Federal Court of Australia

Viridian Financial Group Ltd, in the matter of Viridian Financial Group Ltd (No 2) [2025] FCA 1222

ORDERS

OTHER MATTERS:

The Court notes that 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) (Act) that ASIC has no objection to:

(a)    the scheme of arrangement between Viridian and its members holding ordinary shares (Ordinary Shareholders) which was agreed to by the Ordinary Shareholders at a meeting held on 24 September 2025, the terms of which are set out at pages 125 to 145 of Annexure GK-2 to the affidavit of Gowri Kangeson affirmed on 28 July 2025 (Kangeson Affidavit) (Ordinary Share Scheme); or

(b)    the scheme of arrangement between Viridian and its members holding sentinel shares (Sentinel Shareholders) which was agreed to by the Sentinel Shareholders at a meeting held on 24 September 2025, the terms of which are set out at pages 158 to 177 of Annexure GK-2 to the Kangeson Affidavit (Sentinel Share Scheme).

THE COURT ORDERS THAT:

1.    Pursuant to subsection 1322(4)(d) of the Act the time by which Viridian was required to publish a notice containing details for the second Court hearing as provided for in Order 13 of the orders made on 21 August 2025 (Convening Orders) be extended nunc pro tunc to 4 September 2025.

2.    Pursuant to ss 411(4)(a)(ii) and 1319 of the Act, any Viridian shareholder who lodged a direct vote prior to either of the Scheme Meetings held on 24 September 2025 pursuant to Orders 1 and 2 of the Convening Orders are deemed to have been "present" at the relevant Scheme Meeting for the purposes of s 411(4)(a)(ii) of the Act.

3.    Pursuant to subsection 411(4)(b) of Act, the Ordinary Share Scheme and the Sentinel Share Scheme be and are hereby approved.

4.    Pursuant to s 411(12) of the Act, Viridian is exempted from compliance with s 411(11) of the Act in relation to the Ordinary Scheme and the Sentinel Scheme.

This Order has been amended in accordance with Rule 39.05(g) of the Federal Court Rules 2011.

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

REASONS FOR JUDGMENT

ANDERSON J:

Introduction

1    The plaintiff (Viridian) applies for orders under s 411(4)(b) of the Corporations Act 2001 (Cth) (Act) to approve two proposed schemes of arrangement (Schemes).

2    At the first Court hearing on 21 August 2025, I made orders (FCH Orders) requiring Viridian to convene and hold two scheme meetings (Scheme Meetings):

(a)    a meeting of its members holding Ordinary Shares (Ordinary Shareholders) to vote on a scheme between those Ordinary Shareholders and Viridian (Ordinary Scheme) (Ordinary Scheme Meeting); and

(b)    a meeting of its members holding Sentinel Shares (Sentinel Shareholders) to vote on a scheme between those Sentinel Shareholders and Viridian (Sentinel Scheme) (Sentinel Scheme Meeting).

3    As set out in [2]-[3] of the Court’s reasons for making the FCH Orders, Re Viridian Financial Group Ltd [2025] FCA 997 (FCH Reasons), Viridian is an Australian diversified financial services business which provides retail clients and advice firms with financial advice, lending, investments and digital solutions. Viridian is an unlisted public company limited by shares. It has approximately 500 shareholders, most of which are employee shareholders. The share capital of Viridian comprises 2 classes of shares: Ordinary Shares and Sentinel Shares. Ordinary Shares are ordinary voting shares. Sentinel Shares are issued to employees of Viridian, and are non-voting shares, but carry a right to dividends. Some Sentinel Shares are fully paid, and others partly paid. A holder of Sentinel Shares can, at the discretion of the directors, elect to convert the Sentinel Shares into Ordinary Shares.

4    The Scheme Meetings were held on 24 September 2025. For the following reasons, I am satisfied there has been compliance with the statutory and procedural requirements, including satisfaction of the requisite statutory voting majorities, such that the Court's discretion to approve the Schemes is enlivened. I am also satisfied, for the following reasons, that I ought to exercise my discretion to approve the Schemes.

