Warwick Resources Limited, in the matter of Warwick Resources Limited [2009] FCA 1231

Federal Court of Australia|2009-10-19|Before: Siopis J

Leave is given to the Plaintiff to convene a meeting (Shareholders Meeting) of each person registered as a holder of ordinary shares issued by the Plaintiff (Shareholder) as at 11.30 am (WST) 28 November 2009 for the purpose of considering and, if thought fit, approving (with or without amendment) the scheme of arrangement (Share Scheme) which is Appendix 3 of the scheme booklet, being annexure BMM-6 to the affidavit of Bruce Morrison McQuitty sworn on 1 October 2009 (Scheme Booklet), such meeting to be held on 30 November 2009 at 11.30 am (WST) at Kailis Bros. GP Kailis Room, 101 Oxford Street, Leederville, Western Australia.
Leave is given to the Plaintiff to convene a meeting (Optionholders Meeting) of each person registered as a holder of an option issued by the Plaintiff (Optionholder) as at 12.00 pm (WST) 28 November 2009 for the purpose of considering and, if thought fit, approving (with or without amendment) the scheme of arrangement which is Appendix 4 of the Scheme Booklet (Option Scheme), such meeting to be held on 30 November 2009 at 12.00 pm (WST) (or, if later, as soon as possible after the conclusion of the Shareholders Meeting) at Kailis Bros. GP Kailis Room, 101 Oxford Street, Leederville, Western Australia.
The Shareholders Meeting be convened, held and conducted: (a) in accordance with the provisions of Part 2G.2 of the Corporations Act 2001 (Cth) (Act) that apply to members of a company and the provisions of the Plaintiff's constitution that are not inconsistent therewith and that apply to meetings of members; and (b) to the extent applicable, in accordance with Corporations Regulations 5.6.12 to 5.6.36.
The Optionholders Meeting be convened, held and conducted: (a) in accordance with the provisions of Part 2G.2 of the Act that apply to members of a company and the provisions of the Plaintiff's constitution that are not inconsistent therewith and that apply to meetings of creditors; (b) on the basis that a quorum for the purpose of the Optionholders Meeting shall be 2 Optionholders, present in person or by proxy or attorney and otherwise as if such Optionholders were a separate class of members; (c) on the basis of the methodology for attributing voting weight described in paragraph 3.11 of the Scheme Booklet; and (d) to the extent applicable, in accordance with Corporations Regulations 5.6.12 to 5.6.36.

"A" Scheme Booklet (Annexure BMM-6) 1. The body of the Scheme Booklet appearing at Volume 1, pages 87 to 183 and Volume 2, pages 184 to 399 (inclusive) of the affidavit of Bruce Morrison McQuitty sworn on 1 October 2009 be substituted with the scheme booklet filed on 16 October 2009.

"B" WARWICK RESOURCES LIMITED ACN 063 506 963 (Company) NOTICE OF MEETING OF SHAREHOLDERS SUMMONED PURSUANT TO AN ORDER OF THE FEDERAL COURT OF AUSTRALIA UNDER SECTION 411 OF THE CORPORATIONS ACT 2001 (CTH) NOTICE IS HEREBY GIVEN THAT by an Order made on 19 October 2009 the Federal Court has directed that, pursuant to section 411 of the Corporations Act, a meeting of members holding ordinary shares in the Company (Members) be convened for the purpose of considering and, if thought fit, approving (with or without modification), a scheme of arrangement proposed to be made between the Company and its Members (Members Scheme). The meeting will be held on 30 November 2009 at 11.30 am (WST) at Kailis Bros. GP Kailis Room, 101 Oxford Street, Leederville, Western Australia, at which all Members are requested to attend. Members may obtain a copy of the Members Scheme, the explanatory statement and a proxy form from the offices of the Company, Suite 4F, 661 Newcastle Street, Leederville, Western Australia, Tel (+61 8 9227 6680). Dated this 28th day of October 2009. Warwick Resources Limited

"C" WARWICK RESOURCES LIMITED ACN 063 506 963 (Company) NOTICE OF MEETING OF OPTIONHOLDERS SUMMONED PURSUANT TO AN ORDER OF THE FEDERAL COURT OF AUSTRALIA UNDER SECTION 411 OF THE CORPORATIONS ACT 2001 (CTH) NOTICE IS HEREBY GIVEN THAT by an Order made on 19 October 2009 the Federal Court has directed that, pursuant to section 411 of the Corporations Act, a meeting of holders of options issued by the Company (Optionholders) be convened for the purpose of considering and, if thought fit, approving (with or without modification), a scheme of arrangement proposed to be made between the Company and its Optionholders (Option Scheme). The meeting will be held on 30 November 2009 at 12.00 pm (WST) (or, if later, as soon as possible after the conclusion of the meeting of members holding ordinary shares in the Company) at Kailis Bros. GP Kailis Room, 101 Oxford Street, Leederville, Western Australia, at which all Optionholders are requested to attend. Optionholders may obtain a copy of the Option Scheme, the explanatory statement and a proxy form from the offices of the Company, Suite 4F, 661 Newcastle Street, Leederville, Western Australia, Tel (+61 8 9227 6680). Dated this 28th day of October 2009. Warwick Resources Limited

