FEDERAL COURT OF AUSTRALIA
Atlantic Gold NL, in the matter of Atlantic Gold NL [2014] FCA 697
Citation: Atlantic Gold NL, in the matter of Atlantic Gold NL [2014] FCA 697 Parties: ATLANTIC GOLD NL ACN 062 091 909 File number: NSD 601 of 2014 Judge: JACOBSON J Date of judgment: 26 June 2014 Catchwords: CORPORATIONS – scheme of arrangement – first court hearing – application pursuant to s 411 Corporations Act 2001 (Cth) for orders convening meeting of shareholders to approve scheme of arrangement – naked no vote break fee – matters for consideration Legislation: Corporations Act 2001 (Cth) ss 411, 412(1), 1322(4) Cases cited: Re Amcor Limited [2013] FCA 1183
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Sovereign Life Assurance Co v Dodd [1892] 2 QB 573Date of hearing: 26 June 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 37 Counsel for the Plaintiff: Mr M Oakes SC Solicitor for the Plaintiff: Norton Rose Fulbright Counsel for SPW Ventures Inc: Mr J Williams Solicitor for SPW Ventures Inc: Herbert Smith Freehills
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 601 of 2014
IN THE MATTER OF ATLANTIC GOLD NL ACN 062 091 909
BETWEEN: ATLANTIC GOLD NL ACN 062 091 909
Plaintiff
JUDGE:
JACOBSON J
DATE OF ORDER:
26 JUNE 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Pursuant to subsection 411(1) and section 1319 of the Corporations Act 2001 (Cth) (Act):
(a)the plaintiff, Atlantic Gold NL ACN 062 091 909, convene and hold a meeting (Scheme Meeting) of holders of fully and partly paid ordinary shares in the plaintiff (Atlantic Shareholders), other than Spur Ventures Inc. (Spur) and any related body corporate (as defined in section 50 of the Act) (ExcludedShareholders), for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement (Scheme) proposed to be made between the plaintiff and the Atlantic Shareholders other than the Excluded Shareholders (Participating Atlantic Shareholders) in relation to the transfer to Spur of all ordinary shares in the plaintiff which are held by the Participating Atlantic Shareholders, the terms of the Scheme being contained in Annexure [G] of the scheme booklet, a copy of which is behind Tab 2 of Exhibit WRB-1 to the affidavit of Walter Ralph Bucknell sworn 24 June 2014 and filed in this proceeding (Scheme Booklet);
(b)the Scheme Meeting be held on Thursday, 31 July 2014 at 10:00am at Launceston Room, Lower Ground Floor North…
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- Re Atlantic Gold NL [2014] FCA 697
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CaseChat Overview and Summary
The primary legal issues before the court included whether the scheme of arrangement was properly formulated and if the court should grant the order to convene the shareholder meeting. Other issues involved the form and content of the scheme booklet and proxy forms, as well as the timing and method of communication with shareholders. The court also had to consider whether Atlantic Gold would qualify for an exemption from U.S. Securities Act registration requirements if the scheme was approved.
The court found that the scheme of arrangement was appropriately structured and met the necessary legal requirements. It determined that the convening of the shareholder meeting was in the best interests of the company and its shareholders, and granted the order as sought by Atlantic Gold. The court provided detailed directions regarding the scheme booklet, proxy forms, and communication with shareholders to ensure compliance with the Corporations Act and related regulations. The court also noted that approval of the scheme would enable Atlantic Gold to qualify for an exemption from U.S. Securities Act registration requirements.
The court issued comprehensive orders to facilitate the convening of the shareholder meeting and the approval process for the scheme of arrangement. These included specifying the meeting location, time, and quorum requirements, as well as the voting rights of shareholders. Additionally, the court directed the form and distribution of the scheme booklet and proxy forms, and exempted Atlantic Gold from certain procedural rules to expedite the process. The court further ordered that notice of the hearing be published in The Australian and that an office copy of the order be lodged with the Australian Securities and Investments Commission. The further hearing of the proceeding was adjourned to allow time for the meeting and subsequent application for approval of the scheme.
