Arthur Yates & Co Limited (Application of) [2001] NSWSC 40

Reported Decision : (2001) 36 ACSR 758 (2001) 19 ACLC 529

New South Wales Supreme Court

CITATION : Arthur Yates & Co Limited (Application of) [2001] NSWSC 40 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 1173/01 HEARING DATE(S) : 06/02/01, 07/02/01 JUDGMENT DATE : 7 February 2001

PARTIES : In the matter of Arthur Yates & Co Limited (ACN 000 004 688) Arthur Yates & Co Limited (ACN 000 004 688) (Applicant)) JUDGMENT OF : Santow J

COUNSEL : M B Oakes, SC (Applicant) SOLICITORS : Coudert Brothers (Applicant) CATCHWORDS : CORPORATIONS — Scheme of arrangement effecting a merger — Exclusivity period during which it is sought that no other proposal be canvassed — Legality of such constraint — Need to qualify by reference to directors' duties and lawfulness — Other requirements for acceptability — Comparison of UK under Panel rules. LEGISLATION CITED : Corporations Law s411 DECISION : Orders made approving convening of meeting of shareholders to consider proposed scheme of arrangement.

REVISED — 7 February, 2001 IN THE SUPREME COURT OF NEW SOUTH WALES IN EQUITY

SANTOW J

No. 1173/01 In the matter of ARTHUR YATES & CO LIMITED (ACN 000 004 688) ARTHUR YATES & CO LIMITED (ACN 000 004 688) Applicant

JUDGMENT — ex tempore 7 February 2001 1 What follows are some brief observations relating to a shareholders' scheme of arrangement which introduces the still novel concept of an exclusivity period during which alternative merger arrangements and their solicitation are constrained. 2 The relevant clause in the Implementation Agreement following helpful discussion between Counsel and the Court, is in the following terms: "Exclusivity