The Schemes

5    The relevant aspects of the Schemes were addressed in detail in the FCH Reasons. In summary, the commercial purpose of the Schemes is to effect the acquisition of all the shares in Viridian by Vivid Bidco Pty Ltd (Bidco), which is a special purpose Australian proprietary company that was incorporated for the purpose of the Schemes.

6    Bidco is indirectly wholly-owned by funds and their related entities (TA Funds) managed and/or advised by TA Associates, L.P. (together with its affiliated entities, TA Associates). TA Associates is a global private equity firm, based out of Boston, Massachusetts, targeting investments in technology, financial services, healthcare, consumer, and business services, with investee companies located across the globe. The TA Funds hold 100% of the shares in Vivid Holdco Limited (Holdco), and Holdco owns 100% of the shares in Bidco (via intermediate subsidiaries).

7    If the Schemes are implemented:

(a)    Bidco will acquire all of the Ordinary Shares and all of the Sentinel Shares as at the Record Date, as that term is defined in the Scheme Implementation Deed (Ordinary Scheme Shares and Sentinel Scheme Shares respectively and, together, the Scheme Shares);

(b)    the holders of the Ordinary Scheme Shares (Ordinary Scheme Shareholders) will receive, at their election, cash of $5.35 per Scheme Share, shares in Holdco, or a mix of cash and shares in Holdco;

(c)    the holders of the Sentinel Scheme Shares (Sentinel Scheme Shareholders) will receive, at their election, shares in Holdco or a mix of cash, of $5.35 per Scheme Share, and shares in Holdco;

(d)    the share capital of Holdco will comprise Holdco Class A Shares (held by the TA Funds), Holdco Class B Shares (held by the relevant former Viridian Ordinary Scheme Shareholders who receive scrip consideration) and Holdco Sentinel Shares (held by the relevant former Viridian Sentinel Scheme Shareholders who receive scrip consideration);

(e)    Viridian will become a wholly-owned subsidiary of Bidco;

(f)    the TA Funds will hold at least 63.1% of the voting power in Holdco, with the Scheme Shareholders who receive scrip consideration holding at most the remaining approximately 36.9% of the voting power in Holdco; and

(g)    the TA Funds will hold 63.9% of Viridian on a look through basis, and the Scheme Shareholders will hold 36.1% of Viridian on a look through basis.

Evidence

8    Viridian relies upon the affidavit of Abigail Barnard affirmed on 25 September 2025 (Barnard Affidavit). Ms Barnard is the Chief Financial Officer of Viridian and her affidavit includes evidence of the dispatch of the Scheme materials, the conduct of the Scheme Meetings, and the voting results of that meeting.

9    Viridian also relies upon the affidavit of Elliott Chi Lam Cheung, affirmed 30 September 2025 (Second Cheung Affidavit). Mr Cheung is a partner at DLA, the solicitors for Viridian. The Second Cheung Affidavit annexed:

(a)    conditions precedent certificates signed by Viridian and Bidco confirming that all conditions precedent to the Ordinary Scheme and the Sentinel Scheme have been satisfied or waived (other than the conditions relating to Court approval of the Ordinary Scheme and the Sentinel Scheme); and

(b)    a letter dated 29 September 2025 from the Australian Securities and Investments Commission (ASIC) confirming that ASIC has no objection to the Schemes pursuant to s 411(17)(b) of the Act.

10    The following affidavits, which were relied on in the first Court hearing, are also relevant to consideration of the approval of the Schemes:

(a)    the affidavit of Glenn Calder affirmed 18 August 2025 (Calder Affidavit). Mr Calder is the joint Chief Executive Officer of Viridian, and a director of Viridian; and

(b)    the affidavit of Mr Cheung affirmed on 20 August 2025 (First Cheung Affidavit).

Role of the Court

11    Section 411(4) of the Act provides that a members' scheme of arrangement is binding if, at a meeting of members, it is agreed to by the requisite majorities of members present and voting, and by number of votes cast, and the scheme is subsequently approved by order of the Court.

