 [NAME] at its address for service at least one day before the date fixed for the hearing of the application. Service on [NAME] may be made by delivery to [NAME] [NAME] [NAME], Level 39, [ADDRESS], Melbourne (marked to the attention of [NAME]), fax to (03) 9679 3111 (marked to the attention of [NAME]) or by email to [EMAIL]. Name of person giving notice or person's legal practitioner: [NAME] of [NAME].

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1134 OF 2007

IN the MATTER of [COMPANY] [NAME] [COMPANY] [NAME]

Plaintiff

JUDGE: EMMETT J

DATE: 2 JULY 2007

PLACE: SYDNEY

REASONS FOR

JUDGMENT 1 The plaintiff, [COMPANY] ([NAME]), has applied to the Court for orders under s 411 of the [NAME] 2001 (Cth) (the Act) that meetings be convened of its ordinary shareholders and the holders of options for the purpose of considering and, if thought fit, agreeing to schemes of arrangement. 2 The shares of [NAME]'s predecessor were first listed for quotation on [COMPANY] ([COMPANY]) in 2000. Following approval by the Court on 9 October 2006 (In the matter of [COMPANY] (No 2) (2006) 60 ACSR 406) of a scheme of arrangement between [NAME]'s predecessor and its members, the shares in [NAME] were also listed for quotation by the [COMPANY]. The scheme of arrangement of October was interdependent with another scheme of arrangement involving the [COMPANY] ([COMPANY]). The assets of [COMPANY] included interests in [COMPANY] ([NAME]). As a result of the October schemes of arrangement, [NAME] has interests in [NAME] including [COMPANY]'s and other interests in [NAME]. 3 In January 2007, [NAME] announced that it had received an approach concerning a potential management buy-out proposal by a group of [NAME]. [NAME]'s board then initiated a competitive process by which potentially interested parties were invited to put forward expressions of interest to acquire [NAME] or interests of [NAME]. Proposals were received on 23 March 2007 from two [NAME], described as [COMPANY], and a consortium formed by a joint venture of [COMPANY] ([NAME]) and [COMPANY] ([NAME]). The latter consortium ([NAME]) formed [COMPANY] ([NAME]), as the vehicle for the furtherance of their proposal. Following negotiations with both the [COMPANY] and [NAME], a Scheme Implementation Agreement was entered into between [NAME], [NAME], [NAME] and [NAME], under which [NAME] was to acquire the entire issued share capital of [NAME] (the Original Agreement). 4 A public announcement was made by [NAME] on 30 March 2007 concerning the Original Agreement. On 4 May 2007, [COMPANY] submitted a revised proposal to [NAME]. In response, [NAME] submitted a revised proposal. The latter revised proposal also involved three managed [NAME] connected with [NAME]. The three managed [NAME] (the [NAME]) are: · [NAME] Group, comprising [COMPANY] and [NAME]. · [NAME] comprising [COMPANY] and [NAME]. · [COMPANY], comprising [COMPANY] and [COMPANY]. 5 On 11 May, [NAME] entered into an Amended and Restated Scheme Implementation Agreement with [NAME], [NAME] and [NAME] (the Scheme Implementation Agreement). The Scheme Implementation Agreement was made the subject of the public announcement on 11 May 2007. By clause 2.1(a) of the Scheme Implementation Agreement, [NAME] agrees to propose a scheme of arrangement between [NAME] and its shareholders (the [NAME]). By clause 2.2(a) of the Scheme Implementation Agreement, [NAME] agrees to propose a scheme of arrangement between [NAME] and creditors who hold options to subscribe for shares in the capital of [NAME]. 6 Under clause 2.1(b) of the Scheme Implementation Agreement, the [NAME] is to provide that each [NAME] may elect to receive alternative forms of consideration, as described below. Under clause 3.1 of the Scheme Implementation Agreement, the [NAME] is not to become effective until certain conditions have been satisfied. The conditions include approval by the Court and, where relevant, the approval of [NAME]. The conditions also include the non-occurrence of adverse events concerning [NAME]. The Option Scheme is also conditional upon the same conditions but is also conditional upon the [NAME] becoming effective. The Scheme Implementation Agreement contains provisions concerning the conduct of [NAME]'s business pending the consideration of the Schemes and imposes effective obligations on the parties to ensure that the Schemes can proceed and be given effect to. 7 Clause 7 of the Scheme Implementation Agreement contains restrictions on [NAME] soliciting or inviting alternative proposals and restrictions on participating in negotiations with third parties in relation to competing proposals. Clause 7 also contains a provision whereby [NAME] must pay a break fee in the sum of $59,250,000 to [NAME] if the Schemes do not proceed in certain circumstances. However, clause 7.6 provides that if a court or a review panel of the [NAME] determines that any part of the break fee constitutes a breach of a fiduciary or statutory duties for the [NAME] or unacceptable circumstances within the meaning of the [NAME] or would if paid be unlawful for any reason, then [NAME] is not to be obliged to pay such part of the break free as would constitute such a breach of duty or unacceptable circumstances or would be unlawful. 