FEDERAL COURT OF AUSTRALIA
Excel Coal Limited, In the matter of Excel Coal Limited
[2006] FCA 1383
EXCEL COAL LIMITED ACN 002 818 699,
IN THE MATTER OF EXCEL COAL LIMITED ACN 002 818 699
NSD 1534 of 2006
LINDGREN J
23 OCTOBER 2006
SYDNEY
| IN THE FEDERAL COURT OF AUSTRALIA |
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| NEW SOUTH WALES DISTRICT REGISTRY | NSD 1534 OF 2006 |
IN THE MATTER OF EXCEL COAL LIMITED ACN 002 818 699:
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| EXCEL COAL LIMITED ACN 002 818 699 Plaintiff
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| JUDGE: | LINDGREN J |
| DATE OF ORDER: | 22 SEPTEMBER 2006 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The plaintiff be granted leave to file in Court the affidavit of Stephen John Smith sworn 21 September 2006 and the second affidavit of Anthony James Haggarty sworn 21 September 2006.
2. Order 1(a) made on 30 August 2006 be amended by inserting after ‘shareholders’ the words ‘other than Peabody Energy Corporation, Peabody Pacific Pty Ltd or any Excel shareholder who holds Excel shares on behalf of, or for the benefit of, Peabody Energy Corporation or any of its subsidiaries’.
3. The Scheme Meeting be convened in accordance with the revised Notice of Scheme Meeting set out in Annexure A to the Supplementary Scheme Booklet, being ‘Exhibit C’ (‘Supplementary Scheme Booklet’).
4. The Supplementary Scheme Booklet be approved for distribution to the Excel Shareholders.
5. On 22 September 2006, the Supplementary Scheme Booklet be dispatched to all Excel Shareholders appearing on the register as at 7.00pm on 21 September 2006.
6. The plaintiff be granted liberty to apply.
7. These Orders be entered forthwith.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
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| NEW SOUTH WALES DISTRICT REGISTRY | NSD 1534 OF 2006 |
IN THE MATTER OF EXCEL COAL LIMITED ACN 002 818 699:
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| EXCEL COAL LIMITED ACN 002 818 699 Plaintiff
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| JUDGE: | LINDGREN J |
| DATE OF ORDER: | 10 OCTOBER 2006 |
| WHERE MADE: | SYDNEY |
THE COURT ORDERS THAT:
1. The plaintiff be granted leave to file in Court the second affidavit of Roger Brian Massy-Greene sworn 10 October 2006, the affidavit of Nigel Ian Jones sworn 10 October 2006, the second affidavit of Andrew Henderson Plummer sworn 10 October 2006, the third affidavit of Anthony James Haggarty sworn 10 October 2006, the affidavit of Christopher Julian Raymond Ellis sworn 10 October 2006 and the affidavit of Aldo Dal Pozzo sworn 10 October 2006.
2. Pursuant to s 411(4)(b) and section 411(6) of the Corporations Act 2001, the scheme of arrangement between the plaintiff and its participating shareholders in the form annexed hereto and marked ‘A’, having been duly agreed in accordance with s 411(4)(a)(i) at a meeting of participating shareholders of the Plaintiff, be approved subject to the deletion from clause 4.1 of the words ‘by 5.00pm on the Business Day on which the Court approves the Scheme (or 5.00pm on the next Business Day, if such approval is received after 4.00pm on the relevant day’ and the insertion in their place of the words ‘by 5.00pm on 11 October 2006’, so that the scheme of arrangement so approved and altered is in the form annexed hereto and marked ‘B’.
3. Pursuant to s 411(12) of the Corporations Act 2001, the plaintiff be exempted from compliance with s 411(11) in relation to the Order at paragraph 1.
4. These Orders be entered forthwith.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
| IN THE FEDERAL COURT OF AUSTRALIA |
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| NEW SOUTH WALES DISTRICT REGISTRY | NSD 1534 OF 2006 |
IN THE MATTER OF EXCEL COAL LIMITED ACN 002 818 699:
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| EXCEL COAL LIMITED ACN 002 818 699 Plaintiff
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| JUDGE: | LINDGREN J |
| DATE: | 23 OCTOBER 2006 |
| PLACE: | SYDNEY |
REASONS FOR JUDGMENT No 2
(second and third court hearings)
1 These are my reasons for orders I made on 22 September 2006 and 10 October 2006.
2 The proceeding is somewhat unusual, in that instead of the customary two court hearings relating to an arrangement under Pt 5.1 of the Corporations Act 2001 (Cth) (“the Act”), there have been three. The additional one, which took place on 22 September 2006, arose out of a variation of the arrangement to be considered by shareholders.
