Re oOh!Media Group Ltd

Case [2012] FCA 26

FEDERAL COURT OF AUSTRALIA

oOh!Media Group Limited, in the matter of oOh!Media Group Limited [2012] FCA 26

Citation: oOh!Media Group Limited, in the matter of oOh!Media Group Limited [2012] FCA 26
Parties: OOH!MEDIA GROUP LIMITED (ACN 091 780 924)
File number(s): NSD 52 of 2012
Judge: YATES J
Date of judgment: 20 January 2012
Catchwords: CORPORATIONS – scheme of arrangement – application for order that company convene meeting of members
Legislation: Corporations Act 2001 (Cth) ss 411, 412
Corporations Regulations 2001 (Cth) reg 5.1.01(1)
Cases cited: ABB Grain Ltd, in the matter of ABB Grain Ltd [2010] FCA 1309
Adelaide Bank Limited, in the matter of Adelaide Bank Limited [2007] FCA 1582
Re APN News & Media Ltd (2007) 62 ACSR 400
Re Arthur Yates & Co Ltd (2001) 36 ACSR 758
Re CSR Ltd (2003) 45 ACSR 34
Date of hearing: 20 January 2012
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 39
Counsel for the Plaintiff: Mr M Holmes QC
Solicitor for the Plaintiff: Blake Dawson
Counsel for Outdoor Media Operations Pty Ltd Mr M Oakes SC
Solicitor for Outdoor Media Operations Pty Ltd Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 52 of 2012

IN THE MATTER OF OOH!MEDIA GROUP LIMITED ACN 091 780 924

OOH!MEDIA GROUP LIMITED (ACN 091 780 924)
Plaintiff

JUDGE:

YATES J

DATE OF ORDER:

20 JANUARY 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (Act):

a.   the plaintiff convene a meeting (Scheme Meeting) of the holders of ordinary shares in the Plaintiff (other than Perpetual Trustee Company Limited ACN 000 001 007 as trustee of the CHAMP Buyout III Trust, Perpetual Corporate Trust Limited ACN 000 341 533 as trustee of the CHAMP Buyout III (SWF) Trust and CHAMP Buyout III Pte Ltd Registration No. 200909086E.) (Shareholders) for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement (with or without modification) between the plaintiff and its shareholders (Scheme of Arrangement), the terms of which are set out in Attachment B of the document which is  Exhibit 1 in these proceedings (Scheme Booklet);

b.   the Scheme Meeting be held immediately following the conclusion or adjournment of the general meeting of the holders of the ordinary shares in the plaintiff to be held at 10.00 am on 27 February 2012 at the offices of oOh!Media, Level 2, 76 Berry Street, North Sydney NSW 2060;

c.   Graham Jones or, failing him, Brian Lindsay Bickmore, act as Chairman of the Scheme Meeting;

d.   the Chairman have the power to adjourn the Scheme Meeting for such time as the Chairman considers appropriate; and

e.   the Scheme Booklet be, and hereby is, approved for distribution to Shareholders.

2. Notice of the hearing of an application pursuant to subsection 411(4) of the Act for an order approving the Scheme of Arrangement be published…

Continue reading Re oOh!Media Group Ltd

Sign in free to access the full text

Details
AGLC
Re oOh!Media Group Ltd [2012] FCA 26
Case
[2012] FCA 26
Decision Date

CaseChat Overview and Summary

The case of Re oOh!Media Group Ltd involved a scheme of arrangement application by the company, oOh!Media Group Ltd, to convene a meeting of its members. The company sought an order to convene a meeting of its shareholders to consider a proposed scheme of arrangement for the acquisition of all shares in the company not already held by the CHAMP III Funds. The scheme would involve the acquisition of these shares by Outdoor Media Operations, a subsidiary of Outdoor Media Investments, which is in turn a subsidiary of CHAMP III Management. The dispute centred on whether the scheme was fair and reasonable to the shareholders and whether the necessary statutory requirements had been met.

The primary legal issues the court had to decide were whether oOh!Media Group Ltd was a "Part 5.1 body" within the meaning of the Corporations Act 2001 (Cth) and whether the explanatory statement regarding the scheme complied with the statutory requirements. The court also needed to determine if the Australian Securities and Investments Commission (ASIC) had been given adequate notice and opportunity to examine the proposed scheme and the explanatory statement. Furthermore, the court had to consider whether the scheme was fair and reasonable to the shareholders and whether it complied with the provisions of the Corporations Act.