12    Before approving a scheme, the Court needs to be satisfied not only that the resolution to agree to the scheme has been passed in accordance with the statutory majorities, but that all other statutory and procedural requirements in relation to the convening and conduct of the meeting have been observed: Re Midway Limited [2025] FCA 47 at [12] (Anderson J); Re AWA Mutual Limited (No 2) [2024] FCA 104at [12] (Anderson J); Re iSelect Ltd (2022) 166 ACSR 41; [2022] FCA 1528 at [7] (Anderson J); Re ResApp Health Ltd [2022] NSWSC 1353 at [23] (Black J); Re Tabcorp Holdings Ltd (No 2) [2022] NSWSC 725 at [3] (Black J); Re Afterpay Limited [2021] NSWSC 1709 at [14] (Black J); Re Isentia Group Limited [2021] NSWSC 1069 at [9] (Black J)

13    In particular, the Court must be satisfied that the meeting was properly convened and conducted in accordance with the orders made at the first Court hearing, and that all requirements of the Act and the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules) have been complied with: Re Midway at [13]; Re AWA at [12]; Re iSelect at [7]; Re Costa Group Holdings Limited [2024] FCA 59 at [11] (O’Callaghan J).

14    Once satisfied that all statutory and procedural requirements have been met, the Court has a supervisory discretion to approve a scheme pursuant to s 411(4)(b) of the Act.

15    Although the Court is not bound to approve a scheme simply because it has previously made orders for the convening of a scheme meeting and the statutory majorities have been achieved, the Court will recognise that shareholders are generally the best judges of whether an arrangement is to their commercial advantage and, accordingly, absent good reason, will give effect to their intentions as manifested in the voting at the scheme meeting: Re Midway at [15]; Re iSelect at [10]; Re Costa at [13]; Re ResApp Health at [23]; Re Probiotec Limited (No 2) [2024] FCA 593 (Re Probiotec) at [33] (Button J): Re Seven Network Ltd (No 3) (2010) 267 ALR 583; [2010] FCA 400 at [32] (Jacobson J). In this respect, the Court accepts that the shareholders' vote in favour of a scheme is evidence of its inherent fairness. Put another way, if a majority of the shareholders approve a scheme, it is unlikely that the scheme would be considered unreasonable: Re iSelect at [11]; Re Crown Resorts Limited (No 2) [2022] FCA 710 at [11] – [12] (Anderson J); Re Amcor Ltd (No 2) [2019] FCA 842 at [11] (Beach J). This is particularly relevant where, as here, there is no opposition to the order for approval: Re Probiotec at [33]; Re Amcor at [11]; Re Australia and New Zealand Banking Group Ltd (No 2) [2022] FCA 1547 at [8] (O’Bryan J). Further, it is not necessary for me to be satisfied that no better Scheme could have been devised: Re Amcor at [11].

16    The considerations relevant to the exercise of the Court's discretion to approve a scheme are well established, and they have been considered in a number of decisions: Re Midway at [16]; Re AWA at [13]–[14]; Re iSelect at [8]–[12]; Re Carbon Revolution Limited (No 3) [2023] FCA 1270 at [12]–[14] (Moshinsky J); Re Probiotec at [8]; Re Amcor at [7] to [11]; Re Japara Healthcare Limited (No 2) [2021] FCA 1317 at [11]–[13] (Moshinsky J). Those decisions demonstrate that the Court will ordinarily have regard to the following matters:

(a)    that the scheme was approved by shareholders acting in good faith and for proper purposes, and there is no suggestion of oppression of any minority;

(b)    that there was full and fair disclosure to members of all information material to the decision whether to vote for or against the scheme;

(c)    that the scheme is fair and reasonable so that an intelligent and honest shareholder, properly informed and acting alone, might approve it;

(d)    that all matters that could be considered relevant to the exercise of the Court's discretion have been drawn to the Court's attention, and that ASIC has been given the opportunity to draw the Court's attention to any relevant matter;

(e)    that the conditions precedent to the scheme have been satisfied or waived (save for conditions relating to Court-approval); and

(f)    that the Court is satisfied under s 411(17) that the scheme has not been proposed to avoid Chapter 6 of the Act, or there is a statement from ASIC that it has no objection to the scheme.

Statutory and procedural requirements

17    As I have said, before my discretion to approve the Schemes is enlivened, I must be satisfied that the statutory and procedural requirements were complied with. I consider in turn whether these requirements have been satisfied with respect to the:

(a)    dispatch of Scheme materials;

(b)    convening of and voting at the Scheme Meetings; and

(c)    notice of the second Court hearing.

