New South Wales Consolidated Regulations New South Wales Consolidated RegulationsIn this Schedule:
"internal creditor" means a creditor who is:
(a) a member of the co-operative; or
(b) a relative of a member; or
(c) a relative of the spouse of a member.
(1) The prescribed information that must be included in a draft explanatory statement or explanatory statement (as the case may be) in relation to a proposed compromise or arrangement between a co-operative and any of its creditors is:(a) the expected dividend that would be available to scheme creditors if the co-operative were to be wound up within 6 months after the date of the hearing of the application to the Court for an order under section 415(1) of the Law; 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 as proposed; and(c) a list of the names of all known scheme creditors and the debts owed to those creditors; and(d) if a scheme creditor is known to be a guaranteed creditor, the name of the creditor and the amount of the debt owed; and(e) if a scheme creditor is known to be an internal creditor, the name of the creditor and the amount of the debt owed.
(2) The statement referred to in subclause (1) must contain a statement that an order under section 415(1) of the Law is not an endorsement of, or any other expression of opinion on, the Scheme.
(3) The statement referred to in subclause (1) must contain or include:(a) a report on the affairs of the co-operative in or to the effect of the form approved by the Registrar, showing the financial position of the co-operative as at a day within one month of the date on which it is intended to apply to the Court for an order under section 415(1) of the Law; and(b) a copy, certified by a director or by the chief executive officer or a secretary of the co-operative to be a true copy, of all financial statements (if any) required to be laid before the co-operative at the annual general meeting, together with a copy of every document required by law to be annexed to the statements; and(c) if the co-operative the subject of the Scheme is a trustee, a statement:(i) of the number of trusts administered by the trustee; and(ii) whether the trustee carries on any business separate from that of the trust; and(iii) how the scheme creditors may obtain a copy of the relevant trust deed, free of charge, before the date of the meeting; and(d) if the person (if any) who would be appointed to manage the Scheme proposes to charge for his or her services and for the services of his or her staff in accordance with a particular scale of charges, that scale of charges.
(1) The prescribed information that must be included in a draft explanatory statement or explanatory statement (as the case may be) in relation to a proposed compromise or arrangement between a co-operative and any of its members is:(a) unless the co-operative the subject of the Scheme is in the course of being wound up or is under official management, in relation to each director of the co-operative:(i) whether the director recommends the acceptance of the Scheme or recommends against acceptance and, in either case, his or her reasons for so recommending; or(ii) if the director is not available to consider the Scheme, that the director is not so available and the cause of his or her not being available; or(iii) in any other case, that the director does not desire to make, or does not consider himself or herself justified in making, a recommendation and, if the director so requires, his or her reasons for not wishing to do so; or(b) if the co-operative is in the course of being wound up or is under official management, in relation to each liquidator or each official manager:(i) whether he or she recommends acceptance of the Scheme or recommends against acceptance and, in either case his or her reasons for so recommending; or(ii) in any other case, that the liquidator or official manager does not wish to make a recommendation and his or her reasons for not wishing to do so.
(2) The statement referred to in subclause (1) must set out:(a) the number, description and amount of marketable securities of the co-operative the subject of the Scheme held by or on behalf of each director of the co-operative or, if none are held by or on behalf of a director, a statement to that effect; and(b) for each director of the co-operative by whom or on whose behalf shares in that co-operative are held, whether:(i) the director intends to vote in favour of, or against, the Scheme; or(ii) the director has not decided whether he or she will vote in favour of, or against, the Scheme; and(c) if the other party to the proposed reconstruction or amalgamation is, or includes, a body corporate, whether any marketable securities of the body corporate are held by, or on behalf of, any director of the co-operative the subject of the Scheme and, if so, the number, description and amount of those marketable securities; and(d) particulars of any payment or other benefit that is proposed to:(i) be made or given to any director, secretary or executive officer of the co-operative the subject of the Scheme as compensation for loss of, or as consideration for or in connection with his or her retirement from, office in that co-operative or in a related body corporate; or(ii) be made or given to any director, secretary or executive officer of any related body corporate as compensation for the loss of, or as consideration for or in connection with his or her retirement from, office in that body corporate or in the co-operative the subject of the Scheme; and(e) if there is any other agreement or arrangement made between a director of the co-operative the subject of the Scheme and another person in connection with 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 co-operative to acquire control of a company, particulars of the nature and extent of any interest of a director of that company in any contract entered into by the co-operative; and(g) whether, within the knowledge of the directors of the co-operative the subject of the Scheme or, if the co-operative is in liquidation or under official management, the knowledge of the liquidator or the official manager, the financial position of the co-operative has materially changed since the date of the last balance sheet laid before the co-operative in general meeting and, if so, full particulars of any change; and(h) any other information material to the making of a decision in relation to the Scheme, being information that is within the knowledge of any director, liquidator or official manager of a co-operative the subject of the Scheme or of a related company and that has not previously been disclosed to the Scheme members.