3 At the first court hearing on 30 August 2006, I made an order under s 411(1) of the Act that the plaintiff, Excel Coal Limited (‘Excel’), convene a meeting of its shareholders to consider a scheme of arrangement (‘the Scheme’). I published my reasons for the making of those orders on 15 September 2006 (see Excel Coal Limited, In the matter of Excel Coal Limited [2006] FCA 1240). As noted in those reasons, the Scheme is a perfectly straightforward ‘acquisition’ or ‘transfer’ scheme under Pt 5.1 of the Act.
4 Under the Scheme in its original form, if implemented, all of the members of Excel were to receive $8.50 cash per share, leaving Peabody Pacific Pty Limited, a subsidiary of Peabody Energy Corporation (‘Peabody Energy’), as the holder of their shares. The total consideration payable under the Scheme was to be approximately $1.8 billion.
5 After I made the orders at the first court hearing there were two developments. First, Peabody Energy increased the consideration it was offering by $1.00 per share to $9.50 per share (this increased the total of the Scheme consideration by some $200 million). Secondly, Peabody Energy entered into an agreement to acquire 42,973,730 fully paid ordinary shares, being 19.99 percent of Excel’s issued ordinary shares.
6 A Supplementary Scheme Booklet was prepared to reflect these developments and supplied to the Australian Securities and Investments Commission (‘ASIC’). A due diligence procedure of the kind carried out in relation to the original Scheme Booklet was carried out in relation to the Supplementary Scheme Booklet.
7 On 22 September 2006, I made orders in relation to amendments to the Scheme that reflected the developments mentioned. For example, I approved the Supplementary Scheme Booklet for distribution to the Excel shareholders, and ordered that the Scheme Meeting be convened in accordance with a revised Notice of Scheme Meeting set out in Annexure A to the Supplementary Scheme Booklet. As well, the orders excluded from the shareholders of Excel who were to meet, Peabody Energy, Peabody Pacific Pty Ltd and any other Excel shareholder who held shares on behalf of, or for the benefit of, Peabody Energy or any of its subsidiaries.
8 Excel’s directors, who had supported acceptance of the original offer, naturally supported acceptance of the increased consideration. It was appropriate to make the orders on 22 September 2006 so that the shareholders would have the opportunity of considering the proposed amendments to the Scheme.
9 The Scheme meeting was duly convened and was held on 4 October 2006. Two resolutions were passed by the required majorities. The first resolution was one amending the Scheme to be considered at the meeting. The second resolution was a resolution agreeing to the Scheme as amended. In this respect, the procedure that was followed was that followed in Re Citect Corporation Ltd (2006) 56 ACSR 663.
10 ASIC has provided a statement in writing under s 411(17)(b) of the Act.
11 It was appropriate that the Court make orders pursuant to s 411(4)(b) and 411(6) of the Act approving of the Scheme as amended, as the Court did on 10 October 2006, with one further minor amendment that did not mark a significant departure from the amended Scheme as approved by the shareholders: cf s 411(6) of the Act, and Investorinfo Limited, in the matter of Investorinfo Limited [2005] FCA 1848.
| I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. |
Associate:
Dated: 23 October 2006
| Counsel for the Plaintiff: |
Mr M B Oakes SC |
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| Solicitor for the Plaintiff: | McCullough Robertson |
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| Counsel for Peabody Energy Corporation and Peabody Pacific Pty Limited: | Mr I M Jackman SC |
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| Solicitor for Peabody Energy Corporation and Peabody Pacific Pty Limited: | Freehills |
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| Date of Hearing: | 22 September, 10 October 2006 |
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| Date of Judgment: | 22 September, 10 October 2006 |
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| Date of Publication of Reasons | 23 October 2006 |
A
| Scheme of Arrangement | |
| Pursuant to section 411 of the Corporations Act 2001. | |
| BETWEEN | Excel Coal Limited ABN 18 002 818 699 of Level 9, 1 York Street, Sydney, NSW, 2000 (Excel) |
| AND | The holders of fully paid ordinary Shares in Excel, other than any Excluded Shareholders, as at the Scheme Record Date |
1 Definitions and interpretation
1.1 Definitions
The meanings of the terms used in this scheme of arrangement are set out below.