Dispatch of Scheme materials

18    First, as required by r 3.5(b) of the Corporations Rules, an office copy of the FCH Orders was lodged with ASIC on 21 August 2025.

19    Second, the FCH Orders required that, on or before 28 August 2025, Viridian send its shareholders an email substantially in the form of Annexure GC-7 to the Calder Affidavit (Email) which attached:

(a)    a letter substantially in the form of Annexure GC-8 to the Calder Affidavit (Letter);

(b)    a copy of the explanatory booklet substantially in the form which appeared at Annexure EC-2 to the First Cheung Affidavit) (Explanatory Booklet);

(c)    a proxy form substantially in the form of Annexure GC-9 to the Calder Affidavit (Proxy Form);

(d)    election forms in relation to the Schemes, substantially in the form of Annexures GC-10 and GC-11 to the Calder Affidavit (Election Forms);

(e)    in the case of shareholders who are not natural persons, a Deed of Adherence to the Holdco Shareholders Deed substantially in the form of Annexure GC-12 to the Calder Affidavit (Deed of Adherence).

20    I am satisfied that an email was sent to each Viridian shareholder on 27 August 2025 attaching the requisite documents in the requisite form, save that:

(a)    minor amendments were made such that there were two different emails sent: one to employee shareholders who only hold shares in their personal capacity and one to employee shareholders who hold shares other than in their personal capacity. This was to clarify that all employee shareholders (whether they hold shares personally or otherwise) will be 'Covenantors' under the Holdco Shareholders' Deed, and that the only category of shareholders who need to execute a Deed of Adherence are 'employee shareholders' that do not hold shares in their personal capacity (ie were not natural persons). Despite these minor amendments, the email, or rather the emails, sent were substantially in the form of the Email referred to in the FCH Orders; and

(b)    a Deed of Adherence in the requisite form was dispatched to 113 employee shareholders who were not natural persons, however the Deeds incorrectly identified the 'Acceding Party' as the shareholder, rather than the shareholder's 'Related Person' as it should have. Subsequently, on 27 August 2025, those shareholders were sent a further email which explained the error and attached an updated Deed of Adherence which rectified that error; and

(c)    there was a typographical error in the email address entered for one shareholder who therefore did not receive the Email on 27 August 2025. However, this error was rectified, and an Email was sent to that shareholder on 28 August 2025

Town Hall Meetings

21    A further matter that arises for consideration in relation to the dispatch of the Schemes materials, is that prior to the Schemes materials being dispatched, two ‘town hall’ style meetings were held by Viridian on 26 August 2025 via Zoom (Town Hall Meetings). The purpose of the Town Hall Meetings was to assist the employee shareholders, given the volume of the Schemes materials, to navigate and review that material. The first meeting was held at around 3:00pm for the employee shareholders who had previously provided a voting and election consideration intention statement to Viridian. The second meeting was held around 3:30pm for all other employee shareholders. The reason for the two separate meetings was that the first group of employee shareholders had already indicated their consideration election under the Schemes (and appointed any director of Viridian to act as their attorney and complete on their behalf the election form attached to the Explanatory Booklet in accordance with their Intention Statement), and therefore there were less administrative steps for the first group of shareholders to take.

22    The Viridian ‘deal team’ led the Town Hall Meetings, and read from a script that had been prepared with the assistance of Viridian’s solicitors, DLA Piper, with input from the solicitors for BidCo, King & Wood Mallesons. The scripts for each meeting gave a high-level overview of the documents comprising the Schemes material, a short presentation was used which included dates and times for the next steps in relation to the Schemes and the employee shareholders were directed to submit any queries to a specified email address. The Court was provided with copies of the presentation and the two scripts for each of the Town Hall Meetings: Annexures AB-3 to AB-5 of the Barnard Affidavit.

23    In considering these communications with shareholders, the Court’s role, in exercising its supervisory jurisdiction, is to assess whether the communications compromised the integrity of the voting process at the Scheme Meetings or the adequacy of the disclosure in respect of the Schemes: Re Altium Ltd (No 2) [2024] NSWSC 925 at [9]-[11] (Black J); Re Ansarada Group Ltd [2024] NSWSC 1121 at [17]-[19] (Black J).

