Federal Court of Australia

GPN Vaccines Limited, in the matter of GPN Vaccines Limited (No 2) [2025] FCA 672

ORDERS

THE COURT NOTES THAT:

(A)    There has been produced to the Court a statement in writing by the Australian Securities and Investments Commission (ASIC) in accordance with section 411(17)(b) of the Corporations Act 2001 (Cth) (Corporations Act) that ASIC has no objection to the scheme of arrangement between the plaintiff (GPN AUS) and its members which was agreed to by the members at a meeting held on 27 May 2025, the terms of which were set out in Annexure A to the orders of the Court made on 30 April 2025 (Scheme).

(B)    The GPN USA Shares to be issued by GPN USA pursuant to the Scheme (and as defined in the Scheme) will not be registered under the U.S Securities Act of 1933 or the securities laws of any other state jurisdiction in the United States. In connection with the implementation of the Scheme and the issue of the GPN USA Shares, GPN USA and GPN AUS intend to rely on the Federal Court’s approval of the Scheme for the purpose of qualifying for an exemption from the registration requirements of the U.S. Securities Act of 1933, provided for by s 3(a)(10) of that Act.

THE COURT ORDERS THAT:

1.    Pursuant to s 411(4)(b) of the Corporations Act, the Scheme be and is hereby approved.

2.    Pursuant to s 411(12) of the Corporations Act, GPN AUS be exempted from compliance with s 411(11) of the Act in respect of the Scheme.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LONGBOTTOM J:

introduction

1    On 30 April 2025, I made orders under s 411(1) and s 1319 of the Corporations Act 2001 (Cth) (Act) providing for the plaintiff (GPN AUS) to convene and hold a meeting of its shareholders on 27 May 2025 to consider a proposed scheme of arrangement under Part 5.1 of the Act: Re GPN Vaccines Limited [2025] FCA 497.

2    The details of the proposed scheme are summarised in Re GPN Vaccines at [7] – [10] and [42] – [47]. These reasons adopt the defined terms in Re GPN Vaccines.

3    At the Scheme Meeting, a resolution to agree to the Scheme was unanimously passed by the GPN AUS shareholders present (in person, or by proxy). Of the 136 shareholders eligible to vote, 90 voted on the resolution, representing a voting participation rate of 84.27% (by number of shares) and 66.18% (by number of shareholders).

4    A scheme of arrangement is binding on the members if, relevantly:

(a)    at a meeting convened in accordance with an order of the Court, a resolution in favour of the scheme is passed by a majority in number of the members present and voting (either in person or by proxy) and 75% of the votes cast on the resolution: Act, s 411(4)(a); and

(b)    it is approved by order of the Court: Act, s 411(4)(b).

5    On 16 June 2025, I made an order approving the Scheme. These are my reasons for making the approval order.

relevant principles

6    The Court will ordinarily have regard to the following matters in deciding whether to approve a scheme of arrangement under s 411(4)(b) of the Act (Re Australia and New Zealand Banking Group Ltd (No 2) [2022] FCA 1547 at [10] (O’Bryan J)):

(a)    the orders of the Court convening a meeting of members were complied with;

(b)    the meeting of members so convened has approved the scheme with the requisite majorities;

(c)    all other requirements of the Act and the Federal Court (Corporations) Rules 2000 (Cth) have been satisfied;

(d)    the scheme is fair and reasonable such that an intelligent and honest person who was a member of the relevant class, properly informed and acting alone, might approve it;

(e)    there has been full and fair disclosure to members and creditors of all information material to the decision whether to vote for or against the scheme; and

(f)    the plaintiff has brought to the attention of the Court all matters that could be considered relevant to the exercises of the Court’s discretion.

statutory and procedural requirements

7    The statutory and procedural requirements, outlined at [6(a)] to [6(c)] above, have been met. That is for the following reasons.