Orders
Orders of the court
1. Pursuant to subsection 411(1) and section 1319 of the Corporations Act 2001 (Cth) (Act):
(a) the plaintiff, Atlantic Gold NL ACN 062 091 909, convene and hold a meeting (Scheme Meeting) of holders of fully and partly paid ordinary shares in the plaintiff (Atlantic Shareholders), other than Spur Ventures Inc. (Spur) and any related body corporate (as defined in section 50 of the Act) (Excluded Shareholders), for the purpose of considering and, if thought fit, agreeing to (with or without modification) a scheme of arrangement (Scheme) proposed to be made between the plaintiff and the Atlantic Shareholders other than the Excluded Shareholders (Participating Atlantic Shareholders) in relation to the transfer to Spur of all ordinary shares in the plaintiff which are held by the Participating Atlantic Shareholders, the terms of the Scheme being contained in Annexure [G] of the scheme booklet, a copy of which is behind Tab 2 of Exhibit WRB-1 to the affidavit of Walter Ralph Bucknell sworn 24 June 2014 and filed in this proceeding (Scheme Booklet);
(b) the Scheme Meeting be held on Thursday, 31 July 2014 at 10:00am at Launceston Room, Lower Ground Floor North Wing, The Menzies Hotel, 14 Carrington Street, Sydney in the State of New South Wales;
(c) Mr Ronald Joseph Hawkes or, failing him, Mr Robert Henry Neil Symons, be authorised to act as Chairman of the Scheme Meeting;
(d) the Chairman have the power to adjourn the Scheme Meeting in his absolute discretion for such time that the Chairman considers appropriate;
(e) at the Scheme Meeting, the Participating Atlantic Shareholders, present and entitled to vote, in person or by proxy or representative or by an attorney under power, shall constitute a quorum;
(f) at the Scheme Meeting, each Participating Atlantic Shareholder, present and entitled to vote, will be entitled to:
(i) one vote for each fully paid ordinary share in the capital of the plaintiff; and
(ii) 9/20th's of a vote for each partly paid ordinary share in the capital of the plaintiff,
that the Participating Atlantic Shareholder is registered as holding;
(g) at the Scheme Meeting, a poll must be taken to decide the resolution whether to approve the Scheme;
(h) the Scheme Booklet be approved for distribution to the Participating Atlantic Shareholders (which Scheme Booklet be and is hereby approved for the purposes only of subsection 411(1) of the Act);
(i) on or before 30 June 2014, there be dispatched:
(i) to each Participating Atlantic Shareholder, other than any Participating Atlantic Shareholder who has a registered address in Malaysia:
(A) a document substantially in the form of the Scheme Booklet;
(B) a cover letter (in substantially the form of the document behind Tab 9 of Exhibit WRB-1 to the affidavit of Walter Ralph Bucknell sworn 24 June 2014 and filed in this proceeding);
(C) a proxy form for the Scheme Meeting (in substantially the form of the document behind Tab 10 of Exhibit WRB-1 to the affidavit of Walter Ralph Bucknell sworn 24 June 2014 and filed in this proceeding); and
(D) a proxy form for an extraordinary general meeting of Atlantic Shareholders to be convened by the plaintiff on Thursday, 31 July 2014 at 11:00am or immediately after the Scheme Meeting (whichever is later) at Launceston Room, Lower Ground Floor North Wing, The Menzies Hotel, 14 Carrington Street, Sydney in the State of New South Wales (in substantially the form of the document behind Tab 11 of Exhibit WRB-1 to the affidavit of Walter Ralph Bucknell sworn 24 June 2014 and filed in this proceeding); and
(ii) to each Participating Atlantic Shareholder who has a registered address in Malaysia:
(A) a letter substantially in the form of the document behind Tab 12 of Exhibit WRB-1 to the affidavit of Walter Ralph Bucknell sworn 24 June 2014 and filed in this proceeding;
(B) a proxy form for the Scheme Meeting (in substantially the form of the document behind Tab 10 of Exhibit WRB-1 to the affidavit of Walter Ralph Bucknell sworn 24 June 2014 and filed in this proceeding); and
(C) a proxy form for an extraordinary general meeting of Atlantic Shareholders to be convened by the plaintiff on Thursday, 31 July 2014 at 11:00am or immediately after the Scheme Meeting (whichever is later) at Launceston Room, Lower Ground Floor North Wing, The Menzies Hotel, 14 Carrington Street, Sydney in the State of New South Wales (in substantially the form of the document behind Tab 11 of Exhibit WRB-1 to the affidavit of Walter Ralph Bucknell sworn 24 June 2014 and filed in this proceeding);
(j) the plaintiff may, at its sole discretion, dispatch the documents the subject of order 1(i) by hand or by pre-paid post or courier to the Participating Atlantic Shareholders, addressed to the relevant addresses set out in the register of members of the plaintiff; and
(k) the plaintiff shall also dispatch to the Participating Atlantic Shareholders with the documents the subject of order 1(i) an envelope addressed to Computershare Investor Services Pty Limited, GPO Box 128, Melbourne, Victoria 3001 for return of the relevant proxy forms.
2. Rule 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) shall not apply to the Scheme Meeting, except in so far as that Rule applies regulation 5.6.13 of the Corporations Regulations 2001 (Cth).
3. Notice of the hearing of any application for an order approving the Scheme be published once in The Australian newspaper by an advertisement substantially in the form of “Annexure A” to this order, such advertisement to be published on or before 1 August 2014 and the plaintiff be otherwise exempted from compliance with rule 3.4 of the Federal Court (Corporations) Rules 2000 (Cth).
4. An office copy of this order be lodged with the Australian Securities and Investments Commission before 5.00pm on 27 June 2014.
5. The further hearing of this proceeding be adjourned to 6 August 2014 at 2:30 pm.
6. There be liberty to apply.
7. These orders be entered forthwith.
THE COURT NOTES THAT:
8. The plaintiff will rely on the Court’s approval of the Scheme for the purposes 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 the provision of consideration under, the Scheme.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
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