24    I am satisfied that the Town Hall Meetings did not undermine the integrity of disclosure or the voting at the Scheme Meetings and do not give rise to any reason not to approve the Schemes where they have been approved by shareholders by the requisite statutory majorities at the Scheme Meetings. I am also satisfied that there has been full and fair disclosure to Viridian’s members of all information material to the decision whether to vote for or against the Schemes.

25    I am satisfied that all statutory and procedural requirements in respect of the dispatch of the Schemes material have been complied with.

Convening of and voting at the Scheme Meetings

26    In accordance with orders 1 and 2 of the FCH Orders:

(a)    the Ordinary Scheme Meeting commenced at 3:00 pm (Melbourne time) on 24 September 2025 and was conducted electronically through an electronic platform; and

(b)    the Sentinel Scheme Meeting commenced at 4:00 pm (Melbourne time) on 24 September 2025 and was conducted electronically through an electronic platform.

27    In accordance with order 6 of the FCH Orders, James Joughin was the chairperson of the Scheme Meetings. In accordance with order 9 of the FCH Orders, voting at the Scheme Meetings was conducted by way of a poll.

28    The voter turnout at each of the Scheme Meetings was as follows:

(a)    the number of shares voted at the Ordinary Scheme Meeting as a percentage of total Ordinary Shares was 91.3%, and the number of Ordinary Shareholders who voted as a percentage of the total number of Ordinary Shareholders members eligible to vote was 77%; and

(b)    the number of shares voted at the Sentinel Scheme Meeting as a percentage of total Sentinel Shares was 91.8%, and the number of Sentinel Shareholders who voted as a percentage of the total number of Sentinel Shareholders members eligible to vote was 80%.

29    The results of the votes at each of the Scheme Meetings were as follows:

(a)    100% of the votes cast were in favour of the Ordinary Scheme, and 100% of the shareholders who voted were in favour of the Ordinary Scheme; and

(b)    100% of the votes cast were in favour of the Sentinel Scheme, and 100% of the shareholders who voted were in favour of the Sentinel Scheme.

It follows that the resolutions were passed by the requisite statutory majorities, as specified in s 411(4)(ii) of the Act.

30    Finally in relation to the Scheme Meetings, Viridian raised one matter with respect to voting, and in particular the ability of shareholders to lodge a direct vote ahead of the Scheme Meetings.

31    The notice of meeting for each Scheme Meeting stated that shareholders may record their vote in one of three ways:

(1)    by lodging a direct vote electronically before the relevant Scheme Meeting;

(2)    by appointing a proxy to attend the Scheme Meeting online and vote on the shareholders behalf; or

(3)    by attending the Scheme Meeting online and casting a vote at that meeting.

32    It is not uncommon for shareholders to be permitted to vote in each of these ways in a scheme of arrangement, and there are a number of decisions which refer to the lodging of direct votes ahead of a scheme meeting: Re PSC Insurance Group Limited [2024] FCA 946 at [55] (Neskovcin J); Re Telstra Corporation Ltd (No 2) (2022) 163 ACSR 543; [2022] NSWSC 1460 at [15] (Black J); Re Australia and New Zealand Banking Group Limited (No 2) [2022] FCA 1547 at [22] (O’Bryan J); Re Costa Group Holdings Limited [2023] FCA 1562 (O’Callaghan J) at [3(a)(iii)].

33    However, in the present case, because the Viridian constitution does not expressly permit such direct voting ahead of a meeting, Viridian applies for an order to the effect that any Viridian shareholders who lodged a direct vote prior to the relevant Scheme Meeting is deemed to have been "present" at the relevant Scheme Meeting for the purposes of calculating the requisite majorities in s 411(4)(a)(ii) of the Act: an order to this effect was made in Re Mainstream Group Holdings Limited (Scheme Meeting Orders) [2021] FCA 1163 (Perram J). In the circumstances, such an order is appropriate.

Notice of second Court hearing

34    Order 13 of the FCH Orders required Viridian to publish by no later than 28 August 2025, an announcement on its website setting out the details for the second Court hearing and the process for any person wishing to appear at that hearing to oppose the approval of the Schemes. Order 13 required that announcement be substantially in the form which appears at Annexure GC-13 to the Calder Affidavit (Notice of SCH).