Registration of scheme booklet and lodgement of orders with ASIC

8    On 30 April 2025, GPN AUS lodged an office copy of the orders with ASIC as required by r 3.5(b) of the Rules. ASIC was also provided with the draft scheme booklet (amended in accordance with the orders) and its annexures, which ASIC registered on 1 May 2025 (registered scheme booklet): c.f., Act, s 412(6).

Dispatch of scheme materials

9    On 2 May 2025, GPN AUS emailed its members as required by the orders. That email contained hyperlinks enabling the GPN AUS members to download a copy of the registered scheme booklet and online user guide for the Scheme Meeting; lodge an electronic voting form and a proxy appointment and access an online platform to listen and participate in the Scheme Meeting. No “bounce-back” emails were received from the members to whom the email was sent.

Scheme Meeting

10    The Scheme Meeting was convened on 27 May 2025 in accordance with the orders. Dr Timothy Hirst was the chairperson. The meeting was convened both in person (at CBRIN, Level 4, 1 Moore Street, Canberra) and virtually, via an online platform. Voting on the resolution was conducted by way of a poll. As outlined above, the resolution was passed by the requisite statutory majorities of GPN AUS’ members.

Notice of the second hearing

11    On 27 May 2025, GPN AUS published an announcement of the second hearing on its website as required by the orders. The orders dispensed with the requirement under r 3.4 of the Rules to publish notice of the second hearing in a daily newspaper circulating generally in the State or Territory where GPN AUS has its principal place of business.

12    The announcement stipulated that any person wishing to oppose approval of the Scheme must file and serve on GPN AUS a notice of appearance and any supporting affidavit. GPN AUS did not receive any notice of appearance, and no one appeared at the second hearing to oppose the making of orders approving the Scheme.

ASIC Letter

13    By letter dated 13 June 2025, ASIC advised GPN AUS’ directors that it has no objection to the Scheme. That letter satisfies the first limb of s 411(17) of Act, which provides that Court must not approve a scheme unless such a statement is produced or it is satisfied that the arrangement has not been proposed for the purpose of enabling any person to avoid the operation of Chapter 6.

Conditions precedent

14    Before approving a scheme, the Court will ordinarily require that all conditions precedent to the scheme (other than the Court’s approval and the scheme coming into effect) have been satisfied or waived. The concern of the Court, in this respect, is to remove any future doubt as to the binding nature of the scheme: Re AWA Mutual Limited (No 2) [2024] FCA 104 at [41] (Anderson J) citing Re Glendale Land Development Ltd (in liq) (1982) ACLR 171 at [178]-[179] (McLelland J) and Re United Medical Protection Ltd [2007] FCA 631 at [19] (Finkelstein J).

15    At the second hearing, GPN AUS tendered a letter confirming that – except for the approval of the Court under s 411(4)(b) of the Act – each of the conditions precedent to Scheme had been satisfied.

discretion

16    I am satisfied, having regard to the considerations that are outlined at [6(d)] to [6(f)] above, that I ought to exercise the discretion to make the approval order. That is for the following reasons.

The Scheme is sufficiently fair and reasonable

17    The Court’s role in approving a scheme under s 411(4)(b) is supervisory. This essentially requires the Court to be satisfied that the scheme is sufficiently fair and reasonable that an intelligent and honest shareholder properly informed and acting alone might approve it: Re Amcor Ltd (No 2) [2019] FCA 842 at [7] (Beach J).

18    The Court will usually approach its task on the basis that members are better judges of what is in their own commercial interests than the Court: Re APN Outdoor Group Ltd (No 2) [2018] FCA 1633 at [4] (Markovic J). A shareholder vote in favour of the scheme, particularly when there has been a high shareholder turnout and voting is overwhelmingly in support, is evidence of its inherent fairness: Re Probiotec Ltd (No 2) [2024] FCA 593 at [34] (Button J) and Re Amcor at [11].

