Federal Court of Australia

Amaero Ltd, in the matter of Amaero Ltd [2026] FCA 596

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to section 411(1) of the Corporations Act 2001 (Cth) (Act):

(a)    the Plaintiff convene a meeting (Share Scheme Meeting) of the holders of fully paid ordinary shares in the Plaintiff (Shareholders) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement between the Plaintiff and the Shareholders in the terms set out in Annexure C to the Scheme Booklet which is Exhibit 2 in the proceedings (Shareholder Scheme); and

(b)    the Plaintiff convene a meeting (Option Scheme Meeting) of the unlisted option holders in the Plaintiff (Option Holders) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement between the Plaintiff and the Option Holders in the terms set out in Annexure D to the Scheme Booklet which is Exhibit 2 in the proceedings (Option Holder Scheme).

2.    Pursuant to section 1319 of the Act:

(a)    the Share Scheme Meeting be held on 5 June 2026 commencing at 10.00 am (Sydney time) virtually via an online platform at www.investor.automic.com.au/#/home (as to virtual access, the meeting is to be accessed substantially in accordance with the instructions contained in the Notice of Share Scheme Meeting set out in Annexure G of the Scheme Booklet);

(b)    the Option Scheme Meeting be held on 5 June 2026 commencing at the later of 10.30 am (Sydney time) and the conclusion of the Share Scheme Meeting virtually via an online platform at www.investor.automic.com.au/#/home (as to virtual access, the meeting is to be accessed substantially in accordance with the instructions contained in the Notice of Option Scheme Meeting set out in Annexure H of the Scheme Booklet);

(c)    the Share Scheme Meeting be convened, held and conducted in accordance with the provisions of Pt 2G.2 of the Act that apply to members of a company, and the provisions of the Plaintiff’s constitution that are not inconsistent with the Act and these orders; and

(d)    the Option Scheme Meeting be convened, held and conducted in accordance with the provisions of Pt 2G.2 of the Act that apply to members of a company, and the provisions of the Plaintiff’s constitution that are not inconsistent with the Act and these orders.

3.    The Scheme Booklet, substantially in the form of Exhibit 2 in the proceedings, is hereby approved as the explanatory statements for the Schemes for distribution to Shareholders and Option Holders for the purposes of section 412(1)(a) of the Act (Scheme Booklet).

4.    The Share Scheme Meeting be convened by sending the following documents on or before 8 May 2026 to each Shareholder whose name is recorded in the Plaintiff’s register of members as being a Shareholder as at 7.00 pm (Sydney time) on Friday, 1 May 2026:

(a)    those Shareholders who have opted in to receive communication via email and provided an email address to the Plaintiff for shareholder communications (Email Shareholders) are to be sent an email which includes access by embedded link to the following:

(i)    an electronic copy of the Scheme Booklet;

(ii)    an online portal or website that is accessible by Email Shareholders and which enables Email Shareholders to lodge their proxy for the Share Scheme Meeting and voting instructions online,

(Email Broadcast),

(b)    those Shareholders who have not opted in to receive communication either via email or hard copy communications (Non Electing Postal Shareholders), who have a postal address shown on the register of members of the Plaintiff as being within Australia, are to be sent, by prepaid ordinary post to their postal address:

(i)    a letter in respect of the Share Scheme Meeting which encloses a printed copy of the Scheme Booklet (Share Scheme Letter Notification);

(ii)    a personalised single proxy form (Proxy Form);

(iii)    a reply prepaid envelope for the return of that Shareholder’s Proxy Form;

(c)    those Shareholders who have opted in to receive hard copy communications (Electing Postal Shareholders), who have a postal address shown on the register of members of the Plaintiff as being within Australia are to be sent, by prepaid ordinary post to their postal address:

(i)    a letter in respect of the Share Scheme Meeting (Electing Postal Shareholder Letter), which encloses a printed copy of the Scheme Booklet;

(ii)    a personalised single Proxy Form;

(iii)    a reply prepaid envelope for the return of that Shareholder’s Proxy Form;

(d)    those Electing Postal Shareholders and Non Electing Postal Shareholders whose postal address is shown on the register of members of the Plaintiff as being outside Australia, are to be sent by pre-paid airmail post addressed to the relevant address recorded in the Plaintiff’s register:

(i)    a Share Scheme Letter Notification or an Electing Postal Shareholder Letter (as applicable);

(ii)    a printed copy of the Scheme Booklet (for Electing Postal Shareholders only);

(iii)    a personalised Proxy Form; and

(iv)    a self-addressed envelope for the return of that Shareholder’s Proxy Form.