35    Viridian hosted a webpage which contained various information in relation to the Schemes (Schemes Webpage) which went ‘live’ on 21 August 2025 (following receipt of the FCH Orders). Due to an administrative oversight, the Notice of SCH was not published on the Schemes Webpage by 28 August 2025 as required by the FCH Orders, but was published on 4 September 2025.

36    Whilst regrettable, I am satisfied that no substantial injustice has been caused by the non-compliance, for the following reasons:

(a)    pursuant to r 3.4 of the Corporations Rules, notice of the second Court hearing is to be published in a newspaper at least 5 days before the date of that hearing. In the present case, this would have required the Notice of SCH to have been published by 22 September 2025. However, it is now common practice to obtain orders dispensing with compliance with r 3.4, in light of paragraph 3(f) of the Schemes Practice Note which states that:

The Court will be prepared to dispense with the publication of a notice of the second Court hearing in a newspaper, if notice can be given by an announcement made on the Australian Securities Exchange or by an announcement on the scheme proponent's website if it is not listed.

The dispensation order is commonly followed by an order requiring publication of the notice on the ASX Announcements platform or the scheme proponent’s website on a specific date, which is usually 5 business days before the scheme meeting. Here, 28 August 2025 was selected, which was a month before the date of the second Court hearing. Although there was non-compliance with the FCH Orders, shareholders nevertheless received substantially longer notice of the second Court hearing – being 26 days’ notice – than they would have if the standard position under the Corporations Rules had applied;

(b)    the date of the second Court hearing was included in the Explanatory Booklet, and was displayed on the Scheme Webpage from 21 August 2025;

(c)    Viridian has not received any notice from any person wishing to appear at the second Court hearing to oppose the approval of the Schemes.

37    For these reasons, I am satisfied that it is appropriate for the Court to make an order under s 1322(4)(d) of the Act nunc-pro-tunc extending the period provided for in order 13 of the FCH Orders to 4 September 2025.

38    Therefore, I am satisfied that, with the making of the order in respect of Notice of the SCH pursuant to s 1322(4)(d), the statutory and procedural requirements have been complied with and the Court’s supervisory discretion to approve the Schemes has been enlivened.

Conditions Precedent

39    The Schemes were subject to a number of conditions precedent, such as the approval of Viridian's shareholders and the Court.

40    Before approving a scheme, the Court will ordinarily require that all conditions precedent to the scheme (other than the Court's approval of the scheme and the scheme coming into effect) have been satisfied or waived.

41    The Second Cheung Affidavit annexed conditions precedent certificates signed by Viridian and Bidco confirming that all conditions precedent to the Ordinary Scheme and the Sentinel Scheme have been satisfied or waived (other than the conditions relating to Court approval of the Ordinary Scheme and the Sentinel Scheme).

discretion to approve the scheme

42    I refer in [16] to the factors which the Court considers in exercising its discretion whether to approve a scheme, including whether the Court considers the scheme is fair and reasonable so that an intelligent and honest shareholder, properly informed and acting alone, might approve it: Re Midway at [37]; Re AWA at [43]; Re Crown at [39]; Re iSelect at [42]; Re Carbon Revolution at [56]; Re Costa at [27].

43    I am satisfied that the Scheme is fair and reasonable for the following reasons:

(a)    the overwhelming support of Viridian's shareholders reflected in the voting results of the Scheme Meetings, which is further emphasised by the very high voter turnout, as discussed at [28]-[29]. Courts have held that the shareholders' vote in favour of a scheme is evidence of its inherent fairness, and that shareholders are the best judges of their own commercial interests, such that the Court should be reluctant to make decisions contrary to the views of shareholders expressed at meetings. “That is all the more so where the scheme has attracted a high shareholder turnout, and voting Scheme Shareholders overwhelmingly support the scheme”: Re Probiotec at [34];

(b)    the recommendation from all Viridian directors that Viridian shareholders vote in favour of the Schemes, for the reasons given in the Explanatory Booklet;

(c)    the opinion of the independent expert that the Schemes are fair and reasonable and, therefore, is in the best interests of Viridian's shareholders, in the absence of a superior proposal;

(d)    the disclosures in the Explanatory Booklet setting out a detailed description of the Schemes, including their potential benefits and disadvantages;

(e)    there is no application to oppose the orders approving the Schemes, and no evidence suggesting any oppression in the conduct of the Scheme Meetings; and

(f)    the Schemes contain measures to protect shareholders against performance risk.