The court found that oOh!Media Group Ltd qualified as a "Part 5.1 body" and that the proposed scheme was an arrangement under the Act. The court was satisfied that the explanatory statement complied with the statutory requirements, noting that ASIC had been given reasonable notice and opportunity to examine the scheme and the explanatory statement. ASIC had indicated it did not intend to oppose the scheme. The court also found that the scheme was fair and reasonable to the shareholders and met all necessary statutory requirements.

In light of the above findings, the court made several orders, including ordering oOh!Media Group Ltd to convene a meeting of its shareholders to consider the scheme of arrangement. The court also approved the scheme booklet for distribution to the shareholders and exempted the company from certain procedural requirements. The court stood over the proceedings to a later date to allow for further consideration of the scheme and granted the company liberty to apply for further orders if necessary.

Orders

Orders of the court

1. Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (Act):

a. the plaintiff convene a meeting (Scheme Meeting) of the holders of ordinary shares in the Plaintiff (other than Perpetual Trustee Company Limited ACN 000 001 007 as trustee of the CHAMP Buyout III Trust, Perpetual Corporate Trust Limited ACN 000 341 533 as trustee of the CHAMP Buyout III (SWF) Trust and CHAMP Buyout III Pte Ltd Registration No. 200909086E.) (Shareholders) for the purpose of considering and, if thought fit, agreeing to a scheme of arrangement (with or without modification) between the plaintiff and its shareholders (Scheme of Arrangement), the terms of which are set out in Attachment B of the document which is Exhibit 1 in these proceedings (Scheme Booklet);

b. the Scheme Meeting be held immediately following the conclusion or adjournment of the general meeting of the holders of the ordinary shares in the plaintiff to be held at 10.00 am on 27 February 2012 at the offices of oOh!Media, Level 2, 76 Berry Street, North Sydney NSW 2060;

c. Graham Jones or, failing him, Brian Lindsay Bickmore, act as Chairman of the Scheme Meeting;

d. the Chairman have the power to adjourn the Scheme Meeting for such time as the Chairman considers appropriate; and

e. the Scheme Booklet be, and hereby is, approved for distribution to Shareholders.

2. Notice of the hearing of an application pursuant to subsection 411(4) of the Act for an order approving the Scheme of Arrangement be published once in "The Australian" newspaper by an advertisement substantially in the form of Annexure A to these orders, such advertisement to be published on or before five days prior to the Scheme Meeting, and the Plaintiff be otherwise exempted from compliance with rule 3.4 of the Federal Court (Corporations) Rules 2000 (Cth).

3. 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).

4. The proceedings be stood over to 10.15 am on 29 February 2012.

5. The plaintiff be granted liberty to apply.

6. These orders be entered forthwith.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure A

NOTICE OF HEARING TO APPROVE ARRANGEMENT

TO all the creditors and members of oOh!Media Group Limited ACN 091 780 924 (oOh!Media)

TAKE NOTICE THAT at 10.15 am on 29 February 2012 the Federal Court of Australia at Commonwealth Law Courts Building, Queens Square, Sydney, New South Wales will hear an application by oOh!Media seeking the approval of an arrangement between oOh!Media and its members as proposed by a resolution passed by the meeting of such members held at the offices of oOh!media, Level 2, 76 Berry Street, North Sydney NSW 2060 immediately following the conclusion or adjournment of the general meeting of the ordinary shareholders of oOh!media scheduled to commence at 10.00am (Sydney time) on 27 February 2012.

If you wish to oppose the approval of the arrangement, you must file and serve on oOh!Media a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on oOh!Media at least 1 day before the date fixed for the hearing of the application.

The address for service of oOh!Media is c/o Blake Dawson, Level 35, Grosvenor Place, 225 George Street, Sydney, NSW 2000 (Attention: Sonia Tame), Facsimile: (02) 9258 6999, Email: sonia.tame@blakedawson.com