(3) If:(a) the other party to the proposed reconstruction or amalgamation of the co-operative the subject of the Scheme has a prescribed share holding in the co-operative; or(b) a director of any body corporate that is the other party to the proposed reconstruction or amalgamation is a director of a co-operative the subject of the Scheme;the statement must include a copy of a report made by an expert who is not associated with the body corporate that is the other party, stating whether or not, in his or her opinion, the proposed Scheme is in the best interest of the members of the co-operative the subject of the Scheme and setting out his or her reasons for that opinion.
(4) If the co-operative the subject of the Scheme obtains 2 or more reports, each of which could be used for the purposes of subclause (3), the statement must include a copy of each report.
(5) If:(a) the co-operative the subject of the Scheme obtains a report for the purposes of subclause (3); and(b) the report contains:that report must not be included in the statement except with the consent in writing of the Registrar and in accordance with such conditions (if any) as are stated by the Registrar.(i) a forecast of the profits or profitability of the co-operative; or(ii) a statement that the market value of an asset or assets of the co-operative or of a related body corporate differs from an amount at which the value of the asset or assets is shown in the books of the co-operative or the related body corporate;
(6) For the purposes of subclause (3):(a) a person has a prescribed share holding in a co-operative if he or she is entitled to not less than 30 per cent of the shares in the co-operative; and(b) a person has a prescribed share holding in a co-operative in which the shares are divided into 2 or more classes of shares, if he or she is entitled to not less than 30 per cent of the shares in one of those classes.
(7) If the consideration to be offered to scheme members consists, in whole or in part, of marketable securities issued, or to be issued, by a body corporate, the 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 that formula was developed.
(8) If marketable securities of the same class as those referred to in subclause (7) are granted official quotation on a securities exchange, the statement must state the fact, specify the securities exchange concerned, and set out:(a) the latest recorded sale price before the date on which the statement is sent to the Registrar; and(b) the highest and lowest recorded sale prices during the 3 months immediately before that date and the dates of the relevant sales; and(c) if the Scheme has been the subject of a public announcement in newspapers or by any other means before the statement has been sent to the Registrar, the latest recorded sale price immediately before the public announcement.
(9) If the marketable securities referred to in subclause (7) are granted official quotation on more than one securities exchange, it is sufficient compliance with subclause (8)(a) and (c) if information on the marketable securities is given for the securities exchange at which there has been the greatest number of recorded dealings in the securities in the 3 months immediately before the date on which the statement is sent to the Registrar.
(10) If the securities referred to in subclause (7) have not been granted official quotation on a securities exchange, the statement:(a) must set out all the information that a director, liquidator or official manager of the co-operative the subject of the Scheme or of a related body corporate has about:(i) the number of securities that have been sold in the 3 months immediately before the date on which the statement was prepared; and(ii) the price of those securities; or(b) if that information or any part of that information cannot be ascertained, must include a statement to that effect.
(11) The statement must set out particulars of the intentions of the directors of the co-operative the subject of the Scheme regarding:(a) the continuation of the business of the co-operative or, if the undertaking, or any part of the undertaking, of a co-operative is to be transferred, how that undertaking or part is to be conducted in the future; and(b) any major changes to be made to the business of the co-operative, including any redeployment of the fixed assets of the co-operative; and(c) the future employment of the present employees of the co-operative.