Australian Capital Territory Numbered Regulations Australian Capital Territory Numbered RegulationsSchedule 3 Information for draft explanatory statements and explanatory statements
(see reg 27 and reg 28)
In this schedule:
explanatory statement includes draft explanatory statement.
"family member", of a person, means—
(a) a domestic partner of the person; or
(b) a parent or child of the person; or
(c) a brother, sister, half-brother or half-sister of the person.
"internal creditor", of a cooperative, means a creditor who is—
(a) a member of the cooperative; or
(b) a family member of a member of the cooperative; or
(c) a family member of a domestic partner of a member of the cooperative.
scheme means a proposed compromise or arrangement.
scheme cooperative means a cooperative to which a scheme applies.
scheme creditor means a creditor or class of creditors of a cooperative to whom the scheme must apply.
scheme member means a member or class of members of a scheme cooperative.
2 Information about proposed compromise or arrangement with creditors
(1) If a proposed compromise or arrangement is with creditors, the explanatory statement must include in relation to the proposed compromise or arrangement—
(a) the expected dividend that would be available to scheme creditors if the cooperative were to be wound up within 6 months after an application to the Supreme Court under the Act, section 340 (Supreme Court ordered meeting of creditors); and
(b) if a composition of debts is proposed—the expected dividend that would be paid to scheme creditors if the scheme were put into effect; and
(c) a list of the names of all known scheme creditors and the debts owed to them; and
(d) if a scheme creditor is known to be a guaranteed creditor—the name of the creditor and the amount owed to the creditor; and
(e) if a scheme creditor is known to be an internal creditor—the name of the creditor and the amount owed to the creditor.
(2) The explanatory statement must also state that an order under the Act, section 340 is not an endorsement of, or expression of opinion on, the scheme.
(3) The explanatory statement must also contain or include—
(a) a report of the cooperative showing the financial position of the cooperative at a day, within 1 month before the day the intended application under the Act, section 340 is to be made to the court; and
(b) a copy, certified by a director or the principal executive officer or secretary of the cooperative to be a true copy, of all accounts, including any group accounts, required to be presented to the cooperative at its annual general meeting; and
(c) a copy of each document required by law to be attached to the accounts mentioned in paragraph (b); and
(d) if the scheme cooperative is a trustee—a statement of the following matters:
(i) the number of trusts the trustee administers;
(ii) whether the trustee carries on any business separate from the trust;
(iii) how the scheme creditors may obtain a copy of the relevant trust deed, free of charge, before the day of the meeting; and
(e) if anyone who would be appointed to manage the scheme proposes to charge for his or her services, and services of his or her staff, under a particular scale of charges—the scale of charges.
3 Information about proposed compromise or arrangement with members
(1) If a proposed compromise or arrangement is with members, the explanatory statement must state in relation to the proposed compromise or arrangement—
(a) if the cooperative is being wound up or is under official management—in relation to each director of the cooperative—
(i) whether the director recommends accepting or rejecting the scheme and the reasons for the recommendation; or
(ii) if the director is not available to consider the scheme—that the director is not available to consider the scheme and the reasons the director is not available to consider it; or
(iii) in any other case—that the director does not wish to make, or does not consider himself or herself justified in making, a recommendation and any reasons the director has for not making a recommendation; or
(b) in any other case—in relation to each liquidator or official manager—
(i) whether the liquidator or official manager recommends accepting or rejecting the scheme and the reasons for the recommendation; or
(ii) if the liquidator or official manager does not wish to make a recommendation—the reasons for not wishing to make the recommendation.