____________________________________

Michael Egan

Company Secretary

oOh!Media Group Limited

Background

Background to the litigation

At the time of making the orders I said that I would publish brief reasons. These are my reasons.Background OOH is a public company listed on the Australian Securities Exchange (ASX). Its main business activity is the provision of outdoor advertising across Australia. OOH has approximately 501,225,275 ordinary shares on issue held by 891 members, of whom 28 are registered as being resident overseas. It also has 23 million options on issue which remain unvested. The options have an exercise price of $0.12 per share and are due to expire on 20 May 2015. The CHAMP III Funds comprise Perpetual Trustee Company Limited as trustee of the CHAMP Buyout III Trust, Perpetual Corporate Trust Limited as trustee of the CHAMP Buyout III (SWF) Trust and CHAMP Buyout III Pte Ltd. They now hold approximately 19.6% of the issued capital of OOH and are managed and advised by CHAMP III Management Pty Limited (CHAMP III Management). CHAMP III Management is part of CHAMP Private Equity, an Australian-based private equity firm with offices in Sydney and Brisbane, and affiliated offices in Singapore and New York. The CHAMP III Funds have an aggregate committed capital of approximately $1.5 billion. The CHAMP III Funds own 100% of the issued capital of Outdoor Media Investments Limited (Outdoor Media Investments), which owns 100% of the issued capital of Outdoor Media Holdings Pty Limited (Outdoor Media Holdings), which in turn owns 100% of the issued capital of Outdoor Media Operations Pty Limited (Outdoor Media Operations). Outdoor Media Investments is a special purpose company that was incorporated on 8 December 2011 for purposes which include holding all the shares in Outdoor Media Holdings. It is an “exempted company” incorporated under the laws of the Cayman Islands. Outdoor Media Holdings is a special purpose company that was incorporated on 9 December 2011 for the purpose of holding all the shares in Outdoor Media Operations. Outdoor Media Holdings is a private Australian company that has not undertaken any trading activities. Outdoor Media Operations is also a special purpose company that was incorporated on 9 December 2011 for the purpose of acquiring the scheme shares. Outdoor Media Operations is a private Australian company that has not undertaken any trading activities. If the scheme becomes effective, it will own 100% of the scheme shares.The scheme Under the scheme as proposed, Outdoor Media Operations will acquire all the issued shares in OOH not already held by the CHAMP III Funds. The scheme shareholders will receive, at their individual election, either cash consideration of $0.325 for each share in OOH held as at 7.00 pm on 8 March 2012 (the Record Date) or mixed consideration of $0.10 cash and one fully-paid B class ordinary share in the capital of Outdoor Media Investments, for each share held in OOH. There are two qualifications concerning the scheme consideration which should be noted. First, scheme shareholders whose registered address is a place outside Australia and its external territories and outside Singapore (called Ineligible Foreign Shareholders) cannot elect to take the mixed consideration. They will only be entitled to the cash consideration. I will return to the position of Ineligible Foreign Shareholders.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

OOH’s solicitors provided ASIC with a draft of the explanatory statement on 23 December 2011. At the same time they gave notice of OOH’s intention to make its application to the Court on 20 January 2012. There have been subsequent communications with ASIC in relation to the draft explanatory statement. ASIC has confirmed that, in accordance with s 411(2) of the Act, it has had 14 days notice of the hearing of the application to the Court to convene the scheme meeting and that it has had reasonable opportunity to examine the terms of the proposed scheme and the draft explanatory statement relating to the scheme. ASIC also indicated that it did not propose to appear at the hearing on 20 January 2012 to make submissions or to oppose the scheme.Consideration I am satisfied that OOH is a “Part 5.1 body” and that the proposed scheme is an “arrangement” within the meaning of s 411(1) of the Act. I am satisfied that, subject to any further submissions, the explanatory statement complies with s 412(1)(a) of the Act. I note in this connection that ASIC has relieved OOH of certain disclosure requirements under reg 5.1.01(1) of the Corporations Regulations 2001 (Cth) (the Regulations). Based on the evidence put before me (see in particular Exhibit 4) I am satisfied that the explanatory statement sets out the information prescribed under reg 5.1.01(1) and Sch 8 Pt 3 of the Regulations, modified as allowed by ASIC. I am satisfied that ASIC has had reasonable opportunity to examine the proposed scheme and the explanatory statement, and to make submissions in respect thereof (although it has expressed the desire not to make submissions at the present time). I note that Graham Jones, the chairman and a non-executive director of OOH, has consented to act as chairman of the scheme meeting and that Brian Lindsay Bickmore, also a non-executive director of OOH, has consented to act as chairman in the event that Mr Jones is either unwilling or unable to do so. I note the specific recommendations of those directors of OOH who have provided recommendations. I also note the opinions expressed by Grant Thornton, to which I have referred. I am satisfied that the scheme is appropriate to be put forward to scheme shareholders for their consideration.