Tulla Resources PLC, Re

1. MRS JUSTICE JOANNA SMITH: Tulla Resources plc, (“the Company”), applies to the court today for an order under section 899 of the Companies Act 2006 (“the 2006 Act”) for the sanction of a scheme of arrangement referred to as “the Takeover Scheme”. This application follows the sanctioning by the court on 19 June 2023 of another scheme of arrangement referred to as “the Demerger Scheme”. I made the Demerger Scheme Sanction Order and at that time, I read the documents and evidence relating to both Schemes.

2. In giving this short judgment, I shall not repeat the background to the Schemes, which is dealt with in my previous judgment. I shall assume that anyone hearing or reading this judgment also has access to my earlier judgment. I shall also use the abbreviations used in my previous judgment.

3. The Company is represented today by Mr Ben Shaw KC who relies upon the same helpful skeleton argument that he prepared for the previous hearing. No one else, whether shareholders or creditors, has attended court today with a view to making representations or to oppose the Schemes.

4. The Takeover Scheme, which is a transfer scheme in conventional form, is conditional upon the Demerger Scheme becoming effective.

5. Since the last hearing, I have been provided with the sixth witness statement of Mr Stephen Maffey, confirming delivery of the Demerger Scheme Sanction Order to Companies House on 21 June 2023. Therefore, that scheme has now become effective pursuant to section 899(4) of the 2006 Act, as has the reduction of capital pursuant to section 649(3)(a)(i) of the 2006 Act, which I dealt with in the Demerger Scheme Sanction Order and in my judgment on the last occasion.

6. Mr Maffey’s sixth statement also confirms that the other conditions precedent to the Takeover Scheme, as set out in clause 3.2 of the Merger Implementation Deed entered into between the Company and Pantoro have been satisfied. Mr Shaw has confirmed that relevant certificates have been released from escrow.

7. Dealing briefly with the material terms of the Takeover Scheme, it provides for the transfer of the Takeover Scheme Shares to Pantoro by instrument of transfer executed by a person as attorney or agent for Takeover Scheme Shareholders. Subject to receipt of a duly executed and stamped instrument of transfer, the Company must then register the transfer of shares. The consideration payable by Pantoro is 4.9578 New Pantoro Shares for each Takeover Share. Pantoro is obliged to apply for a quotation on ASX of the New Pantoro Shares. CDN, as the registered holder of 99.8 per cent of Tulla’s issued share capital will be issued with New Pantoro Shares, which will then be transferred by CDN to holders of Tulla CDIs.

8. Pursuant to clauses 3 and 4 of the Takeover Scheme, Ineligible Foreign Shareholders (defined as any Takeover Scheme Shareholders with an address in a place which Pantoro reasonably determines is a place where it is unlawful or unduly onerous to issue New Pantoro Shares) will not receive New Pantoro Shares. Instead, those shares will be issued to an agent and sold on ASX. The proceeds of such sale will be remitted to the Ineligible Foreign Shareholders.

9. I referred to the applicable legal principles in my previous judgment; the same principles apply now.

10. As for the satisfaction of the jurisdictional requirements, I am satisfied that the Takeover Scheme involves the necessary element of ‘give and take’ between the Company and the Takeover Scheme Shareholders to constitute an arrangement for the purposes of part 26 of the 2006 Act. Clause 1.4 of the Takeover Scheme imposes an obligation on the Company to register the transfer of the Takeover Scheme Shares to Pantoro. This is sufficient on the existing authorities to constitute an arrangement to which the Company is a party.

11. As for class composition, all Takeover Scheme Shareholders are being offered the same deal under the terms of the Takeover Scheme. I accept that in the circumstances, it was appropriate to call a single meeting of Takeover Scheme Shareholders to consider and, if thought fit, to approve the Takeover Scheme.

12. The Takeover Court Meeting took place on 5 May 2023 as a physical meeting and is recorded in the Chairman’s Report. 57 Takeover Scheme Shareholders holding 249,374,049 Takeover Scheme Shares voted in favour of the Takeover Scheme, and 6 Takeover Scheme Shareholders holding 379,729 Takeover Scheme Shares voted against. As at the Voting Record Time, there were 1,250 Takeover Scheme Shareholders holding 321,804,002 Takeover Scheme Shares. The turnout was therefore 5.04% in number terms and 77.61% in value terms. The statutory majorities required under section 899(1) of the 2006 Act were easily achieved. The majority in value terms was 99.85%. The majority in number terms was 91.9% (not 90.48%, a small error quite properly drawn to my attention today in the Chairman’s Report). In any event, the majorities easily pass the relevant threshold.

13. As to the exercise of my discretion and having regard to the four key matters requiring the attention of the court, as identified by Mr Justice Morgan in Re TDG Plc [2009] 1 BCLC 445 at [29] to [30], I am satisfied that the relevant requirements for the exercise of my discretion are met in this case.

14. Taking each in turn: (1) Have the provisions of the statute been complied with? I am satisfied that they have for the reasons I have already identified. (2) Was there fair representation at the meeting? I am satisfied that the class of shareholders who were the subject of the Court Meeting was fairly represented by those who attended the meeting, and there is no evidence to suggest that the statutory majority was acting other than bona fide or coercing the minority to promote interests adverse to those of the class of Takeover Scheme Shareholders; (3) Is the Scheme one that an intelligent and honest person, a member of the class concerned and acting in respect of his own interests, might rightly approve? I am satisfied that it is; I have seen nothing to suggest otherwise. (4) Are there any blots on the Scheme? I have not found any technical or legal defects in the Scheme and none has been drawn to my attention.

15. In all the circumstances, I accept that both the jurisdictional and discretionary requirements have been satisfied by the Takeover Scheme and, upon the undertaking by Mr Shaw, acting for Pantoro for these purposes, to be bound by the provisions of the Takeover Scheme and to take appropriate steps to give effect to that Scheme, I am prepared to sanction the Scheme under section 899(1) of the 2006 Act and will make the order requested of me. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Unit 1 Blenheim Court, Beaufort Business Park, Bristol BS32 4NE Email: [email protected] This transcript has been approved by the Judge