| Term | Meaning |
| ASIC | the Australian Securities and Investments Commission. |
| ASX | the Australian Stock Exchange Limited (ABN 98 008 624 691). |
| Business Day | a business day as defined in the Listing Rules. |
| CHESS | the clearing house electronic sub-register system of share transfers operated by ASX Settlement and Transfer Corporation Pty Ltd (ABN 49 008 504 532). |
| Corporations Act | the Corporations Act 2001 (Cth). |
| Court | the Supreme Court of New South Wales or such other court of competent jurisdiction under the Corporations Act agreed to in writing by Excel and Peabody. |
| Deed Poll | the deed poll dated 6 July 2006 executed by Peabody in favour of the Scheme Shareholders. |
| Effective | when used in relation to the Scheme, the coming into effect, under section 411(10) of the Corporations Act, of the order of the Court made under section 411(4)(b) in relation to the Scheme. |
| Effective Date | the date on which the Scheme becomes Effective. |
| End Date | December 1, 2006. |
| Excel Board | the board of directors of Excel. |
| Excel Share | a fully paid ordinary share of Excel. |
| Excel Shareholder | a person who is registered as the holder of an Excel Share, other than any Excluded Shareholders. |
| Excluded Shareholder | Peabody or any Excel Shareholder who holds an Excel Share on behalf of, or for the benefit of, Peabody and its subsidiaries. |
| Implementation Date | thefifth Business Dayafter the Scheme Record Date. |
| Listing Rules | the official Listing Rules of the ASX. |
| Marketable Parcel | a marketable parcel as defined by the Market Rules of the ASX. |
| Merger Implementation Agreement | the Merger Implementation Agreement dated 6 July2006between Excel and Peabody. |
| Nominee | a nominee chosen by Peabody. |
| Peabody Sub | a directly or indirectly owned subsidiary of Peabody. |
| Registered Address | in relation to an Excel Shareholder, the address shown in the Share Register. |
| Scheme | this scheme of arrangement under Part 5.1 of the Corporations Act between Excel and the Excel Shareholders. |
| Scheme Consideration | the consideration to be provided at the request of Peabody by Peabody Sub to each Scheme Shareholder for the transfer to Peabody Sub of each Scheme Share, as set out in clause 4.2 of the Merger Implementation Agreement. |
| Scheme Meeting | the meeting of Excel Shareholders ordered by the Court to be convened under section 411(1) of the Corporations Act. |
| Scheme Record Date | 5.00pm on the fifth Business Day after the date on which the Scheme becomes Effective. |
| Scheme Shareholder | each Excel Shareholder as at the Scheme Record Date (taking into account registration of all registrable transfers and transmission applications as required by clause 6). |
| Scheme Share | an Excel Share held by a Scheme Shareholder (other than by an Excluded Shareholder). |
| Share Register | the register of members of Excel. |
1.2 Interpretation
In this Scheme, headings and bold type are for convenience only and do not affect interpretation and, unless the context requires otherwise:
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase defined in this Scheme have a corresponding meaning;
(d) a reference to a person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture, a partnership, a trust and any government agency;
(e) a reference to a clause, party, attachment or schedule is a reference to a clause of, and a party, attachment and schedule to this Scheme, and a reference to this Scheme includes any attachment and schedule;
(f) a reference to a statute, regulation, proclamation, ordinance or by law includes all statutes, regulations, proclamations ordinances or by laws amending, consolidating or replacing it, whether passed by the same or another government agency with legal power to do so, and a reference to a statute includes all regulations, proclamations, ordinances and by laws issued under that statute;
(g) a reference to any document (including this Scheme) is to that document as varied, novated, ratified or replaced from time to time;
(h) the word “includes” in any form is not a word of limitation;
(i) a reference to “$” or “dollar” is to Australian currency;
(j) a reference to any time, unless otherwise indicated, is a reference to that time in Sydney, Australia; and
(k) a term defined in or for the purposes of the Corporations Act has the same meaning when used in this Scheme.
2 Preliminary
(a) Excel is apublic company registered in New South Wales and is a company limited by shares. Excel is admitted to the official list of the ASX and Excel Shares are officially quoted on the financial market conducted by the ASX.
(b) At 30 August 2006 214,977,360 Excel Shares were on issue. There is no other class of shares in the capital of Excel.
(c) Peabody is a company incorporated under the laws of Delaware, the United States of America and is a company limited by shares.
(d) Peabody Sub is a company registered in New South Wales, Australia and is a company limited by shares.
