Even where ASIC provides a no-objection statement under s 411(17)(b), the court retains a residual discretion to consider whether the scheme was proposed for the purpose of avoiding Chapter 6 takeover provisions. Exclusivity provisions in implementation agreements must satisfy the requirements identified by Santow J in Re Arthur Yates, including being for a reasonable period, subject to directors' fiduciary duties, and given adequate prominence in the explanatory statement. Where a private equity firm is the acquirer and many shareholders are employees, the explanatory statement should disclose information about the acquirer's track record regarding employment and the nature of private equity operations. Deemed warranty clauses in schemes that impose onerous obligations on shareholders without adequate prominence may be refused approval.
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