FEDERAL COURT OF AUSTRALIA
Adelaide Bank Limited, in the matter of Adelaide Bank Limited
ACN 061 461 550 [2007] FCA 1582CORPORATIONS – merger – schemes of arrangement for an Australian publicly listed company to become a subsidiary of another related publicly listed company – separate schemes for each class of shares – application pursuant to s 411(1) of the Corporations Act 2001 (Cth) for an order to convene meetings of the three classes of members and for the Court to approve the Explanatory Statement – conditions precedent in s 411(2) satisfied – consideration of “no shop/no talk” provisions, a break fee and a deemed warranty that shares are free from encumbrances – plaintiff exempted from registration requirements of s 3(a)(10) of the Securities Act of 1933 (US) – whether treatment of ineligible foreign shareholders acceptable – appropriate that the plaintiff hold three separate scheme meetings therefore order granted – Explanatory Statement approved.
Corporations Act 2001 (Cth) ss 411, 412
Corporations Regulations 2001 (Cth) reg 5.1.01; Schedule 8
Securities Act of 1933 (US) s 3(a)(10)Re APN News & Media Limited (2007) 62 ACSR 400 followed
Re Arthur Yates & Co Ltd (2001) 36 ACSR 758 cited
Re Bank of Adelaide (1979) 22 SASR 481 cited
Re Central Pacific Minerals N.L. [2002] FCA 239 cited
Re CSR Ltd 45 ACSR 34 followed
Re NRMA Insurance Ltd (2003) 33 ACSR 523 citedTakeovers Panel’s Guidance Notes: Guidance Note 7: Lock-up Devices (2nd issue, 2005)
IN THE MATTER OF ADELAIDE BANK LIMITED ACN 061 461 550
SAD 144 OF 2007
LANDER J
5 OCTOBER 2007
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 144 OF 2007
IN THE MATTER OF ADELAIDE BANK LIMITED ACN 061 461 550
ADELAIDE BANK LIMITED
Plaintiff
JUDGE:
LANDER J
DATE OF ORDER:
5 OCTOBER 2007
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.Pursuant to section 411(1) of the Corporations Act the plaintiff convene a meeting (Ordinary Share Scheme Meeting) of its members holding Adelaide Bank Ordinary Shares (Ordinary Shareholders) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement for the transfer of all the Adelaide Bank Ordinary Shares to Bendigo Bank in consideration for the issue of ordinary shares in Bendigo Bank, being the scheme substantially in the form of the draft, a copy of which is at Appendix 2 to the draft Adelaide Bank Scheme Book, (Ordinary Share Scheme).
2.Pursuant to section 411(1) of the Corporations Act the plaintiff convene a meeting (Step Up Preference Share Scheme Meeting) of its members holding Adelaide Bank Step Up Preference Shares (Step Up Preference Shareholders) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement for the transfer of all the Adelaide Bank Step Up Preference Shares to Bendigo Bank in consideration for the issue of step up preference shares in Bendigo Bank, being the scheme substantially in the form of the draft, a copy of which…
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- AGLC
- Re Adelaide Bank Ltd [2007] FCA 1582
- Case
- [2007] FCA 1582
- Decision Date
CaseChat Overview and Summary
The court considered the statutory provisions under the Corporations Act, which permit the court to order a meeting of members to consider a scheme of arrangement. The court found that the requirements for such an order were satisfied and that it was appropriate to exercise its discretion to convene the meetings. The court noted the importance of the scheme for the restructuring of Adelaide Bank and the need to ensure that shareholders had an opportunity to consider and vote on the proposal. The court also addressed procedural matters, including the timing and manner of convening the meetings, the eligibility of shareholders to vote, and the process for submitting proxies.
The court issued orders convening the Ordinary Share Scheme Meeting, Step Up Preference Share Scheme Meeting, and Reset Preference Share Scheme Meeting, specifying the dates, times, and locations for these meetings. The court also ordered the dispatch of the scheme book and other relevant documents to shareholders, the conduct of the meetings in accordance with the Corporations Act and the company's constitution, and the procedures for voting and proxy submissions. The proceedings were stood over to allow for any applications to approve the schemes, with liberty to apply granted for such applications.
These orders ensure that the shareholders of Adelaide Bank have the opportunity to consider and vote on the proposed scheme of arrangement with Bendigo Bank, in compliance with the legal requirements set out in the Corporations Act.
Orders
Orders of the court
1. Pursuant to section 411(1) of the Corporations Act the plaintiff convene a meeting (Ordinary Share Scheme Meeting) of its members holding Adelaide Bank Ordinary Shares (Ordinary Shareholders) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement for the transfer of all the Adelaide Bank Ordinary Shares to Bendigo Bank in consideration for the issue of ordinary shares in Bendigo Bank, being the scheme substantially in the form of the draft, a copy of which is at Appendix 2 to the draft Adelaide Bank Scheme Book, (Ordinary Share Scheme).
2. Pursuant to section 411(1) of the Corporations Act the plaintiff convene a meeting (Step Up Preference Share Scheme Meeting) of its members holding Adelaide Bank Step Up Preference Shares (Step Up Preference Shareholders) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement for the transfer of all the Adelaide Bank Step Up Preference Shares to Bendigo Bank in consideration for the issue of step up preference shares in Bendigo Bank, being the scheme substantially in the form of the draft, a copy of which is at Appendix 3 to the draft Adelaide Bank Scheme Book, (Step Up Preference Share Scheme).
