The recent sale of Black Oak Minerals Limited (Black Oak) to Ramelius Resources Limited (ASX: RMS) (Ramelius) shows that section 444GA of the Corporations Act 2001 (Cth) (the Act) can be used to resurrect a company in liquidation.
The use of section 444GA to effect a control transaction in relation to a company in financial distress is no longer novel. However, the Black Oak transaction shows that a transfer of shares under section 444GA can be an alternative avenue to an asset sale or otherwise provide a solution where assets of a company to be wound up are ‘trapped’ or difficult to realise.
Black Oak was an ASX listed mining company, which owned and operated a number of gold and silver mining projects across Western Australia and New South Wales. In late 2015, due to falling gold prices and lower than anticipated volumes of production, the company entered into voluntary administration, shortly after which its secured creditor appointed receivers to the company. In March 2016, Black Oak’s creditors resolved to place the company into liquidation and, later that year, the company was delisted.
Throughout 2016 and 2017, the receivers undertook various sales processes for the benefit of the secured creditor and realised a number of Black Oak’s assets (including the assets comprising various gold and silver mining projects).
By 2018, there was only one material asset remaining – a group of mining tenements and related assets located in Western Australia known as the Marda Gold Project. A sale process was undertaken by the liquidators (following the retirement of the receivers), after which Ramelius emerged as the preferred bidder.
As part of the sale process the parties identified a number of likely delays and other obstacles associated with an asset sale including that it would have necessitated the transfer of a large number of assets, a significant number of which may not have been capable of assignment, or were subject to cumbersome assignment restrictions (e.g. requirements to enter into assignment deeds with and obtain consents from various third parties, complex split commodity arrangements, royalties and pre-emptive rights).
In order to overcome these issues JWS, working with KordaMentha in their capacity as liquidators, devised a transaction structure which would enable Ramelius to indirectly acquire the assets comprising the Marda Gold Project by instead acquiring all of the issued shares in Black Oak.
A key element of this transaction structure was the entry into a deed of company arrangement (DOCA), which facilitated the transfer of all of the shares in Black Oak to a wholly owned subsidiary of Ramelius under section 444GA of the Act while also providing for a return to unsecured creditors through a creditors’ trust (which would not otherwise have been achieved given the outstanding secured debt).
In order to successfully effectuate the DOCA and complete the transaction, the following had to be achieved
- the support of the secured creditor (including an acknowledgement that there would be necessary ‘leakage’ to obtain unsecured creditor approval of the DOCA);
- a successful court application to enable the liquidators to appoint themselves as administrators of Black Oak pursuant to section 436B of the Act;
- court orders pursuant to section 447A of the Act to truncate the administration process by:
- dispensing with the requirement for the first meeting of creditors;
- limiting the information required to be included in the report to creditors; and
- reducing the convening period pursuant to section 439A(5) of the Act to a period of 15 business days after the administration began;
- ASIC relief from section 606 of the Act given that Black Oak was an unlisted company with more than 50 members, and Ramelius was to acquire more than 20% of the voting power in Black Oak;
- leave of the court pursuant to section 444GA(1)(b) of the Act to enable the deed administrators to transfer shares in Black Oak without shareholder approval;
- court orders pursuant to section 90 – 15 of Schedule 2 of the Act terminating the liquidation of Black Oak following effectuation of the DOCA; and
- a restructure of the former subsidiaries of Black Oak and a transfer of legacy assets not associated with the Marda Gold Project, but still subject to the security, to an entity controlled by the secured creditor.
Upon the successful effectuation of the DOCA, the liquidation was terminated and Black Oak emerged as a solvent subsidiary of Ramelius, with the Marda Gold Project intact.
This is the first time section 444GA has been used to resurrect a company in liquidation. This transaction structure allowed valuable assets, which may have otherwise remained ‘trapped’ or unsaleable, to be realised for the benefit of creditors, including unsecured creditors.