(e) If the Scheme becomes Effective:
(1) Peabody Sub will provide or procure the provision of the Scheme Consideration to Scheme Shareholders in accordance with the Scheme; and
(2) all the Scheme Shares held by Scheme Shareholders will be transferred to Peabody Sub, and Excel will enter the name of Peabody Sub in the Share Register in respect of the Scheme Shares held by Scheme Shareholders.
(f) Peabody and Excel have agreed by executing the Merger Implementation Agreement to implement this Scheme.
(g) Peabody has agreed by executing the Deed Poll to procure that Peabody Sub will pay the Scheme Consideration to Scheme Shareholders in accordance with the terms of the Deed Poll.
3 Conditions
(a) The Scheme is conditional on all the conditions in clause 3.1 of the Merger Implementation Agreement having been satisfied or waived in accordance with the terms of the Merger Implementation Agreement by 8.00am on the Second Court Date.
(b) The satisfaction of clause 3(a) is a condition precedent to the operation of clauses 4.2 and 5.
(c) The Scheme will lapse and be of no further force or effect if the Effective Date does not occur on or before the End Date or any later date Excel and Peabody agree in writing.
(d) Peabody and Excel will provide to the Court at the Second Court Date a certificate confirming (in respect of matters within their knowledge) whether or not the conditions precedent in the Merger Implementation Agreement and this Scheme (other than the condition in clause 3.1(b)) have been satisfied or waived.
4 Implementation
4.1 Lodgement of Court orders
Excel will lodge with ASIC office copies of the Court orders under section 411 of the Corporations Act approving the Scheme by 5.00pm on the Business Day on which the Court approves the Scheme (or 5.00pm on the next Business Day, if such approval is received after 4.00pm on the relevant day).
4.2 Transfer of Scheme Shares
On the Implementation Date:
(a) subject to the payment of the Scheme Consideration in the manner contemplated by clause 5.3, the Scheme Shares, together with all rights and entitlements attaching to the Scheme Shares as at the Implementation Date, will be transferred to Peabody Sub, without the need for any further act by any Scheme Shareholder, upon Excel receiving written confirmation from Peabody that the Scheme Consideration has been paid in the manner contemplated by clause 5.3 by:
(1) Excel delivering to Peabody Sub duly completed and executed share transfer form or forms to transfer all the Scheme Shares to Peabody Sub; and
(2) Peabody Sub duly executing such transfer form or forms and delivering it or them to Excel for registration;
(b) immediately after receipt of the Scheme Transfer, Excel will enter the name of Peabody Sub in the Share Register in respect of the Scheme Shares.
5 Scheme Consideration
5.1 Consideration under the Scheme
The obligation of Peabody Sub to provide each Scheme Shareholder with the Scheme Consideration is satisfied by Peabody Sub providing to that Scheme Shareholder on the Implementation Date the Scheme Consideration.
5.2 Joint holders
In the case of Scheme Shares held in joint names the Scheme Consideration shall be payable to and be forwarded to the holder whose name appears first in the Share Register as at the Scheme Record Date.
5.3 Peabody Sub’s obligations
The obligation of Peabody Sub to provide the Scheme Consideration will be satisfied by Peabody Sub, on the Implementation Date doing any of the following at its election:
(a) sending the consideration to the Scheme Shareholders’ Registered Address as shown in the Share Register by cheque in Australian currency drawn on an Australian Bank; or
(b) depositing or procuring the Excel Registry to deposit it into an account with any Australian ADI (as defined in the Corporations Act) notified to Excel (or Excel’s agent who manages the Excel Register) by an appropriate authority from the Scheme Shareholders; or
(c) such other payment method as agreed in writing between Peabody and Excel.
6 Dealings in Excel Shares
(a) To establish the identity of the Scheme Shareholders, dealings in Excel Shares will only be recognised if:
(1) in the case of dealings of the type to be effected using CHESS, the transferee is registered in the Share Register as the holder of the relevant Excel Shares on or before the Scheme Record Date; and
(2) in all other cases, registrable transmission applications or transfers in respect of those dealings are received on or before the Scheme Record Date at the place where the Share Register is kept.
(b) Excel must register registrable transmission applications or transfers of the kind referred to in clause 6(a)(2) on the Scheme Record Date (provided that for the avoidance of doubt nothing in this clause 6(b) requires Excel to register a transfer that would result in an Excel Shareholder holding a parcel of Excel Shares that is less than a Marketable Parcel).