3. Pursuant to section 411(1) of the Corporations Act the plaintiff convene a meeting (Reset Preference Share Scheme Meeting) of its members holding Adelaide Bank Reset Preference Shares (Reset Preference Shareholders) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement for the transfer of all the Adelaide Bank Reset Preference Shares to Bendigo Bank in consideration for the issue of reset preference shares in Bendigo Bank, being the scheme substantially in the form of the draft, a copy of which is at Appendix 4 to the draft Adelaide Bank Scheme Book, (Reset Preference Share Scheme).
4. The Ordinary Share Scheme Meeting be held at 9:30am on 12 November 2007 at the Adelaide Convention Centre, North Terrace, Adelaide, South Australia.
5. The Step Up Preference Share Scheme Meeting be held at 10:45am on 12 November 2007 at the Adelaide Convention Centre, North Terrace, Adelaide, South Australia.
6. The Reset Preference Share Scheme Meeting be held at 11:30am on 12 November 2007 at the Adelaide Convention Centre, North Terrace, Adelaide, South Australia.
7. On or before 12 October 2007 there be despatched by prepaid ordinary post (or in the case of overseas members, by airmail), to each Adelaide Bank Ordinary Shareholder, Reset Preference Shareholder and Step Up Preference Shareholder appearing in the register of the plaintiff’s shareholders, a document substantially in the form or to the effect of the draft Adelaide Bank Scheme Book (attached as Annexure A to the affidavit of John Storrie Keeves sworn on 5 October 2007 with the amendment to page 376 referred to in Annexure ‘A’ to the further affidavit of John Storrie Keeves sworn on 5 October 2007) (the Adelaide Bank Scheme Book) together with the proxy forms, proxy envelopes and reply paid envelopes that accompany the Adelaide Bank Scheme Book.
8. Documents despatched in accordance with paragraph 7 above will be deemed to be received in accordance with clause 21.4 of the Constitution of the plaintiff.
9. The meetings convened pursuant to paragraphs 1, 2 and 3 above will be conducted in accordance with the Constitution of the plaintiff and Part 2G.2 of the Corporations Act, except to the extent provided otherwise by these orders.
10. Ordinary Shareholders who are recorded in the share register of the plaintiff at 12:00 midday on 11 November 2007 shall be eligible to vote at the Ordinary Share Scheme Meeting.
11. Step Up Preference Shareholders who are recorded in the share register of the plaintiff at 12:00 midday on 11 November 2007 shall be eligible to vote at the Step Up Preference Share Scheme Meeting.
12. Reset Preference Shareholders who are recorded in the share register of the plaintiff at 12:00 midday on 11 November 2007 shall be eligible to vote at the Reset Preference Share Scheme Meeting.
13. A form of proxy in respect of the Ordinary Share Scheme Meeting, Step Up Preference Share Scheme Meeting or Reset Preference Share Scheme Meeting will be valid and effective if:
(a) delivered to the plaintiff are care of Computershare Investor Services Pty Limited by use of the reply paid envelope;
(b) delivered to the plaintiff at:
(i) the plaintiff’s registered office at 169 Pirie Street, Adelaide, South Australia, 5000, Australia; or
(ii) care of Computershare Investor Services Pty Limited at Level 5, 115 Grenfell Street, Adelaide, South Australia, 5000, Australia; or
(c) received by mail to:
(i) the plaintiff’s registered office at 169 Pirie Street, Adelaide, South Australia, 5000, Australia; or
(ii) the plaintiff at care of Computershare Investor Services Pty Limited, GPO Box 242, Melbourne, Victoria, 3001, Australia; or
(d) transmitted by facsimile to +61 8 8236 2305,
in each case not later than 12:00 midday on 10 November 2007.
14. The Chairperson of the Ordinary Share Scheme Meeting be Dr Adele Lloyd and, in her absence, Mr Roger Cook.
15. The Chairperson of the Step Up Preference Share Scheme meeting be Dr Adele Lloyd and, in her absence, Mr Roger Cook.
16. The Chairperson of the Reset Preference Share Scheme meeting be Dr Adele Lloyd and, in her absence, Mr Roger Cook.
17. The Chairperson appointed to each of the Ordinary Share Scheme Meeting, Step Up Preference Share Scheme Meeting and Reset Preference Share Scheme Meeting have the power to adjourn the meeting in his or her absolute discretion.
18. All voting at each of the Ordinary Share Scheme Meeting, Step Up Preference Share Scheme Meeting and Reset Preference Share Scheme Meeting be by poll as declared by the Chairperson.
19. Pursuant to section 411(1) of the Corporations Act, the Explanatory Statement for the Ordinary Share Scheme, Step Up Preference Share Scheme and Reset Preference Share Scheme, a copy of each of which forms part of the documents comprising the Adelaide Bank Scheme Book, be approved.
20. The plaintiff advertise the Ordinary Share Scheme Meeting, Step Up Preference Share Scheme Meeting and Reset Preference Share Scheme Meeting substantially in the form of the attached document in The Australian newspaper and The Advertiser newspaper no later than 13 October 2007.
21. The plaintiff publish a notice of hearing of any application to approve the Ordinary Share Scheme, Step Up Preference Share Scheme and Reset Preference Share Scheme on or before 9 November 2007 and the plaintiff shall otherwise be exempted from compliance with the requirement to publish such notices at least 5 days before the date fixed for the hearing of the application pursuant to Rule 3.4(3)(b) of the Federal Court (Corporations) Rules 2000 (Cth).
22. The proceedings be stood over to 16 November 2007 at 10:15am for the hearing of any application to approve the Ordinary Share Scheme, Step Up Preference Share Scheme and Reset Preference Share Scheme.
23. Liberty to apply on two days’ notice.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: LANDER J
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