FEDERAL COURT OF AUSTRALIA
Anatolia Energy Limited, in the matter of Anatolia Energy Limited [2015]
FCA 1134
Citation: Anatolia Energy Limited, in the matter of Anatolia Energy Limited [2015] FCA 1134 Parties: ANATOLIA ENERGY LIMITED (ACN 076 577 994) File number: WAD 412 of 2015 Judge: MCKERRACHER J Date of judgment: 23 October 2015 Catchwords: CORPORATIONS – application for approval of schemes of arrangement under s 411(1) of the Corporations Act 2001 (Cth) (Act) – three separate but interdependent schemes proposed – three stages to an application under s 411 of the Act – standard of review by the Court at the first stage where approval to convene the meetings to vote on the schemes is sought – whether each of the schemes are an ‘arrangement’ in respect of which the Court may order a meeting of the members – whether ASIC has had a reasonable opportunity to examine the terns of each scheme and make submissions under s 411(2) of the Act – whether the Scheme Booklet provides adequate disclosure and contains the prescribed information - whether the procedural requirements of the Federal Court (Corporations) Rules 2000 have been met – whether there is an apparent reason why each of the schemes should not receive the Court’s approval in due course – whether performance risk or risk of delisting from the NASDAQ provides sufficient reason to prevent the ordering of the scheme meetings Legislation: Corporations Act 2001 (Cth) ss 411, 412, 1319
Corporations Regulations 2001 (Cth) r 5.1.01, Sch 8
Federal Court (Corporations) Rules 2000 (Cth) r 3.2Cases cited: Re ACM Gold Ltd (1992) 34 FCR 530
Re Amcom Telecommunications Limited (No 4) (2015) 107 ACSR 341
Re Andean Resources Limited [2010] FCA 1190
Re APN News & Media Ltd (2007) 62 ACSR 400
Re Australian Consolidated Press (1994) 117 FCR 451
Re Cortona Resources Limited [2012] FCA 1295
Re CSR Ltd (2010) 183 FCR 358
Re Dorman Long & Co Ltd [1934] Ch 635
Re Foundation Healthcare Ltd (2002) 42 ACSR 252
FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69
Re NRMA Insurance Ltd (No. 1) (2000) 156 FLR 349
Re Sonodyne International Ltd (1994) 15 ACSR 494Articles and Texts: Damian T and Rich A, Schemes, Takeovers and Himalayan Peaks (Ross Parsons, 3rd ed, 2013) Date of hearing: 4 September 2015 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 52 Counsel for the Plaintiff: Mr AJ Papamatheos Solicitor for the Plaintiff: Steinepreis Paganin
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 412 of 2015
IN THE MATTER OF ANATOLIA ENERGY LIMITED (ACN 076 577 994)
ANATOLIA ENERGY LIMITED (ACN 076 577 994)
Plaintiff
JUDGE:
MCKERRACHER J
DATE OF ORDER:
4 SEPTEMBER 2015
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.Pursuant to s 411 of the Corporations Act 2001 (Cth), the plaintiff convene:
(a)a meeting of holders of fully paid ordinary shares in the capital of the plaintiff (
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- Re Anatolia Energy Ltd [2015] FCA 1134
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- [2015] FCA 1134
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CaseChat Overview and Summary
The court considered that corporate actions relating directly or indirectly to a proposed scheme of arrangement should be separate from a general meeting of members, as scheme meetings under section 411 are specific statutory meetings. The court found that detailed written submissions were made by Anatolia and, after considering the content and oral explanations by counsel, made the following orders. First, the plaintiff was to convene a meeting of shareholders, option holders, and performance share holders to consider and approve the schemes. Second, the scheme booklet was approved, subject to corrections and amendments. Third, the plaintiff was to dispatch documents to the relevant stakeholders by a specified date. Fourth, the dispatch of these documents was to be considered sufficient notice of the scheme meetings. Fifth, the scheme meetings were to be convened, held, and conducted in accordance with relevant laws and the company’s constitution. Sixth, a chairperson was to be appointed to conduct the meetings and report the results to the court. Seventh, the chairperson could adjourn the meetings if necessary. Eighth, a quorum of two members present in person or by proxy was required for each meeting. Ninth, voting on the resolutions was to be conducted by way of poll. Tenth, the matter was to be relisted for further application after the scheme meetings. Eleventh, if relisted, the plaintiff was to give notice of the hearing by publishing an advertisement in specified newspapers. Twelfth, the court noted that the plaintiff would rely on its approval of the schemes for exemption from the registration requirements of the U.S. Securities Act of 1933. Lastly, liberty to apply was granted.