(c) Excel will not accept for registration or recognise for any purpose any transmission application or transfer in respect of Excel Shares received after the Scheme Record Date.
(d) For the purpose of determining entitlements to the Scheme Consideration, Excel must maintain the Share Register in accordance with the provisions of this clause 6until the Scheme Consideration has been paid to the Scheme Shareholders. The Share Register in this form will solely determine entitlements to the Scheme Consideration.
(e) All statements of holding for Excel Shares will cease to have effect from the Scheme Record Date as documents of title in respect of those shares and, as from that date, each entry current at that date on the Share Register will cease to have effect except as evidence of entitlement to the Scheme Consideration in respect of the Excel Shares relating to that entry.
(f) As soon as possible after the Scheme Record Date and in any event at least 2 Business Days before the Implementation Date, Excel will ensure that details of the names, Registered Addresses and holdings of Excel Shares for each Scheme Shareholder are available to Peabody in the form Peabody reasonably requires.
7 Quotation of Excel Shares
(a) It is expected that suspension of trading on the ASX in Excel Shares will occur from the close of trading on the day Excel notifies the ASX that the Court has approved the Scheme under section 411(4)(b) of the Corporations Act.
(b) On a date after the Implementation Date to be determined by Peabody, Excel will apply:
(1) for termination of the official quotation of Excel Shares on the ASX; and
(2) to have itself removed from the official list of the ASX.
8 General Scheme provisions
8.1 Consent
If the Court proposes to approve the Scheme subject to any alterations or conditions, Excel may by its counsel consent on behalf of all persons concerned to those alterations or conditions to which Peabody has consented in writing.
8.2 Agreement of Scheme Shareholders
Scheme Shareholders agree to the transfer of their Excel Shares in accordance with the Scheme and agree to the variation, cancellation or modification of the rights attached to their Excel Shares constituted by or resulting from the Scheme.
8.3 Warranties by Scheme Shareholders
Each Scheme Shareholder is deemed to have warranted to Excel, in its own right and for the benefit of Peabody and Peabody Sub that all of the their Excel Shares which are transferred to Peabody Sub under the Scheme will, at the date of transfer of them to Peabody Sub, be fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, and that they have full power and capacity to sell and to transfer their Excel Shares to Peabody Sub.
8.4 Beneficial entitlement to Excel Shares
Peabody Sub will be beneficially entitled to the Excel Shares transferred to it under the Scheme pending registration by Excel of Peabody Sub in the Share Register as the holder of the Excel Shares.
8.5 Authority given to Peabody
(a) Scheme Shareholders will be deemed to have authorised Excel to do and execute all acts, matters, things and documents on the part of each Scheme Shareholder necessary to implement the scheme, including (without limitation) executing, as agent and attorney of each Scheme Shareholder, a share transfer or transfers in relation to Scheme Shares as contemplated by clause 8.6.
(b) Each Scheme Shareholder, without the need for any further act, irrevocably appoints Excel and all of its directors, secretaries and officers (jointly and severally) as its attorney and agent for the purpose of executing any document necessary to give effect to the Scheme including without limitation, a proper instrument of transfer of its Scheme Shares for the purposes of section 1071B of the Corporations Act which may be a master transfer of all the Scheme Shares.
8.6 Appointment of sole proxy
Upon the Scheme becoming Effective and until Excel registers Peabody Sub as the holder of all Excel Shares in the Share Register, each Scheme Shareholder:
(a) is deemed to have irrevocably appointed Peabody Sub as attorney and agent (and directed Peabody Sub in such capacity) to appoint an officer or agent nominated by Peabody as its sole proxy and, where applicable, corporate representatives to attend shareholders’ meetings, exercise the votes attaching to the Scheme Shares registered in their name and sign any shareholders’ resolutions, whether in person, by proxy or by corporate representative (other than as pursuant to this clause 8.6(a)); and
(b) must take all other actions in the capacity of a registered holder of Scheme Shares as Peabody reasonably directs.
9 General
9.1 Stamp duty
Peabody Sub will pay all stamp duty payable in connection with the transfer of the Scheme Shares to Peabody Sub.
9.2 Definition of “sending”
For the purposes of clause 5.3 the expressions “sending” means:
(a) sending by ordinary pre-paid post or courier to the Registered Address of the Scheme Shareholder at the Scheme Record Date; or
(b) delivery to the address by any other means at no cost to the recipient.
9.3 Notices
If a notice, transfer, transmission application, direction or other communication referred to in this Scheme is sent by post to Excel, it will not be taken to be received in the ordinary course of post or on a date and time other than the date and time (if any) on which it is actually received at the place where Excel’s Share Registry is kept.
