FEDERAL COURT OF AUSTRALIA
Anatolia Energy Limited, in the matter of Anatolia Energy Limited [2015] FCA 1134
IN THE FEDERAL COURT OF AUSTRALIA | |
IN THE MATTER OF ANATOLIA ENERGY LIMITED (ACN 076 577 994)
ANATOLIA ENERGY LIMITED (ACN 076 577 994) Plaintiff |
DATE OF ORDER: | |
WHERE MADE: |
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 (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.
Annexure A
Anatolia Energy Limited (ACN 076 577 944)
Notice of hearing to approve compromise or arrangement
TO all the members and creditors of Anatolia Energy Limited (ACN 076 577 944) (Anatolia).
TAKE NOTICE that at 2:15pm (Perth time) on 22 October 2015 the Federal Court of Australia (situated at the Commonwealth Law Courts Building, 1 Victoria Avenue, Perth) will hear an application by Anatolia seeking the approval of:
(a) a scheme of arrangement between Anatolia and its Shareholders, as proposed by a resolution passed at a meeting of Shareholders held at The Celtic Club, 48 Ord Street, West Perth, Western Australia 6005 at 11.00am (Perth time) on Friday 9 October 2015;
(b) a scheme of arrangement between Anatolia and its Optionholders, as proposed by a resolution passed at a meeting of Optionholders held at The Celtic Club, 48 Ord Street, West Perth, Western Australia 6005 at 1.00pm (Perth time) on Friday 9 October 2015; and
(c) a scheme of arrangement between Anatolia and its Performance Shareholders, as proposed by a resolution passed at a meeting of Performance Shareholders held at The Celtic Club, 48 Ord Street, West Perth, Western Australia 6005 at 3.00pm (Perth time) on Friday 9 October 2015.
If you wish to oppose the approval of the schemes of arrangement, you must file and serve on Anatolia 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 Anatolia at its address for service at least 1 day before the date fixed for the hearing of the application.
The address for service on Anatolia is, c/o Steinepreis Paganin, Level 4, The Read Buildings, 16 Milligan Street, Perth, Western Australia 6000 (Reference: Andrew Disney/Peter Wall).
Paul Cronin
Managing Director
Anatolia Energy Limited
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: | 23 OCTOBER 2015 |
PLACE: | PERTH |
REASONS FOR JUDGMENT
1 Three separate but interdependent Schemes are proposed.
2 Anatolia Energy Limited seeks orders under s 411(1) of the Corporations Act 2001 (Cth):
(a) convening a meeting to consider a proposed share scheme of arrangement (Share Scheme) between Anatolia, and its shareholders (Anatolia Shareholders) (Share Scheme Meeting);
(b) convening a meeting to consider a proposed option scheme of arrangement (Option Scheme) between Anatolia and its optionholders (Anatolia Optionholders) (Option Scheme Meeting); and
(c) convening a meeting to consider a proposed performance share scheme of arrangement (Performance Share Scheme) between Anatolia and its performance shareholders (Anatolia Performance Shareholders) (Performance Share Scheme Meeting),
(together, the Schemes).
3 Anatolia is a listed public company on the Australian Securities Exchange (ASX), with issued share capital of 311,850,669 ordinary fully paid shares (Anatolia Ordinary Shares) (as at 1 September 2015). For reasons set out below and on the basis of materials provided by Anatolia, I was satisfied that the orders sought should be made.
4 Anatolia is a uranium exploration company holding an extensive portfolio of licences with accelerated exploration and development programs in the Republic of Turkey.
5 The Schemes would effect a merger by:
(a) the acquisition of all of the Anatolia Ordinary Shares by Uranium Resources Inc., a NASDAQ listed company registered in the State of Delaware in the United States of America, with share consideration fixed at a ratio of 0.06579 (Share Exchange Ratio) new Uranium Resources CDI shares, or, upon election of the shareholder, shares in Uranium Resources (URI Shares), for each Anatolia Share (Share Scheme Consideration);
(b) in respect of each option on issue from Anatolia (Anatolia Option), the issue of a Uranium Resources option (URI Option) (in the case of an unquoted Anatolia Option) or the issue of a Uranium Resources CDI option (CDI Option) (in the case of a quoted Anatolia Option) in such number as would have a value determined by the Black-Scholes formula (Black-Scholes Value) equivalent to the Black-Scholes Value of the Anatolia Option in exchange for the cancellation of the Anatolia Option (Option Scheme Consideration); and
(c) in respect of each performance share held in Anatolia (Anatolia Performance Share), one Uranium Resources performance share (URI Performance Share) having the same term to expiry as that Anatolia Performance Share convertible into a number of URI Shares equivalent to the number of Anatolia Ordinary Shares to which the Anatolia Performance Share is convertible multiplied by the Share Exchange Ratio (Performance Share Scheme Consideration).
together, the Schemes Consideration.