19    GPN AUS submit, and I accept that the Scheme, is fair and reasonable in the required sense. The resolution was unanimously passed by the GPN AUS shareholders participating in the Scheme Meeting. The voter turnout was high, with those participating holding 84.27% of the shares in the company. The Scheme has also been examined by an independent expert (BDO Corporate Finance) who has expressed the view that it is in the best interest of the shareholders as a whole in the absence of an alternative proposal or any further information. Finally, as outlined in Re GPN Vaccines at [42] there are mechanisms in place to address the performance risk associated with the Scheme by reason of GPN USA not being a party and, as such, not being bound by its terms.

There has been full and fair disclosure of all information material to voting on the resolution

20    The draft scheme booklet satisfied the relevant statutory requirements and had been through a verification process such that I was satisfied at the first hearing that GPN AUS members were properly informed as to the nature of the Scheme: Re GPN Vaccines at [52] - [54]. The registered scheme booklet was substantially in the form approved by the orders. As such, I am satisfied that there has been full and fair disclosure to members of all information material to voting on the resolution.

Particular matters

21    On 12 June 2025, GPN AUS and GPN USA entered a deed of variation of the Scheme Implementation Deed. The deed of variation amended the “Record Date” and “Implementation Date” in the Scheme Implementation Deed. Those dates are, respectively, the date for determining entitlements to the Scheme Consideration and the date for paying the Scheme Consideration to Scheme Shareholders. The purpose of the amendments is to allow for 98,069 options (due to expire on 30 June 2025) to be exercised in time for the holders to be issued shares and participate in the Scheme. Before the deed of variation, the “Record Date” was 24 June 2025.

22    The exercise of the GPN AUS options will not affect the consideration to be provided to the other Scheme Shareholders or the ratios upon which they will hold shares in GPN USA: Re GPN Vaccines at [3]. In any event, the possibility of changes to the “Record Date” and “Implementation Date” were foreshadowed in the registered scheme booklet. The fact of those changes was published on the GPN AUS website on 12 June 2025. As outlined above, GPN AUS did not receive a notice of appearance from any person intending to oppose approval of the Scheme and no one appeared at the second hearing for that purpose. Given those matters, GPN AUS submit, and I accept that the deed of variation does not give rise to any issues that would adversely affect the exercise of the Court’s discretion to make the approval order.

securities act exemption

23    GPN AUS and GPN USA intend to rely on approval of the Scheme to obtain an exemption from the registration requirements under the Securities Act of 1933 (US) connected with the implementation of the Scheme. Sub-section 3(a)(10) of the Securities Act provides in this regard that:

Except as hereinafter expressly provided, the provisions of this subchapter shall not apply to any of the following classes of securities:

…

[10]    … any security which is issued in exchange for one or more bona fide outstanding securities, claims or property interests, or partly in such exchange and partly for cash, where the terms and conditions of such issuance and exchange are approved, after a hearing upon the fairness of such terms and conditions at which all persons to whom it is proposed to issue securities in such exchange shall have the right to appear, by any court or by any official or agency of the United States, or by any State or Territorial banking or insurance commission or other governmental authority expressly authorized by law to grant such approval.

(Emphasis added)

24    As its terms make plain, certain conditions must be satisfied before an exemption under s 3(a)(10) can be obtained. Those conditions, which are supplemented by the Staff Legal Bulletin No 31 (CF), Division of Corporation Finance, Securities and Exchange Commission, 18 June 2008 may be summarised as follows (Re Atlantic Gold NL (No 2) [2014] FCA 869 at [8] (Jacobson J); Re Ellerston Global Investments Limited [2020] NSWSC 1108 at [18]-[19] (Black J); Re Newcrest Mining Ltd (No 1) [2023] FCA 1080 at [72]-[73] (Beach J)):

(a)    the Court was advised, before the hearing to approve the scheme, that the company intends to rely on the exemption under s 3(a)(10) of the Securities Act based on the Court’s approval of the scheme;

(b)    the Court has been informed of the manner in which the scheme consideration will be calculated and the securities to be offered as scheme consideration;

(c)    an independent expert report has concluded that the proposed scheme is in the best interests of the members;

(d)    the Court holds a hearing to consider the fairness and reasonableness of the proposed scheme;

(e)    that hearing is open to the public, notice of the hearing is provided in a timely manner and any person to whom the securities are to be issued under the scheme has standing to appear; and

(f)    the Court approves the scheme and finds, before approving the transaction, that the terms and conditions of the exchange are fair, both procedurally and substantively, to those to whom the securities will be issued.