9.4 Governing law
This Scheme is governed by the laws of New South Wales.
9.5 Further action
Excel will execute all documents and do all things necessary to implement and perform its obligations under this Scheme.
B
| Scheme of Arrangement | |
| Pursuant to section 411 of the Corporations Act 2001. | |
| BETWEEN | Excel Coal Limited ABN 18 002 818 699 of Level 9, 1 York Street, Sydney, NSW, 2000 (Excel) |
| AND | The holders of fully paid ordinary Shares in Excel, other than any Excluded Shareholders, as at the Scheme Record Date |
1 Definitions and interpretation
1.1 Definitions
The meanings of the terms used in this scheme of arrangement are set out below.
| Term | Meaning |
| ASIC | the Australian Securities and Investments Commission. |
| ASX | the Australian Stock Exchange Limited (ABN 98 008 624 691). |
| Business Day | a business day as defined in the Listing Rules. |
| CHESS | the clearing house electronic sub-register system of share transfers operated by ASX Settlement and Transfer Corporation Pty Ltd (ABN 49 008 504 532). |
| Corporations Act | the Corporations Act 2001 (Cth). |
| Court | the Supreme Court of New South Wales or such other court of competent jurisdiction under the Corporations Act agreed to in writing by Excel and Peabody. |
| Deed Poll | the deed poll dated 6 July 2006 executed by Peabody in favour of the Scheme Shareholders. |
| Effective | when used in relation to the Scheme, the coming into effect, under section 411(10) of the Corporations Act, of the order of the Court made under section 411(4)(b) in relation to the Scheme. |
| Effective Date | the date on which the Scheme becomes Effective. |
| End Date | December 1, 2006. |
| Excel Board | the board of directors of Excel. |
| Excel Share | a fully paid ordinary share of Excel. |
| Excel Shareholder | a person who is registered as the holder of an Excel Share, other than any Excluded Shareholders. |
| Excluded Shareholder | Peabody or any Excel Shareholder who holds an Excel Share on behalf of, or for the benefit of, Peabody and its subsidiaries. |
| Implementation Date | thefifth Business Dayafter the Scheme Record Date. |
| Listing Rules | the official Listing Rules of the ASX. |
| Marketable Parcel | a marketable parcel as defined by the Market Rules of the ASX. |
| Merger Implementation Agreement | the Merger Implementation Agreement dated 6 July2006between Excel and Peabody. |
| Nominee | a nominee chosen by Peabody. |
| Peabody Sub | a directly or indirectly owned subsidiary of Peabody. |
| Registered Address | in relation to an Excel Shareholder, the address shown in the Share Register. |
| Scheme | this scheme of arrangement under Part 5.1 of the Corporations Act between Excel and the Excel Shareholders. |
| Scheme Consideration | the consideration to be provided at the request of Peabody by Peabody Sub to each Scheme Shareholder for the transfer to Peabody Sub of each Scheme Share, as set out in clause 4.2 of the Merger Implementation Agreement. |
| Scheme Meeting | the meeting of Excel Shareholders ordered by the Court to be convened under section 411(1) of the Corporations Act. |
| Scheme Record Date | 5.00pm on the fifth Business Day after the date on which the Scheme becomes Effective. |
| Scheme Shareholder | each Excel Shareholder as at the Scheme Record Date (taking into account registration of all registrable transfers and transmission applications as required by clause 6). |
| Scheme Share | an Excel Share held by a Scheme Shareholder (other than by an Excluded Shareholder). |
| Share Register | the register of members of Excel. |
1.2 Interpretation
In this Scheme, headings and bold type are for convenience only and do not affect interpretation and, unless the context requires otherwise:
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase defined in this Scheme have a corresponding meaning;
(d) a reference to a person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture, a partnership, a trust and any government agency;
(e) a reference to a clause, party, attachment or schedule is a reference to a clause of, and a party, attachment and schedule to this Scheme, and a reference to this Scheme includes any attachment and schedule;
(f) a reference to a statute, regulation, proclamation, ordinance or by law includes all statutes, regulations, proclamations ordinances or by laws amending, consolidating or replacing it, whether passed by the same or another government agency with legal power to do so, and a reference to a statute includes all regulations, proclamations, ordinances and by laws issued under that statute;
(g) a reference to any document (including this Scheme) is to that document as varied, novated, ratified or replaced from time to time;
(h) the word “includes” in any form is not a word of limitation;
(i) a reference to “$” or “dollar” is to Australian currency;
(j) a reference to any time, unless otherwise indicated, is a reference to that time in Sydney, Australia; and
(k) a term defined in or for the purposes of the Corporations Act has the same meaning when used in this Scheme.