8 Since the consideration proposed under the [NAME] involves securities of the [NAME], it is desirable to say something briefly about the members of [NAME]. [NAME] is a wholly owned subsidiary of [COMPANY]. The principal business of [COMPANY] and its subsidiaries is the ownership and operation of electricity and gas transmission and distribution businesses and the provision of market support services to the energy market in Singapore, serving over one million customers. [COMPANY] has existing business interests in Australia through an Australian subsidiary, [NAME], which owns Victoria's primary electricity transmission network and a gas distribution network located in western Victoria. [NAME] is listed on [COMPANY] and on the Singapore Exchange. 9 [NAME] is a global investor with longstanding involvement in the creation, origination, syndication and management of asset and cash flow based investments. It was founded in 1997 and listed on [COMPANY] in October 2004. [NAME] operates from 29 offices across Australia, North America, Europe, Asia, United Arab Emirates and Africa. It has five operating divisions. 10 The three [NAME] were established by [NAME]. [NAME] operates global energy and transport infrastructure assets, [NAME] is Australia's largest stock exchange listed power generation business and [COMPANY] is one of the world's leading investors in wind farms. All three [NAME] are managed by [NAME]. It is proposed that [NAME] and [NAME] will acquire part of [NAME]'s current asset portfolio. 11 [NAME], [NAME] and [NAME] have executed a Deed Poll with the intention that the Deed Poll may be relied upon and enforced by any Scheme Participant in accordance with its terms, notwithstanding that the Scheme Participant may not be a party to the Deed Poll. By the Deed Poll, [NAME] agrees to provide or procure the provision of the [NAME] to each [NAME] [NAME] also agrees to provide the Option Scheme Consideration. 12 While the [NAME] itself is reasonably straightforward, the consideration proposed has considerable complexity by reason of the alternative considerations offered to [NAME]. Under the [NAME], it is proposed that, subject to election to take alternative consideration, shareholders of [NAME] will receive in respect of each share the following consideration: (a) $8.925 in cash; (b) the issue of 1.599 exchangeable preference shares in [NAME]; (c) the issue of 0.752 [NAME]; (d) the issue of 0.669 [NAME]; (e) the issue of 0.26 [COMPANY]. 13 In addition, it is proposed that there will be a distribution to shareholders of [NAME] of [NAME]'s holding in [NAME]. That distribution will occur at the same time as the proposed completion of the [NAME]. The distribution will be effected partly by a declaration of a dividend and partly by a reduction of the capital of [NAME], such that the whole of [NAME]'s holding in [NAME] will be distributed to its members. That arrangement reflects the terms of settlement of another proceeding in the Court in which the trustee of [NAME] sought orders for divestment by [NAME] of its units in [NAME]. 14 The members of [NAME] will be given the right to elect how they will receive the consideration for their shares. If they make no election, they will receive the consideration that I have already briefly described. However, they may elect to maximise the exchangeable preference share component of the consideration or the cash component of the consideration or the [NAME]' securities component of the consideration. They may also elect in certain circumstances to participate in a Cash Out facility. 15 Each component of the consideration is to be subject to a cap. It is an overriding principle of the determination of the components of the consideration to be paid to members that no more cash will be payable in aggregate than the total cash available (as defined), no more exchangeable preference shares will be issued in aggregate than the cap determined in accordance with the [NAME] and no more Fund Securities will be issued in aggregate than the total securities available (as defined). It is possible that the elections will mean that each shareholder will receive the shareholder's preferred mix of components of the consideration. However, the chances are that some shareholders will not necessarily receive the full extent of the election that they make, having regard to the provisions to which I have just referred. 