FEDERAL COURT OF AUSTRALIA

Challenger Group Holdings Limited [2003] FCA 1562

CORPORATIONS – schemes of arrangement for options holders – approved unanimously – orders made subject to undertaking.

Corporations Act 2001 (Cth) s 411(1)

Re Challenger Group Holdings Limited (2003) FCA 1356

CHALLENGER GROUP HOLDINGS LIMITED

IN THE MATTER OF CHALLENGER GROUP HOLDINGS LIMITED(formerly known as Challenger International Limited) (ABN 50 002 993 302)

N 3067 OF 2003

CONTI J

19 DECEMBER 2003

SYDNEY

THE COURT ORDERS THAT:

1.         Pursuant to section 411(4)(b) of the Corporations Act the scheme of arrangement, between Challenger Group Holdings Limited (formerly known as Challenger International Limited) (ABN 50 002 993 302) (CGHL) and the holders of options to subscribe for ordinary shares in CGHL (CGHL Options) be approved.

2.         Pursuant to section 411(12) of the Corporations Act CGHL be exempted from compliance with section 411(11) of the Corporations Act.

3.         These orders be entered forthwith.

THE COURT NOTES:

1.         The undertaking given by CGHL and its solicitors Gilbert & Tobin, that they will not lodge these Orders with the Australian Securities and Investments Commission prior to the passing of the Restructure Resolutions by the Challenger Financial Services Group (ARSN 091 545 185) Unitholders and the Conditions of the Restructure being satisfied or (if applicable) waived (as those terms are used in the Disclosure Document which is Exhibit DHS-E to the Affidavit of David Henry Slatyer of 20 November 2003).

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 21 November 2003, I directed pursuant to s 411(1) of the Corporations Act 2001 (Cth) (‘the Corporations Act’) that a meeting be convened by the applicant Challenger Group Holdings Limited (‘CGHL’), formerly known as Challenger International Limited, of the holders of options to subscribe for ordinary shares in CGHL, for the purpose of considering, and if thought fit agreeing, with or without modification, to the scheme of arrangement placed in evidence before me. My reasons for judgment in that regard are set out in Re Challenger Group Holdings Limited [2003] FCA 1356.

2                     The meeting of optionholders duly took place at the scheduled time on 16 December 2003 at the Main Conference Room, Level 41, Aurora Place, 88 Phillip Street, Sydney. Thirty-nine (39) optionholders were present at the meeting, representing an aggregate holding of 2,152,463 options, being 50.83% of the total number of CGHL options on issue. All 39 optionholders present voted in favour of the scheme of arrangement.

3                     The evidence tendered before me duly proved the following procedural matters:

(i)         the scheme booklet contained the explanatory statement and the terms of the scheme; 

(ii)        the dispatch to each optionholder within the time stipulated by the Court of the scheme of arrangement booklet, the proxy form and the disclosure document;

(iii)               the absence of any objection to the scheme on the part of the Australian Securities and Investments Commission; and

(iv)              the advertising of the meeting published on 17 December 2003 in The Australian   

Newspaper.

4                     There was no notice of appearance, or notification of proposed appearance, filed or otherwise provided by any optionholder, or for that matter by any other person.

5                     I am satisfied that my directions of 21 November 2003 were duly complied with, and that there is no good reason why the Court should not approve the scheme. In that regard the error in the fourth paragraph of section 3.43 of the explanatory statement, earlier disclosed to the Court, was duly notified to optionholders in suitable form by letter dated 5 December 2003.

6                     I accordingly made the orders sought, which are attached to these reasons, at the end whereof I noted the undertaking given by CGHL and its solicitors the subject of [21] of my reasons for judgment of 21 November 2003.

Associate:

Dated:              19 December 2003