2 Preliminary
(a) Excel is apublic company registered in New South Wales and is a company limited by shares. Excel is admitted to the official list of the ASX and Excel Shares are officially quoted on the financial market conducted by the ASX.
(b) At 30 August 2006 214,977,360 Excel Shares were on issue. There is no other class of shares in the capital of Excel.
(c) Peabody is a company incorporated under the laws of Delaware, the United States of America and is a company limited by shares.
(d) Peabody Sub is a company registered in New South Wales, Australia and is a company limited by shares.
(e) If the Scheme becomes Effective:
(1) Peabody Sub will provide or procure the provision of the Scheme Consideration to Scheme Shareholders in accordance with the Scheme; and
(2) all the Scheme Shares held by Scheme Shareholders will be transferred to Peabody Sub, and Excel will enter the name of Peabody Sub in the Share Register in respect of the Scheme Shares held by Scheme Shareholders.
(f) Peabody and Excel have agreed by executing the Merger Implementation Agreement to implement this Scheme.
(g) Peabody has agreed by executing the Deed Poll to procure that Peabody Sub will pay the Scheme Consideration to Scheme Shareholders in accordance with the terms of the Deed Poll.
3 Conditions
(a) The Scheme is conditional on all the conditions in clause 3.1 of the Merger Implementation Agreement having been satisfied or waived in accordance with the terms of the Merger Implementation Agreement by 8.00am on the Second Court Date.
(b) The satisfaction of clause 3(a) is a condition precedent to the operation of clauses 4.2 and 5.
(c) The Scheme will lapse and be of no further force or effect if the Effective Date does not occur on or before the End Date or any later date Excel and Peabody agree in writing.
(d) Peabody and Excel will provide to the Court at the Second Court Date a certificate confirming (in respect of matters within their knowledge) whether or not the conditions precedent in the Merger Implementation Agreement and this Scheme (other than the condition in clause 3.1(b)) have been satisfied or waived.
4 Implementation
4.1 Lodgement of Court orders
Excel will lodge with ASIC office copies of the Court orders under section 411 of the Corporations Act approving the Scheme by 5.00pm on 11 October 2006.
4.2 Transfer of Scheme Shares
On the Implementation Date:
(1) Excel delivering to Peabody Sub duly completed and executed share transfer form or forms to transfer all the Scheme Shares to Peabody Sub; and
(2) Peabody Sub duly executing such transfer form or forms and delivering it or them to Excel for registration;
(b) immediately after receipt of the Scheme Transfer, Excel will enter the name of Peabody Sub in the Share Register in respect of the Scheme Shares.
5 Scheme Consideration
5.1 Consideration under the Scheme
The obligation of Peabody Sub to provide each Scheme Shareholder with the Scheme Consideration is satisfied by Peabody Sub providing to that Scheme Shareholder on the Implementation Date the Scheme Consideration.
5.2 Joint holders
In the case of Scheme Shares held in joint names the Scheme Consideration shall be payable to and be forwarded to the holder whose name appears first in the Share Register as at the Scheme Record Date.
5.3 Peabody Sub’s obligations
The obligation of Peabody Sub to provide the Scheme Consideration will be satisfied by Peabody Sub, on the Implementation Date doing any of the following at its election:
(a) sending the consideration to the Scheme Shareholders’ Registered Address as shown in the Share Register by cheque in Australian currency drawn on an Australian Bank; or
(b) depositing or procuring the Excel Registry to deposit it into an account with any Australian ADI (as defined in the Corporations Act) notified to Excel (or Excel’s agent who manages the Excel Register) by an appropriate authority from the Scheme Shareholders; or
(c) such other payment method as agreed in writing between Peabody and Excel.
6 Dealings in Excel Shares
(a) To establish the identity of the Scheme Shareholders, dealings in Excel Shares will only be recognised if:
(1) in the case of dealings of the type to be effected using CHESS, the transferee is registered in the Share Register as the holder of the relevant Excel Shares on or before the Scheme Record Date; and
(2) in all other cases, registrable transmission applications or transfers in respect of those dealings are received on or before the Scheme Record Date at the place where the Share Register is kept.