VESOP Arrangements

44    Finally, Viridian raises one additional matter for the Court's consideration, which concerns the proposed arrangements in relation to the Viridian Employee Share Ownership Plan (VESOP). As noted in the Calder Affidavit:

(a)    VESOP allows Viridian employees to acquire shares in Viridian Employee Share Ownership Plan Ltd (VESOP Co);

(b)    VESOP Co acquires one Ordinary Share in Viridian for every VESOP Co share it has on issue;

(c)    shares in VESOP Co entitle their holders to certain economic benefits in respect of the Ordinary Shares in Viridian that VESOP Co holds, such as dividends;

(d)    on implementation of the Ordinary Scheme, VESOP Co will receive the Scheme Consideration to which it is entitled as an Ordinary Shareholder, following which it will endeavour to distribute the Scheme Consideration to each VESOP Co shareholder.

45    These matters were disclosed in section 5.3(e) of the Explanatory Booklet.

46    VESOP Co has elected to receive the cash consideration of $5.35 for each Scheme Share it holds. Upon the transfer of its Scheme Shares to Bidco and receipt of the cash consideration, VESOP Co will incur a capital gains tax liability (VESOP Tax Liability). However, VESOP Co does not have sufficient cash to discharge the VESOP Tax Liability, which Viridian estimates to be approximately $419,000. Accordingly, as set out in the Barnard Affidavit, the following arrangements are proposed for VESOP Co to distribute the Scheme Consideration to each VESOP Co shareholder following implementation of the Schemes:

(a)    Viridian Investment Fund No 1 Pty Ltd (VIF) (a shareholder of Viridian and which is controlled by Mr Calder) will acquire the VESOP Co shares from VESOP Co shareholders at a price per share equal to the cash consideration received by VESOP Co under the Ordinary Scheme (ie $5.35 per Scheme Share);

(b)    for this to occur, VESOP Co will loan VIF an amount equal to the aggregate amount of the cash consideration received by VESOP Co under the Ordinary Scheme (Loan Amount), which will be used by VIF to pay the VESOP Co shareholders the acquisition price for their VESOP Co shares;

(c)    the VESOP Tax Liability will then be funded by Viridian by Viridian paying the amount of that VESOP Tax Liability to VIF (Facilitation Fee), and VIF then paying the Facilitation Fee to VESOP Co as part repayment of the Loan Amount. VESOP Co will then use the Facilitation Fee to pay the VESOP Tax Liability; and

(d)    subsequent to the transfer of the VESOP Co shares to VIF at a price of $5.35 per share, it is intended that VESOP Co will undertake a selective capital reduction of VIF's VESOP Co shares in consideration for an amount equal to the remaining balance of the Loan Amount which, at the direction of VIF, will be used to repay the balance of the Loan Amount by way of set-off.

47    One effect of these arrangements is that the tax liability of VESOP Co as a Scheme Shareholder is being met by Viridian. However, Viridian submits, and I accept, that this does not give rise to any collateral benefit issue, or any other issue relevant to the Court’s discretion to approve the Schemes. VESOP Co is not in the position of an ordinary Scheme Shareholder, in the sense that it will not retain any benefit from participating in the Schemes. It will, in effect, pass on the cash consideration it receives from Bidco to the VESOP Co shareholders in full, to reflect their beneficial interests in the underlying Scheme Shares which VESOP Co holds on their behalf. The VESOP Co shares will subsequently be cancelled, and VESOP Co will be deregistered.

48    Moreover, these arrangements had no impact on the way in which VESOP Co voted its shares at the Scheme Meeting, as it had already stated its intention to vote all shares in favour of the Ordinary Scheme prior to these arrangements in relation to the Facilitation Fee. Finally, and in any event, VESOP Co only holds around 2.6% of the total number of Ordinary Shares on issue.