16 For the purposes of determining entitlements, the value of consideration that consists of Fund securities listed on [COMPANY] will be based on the volume-weighted average price of those securities over the period of five business days immediately after the date in which the Scheme meetings are held. On the basis of such valuation over the five business days up to and including 27 June 2007, the consideration per [NAME] share, excluding possible franking credits, will be $15.91 per share. Some shareholders would be entitled to franking credits up to 40 cents per share and those shareholders would receive value, on the basis of the recent evaluation, of $16.31. 17 The proposed explanatory memorandum to accompany the notices of the meetings is divided into two parts. Part A might fairly be described as a simplification of the proposal. Part B is a complex and detailed description of [NAME], the members of the [NAME] and the calculation of the alternative considerations that is to be the subject of election. A draft of the explanatory memorandum in the form of a printed booklet has been submitted to the Australian Securities and Investments Commission (the Commission), which has indicated that it does not wish to be heard in opposition to the application to convene meetings of members and [NAME]. The booklet satisfies the requirements of the Corporations Regulations, except for certain matters in respect of which the Commission has granted relief. 18 The scheme proposed for [NAME] essentially involves the extinguishment of the options in exchange for a payment equal to the value of the base consideration, less the option fee payable for the exercise of options. Those [NAME] whose options become exercisable before the schemes become effective would have the option of exercising their options and participating in the [NAME]. [NAME] will simply receive the cash consideration to which I have referred. 19 The circumstances leading up to the negotiation of the terms of the Scheme Implementation Agreement indicate that the restriction on soliciting offers for competing proposals is unlikely to have a detrimental effect. It is clear enough that the board of [NAME] took reasonable steps to solicit proposals prior to entering into the Original Agreement and considered the amended proposal from [COMPANY] before entering into the Scheme Implementation Agreement. The break fee is less than 1% of the value of the consideration that would be paid if the scheme is approved. It is reasonable to expect that the costs of the Schemes and of [NAME]'s investment in the Schemes would be very substantial, such that a fee representing approximately 0.75% of the total value of the consideration is not unreasonable in the event that the Schemes do not proceed for the reasons that are provided for in the Scheme Implementation Agreement. 20 Although there is no legal requirement to do so, [NAME] engaged [COMPANY] ([NAME]) to prepare an independent report as to whether the [NAME] is in the best interest of [NAME], whether the Option Scheme is in the best interest of [NAME] [NAME] and whether the capital reduction is fair and reasonable to [NAME] as a whole and does not materially prejudice [NAME]'s ability to pay its creditors. In a report to be included in the explanatory memorandum or scheme booklet, [NAME] say that they have estimated that the full underlying value of [NAME]'s issued shares is in the range $13.84 to $16.16 per share. That value includes a premium for control and exceeds the price at which [NAME] shares would be expected to trade in the absence of the proposal presently under consideration or some similar transaction. They consider that that also exceeds the price at which [NAME] shares would be expected to trade, even if some kind of internal restructure were implemented. 21 [NAME] [NAME] have attributed an aggregate value in the range $15.74 to $16.07 per [NAME] share for the consideration under the [NAME]. That is based on the default alternative, prior to any adjustments that might be made. That value reflects values for each of the securities offered, based largely on current market values, but adjusted to reflect certain specific factors. [NAME] believe that that is a reasonable approach. The securities of the [NAME] and of [NAME] are all listed on [COMPANY] and have reasonably liquid share registers. They generally own established assets producing steady cash flows and are not rated materially different from their peers. [NAME] consider that the [NAME] provides fair value to [NAME]'s shareholders and is an opportunity for them to crystallise the substantial value uplift that has been created since [NAME]'s predecessor was listed seven years ago. [NAME] conclude that the consideration lies at the top end of their estimated value range and that, even if the market price of all of the scrip components of the consideration fell materially, the aggregate value of the consideration would remain within the estimated value range. [NAME] [NAME] also point out that to the extent that franking credits of 40 cents may be available to some shareholders, that will be of additional value to those shareholders. 