(c) Excel will not accept for registration or recognise for any purpose any transmission application or transfer in respect of Excel Shares received after the Scheme Record Date.
(d) For the purpose of determining entitlements to the Scheme Consideration, Excel must maintain the Share Register in accordance with the provisions of this clause 6 until the Scheme Consideration has been paid to the Scheme Shareholders. The Share Register in this form will solely determine entitlements to the Scheme Consideration.
(e) All statements of holding for Excel Shares will cease to have effect from the Scheme Record Date as documents of title in respect of those shares and, as from that date, each entry current at that date on the Share Register will cease to have effect except as evidence of entitlement to the Scheme Consideration in respect of the Excel Shares relating to that entry.
(f) As soon as possible after the Scheme Record Date and in any event at least 2 Business Days before the Implementation Date, Excel will ensure that details of the names, Registered Addresses and holdings of Excel Shares for each Scheme Shareholder are available to Peabody in the form Peabody reasonably requires.
7 Quotation of Excel Shares
(a) It is expected that suspension of trading on the ASX in Excel Shares will occur from the close of trading on the day Excel notifies the ASX that the Court has approved the Scheme under section 411(4)(b) of the Corporations Act.
(b) On a date after the Implementation Date to be determined by Peabody, Excel will apply:
(1) for termination of the official quotation of Excel Shares on the ASX; and
(2) to have itself removed from the official list of the ASX.
8 General Scheme provisions
8.1 Consent
If the Court proposes to approve the Scheme subject to any alterations or conditions, Excel may by its counsel consent on behalf of all persons concerned to those alterations or conditions to which Peabody has consented in writing.
8.2 Agreement of Scheme Shareholders
Scheme Shareholders agree to the transfer of their Excel Shares in accordance with the Scheme and agree to the variation, cancellation or modification of the rights attached to their Excel Shares constituted by or resulting from the Scheme.
8.3 Warranties by Scheme Shareholders
Each Scheme Shareholder is deemed to have warranted to Excel, in its own right and for the benefit of Peabody and Peabody Sub that all of the their Excel Shares which are transferred to Peabody Sub under the Scheme will, at the date of transfer of them to Peabody Sub, be fully paid and free from all mortgages, charges, liens, encumbrances and interests of third parties of any kind, and that they have full power and capacity to sell and to transfer their Excel Shares to Peabody Sub.
8.4 Beneficial entitlement to Excel Shares
Peabody Sub will be beneficially entitled to the Excel Shares transferred to it under the Scheme pending registration by Excel of Peabody Sub in the Share Register as the holder of the Excel Shares.
8.5 Authority given to Peabody
(a) Scheme Shareholders will be deemed to have authorised Excel to do and execute all acts, matters, things and documents on the part of each Scheme Shareholder necessary to implement the scheme, including (without limitation) executing, as agent and attorney of each Scheme Shareholder, a share transfer or transfers in relation to Scheme Shares as contemplated by clause 8.6.
(b) Each Scheme Shareholder, without the need for any further act, irrevocably appoints Excel and all of its directors, secretaries and officers (jointly and severally) as its attorney and agent for the purpose of executing any document necessary to give effect to the Scheme including without limitation, a proper instrument of transfer of its Scheme Shares for the purposes of section 1071B of the Corporations Act which may be a master transfer of all the Scheme Shares.
8.6 Appointment of sole proxy
Upon the Scheme becoming Effective and until Excel registers Peabody Sub as the holder of all Excel Shares in the Share Register, each Scheme Shareholder:
(b) must take all other actions in the capacity of a registered holder of Scheme Shares as Peabody reasonably directs.
9 General
9.1 Stamp duty
Peabody Sub will pay all stamp duty payable in connection with the transfer of the Scheme Shares to Peabody Sub.
9.2 Definition of “sending”
For the purposes of clause 5.3 the expressions “sending” means:
(a) sending by ordinary pre-paid post or courier to the Registered Address of the Scheme Shareholder at the Scheme Record Date; or
(b) delivery to the address by any other means at no cost to the recipient.
9.3 Notices
If a notice, transfer, transmission application, direction or other communication referred to in this Scheme is sent by post to Excel, it will not be taken to be received in the ordinary course of post or on a date and time other than the date and time (if any) on which it is actually received at the place where Excel’s Share Registry is kept.
9.4 Governing law
This Scheme is governed by the laws of New South Wales.
9.5 Further action
Excel will execute all documents and do all things necessary to implement and perform its obligations under this Scheme.