(2) The explanatory statement must also state—
(a) the number, description and amount of marketable securities of the cooperative the subject of the scheme held by or for each director of the cooperative or, if none are held by or for the director, a statement to that effect; and
(b) whether each director of the cooperative who holds shares, or for whom shares are held, in the cooperative—
(i) intends to vote for or against the scheme; or
(ii) has not decided whether to vote for or against the scheme; and
(c) if the other party to the proposed scheme is or includes a corporation—whether any marketable securities of the corporation are held by or for a director of the scheme cooperative and, if so, the number, description and amount of the marketable securities; and
(d) particulars of any payment or other benefit that is proposed to be made or given to—
(i) any director, principal executive officer or secretary of the scheme cooperative as compensation for loss of, or as consideration for retirement from, office in the cooperative or a related corporation; or
(ii) any director, principal executive officer or secretary of a related corporation as compensation for loss of, or as consideration for retirement from, office in the related corporation or the scheme cooperative; and
(e) if there is any other agreement or arrangement made between a director of the scheme cooperative and someone else in relation to or conditional on the outcome of the scheme—particulars of the agreement or arrangement; and
(f) if the object of the scheme is for a cooperative to acquire control of another corporation that is a company—particulars of the nature and extent of any interest of a director of the company in any contract entered into by the cooperative; and
(g) unless paragraph (h) applies—whether, to the knowledge of the directors of the cooperative the subject of the scheme, the financial position of the cooperative has materially changed since the date of the last balance sheet presented to the cooperative in a general meeting and if so, full particulars of the change; and
(h) if the cooperative is in liquidation or under official management—whether, to the knowledge of the liquidator or official manager, the financial position of the cooperative has materially changed since the date of the last balance sheet presented to the cooperative in a general meeting and, if so, full particulars of the change; and
(i) any other information material to making a decision in relation to the scheme that has not previously been disclosed to the scheme members and is within the knowledge of any director, liquidator or official manager of the scheme cooperative or a related scheme.
(3) The explanatory statement must include a copy of a report, complying with subclause (4) if—
(a) the other party to the proposed reconstruction or amalgamation of the scheme cooperative has a prescribed shareholding in the cooperative; or
Note Prescribed shareholding is defined in subclause (8).
(b) a director of any corporation that is the other party to the proposed reconstruction or amalgamation is a director of a scheme cooperative.
(4) A report mentioned in subclause (3) must be made by an expert who is not associated with the corporation that is the other party and state whether, in his or her opinion, the proposed scheme is in the best interests of the members of the scheme cooperative and the reasons for the opinion.
(5) If the scheme cooperative obtains 2 or more reports, each of which could be used for subclause (3), the statement must include a copy of each report.
(6) Subclause (7) applies if—
(a) the scheme cooperative obtains a report for subclause (3); and
(b) the report contains—
(i) a forecast of the profits or profitability of the cooperative; or
(ii) a statement that the market value of an asset or assets of the cooperative or a related corporation differs from an amount at which the value of the asset or assets is shown in the books of the cooperative or the related corporation.
(7) A report mentioned in subclause (6) must not be included in the statement unless—
(a) its inclusion has the written consent of the registrar; and
(b) any conditions of the consent are met.
(8) For subclause (3)—
(a) a person has a prescribed shareholding in a cooperative if the person is entitled to at least 30% of the voting shares in the cooperative; and
(b) a person has a prescribed shareholding in a cooperative in which the voting shares are divided into 2 or more classes of shares if the person is entitled to at least 30% of the shares in 1 of those classes.
(9) If all or part of the consideration to be offered to a scheme member consists of marketable securities issued, or to be issued, by a corporation, the explanatory statement must set out the formula to be applied to find out the number of marketable securities to be issued to each scheme member and the basis on which the formula was developed.
(10) If marketable securities of the same class as those mentioned in subclause (9) are given official quotation on a securities exchange, the explanatory statement must state the fact, specify the securities exchange and state—
(a) the latest recorded sale price before the day the statement is sent to the registrar; and
(b) the highest and lowest recorded sale prices in the 3 months before the day the statement is sent to the registrar and the dates of the relevant sales; and
(c) if the scheme has been the subject of a public announcement in newspapers or in any other way before the statement was sent to the registrar—the latest recorded sale price immediately before the public announcement.
(11) If the marketable securities mentioned in subclause (9) are given official quotation on more than 1 securities exchange, it is enough compliance with subclause (8) if information on the marketable securities is given for the securities exchange where there has been the greatest number of recorded dealings in the securities in the 3 months before the day the statement is sent to the registrar.
(12) However, if the securities have not been given official quotation on a securities exchange, the statement must include all the information a director, liquidator or official manager of the scheme cooperative or of a related corporation has about the number of securities sold in the 3 months before the explanatory statement was prepared and the price of the securities or, if the information or any part of it cannot be found, a statement to that effect.
(13) The explanatory statement must include particulars of the intentions of the directors of the cooperative the subject of the scheme in relation to—
(a) the continuation of the business of the cooperative or, if the undertaking of the cooperative or any part of the undertaking is to be transferred, how the undertaking or the part of the undertaking must be conducted in the future; and
(b) any major changes to be made to the business of the cooperative, including any redeployment of fixed assets of the cooperative; and
(c) the future employment of the present employees of the cooperative.