6 If the Schemes are implemented, Anatolia will become a wholly owned subsidiary of Uranium Resources and Anatolia will be delisted from the ASX.
ISSUES
7 As Anatolia submits, there are three stages to an application under s 411 of the Corporations Act:
(a) Court approval to convene the meetings of the Schemes at which Anatolia Shareholders, Anatolia Optionholders and Anatolia Performance Shareholders (Anatolia Securityholders) will vote according to their respective holdings in Anatolia on either the Share Scheme, Option Scheme or Performance Share Scheme (Scheme Meetings) and approval of a draft explanatory statement to be sent to the Anatolia Securityholders;
(b) the Anatolia Securityholders voting on the Schemes at the Scheme Meetings; and
(c) a further application to the Court for approval of the Schemes.
Re CSR Ltd (2010) 183 FCR 358 (at [7]).
STANDARD OF REVIEW
8 As Anatolia submits, the following principles are well established:
(a) the standard of review at this stage is whether the Schemes are not inappropriate and whether sensible business people might consider the Schemes of benefit: Re Sonodyne International Ltd (1994) 15 ACSR 494 per Haynes J (at 499);
(b) if the proposed arrangement is one that seems fit for consideration by a meeting of members (or creditors) and is a commercial proposition likely to gain the Court's approval if passed by the necessary majorities, then leave should be given to convene the meetings: Re ACM Gold Ltd (1992) 34 FCR 530 per O’Loughlin J (at 536);
(c) the Court is not required to be satisfied either at the convening or approval stage that no better scheme or schemes could have been devised: Re Foundation Healthcare Ltd (2002) 42 ACSR 252 per French J (as his Honour then was) (at [44]); and
(d) while s 411(2) of the Corporations Act contains a statement of the circumstances in which a scheme meeting must not be ordered, s 411 contains no statement of the criteria that must be satisfied before a meeting is ordered: Re CSR Ltd (at [8]).
9 I should make orders for the convening of the Scheme Meetings and approve the dispatch of the information booklet containing the explanatory statement for the proposed Schemes to Anatolia Securityholders (Scheme Booklet) if satisfied, at least at a prima facie level, of the following matters:
(a) each of the Schemes are an ‘arrangement’ in respect of which the Court may order a meeting of the members or creditors: s 411(1). That is:
(i) each of the Schemes is an arrangement;
(ii) Anatolia is a Pt 5.1 Body;
(iii) the Scheme participants are members and/or creditors of Anatolia; and
(iv) each of the Scheme Meetings will be convened between members of the same class;
(b) ASIC has had a reasonable opportunity to:
(i) examine the terms of each of the Schemes and the Scheme Booklet; and
(ii) make submissions to the Court in relation thereto: Corporations Act, s 411(2)(b);
(c) the Scheme Booklet:
(i) provides adequate disclosure: Corporations Act, s 412(1)(a)(i); and
(ii) contains the prescribed information and sets out any other information that is material to the making of a decision by a member whether or not to agree to the arrangement: Corporations Act, s 412(1)(a)(ii); Corporation Regulations 2001 (Cth), r 5.1.01, Sch 8 cll 8301 - 8310.
(d) the procedural requirements of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules) have been met; and
(e) the legality of what is proposed, that there has been proper disclosure with nothing misleading or deceptive in any material sense and that the Schemes will, if approved by the Court, as being ‘so fair and reasonable as an intelligent and honest man’ may approve. It is not for the Court otherwise to be concerned with the merits of the proposal or to inhibit consideration by members so that they can form their own judgement whether to vote for or against; and
(f) there is no apparent reason why each of the Schemes should not, in due course, receive the Court’s approval if the necessary majority of Anatolia Securityholders’ votes are achieved with respect to each of the Schemes:
Re NRMA Insurance Ltd (No. 1) (2000) 156 FLR 349 per Santow J (at [3], [14]-[26]).