25    It is not for this Court to express a view as to whether its procedures or processes are sufficient to satisfy the requirements of s 3(a)(10) of the Securities Act. Further, the Court does not act as the valuer of the securities but is assisted by an expert opinion on that matter: Re Aston Resources Ltd (No 2) [2012] FCA 401 at [8] and [11] (Jacobson J); Re Allkem Limited (No 2) [2023] FCA 1397 at [36] (Banks-Smith J). Nevertheless, consistent with the standard approach that has been adopted by the Court in relation to the exemption, it is apt to note the following matters (Re Atlantic Gold at [8]).

26    First, I was advised before commencement of the second hearing that GPN AUS and GPN USA would rely on the exemption under s 3(a)(10) based on the Court’s approval of the Scheme. That advice was contained in the evidence and submissions relied upon by GPN AUS at the 30 April 2025 hearing.

27    Second, I have been informed of the manner in which Scheme Consideration will be calculated and the securities to be offered as Scheme Consideration: Re GPN Vaccines at [3]. An independent expert report from BDO Corporate Finance concluded that the Scheme is in the best interest of the shareholders as a whole in the absence of an alternative proposal or any further information.

28    Third, the Court, as it is statutorily required to do, held the second hearing at which the fairness and reasonableness of the Scheme was considered: Act s 411(4)(b).

29    Fourth, the second hearing was open to the public and any GPN AUS shareholder to whom GPN USA securities are to be issued under the Scheme had standing to appear: Re Newcrest Mining (No 1) at [16]. Notice of the second hearing (on 16 June 2025) was included in the registered scheme booklet distributed on 2 May 2025 and published on GPN AUS’ website on 27 May 2025. GPN AUS did not receive a notice from a shareholder of their intention to appear at the second hearing to oppose the Scheme. There was no appearance by any GPN AUS shareholder at the second hearing.

30    Fifth, I made the approval order at the second hearing. In making the approval order, I found that the Scheme (including the terms and conditions upon which the Scheme Consideration will be provided) is fair, both procedurally and substantially, to the Scheme Shareholders. That finding was informed by the opinion expressed in the independent expert report outlined at [19] and [27] above.

Exemption from section 411(11)

31    Unless an exemption is obtained under s 411(12) of the Act, a copy of the order approving the Scheme is required to be annexed to every copy of GPN AUS’ constitution issued after the order is made: Act, s 411(11).

32    In Re Equinox Resources Ltd (2004) 49 ACSR 692; [2004] WASC 143, Heenan J described the purpose of s 411(11) as being (at [22]):

… to ensure that any modification of the rights of shareholders of the company which is the subject of the scheme or any other provision in the scheme which may affect the interests of persons dealing with the company, such as prospective creditors or purchasers of shares, will be sure to have the opportunity of seeing what the exact rights of shareholders in the company or of its creditors are, as modified, if at all, by the scheme which has been approved.

33    I am satisfied that it is appropriate to exempt GPN AUS from the requirement under s 411(11) of the Act. The Scheme will not alter the constitution of the company or the rights of its members, creditors or any other person with whom the company may deal. The current members of GPN AUS can be taken to have been informed of the Scheme and, I am told, will be informed of its approval. As a result of the implementation of the Scheme, GPN AUS will become a wholly owned subsidiary of GPN USA, who can also be taken to be aware of the Scheme. As such, no ongoing purpose will be served by requiring the approval order approving to be annexed to GPN AUS’ constitution.

conclusion

34    For the reasons set out above, on 16 June 2025, I made the approval order together with the order under s 411(12) of the Act exempting GPN AUS from the requirement to annex the approval order to its constitution.

Associate:    

Dated:    23 June 2025