(e)    if the Plaintiff, through its share registry services provider, receives an automatic electronic “bounce back” notification that the Email Broadcast was unable to be delivered to the nominated email address of any of the Shareholders (Undelivered Email Recipients), the Share Scheme Letter Notification, the Proxy Form and a reply-paid envelope are to be sent by pre-paid ordinary post (in the case of Shareholders within Australia), or the Share Scheme Letter Notification, the Proxy Form and an unstamped envelope return addressed to the Plaintiff’s company registry are to be sent by pre-paid airmail (in the case of Shareholders outside Australia), to the Undelivered Email Recipients’ respective postal addresses.

5.    The Option Scheme Meeting be convened by sending the following documents on or before Friday, 8 May 2026 to each Option Holder whose name is recorded in the Plaintiff’s register of members as being an Option Holder as at 7.00 pm (Sydney time) on Friday, 1 May 2026:

(a)    those Option Holders who have opted in to receive communication via email and provided an email address to the Plaintiff for option holder communications (Email Option Holders) are to be sent the Email Broadcast by email to their nominated email address;

(b)    those Option Holders who have not opted in to receive communication either via email or hard copy communications (Non Electing Postal Option Holders), who have a postal address shown on the register of members of the Plaintiff as being within Australia, are to be sent, by prepaid ordinary post to their postal address:

(i)    a letter in respect of the Option Scheme Meeting which encloses a printed copy of the Scheme Booklet (Option Scheme Letter Notification);

(ii)    a personalised single Proxy Form;

(iii)    a reply prepaid envelope for the return of that Option Holder’s Proxy Form;

(c)    those Option Holders who have opted in to receive hard copy communications (Electing Postal Option Holders), who have a postal address shown on the register of members of the Plaintiff as being within Australia are to be sent, by prepaid ordinary post to their postal address:

(i)    a letter in respect of the Option Scheme Meeting (Electing Postal Option Holder Letter), which encloses a printed copy of the Scheme Booklet;

(ii)    a personalised single Proxy Form;

(iii)    a reply prepaid envelope for the return of that Option Holder’s Proxy Form;

(d)    those Electing Postal Option Holders and Non Electing Postal Option Holders whose postal address is shown on the register of members of the Plaintiff as being outside Australia, are to be sent:

(i)    an Option Scheme Letter Notification or an Electing Postal Option Holder Letter (as applicable);

(ii)    a printed copy of the Scheme Booklet (for Electing Postal Option Holders only);

(iii)    a personalised Proxy Form; and

(iv)    a self-addressed envelope for the return of that Option Holder’s Proxy Form.

(e)    if the Plaintiff, through its share registry services provider, receives an automatic electronic “bounce back” notification that the Email Broadcast was unable to be delivered to the nominated email address of any of the Email Option Holders (Undelivered Option Holder Email Recipients), the Proxy Form, the Scheme Booklet and a reply-paid envelope are to be sent by pre-paid ordinary post (in the case of Option Holders within Australia), or the Proxy Form, the Scheme Booklet and an unstamped envelope return addressed to the Plaintiff’s company registry are to be sent by pre-paid airmail (in the case of Option Holders outside Australia), to the Undelivered Option Holder Email Recipients’ respective postal addresses.

6.    Dispatch of the Scheme Booklet be subject to the document’s registration with the Australian Securities and Investments Commission (ASIC) pursuant to section 412(6) of the Act.

7.    Pursuant to section 1319 of the Act:

(a)    the Plaintiff may determine that, for the purposes of the Share Scheme Meeting, all of the ordinary shares in the Plaintiff be taken to be held by the person, persons or bodies corporate who held them as at 7.00 pm (Sydney time) on Wednesday, 3 June 2026;

(b)    the Plaintiff may determine that, for the purposes of the Option Scheme Meeting, all of the unlisted options in the Plaintiff be taken to be held by the person, persons or bodies corporate who held them as at 7.00 pm (Sydney time) on Wednesday, 3 June 2026;