10 I have accepted the submissions for Anatolia on each of those matters and do not intend to reproduce them, other than to note the following specific matters:
Directors and management
11 The directors of Anatolia all have, in varying amounts, securities in Anatolia. Further, Mr Cronin will receive additional options prior to the Option Scheme becoming effective, of which notice is to be given.
12 The total number of Anatolia Ordinary Shares of management (8,413,934 shares of 311,850,669 on issue) represents approximately 2.7% of Anatolia’s Shares on issue.
13 The total number of Anatolia Option of management (4,923,550 options of 102,067,750 on issue) represents approximately 4.82% of Anatolia Option on issue.
14 The total number of Anatolia Performance Shares of management (626,324 performance shares of 11,692,202 on issue) represents approximately 5.36% of Anatolia’s Performance Shares on issue.
15 In my view, management receiving incentives in their capacity as management, as disclosed to shareholders, is not considered to create separate classes, nor is payment of scheme consideration for securities on the same basis and same amount as all other respective securityholders in that capacity class creating: Re Amcom Telecommunications Limited (No 4) (2015) 107 ACSR 341 (at [54]-[56], [78]-[80]).
Holders of multiple types of securities – no collateral benefits
16 To the extent that an Anatolia Shareholder also holds Anatolia Options and/or Anatolia Performance Shares, the Anatolia Shareholder will receive Share Scheme Consideration for the Anatolia Ordinary Shares, Option Scheme Consideration for the Anatolia Options and Performance Scheme Consideration for the Anatolia Performance Shares. Shareholders in this situation will not receive additional or different consideration, as an Anatolia Shareholder, from the consideration that other Anatolia Shareholders will receive.
17 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
18 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).
19 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.
20 The Scheme Booklet was lodged with ASIC on 5 August 2015. The second requirement is satisfied.
Draft Scheme Booklet
21 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.
22 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]), Re Foundation Healthcare Ltd per French J (at [38]).
23 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).
24 The requirement for proper disclosure is satisfied.
Procedural matters
25 Rule 3.2 of the Corporations Rules requires Anatolia to file an affidavit stating the names of the persons who have been nominated to be the chairperson and alternate chairperson of the Scheme Meetings, that each person nominated is willing to act as chairperson, has had no previous relationship or dealing with Anatolia, or any other person interested in the Schemes except as disclosed in the affidavit, and has no interest or obligation that may give rise to a conflict of interest or duty if the person were to act as chairperson of the Scheme Meetings, except as disclosed in the affidavit.
26 This requirement is satisfied by the affidavit of Mr Patrick Burke sworn 20 August 2015. Other procedural matters that arise in connection with the proposed schemes are satisfactorily considered in the Checklist appended to submissions made by counsel for Anatolia.
Order convening meetings – the Court’s discretion
27 The Court will not ordinarily summon a meeting unless the scheme is of such a nature and cast in such terms that, if it achieves the statutory majority at the members’ meeting, the Court would be likely to approve it on the hearing of the application which is unopposed: FT Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 per Street CJ (at 72).
28 However, the role of the Court at this stage of the process of a company propounding and implementing a scheme of arrangement is not to scrutinise finally whether the scheme should be approved. That decision must await the expression of the will of the members or creditors at the meeting and any argument that may be advanced on behalf of dissenting members or other interested parties at the time of the application for approval: Re Sonodyne International Ltd (at 497).
29 The Schemes proposed by Anatolia are not so obviously unfair or otherwise inappropriate that it should be stopped in its tracks before going any further: see Re Foundation Healthcare (at [44]).
30 Further, the conclusion of the independent expert that the Schemes are in the best interests of the members and creditors, confirms that the Schemes are such that sensible business people would consider it to be of benefit to the Anatolia Securityholders.
Performance risk
31 Anatolia submits, and I accept, that pursuant to the terms of the Deed Poll, Share Scheme, Option Scheme, Performance Share Scheme and Scheme Implementation Agreement, Uranium Resources is required:
(a) on the date of transfer of the Anatolia Ordinary Shares to Uranium Resources, to issue the Share Scheme Consideration to the Anatolia Shareholders;
(b) to cancel the Anatolia Option in exchange for the issue of the Option Scheme Consideration to the Anatolia Optionholders; and
(c) on the date of transfer of the Anatolia Performance Shares to Uranium Resources, to issue the Performance Share Scheme Consideration to the Anatolia Shareholders.
