Public M&A: Schemes of Arrangement (LAWS70316)

In the field of company takeovers, company mergers and other corporate reconstructions, schemes of arrangement continue to play an ever-increasing role. In the takeover sphere, schemes are frequently used as an alternative to using the takeover provisions in Chapter 6 of the Corporations Act 2001 (Cth). In recent times, the majority of takeovers (known as change of control transactions) have been undertaken through a scheme, including almost all ‘mega deals’ (being transactions valued at greater than $1 billion). This subject will address what a scheme of arrangement is and the role that schemes play in these fields of commercial activity, particularly in the area of takeovers. The role played by the court, the Australian Securities and Investments Commission (ASIC) and the Takeovers Panel, as well as practical considerations and guidance in connection with determining to pursue a transaction via a scheme, and obtaining shareholder and court approval for a scheme, are among the topics that will be addressed in this subject.

The lecturers are both experienced practitioners in this field of the law, one being a commercial law barrister at the Victorian Bar and the other an M&A partner at Herbert Smith Freehills.

Principal topics include:

• What a scheme of arrangement is and the role schemes play in the field of takeovers, company mergers and other corporate reconstructions (including the role played by trust schemes)
• Strategic considerations in relation to determining whether to pursue a change of control transaction via a scheme of arrangement
• The statutory framework applicable to schemes of arrangement
• The key documents in a scheme of arrangement
• The role of the court at each of the first court hearing (the ‘meeting hearing’) and the second court hearing (the ‘approval hearing’)
• The role of ASIC
• The role of the Takeovers Panel regarding schemes of arrangement and the approach adopted by the Takeovers Panel in this context
• The role of the independent expert
• Practical considerations and guidance – including potential pitfalls – in connection with the process of negotiating a scheme implementation agreement and in obtaining both shareholder and court approval
• Issues arising in connection with negotiating a scheme implementation agreement and in obtaining both shareholder and court approval.