22 [NAME] also address in their report a number of disadvantages and risks that shareholders should consider carefully informing their view on the proposal. Those disadvantages and risks include: · the complexity of the proposal and the uncertainties attached to and consequences of the choices in the alternative forms of consideration; · the lack of certainty as to the amount per share to be received from the alternatives; · the fixed income nature of the exchangeable preference shares which are the only part of the consideration that provides capital gains tax rollover relief; · the impact, for small [NAME] who do not want cash, of the fragmented nature of the consideration on the size of individual interests in the new entities; · the fact that the [NAME] are all externally managed under the control of [NAME]; · the change in the mix and composition of underlying investments; and · the loss of the diversification benefits from [NAME]'s broad portfolio businesses. 23 [NAME] does not consider that those risks and disadvantages are not inconsequential, they consider that they do not outweigh the merits of the proposal. [NAME] consider that, on balance, [NAME] are likely to be better off if the [NAME] is approved than if it is not. They therefore consider that it is in the best interest of [NAME]. [NAME] also consider that the Option Scheme is in the best interest of [NAME], who will receive cash payment equal to the market value of the default alternative, less the exercise price. [NAME] consider that the capital reduction is fair and reasonable to [NAME] as a whole and will not materially prejudice [NAME]'s ability to meet its debts to its creditors. [NAME] point out that their report does not consider the investment merits of the enlarged [NAME] or of [NAME]. They point out that the decision whether to buy, hold or sell securities in the [NAME], or whether to buy, hold or sell exchangeable preference shares, is a separate investment decision upon which [NAME] offer no opinion. 24 The booklet contains historical income statements of [NAME] for the year end of 31 December 2006, a historical pro forma balance sheet as at 31 December 2006, which assumes completion of certain transactions described in the booklet, and a pro forma balance sheet as at 31 December 2006 split by [NAME] as described in the booklet. It also contains forecast income statements for [NAME] for the six months ending 30 June 2007 to 31 December 2007 and 30 June 2008, and pro forma forecast income statements for the year ending 30 June 2008 split by [NAME] member. 25 Based on their review which was not an audit, and subject to certain limitations explained in their report, [COMPANY] have reported that nothing has come to their attention that causes them to believe that the pro forma balance sheets have not been properly prepared on the basis of the pro forma transactions, that the pro forma adjustments do not form a reasonable basis for the pro forma balance sheets or that the historical [NAME] financial information does not present fairly the historical income statement of [NAME]. Based on their review of the forecast financial information, which again is not an audit, and subject to limitations set out in the report, [NAME] say that nothing has come to their attention that causes them to believe that the best estimate assumptions set out in the booklet do not provide a reasonable basis for the preparation of the forecast or that the forecast financial information is not properly prepared on the basis of the best estimate assumptions. 26 [NAME] were also requested by the [NAME] to provide an independent income tax opinion regarding the [NAME] and certain tax matters relating to the booklet. [NAME] have provided a report on those matters, which is to be included in the booklet. In addition, [NAME] were requested by the [NAME] to provide a summary of the tax implications for participants in the [NAME] executive option plan as a result of entering into the Options Scheme. A report by [NAME] is also included in the booklet. 27 I am satisfied that the Schemes are such that the members and [NAME] of [NAME], properly informed, might reasonably agree to the Schemes. I am also satisfied, on the material that I have been presented with and the affidavits that have been read in support of the application, that if the proposed Schemes receive approval by the statutory majority at the relevant meetings, the Court will be likely to approve the schemes on the hearing of any application that is unopposed. In those circumstances I propose to order that meetings be convened in order to consider whether the Schemes should be agreed to.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate: Dated: 2 July 2007 Counsel for the Plaintiff: [redacted]

Solicitor for the Plaintiff: [redacted]

Counsel for the [COMPANY]: [COUNSEL] M [COUNSEL] [NAME] for the [COMPANY]: [NAME] for [NAME]) [COMPANY] and [NAME]) [COMPANY]: [COUNSEL] [NAME] for [NAME]) [COMPANY] and [NAME]) [COMPANY]: [NAME] of Hearing: 2 July 2007

Date of Judgment: 2 July 2007