32 The consideration occurs ‘in exchange’, as the relevant Schemes provisions provide for this. This is so that as at 7.00 pm on the fifth Business Day (or such other Business Day as Anatolia and Uranium Resources agree in writing), following the date on which a scheme comes into effect under s 411(10) of the Corporations Act (Record Date) must have allotted and issued Uranium Resources Securities to either the Anatolia Securityholder (or the nominee, for sale, for Ineligible Overseas Securityholders), prior to it receiving the exchange of Anatolia Securityholders’ Securities. Pursuant to these terms, it is expressed that the ‘sequence’ for exchange of consideration is such that Anatolia Securityholders will receive their consideration prior to the transfer or cancellation of the relevant security to Uranium Resources.
33 In any event, Anatolia and each scheme participant would have separate rights against Uranium Resources in the event of its failure to provide Scheme Consideration because of the Deed Poll.
34 It follows that performance risk in this case, while not eradicated, may be regarded as not unacceptable: Re APN News & Media Ltd (2007) 62 ACSR 400 (at [23]).
Uranium Resources’ NASDAQ listing
35 There is, theoretically, a potential risk that Uranium Resources Securities will no longer be tradeable on the NASDAQ within around three months after the Business Day that is five days after the Record Date or such other Business Day as Anatolia and Uranium Resources agree. This is explained in the Scheme Booklet at s 4.5(d). Under a NASDAQ Listing Rule, a NASDAQ listed company must maintain a minimum bid price of at least US$1.00 a share for 30 consecutive business days, failing which, the NASDAQ requires cure of the non-compliance within 180 calendar days (and potentially, if granted, a further 180 calendar days), otherwise the company faces delisting.
36 On 12 August 2015, NASDAQ notified Uranium Resources that it had failed to maintain its minimum bid price of US$1.00 for 30 consecutive business days. Uranium Resources is currently within the first 180 calendar day ‘cure period’. To regain compliance with the minimum bid price requirement, the bid price for Uranium Resources’ common stock must close at US$1.00 per share or above for a minimum of 10 consecutive business days before 8 February 2016.
37 In the event Uranium Resources does not regain compliance with the minimum bid price rule by 8 February 2016, Uranium Resources may be eligible to seek an additional compliance period of 180 calendar days.
38 This could represent a potential adverse effect on the liquidity or value of Anatolia Securityholders’ potential future rights.
39 This has been specifically disclosed to Anatolia Securityholders as a reason to vote against the Schemes in the Scheme Booklet. The disclosure on this matter has been verified by Uranium Resources. ASIC has reviewed this disclosure. As set out in the Scheme Booklet at s 4.5(d), Uranium Resources has up to 6 February 2016 to address this with NASDAQ and could engage in a ‘reverse stock split’ to address the issue. Warnings are given about the impact this may have on the value of Uranium Resources shares in the Scheme Booklet.
40 At this first hearing stage, this issue does not provide a sufficient reason to prevent the ordering of the Scheme Meetings. The matter can be put, as explained in the disclosure, to Anatolia Shareholders, Anatolia Optionholders and Anatolia Performance Shareholders for their consideration.
41 The matter will be revisited at the second court hearing.
Exclusivity provisions (Scheme Implementation Agreement)
42 The Scheme Implementation Agreement contains customary ‘no shop’, ‘no talk’ and ‘competing proposal disclosure’ provisions in cl 13.
43 The particular terms of these provisions do not cause concern for matters advanced by Anatolia in its written submissions.
Short-term facility to Anatolia from Uranium Resources
44 Anatolia has disclosed that Anatolia and Uranium Resources entered into a convertible loan agreement at the same time as the Scheme Implementation Agreement to provide Anatolia with up to $2 million for working capital to progress the Temrezli Project towards development and cover costs associated with the proposed Schemes. This was announced to the market with the Scheme Implementation Agreement on 4 June 2015. The details of the loan are set out in the Scheme Booklet. The independent expert has considered it. The possibility that such a loan agreement entered into between the acquirer and target could constitute a ‘lock up by a side-wind’ has been considered in Re Cortona Resources Ltd (at [42]-[45]). There, Barker J indicated that nothing in an arm’s length transaction on commercial terms suggested it would impede free consideration by members of the proposed scheme.
