Excelsior Gold Limited, in the matter of Excelsior Gold Limited [2018] FCA 2064

Excelsior Gold Limited, in the matter of Excelsior Gold Limited [2018] FCA 2064

The scheme of arrangement proposed by Excelsior Gold Limited satisfies the procedural, substantive and class composition requirements under s 411 of the Corporations Act 2001 (Cth); all members comprise a single class, requisite statutory majorities approved the scheme, disclosure and procedural conditions were met or appropriately cured, no substantial injustice arose from any irregularity, there were no objections or evidence of bad faith, and the terms (including break fee and exclusivity provisions) are fair and reasonable with the support of both the independent expert and directors. Accordingly, the scheme was approved by the Court.

Jurisdiction
Australia
Judgment Date
21 September 2018
Procedural Posture
Corporations – Scheme of Arrangement / Application to Convene Scheme Meeting and Second Application for Court Approval of Scheme Under S 411 of the Corporations Act 2001 (cth)
Outcome
Scheme approved.
Legal Topics
['scheme of Arrangement' "members' Scheme" 'court Approval Process' 'class Constitution' 'break Fee Provisions' 'disclosure Requirements' 'shareholder Meetings' 'proxy Voting' 'small Shareholder Provisions' 'foreign Shareholder Provisions']
['corporations Law'] ['scheme of Arrangement' "members' Scheme" 'court Approval Process' 'class Constitution' 'break Fee Provisions' 'disclosure Requirements' 'shareholder Meetings' 'proxy Voting' 'small Shareholder Provisions' 'foreign Shareholder Provisions']

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Procedural Posture

Corporations – Scheme of Arrangement / Application to Convene Scheme Meeting and Second Application for Court Approval of Scheme Under S 411 of the Corporations Act 2001 (cth)

Legal Issues

  1. 1 ['Whether the proposed scheme of arrangement is appropriate for consideration by shareholders under s 411(1) of the Corporations Act 2001 (Cth)' 'Whether the scheme should be approved under s 411(4)(b) of the Corporations Act 2001 (Cth)' 'Whether class constitution and treatment of shareholders, option holders, and performance rights holders are appropriate under the scheme' 'Whether required disclosures and procedural steps have been satisfied' 'Whether break fee and exclusivity provisions are acceptable' 'Whether procedural irregularities in dispatch of scheme documentation invalidate the process']

Ratio Decidendi

The scheme of arrangement proposed by Excelsior Gold Limited satisfies the procedural, substantive and class composition requirements under s 411 of the Corporations Act 2001 (Cth); all members comprise a single class, requisite statutory majorities approved the scheme, disclosure and procedural conditions were met or appropriately cured, no substantial injustice arose from any irregularity, there were no objections or evidence of bad faith, and the terms (including break fee and exclusivity provisions) are fair and reasonable with the support of both the independent expert and directors. Accordingly, the scheme was approved by the Court.

Court Disposition

Scheme approved.

Orders

  • ['Ordered that Excelsior Gold Limited convene the meeting of shareholders to consider the scheme of arrangement pursuant to s 411(1) of the Corporations Act 2001 (Cth).' 'Scheme booklet approved, subject to minor amendments and ASIC approval.' 'Notice and dispatch requirements for the scheme meeting ordered,...