"D" WARWICK RESOURCES LIMITED ACN 063 506 963 (Company) NOTICE OF HEARING OF APPLICATION TO APPROVE A SCHEME OF ARRANGEMENT UNDER SECTION 411 OF THE CORPORATIONS ACT 2001 (CTH) TO all the creditors and members of Warwick Resources Limited (ACN 063 506 963) (Warwick). TAKE NOTICE that at 10.15 am on 7 December 2009 the Federal Court of Australia at 1 Victoria Avenue, Perth, Western Australia will hear an application by Warwick seeking the approval of two schemes of arrangement between Warwick, its members and its optionholders as proposed by resolutions passed by the meetings of the members and optionholders of Ellendale held on 30 November 2009. If you wish to oppose the approval of the schemes of arrangement, you must file and serve on Warwick 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 Warwick at its address for service at least one day before the date fixed for the hearing of the application. The address for service of Warwick is c/- Steinepreis Paganin Lawyers, Level 4, The Read Buildings, 16 Milligan Street, Perth, Western Australia, 6000. This notice is inserted by Steinepreis Paganin, solicitors for Warwick. Dated this 2nd day of December 2009. Warwick Resources Limited 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. IN THE FEDERAL COURT OF AUSTRALIA

general division WAD 172 of 2009

IN THE MATTER OF WARWICK RESOURCES LIMITED (ACN 063 506 963) WARWICK RESOURCES LIMITED (ACN 063 506 963)

REASONS FOR JUDGMENT 1 This is an application for orders for the convening of meetings under s 411(1) of the Corporations Act 2001 (Cth) for the consideration and, if thought fit, approval of two schemes of arrangement to effect a merger between a company, the plaintiff, Warwick Resources Limited, and another company, Atlas Iron Limited. Both of the companies are listed companies on the Australian Stock Exchange. 2 The two proposed schemes of arrangement comprise a share scheme and an option scheme. 3 Under the share scheme it is proposed that the shareholders in Warwick will acquire shares in Atlas and then Warwick will become a wholly owned subsidiary of Atlas and the shares in Warwick will be de-listed. The shareholders in Warwick will receive one new Atlas share for each of their three shares in Warwick. 4 The option scheme provides for the cancellation of the Warwick options and the issue to the former optionholders of new Atlas shares. The number of new Atlas shares proposed to be issued will be determined in accordance with the value of the Warwick options. The value to be attributed to the Warwick options will be calculated in accordance with the Black‑Scholes valuation model and methodology. 5 The appropriate principles to apply in determining whether to make orders for the convening of a meeting to consider whether to approve a scheme of arrangement, are those stated by Barrett J in the case of Re Hills Motorway Ltd (2002) 43 ACSR 101 at 103, at [5] (Re Hills Motorway). I will apply those principles. 6 First, I am satisfied that the proposed schemes of arrangement fit within the statutory concept of arrangement or compromise within the meaning of the Corporations Act. 7 I am also satisfied that the Australian Securities and Investments Commission has had a reasonable opportunity to examine the relevant materials. It has made comments and suggested amendments to the scheme booklet. I am also satisfied, on the material before me, that there is a sufficient disclosure of the material elements of the schemes of arrangement in the scheme booklet. 8 There are a few matters which counsel for the plaintiff, Mr Young, referred me to in the course of his submissions today. 9 The first relates to the holding of the meeting of optionholders to approve the scheme proposed for the optionholders. The options comprise various tranches. Each tranche of options had a different expiry date and exercise price. The question is whether there is a sufficient commonality of interest between the various optionholders to warrant the scheme being considered by all the optionholders voting in one meeting. On the basis of the expert valuation report and the observations of Barrett J in Re MIA Group Ltd (2004) 50 ACSR 29 at 32, at [14], I am satisfied that those optionholders have a commonality of interest sufficient to permit the holding of a single meeting of optionholders. 10 Further, I am satisfied on the basis of the expert report, prepared by BDO Kendalls Corporate Finance (WA) Pty Ltd, that the methodology which is to be used for the valuation of the options, namely, the Black-Scholes method is appropriate in the circumstances; and that the voting entitlements of the optionholders will also be determined in accordance with that methodology. 11 Mr Young also referred me to some provisions which are contained in the Scheme Implementation Agreement and which provide for what is referred to as "no shop" and "no talk" provisions. The provisions effectively grant an exclusivity period to Atlas in respect of the scheme proposals. That grant of exclusivity is, however, subject to a number of restrictions. I am satisfied that the restrictions which circumscribe those provisions and the disclosure of those provisions in the scheme booklet, are sufficient to comply with the observations of Santow J in Re Arthur Yates and Co Ltd (2001) 36 ACSR 758 at 759-760, at [9]. In the circumstances, the existence of the exclusivity provisions does not cause me a concern, such as would preclude me from permitting the meetings to proceed. 12 Mr Young also took me to the provisions in the Scheme Implementation Agreement which impose an obligation on Warwick to pay a so called "break fee". There is in the outline of submissions an analysis of the percentage which the break fee would comprise as a percentage of the equity value of the company. It is less than 1%. This percentage is generally accepted as being within the guidelines in the guidance note issued by the Takeovers Panel as comprising a fee which is unlikely to be anti-competitive in the sense of deterring a possible further suitor for the company, and also is not likely to coerce the members into voting to approve a scheme they would not otherwise have wanted to approve. In that regard, I note that the break fee is not payable simply on the basis that the scheme is not approved by the members. 13 There is also in the scheme booklet expert opinion to the effect that the scheme is fair and reasonable. 14 Accordingly, applying the observations of Barrett J in Re Hills Motorway as presently informed, there is, so far as the structure, purpose and effect of the schemes are concerned, no apparent reason why the schemes should not, in due course, receive the Court's approval if the necessary majority of votes is achieved at the proposed meetings. 15 In those circumstances, I am content to make the orders in the proposed minute of orders subject to the amendment in relation to voting entitlements which I indicated to Mr Young during the course of oral submissions. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate: Dated: 30 October 2009 Counsel for the Plaintiff: Mr JG Young

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