45 Anatolia submits, and I accept that, in the present case, the loan agreement should not prevent free consideration by members as:
(a) a summary of the terms of the loan agreement were disclosed on announcement of the transaction and are disclosed in the Scheme Booklet for their consideration;
(b) the loan becomes repayable:
(i) on maturity (31 December 2015) with interest of 12% payable in the form of Anatolia Ordinary Shares (after 31 December 2015 or such other date and time agreed in writing between Anatolia and Uranium Resources, not on voting against the Schemes);
(ii) if the Scheme Implementation Agreement is terminated, within four months of termination (that is, not upon termination of the Scheme Implementation Agreement such that re-financing could be attended to); or
(iii) upon a change of control, immediately (such that, if any competing acquirer or proposal arose, the directors would need to consider the effect of this requirement and capacity to address it);
(c) the right to convert the loan to shares earlier arises in the event of a change of control of Anatolia, Anatolia Shareholders voting against the Schemes or the transactions not closing by 30 December 2015, which could only lead to Uranium Resources holding around 7.5% of Anatolia Ordinary Shares on issue if exercised; and
(d) neither the independent expert nor ASIC has expressed concern as to the loan agreement.
46 In any event, any perceived issue of unfairness arising out of the convertible loan agreement entered into between Anatolia and Uranium Resources can be addressed at the second Court hearing.
Other general meetings held on the day of the Scheme Meetings
47 Two other separate general meetings of Anatolia Shareholders and Anatolia Performance Shareholders will be held on the same day as the Scheme Meetings.
48 The notices for each of these general meetings are contained in the Scheme Booklet. This is explained in the Scheme Booklet at ‘Frequently Asked Questions’.
49 As to the Anatolia Ordinary Shares, the resolution to be passed at the general meeting is to approve the issue of options to a director, Mr Paul Cronin.
50 As to the Anatolia Performance Shares, a variation of their terms must be put to a general meeting to vary their terms in order to make it possible for them to be transferred to Uranium Resources through the Performance Share Scheme.
51 Corporate action that relates directly or indirectly to a proposed scheme of arrangement should be considered separately to a general meeting of members, as scheme meetings under s 411 are a specific statutory meeting and not a general meeting of the company: see Re Australian Consolidated Press (1994) 117 FCR 451 (at 452-453), and other authorities collected in Damian T and Rich A, Schemes, Takeovers and Himalayan Peaks (Ross Parsons, 3rd ed, 2013) (at [4.3.6]). This requirement is satisfied.
CONCLUSION
52 Very detailed written submissions were relied upon by Anatolia. Although I have not reproduced them in full, I have relied on their content together with oral explanation by counsel for Anatolia in making the following orders:
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.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. |
Associate:
Annexure A
Anatolia Energy Limited (ACN 076 577 944)
Notice of hearing to approve compromise or arrangement
TO all the members and creditors of Anatolia Energy Limited (ACN 076 577 944) (Anatolia).
TAKE NOTICE that at 2:15pm (Perth time) on 22 October 2015 the Federal Court of Australia (situated at the Commonwealth Law Courts Building, 1 Victoria Avenue, Perth) will hear an application by Anatolia seeking the approval of:
(a) a scheme of arrangement between Anatolia and its Shareholders, as proposed by a resolution passed at a meeting of Shareholders held at The Celtic Club, 48 Ord Street, West Perth, Western Australia 6005 at 11.00am (Perth time) on Friday 9 October 2015;
(b) a scheme of arrangement between Anatolia and its Optionholders, as proposed by a resolution passed at a meeting of Optionholders held at The Celtic Club, 48 Ord Street, West Perth, Western Australia 6005 at 1.00pm (Perth time) on Friday 9 October 2015; and
(c) a scheme of arrangement between Anatolia and its Performance Shareholders, as proposed by a resolution passed at a meeting of Performance Shareholders held at The Celtic Club, 48 Ord Street, West Perth, Western Australia 6005 at 3.00pm (Perth time) on Friday 9 October 2015.
If you wish to oppose the approval of the schemes of arrangement, you must file and serve on Anatolia 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 Anatolia at its address for service at least 1 day before the date fixed for the hearing of the application.
The address for service on Anatolia is, c/o Steinepreis Paganin, Level 4, The Read Buildings, 16 Milligan Street, Perth, Western Australia 6000 (Reference: Andrew Disney/Peter Wall).
Paul Cronin
Managing Director
Anatolia Energy Limited