(c)    the Plaintiff may determine that only the proxy forms in relation to the Share Scheme Meeting received by the Plaintiff by no later than 10.00 am (Sydney time) on Wednesday, 3 June 2026 are valid;

(d)    the Plaintiff may determine that only the proxy forms in relation to the Option Scheme Meeting received by the Plaintiff by no later than 10.30 am (Sydney time) on Wednesday, 3 June 2026 are valid;

(e)    the Chairperson of the Share Scheme Meeting be Hank Holland or in his absence, Erki Levy;

(f)    the Chairperson of the Option Scheme Meeting be Hank Holland or in his absence, Erki Levy;

(g)    the Chairperson of the Share Scheme Meeting shall have the power to adjourn the meeting in their absolute discretion to such time, date and place as they consider appropriate;

(h)    the Chairperson of the Option Scheme Meeting shall have the power to adjourn the meeting in their absolute discretion to such time, date and place as they consider appropriate;

(i)    a poll must be taken to decide the resolutions put to the vote at the Share Scheme Meeting, except for procedural motions; and

(j)    a poll must be taken to decide the resolutions put to the vote at the Option Scheme Meeting, except for procedural motions.

8.    The Plaintiff publish a Notice of Hearing by an announcement to the Australian Securities Exchange and by publication on the Plaintiff's website's investor center announcements webpage (accessible via https://investorhub.amaero.com.au/), not later than 5 days prior to the date fixed for the hearing of any application to approve the Schemes, and the Plaintiff be relieved from compliance with rule 3.4 and Form 6 of the Federal Court (Corporations) Rules 2000 (Rules) to the extent necessary.

9.    Rule 2.15 of the Rules shall not apply to the Share Scheme Meeting.

10.    Rule 2.15 of the Rules shall not apply to the Option Scheme Meeting.

11.    Pursuant to rule 1.3 of the Rules, compliance with the requirements of rule 2.4(1) of the Rules is dispensed with, to the extent that rule requires the affidavit filed with the Originating Process to state the facts in support of the process.

12.    The proceedings be adjourned to 10.15 am on 10 June 2026 before Justice Owens for the hearing of any application to approve the Schemes.

13.    The Plaintiff has liberty to apply on 2 days’ notice.

14.    These orders be entered forthwith.

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

REASONS FOR JUDGMENT

OWENS J:

1    The plaintiff, Amaero Ltd, applies for orders under section 411(1) and directions pursuant to section 1319 of the Corporations Act 2001 (Cth) for the convening of a meeting of its shareholders, and the convening of a meeting of its option holders, to consider proposed schemes of arrangement. If implemented, the schemes will result in a restructuring of the Amaero corporate group whereby its holding (and ultimate parent) company will be domiciled in the United States of America as opposed to Australia. On 7 May 2026, I made the orders and directions sought. These are my reasons for doing so.

2    Amaero is an Australian public company limited by shares that was incorporated in 2019. Its shares are quoted on the ASX and it also has unlisted option holders. Amaero is a producer of high-value refractory and titanium alloy spherical powders and a manufacturer of near-net-shape parts for mission critical components across defence, space, aviation, medical and industrial sectors.

3    The Amaero Group (consisting of Amaero and various subsidiaries in the United States and Australia) does not have any assets in Australia, apart from a bank account with the National Australia Bank Limited. This is used for cash and trade payables for internal administrative, accounting, tax, compliance and capital raising activities in respect of Amaero (which constitute the extent of its limited business activities in Australia). Otherwise, all Amaero Group operations are conducted, and revenue is generated and received, in the United States, with the two Australian subsidiaries in the process of being deregistered.

4    The schemes in the form proposed are sometimes referred to as “re-domiciliation schemes” or “top-hatting schemes”. They involve the superimposition of a new holding company, Amaero Inc., incorporated in the US State of Delaware (which I will refer to as Amaero US HoldCo) at the apex of the corporate structure for the Amaero Group and the transfer of all the issued shares and options in Amaero to Amaero US HoldCo. Amaero US HoldCo was incorporated in February 2026 and has no assets or liabilities, other than in connection with its incorporation and agreements concerning the proposed schemes.

5    If the share scheme is implemented, shareholders will receive, for each share in Amaero they hold, one Amaero US HoldCo CHESS Depository Interest, or CDI. A CDI is a financial product quoted on the ASX that confers a beneficial interest in an underlying security of a foreign company. CHESS Depositary Nominees Pty Ltd (a wholly-owned subsidiary of the ASX) will hold the shares in Amaero US HoldCo in respect of which the beneficial interest represented by the Amaero US HoldCo CDIs are held.