Orders
Orders of the court
1. Pursuant to s 411 of the Corporations Act 2001 (Cth), the plaintiff convene:
(a) a meeting of holders of fully paid ordinary shares in the capital of the plaintiff (Shareholders) to be held in Perth, Western Australia on 9 October 2015 at 11.30am (WST) or on such other date and such other time as the Court may approve (Share Scheme Meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed between the Plaintiff and its Shareholders (Share Scheme), being contained in the affidavit of Patrick Nicholas Burke sworn 20 August 2015 (Burke Affidavit) at Exhibit PB-1, Tab 3, pages 108-123;
(b) a meeting of holders of options convertible into shares of the plaintiff (Optionholders) to be held in Perth, Western Australia on 9 October 2015 at 1.00pm (WST) or on such other date and such other time as the Court may approve (Option Scheme Meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed between the Plaintiff and its Optionholders (Option Scheme), being contained in the Burke Affidavit at Exhibit PB-1, Tab 3, pages 124-138; and
(c) a meeting of performance shares convertible into shares of the plaintiff (Performance Shareholders) to be held in Perth, Western Australia on 9 October 2015 at 2.00pm (WST) or on such other date and such other time as the Court may approve (Performance Share Scheme Meeting) for the purpose of considering and if thought fit, approving with or without modifications, the scheme of arrangement proposed between the Plaintiff and its Performance Shareholders (Performance Share Scheme), being contained in the Burke Affidavit at Exhibit PB-1, Tab 3, pages 139-152
(together, the Scheme Meetings).
2. Pursuant to s 411(1) of the Corporations Act 2001 (Cth), the scheme booklet, which contains an explanatory statement required by s 412(1)(a) of the Corporations Act and being the document at Tab 2, to Exhibit PB-1 to the Burke Affidavit, including the notices of Scheme Meetings being the documents attached as Annexures D, G and I to the scheme booklet, and the complete Independent Expert Report contained in the affidavit of Adam Anthony Myers sworn 21 August 2015 at AM-2, be and is approved, subject to:
(a) correction of any minor typographical or grammatical errors, the date of the Scheme Meetings (above) and the date of the second hearing;
(b) any minor amendments required or approved by the Australian Securities and Investments Commission (ASIC) for registration under s 412(6) of the Corporations Act; and
(c) adopting the marked-up amendments contained in Exhibit “AD-1”, Tab 1 to the affidavit of Andrew Lawrence Disney sworn 3 September 2015.
3. Subject to registration of the scheme booklet pursuant to s 412(6) of the Corporations Act, the plaintiff is to dispatch, on or before 9 September 2015 or such other date as directed by the Court, a document substantially in the form of the scheme booklet (as amended by order 2 above) and any applicable proxy forms to the Shareholders, Optionholders and Performance Shareholders who appear on the relevant registers of members and holders as at 5:00pm (Perth time) on 1 September 2015 by ordinary post (or by airmail to overseas holders) or by fax or by e-mail (provided a fax number or e- mail address has been nominated by the holder).
4. Dispatch of the documents referred to in paragraph 3 of these Orders in accordance with its terms is to be taken to be sufficient notice of the Scheme Meetings.
5. Subject to these orders, the Scheme Meetings are to be (so far as practicable):
(a) convened, held and conducted in accordance with the provisions of Part 2G.2 of the Corporations Act that apply to members of a company and the provisions of the Plaintiff’s constitution that are not inconsistent therewith and that apply to meetings of members;
(b) convened, held and conducted pursuant to Section 1319 of the Corporations Act, on the basis that Corporations Regulations 2001 (Cth) 5.6.11 to 5.6.11A and 5.6.13A to 5.6.36A do not apply to the Scheme Meetings; and
(c) convened using the notices of meetings substantially in the form or to the effect of the notices to be contained in or accompanying the Scheme Booklet.
6. Mr Patrick Nicolas Burke or, failing him, Mr Toby Albert Hicks is to be appointed to act as chairperson of the Scheme Meetings (Chairperson) and report the result of the Scheme Meetings to this Court.
7. The Chairperson can adjourn the Scheme Meetings, or any one of them, in his absolute discretion for such time that the Chairperson thinks appropriate.
