BlueFreeway Limited, in the matter of BlueFreeway Limited [2009] FCA 535

Federal Court of Australia|2009-05-22|Before: Lindgren J

1 Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (Act) the Plaintiff convene a meeting (Scheme Meeting) of its ordinary shareholders (other than IPMG Administration Pty Limited (IPMG)) (Shareholders) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between the Plaintiff and its Shareholders, the terms of which are contained in Section 7 of the booklet containing the Explanatory Statement being Exhibit P1 (the Scheme Booklet). 2 The Scheme Meeting be held at 1pm on 23 June 2009 at the FX Centre, 4th Floor, 184 Bourke Road, Alexandria, New South Wales. 3 Mr Nicholas Frank Hugo Greiner or, failing him, Mr Mark Wain Houston, be chairperson of the Scheme Meeting. 4 The chairperson appointed to the Scheme Meeting has the power to adjourn the Scheme Meeting in his absolute discretion. 5 At the Scheme Meeting, a Shareholder will be entitled to one vote for each ordinary share in the capital of the Plaintiff they are registered as holding at 7.00pm on 21 June 2009. 6 The Scheme Booklet be approved for distribution to the Shareholders.

7 On or before 22 May 2009 there be dispatched by pre-paid post, or in the case of a member whose registered address is outside the country by pre-paid airmail post or air courier, addressed to the relevant addresses set out in the register of members of the Plaintiff: a. a document substantially in the form of the Scheme Booklet (including a Notice of Meeting substantially in the form of section 6 to that booklet); b. a proxy form substantially in the form of Exhibit P2; and c. an envelope addressed to BlueFreeway Limited C/- ComputerShare Investor Services Pty Limited. 8 The time by which proxy forms for the Scheme Meeting must be returned be 1pm on 21 June 2009. 9 Regulations 5.6.12 and 5.6.14 to 5.6.36A of the Corporations Regulations 2001 (Cth) shall not apply to the meeting. 10 On or before 17 June 2009, the Plaintiff publish a Notice of Hearing in the form of Annexure 'A' hereto. 11 This proceeding be stood over to 24 June 2009 at 9.30AM before Justice Lindgren for the hearing of any application to approve the scheme of arrangement. 12 There be liberty to restore on one day's notice. 13 These Orders be entered forthwith. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

ANNEXURE A to SHORT MINUTES OF ORDER BLUEFREEWAY LIMITED NOTICE OF HEARING TO APPROVE COMPROMISE OR ARRANGEMENT BLUEFREEWAY LIMITED ACN 122 262 819 TO ALL the Creditors and/or Members of BlueFreeway Limited. TAKE NOTICE that at am on June 2009 the Federal Court of Australia at Law Court Building, Queen's Square, Sydney will hear an application by BlueFreeway Limited seeking approval of a compromise or arrangement between BlueFreeway Limited and its members (other than IPMG Administration Pty Limited), as proposed by resolutions to be considered by a meeting of the members of BlueFreeway Limited (other than IPMG Administration Pty Limited) to be held on 23 June 2009. If you wish to oppose the approval of the compromise or arrangement for BlueFreeway Limited you must file and serve on the Plaintiff a notice of appearance, in the prescribed form, together with any affidavit on which you wish to rely at the hearing. The notice of appearance and affidavit must be served on the Plaintiff at their address for service at least one day before the date fixed for hearing of the applications. The address for service on the Plaintiff is: c/- Landerer & Company, Level 31, 133 Castlereagh Street, Sydney NSW 2000 Les Pozniak Solicitor for BlueFreeway Limited IN THE FEDERAL COURT OF AUSTRALIA

IN THE MATTER OF BLUEFREEWAY LIMITED (ACN 122 262 819) BETWEEN: BLUEFREEWAY LIMITED (ACN 122 262 819)

REASONS FOR JUDGMENT (first court hearing) 1 At the first court hearing on 19 May 2009, I made the orders set out at the front of these reasons for judgment. These are my reasons for making those orders. 2 The plaintiff (BlueFreeway) sought an order under s 411(1) of the Corporations Act 2001 (Cth) (the Act) for the convening of a meeting of its ordinary shareholders other than IPMG Administration Pty Limited (IPMG) for the purpose of their considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed between BlueFreeway of the one part and those shareholders. I will refer to "Scheme", "Scheme Meeting" and "Scheme Shareholders" (the shareholders other than IPMG). 3 BlueFreeway also sought an order approving a draft of the explanatory statement in relation to the proposed Scheme, under ss 411(3) and 412 of the Act. 4 IPMG currently holds 238,949,377 of the shares in BlueFreeway, approximately 73.15% of the company's issued capital. Accordingly, the shares the subject of the proposed scheme represent the remaining approximately 26.85% of BlueFreeway's shares. Under the Scheme, IPMG will pay $0.04 in cash per share ("Scheme Consideration"). 5 BlueFreeway has three directors of whom only one is independent of IPMG, namely, Mr Greiner. 6 BlueFreeway and IPMG entered into a Scheme Implementation Agreement on 20 April 2009 by which both companies committed themselves to supporting the proposed Scheme. 7 There were no issues as to performance risk because the Scheme Consideration will be paid into a trust account before the Scheme Shareholders lose title to their shares. The Scheme Implementation Agreement does not provide for an exclusivity provision or break fee. 8 There was evidence from an independent expert, Sebastian Stevens of BDO Kendalls Securities (NSW-Vic) Pty Limited in the form of an "independent expert's report" which concluded that the Scheme is fair and reasonable and therefore in the best interests of Shareholders. 9 Copies of the relevant documents were supplied to the Australian Securities and Investments Commission (ASIC) which indicated, in accordance with its usual practice, that it did not intend to make submissions or intervene to oppose the Scheme at the first hearing. 10 The reasons set out above do not do justice to the more comprehensive written submissions made by counsel for BlueFreeway, a copy of which will be retained on the Court file. I accepted the substance of those submissions. 11 It seemed to me that the proposed Scheme was a fairly straightforward one which the Scheme Shareholders should have an opportunity of considering. Accordingly, I made the orders referred to on 19 May 2009. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

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