49    Separately from the Scheme Consideration, Viridian intends to pay a special dividend of up to 8 cents per Viridian share, subject to the Ordinary Scheme becoming effective (Special Dividend). If the Special Dividend is paid, it will not have any impact on the Scheme Consideration.

50    The proposed Special Dividend is addressed in section 5.4 of the Explanatory Booklet, which also notes that the Special Dividend, if declared, will be subject to various 'Special Dividend Adjustments', including to reflect any difference between the Actual Transaction Costs and the Estimated Transactions Costs.

51    On 30 September 2025, Bidco and Viridian agreed, by way of a Deed of Amendment and Consent, to reduce the Special Dividend as a result of the Facilitation Fee. The Special Dividend was also agreed to be reduced as a result of the forgiveness by Viridian of two outstanding debts of an aggregate balance of $194,215.90. These debts relate to pre-approved loans from its wholly owned subsidiary, Infinity Capital Finance Pty Ltd (ICF), to two Viridian employees for the purpose of them acquiring Viridian securities. These employees’ shares will be cancelled and the ICF debts written-off. The Special Dividend will be reduced by $0.0119 per share as a result of the Facilitation Fee and the forgiveness of these two debts. Viridian submits, and I accept, that this reduction in the amount of the Special Dividend is de minimus, and in any event will have no impact on the Schemes or the amount of Scheme Consideration to which Scheme Shareholders are entitled.

52    Taking in to account the VESOP Arrangements, I remain satisfied that the Schemes are fair and reasonable so that an intelligent and honest shareholder, properly informed and acting alone, might approve it.

53    I am also satisfied that there is no reason to not think all matters that could be considered relevant to the exercise of the Court's discretion have been drawn to the Court's attention, and that ASIC has been given the opportunity to draw the Court's attention to any relevant matter.

section 411(17)

54    The Court's power to approve a members' scheme is restricted by s 411(17) of the Act. At the approval stage, the Court must be satisfied there is no proscribed purpose as described in s 411(17)(a), or the Court must be provided with a statement in writing by ASIC that it has no objection to the arrangement.

55    ASIC has provided a letter dated 29 September 2025 stating that it has “no objection” to the Schemes. This letter satisfies the requirements of s 411(17)(b), and consequently the bar under s 411(17) to approval of the Schemes has been removed.

exemption from s 411(11)

56    Section 411(11) requires, subject to s 411(12), that a copy of the Court's order approving a scheme of arrangement be annexed to every copy of the company's constitution issued after the order is made. Section 411(12) allows the Court to exempt a body from compliance with this provision or to determine the period during which it shall comply.

57    In Re Equinox Resources Ltd (2004) 49 ACSR 692; [2004] WASC 143 at [22] EM Heenan J stated the following regarding the purpose of s 411(11):

[T]he purpose of that provision is 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.

58    The above passage has been quoted with approval in a number of subsequent decisions: See, eg, Re Midway at [43]; Re AWA at [49]; Re Crown at [72]; Re iSelect at [52]; Re Costa at [33]; Re Security Matters Ltd (2023) 167 ACSR 294; [2023] FCA 140 at [160] (O’Callaghan J); Re Isentia at [15]; Re APN Property Group Limited (No 3) [2021] VSC 490 at [66] (Osborne J).

59    In Viridian's submission, exemption from compliance with s 411(11) is appropriate in the present circumstances given that:

(a)    the Schemes will not alter the constitution of Viridian or the rights of Viridian's shareholders, creditors or other persons dealing with the company;

(b)    no ongoing purpose will be served by requiring the orders approving the Schemes to be annexed to Viridian's constitution;

(c)    current members of Viridian are fully informed of the Schemes and will be informed regarding the Court's approval of the Schemes;

(d)    immediately following implementation of the Schemes, Viridian will be a wholly owned subsidiary of Bidco, which is well aware of the Schemes; and

(e)    an order under s 411(12) is regularly made on the above basis.

60    I accept Viridian’s submission that exemption from the requirements of s 411(11) is appropriate in the circumstances.

conclusion

61    I am satisfied that all applicable statutory and procedural requirements for approval of the Schemes have been met, and it is appropriate that the Court exercise its discretion in favour of approving the Schemes.

disposition

62    I will make the orders in the form proposed.

Associate:

Dated:    9 October 2025