8. Two Shareholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum for the Share Scheme Meeting.
9. Two Optionholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum for the Option Scheme Meeting.
10. Two Performance Shareholders present in person or by proxy, corporate representative or attorney under power and entitled to vote shall constitute a quorum for the Performance Share Scheme Meeting.
11. Voting on the resolutions at the Scheme Meetings is to be conducted by way of poll.
12. The matter is to be relisted on 22 October 2015 for such application as appropriate following the Scheme Meetings.
13. If the matter is relisted, the Plaintiff is to give notice of the hearing of the application pursuant to section 411(4)(b) of the Corporations Act for orders approving the Schemes by publishing an advertisement in the public notices column of “The Australian” and “The West Australian” newspapers substantially in the form of Annexure A to these Orders, such advertisement to be published at least five days before any date allocated for the hearing and the Plaintiff otherwise be exempted from compliance with rule 3.4 of the Federal Court (Corporations) Rules 2000 (Cth).
14. The Court notes that the plaintiff will rely on the Court’s approval of the Schemes for the purpose of qualifying for exemption from the registration requirements of the U.S. Securities Act of 1933, provided for by section 3(a)(10) of the U.S. Securities Act of 1933, in connection with the implementation of, and provision of, consideration under the Schemes.
15. There be liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Likewise, Anatolia Optionholders and Anatolia Performance Shareholders that hold multiple types of securities will not receive additional or different consideration as Anatolia Optionholders or Anatolia Performance Shareholders respectively, from the consideration that other Anatolia Optionholders or Anatolia Performance Shareholders receive.ASIC consideration The jurisdiction of the Court to make an order convening meetings under s 411(1) is conditional upon the Court’s satisfaction as to the two matters set out in s 411(2) of the Corporations Act. First, that ASIC has been given 14 days notice of the hearings, or such lesser period of notice as the Court or ASIC permits: s 411(2)(a). Second, that ASIC has had a reasonable opportunity to examine the terms of each of the Schemes and the draft explanatory statement and to make submissions to the Court: s 411(2)(b). The originating application was formally served on ASIC on 11 August 2015. Formal notice of the date and time of the hearing was also given to ASIC on 11 August 2015. The first requirement is satisfied. The Scheme Booklet was lodged with ASIC on 5 August 2015. The second requirement is satisfied.Draft Scheme Booklet The Scheme Booklet contains the draft explanatory statement. The various annexures to the Scheme Booklet are comprised of the following:(a)Annexure A, the Independent Expert’s Report;(b)Annexure B, the Investigating Accountant’s Report;(c)Annexure C, the Share Scheme;(d)Annexure D, the Anatolia Notice of Share Scheme Meeting;(e)Annexure E, the Anatolia Notice of Shareholder General Meeting;(f)Annexure F, the Option Scheme;(g)Annexure G, Notice of Option Scheme Meeting;(h)Annexure H, the Performance Share Scheme;(i)Annexure I, the Anatolia Notice of Performance Share Scheme Meeting;(j)Annexure J, the Anatolia Notice of Performance Shareholder General Meeting;(k)Annexure K, the Deed Poll; and(l)Annexure L, the Black-Scholes Values of Anatolia Option and key terms of the Uranium Resources Options. The Scheme Booklet must provide proper disclosure as required by s 411(3) of the Corporations Act. It must essentially set out ‘all the main facts as will enable shareholders to exercise their judgement on the proposed scheme’: Re Dorman Long & Co Ltd [1934] Ch 635 per Maugham J (at 665-666), applied in Re NRMA Insurance Ltd (No 1) per Santow J (at [16]), ReFoundation Healthcare Ltd per French J (at [38]). In an effort to avoid overwhelming members with information and a larger explanatory statement, the key provisions of the scheme implementation agreement dated 3 June 2015 (Scheme Implementation Agreement) have been summarised in Section 13.1 of the Scheme Booklet. Securityholders who are interested in reading the Scheme Implementation Agreement are directed to the complete ASX announcement with the Scheme Implementation Agreement: Scheme Booklet s 13.1. A copy of the complete ASX announcement is also available from the ASX website, by searching for Anatolia announcements. This approach has been adopted previously: Re Andean Resources Limited [2010] FCA 1190 per Jagot J (at [8]); Re Cortona Resources Limited [2012] FCA 1295 per Barker J (at [20]). Further, in relation to disclosure, there is nothing apparently misleading or deceptive in the Scheme Booklet: see Re NRMA Insurance Ltd (No 1).