6    The number of shares to be issued by Amaero US HoldCo is 1/40th of the number of shares presently on issue by Amaero. So as to ensure that the beneficial interest in Amaero US HoldCo shares is equivalent to one Amaero share, it follows that each Amaero US HoldCo CDI will represent a beneficial interest in 1/40th of an Amaero US HoldCo share.

7    The holders of Amaero US HoldCo CDIs will receive the same economic benefits as if they actually owned the underlying shares, and will also be entitled to direct the voting of the underlying shares. Because the Amaero US HoldCo CDIs will be listed on the ASX, it follows that Amaero US HoldCo will be subject to all of the ASX Listing Rules.

8    Holders of Amaero US HoldCo CDIs will, should they so desire, be entitled to convert their CDIs into Amaero US HoldCo shares on a 40:1 basis once the scheme is completed.

9    If the option scheme is implemented, all the Amaero options held by option holders will be cancelled and, in exchange, each option holder will receive, for each option in Amaero they held, one Amaero US HoldCo option. The exercise of that option entitles the option holder to one Amaero US HoldCo CDI, being the equivalent economic interest to that previously held.

10    Amaero has prepared a scheme booklet to dispatch to the scheme shareholders and scheme option holders. It sets out the terms of the schemes, their advantages and disadvantages, and annexes a number of relevant associated documents. One such document is an independent expert report opining that the schemes are in the best interests of the shareholders and option holders.

11    The Chairman’s Letter, also contained in the scheme booklet, summarises the key reasons advanced in support of the schemes, including that they will position the Amaero Group in the larger, deeper US capital market, facilitate access to a broader US investor pool, improve access to the lower-cost US debt and equity capital markets, simplify Amaero Group’s corporate structure for a potential future US merger, position Amaero Group for a potential US IPO and mitigate foreign control concerns in pursuit of classified contracts with the US government. Possible disadvantages of the schemes were identified as including potential taxation consequences, the uncertain trading value of Amaero CDIs, exposure to increased litigation risk, and consequences associated with substituting a direct equity interest in an Australian company with becoming a CDI or option holder in a foreign company. These reasons are also considered and stated in the independent expert report.

12    The Amaero directors have unanimously recommended that the shareholders and option holders vote in favour of the schemes, absent a superior proposal and subject to the independent expert continuing to conclude that the schemes are in the best interests of the shareholders and option holders. It has also been communicated that each Amaero director intends to vote in favour of the schemes.

EVIDENCE

13    Amaero relied on the following evidence:

(a)    An affidavit of Jack Pembroke-Birss, a partner of Norton Rose Fulbright, the solicitor acting for the plaintiff, affirmed 21 April 2026. This included Exhibit JPB-1, comprising company searches for the plaintiff dated 20 April 2026 and a lodgement confirmation for the draft scheme booklet received from ASIC on 20 April 2026.

(b)    An affidavit of Brett Allen Paduch, Chief Financial Officer for Amaero, affirmed 30 April 2026, including Exhibit BAP-1. Among other documents, this contained the plaintiff’s scheme booklet. Mr Paduch gave evidence about the business and structure of the Amaero Group, due diligence and verification of the scheme booklet and the dealings and interests of the proposed chairpersons.

(c)    An affidavit of Sarah Louise Roper, a solicitor of Norton Rose Fulbright, affirmed 30 April 2026. This included Exhibit SLR-1, containing various correspondence with the ASX and ASIC and a circular resolution of Amaero’s directors authorising lodgement of the draft scheme booklet.

(d)    A second affidavit of Sarah Louise Roper, affirmed 5 May 2026, including Exhibit SLR-2. This contained additional correspondence with the ASX and ASIC.

14    During the hearing, I was provided with a typeset version of the scheme booklet which I admitted as Exhibit 1. For reasons explained below, at the conclusion of the hearing it was agreed that a small number of amendments would be made to the scheme booklet. A revised version of the typeset scheme booklet was provided to me the following day, which I admitted as Exhibit 2.

GOVERNING PRINCIPLES

15    In Xplore Wealth Limited, in the matter of Xplore Wealth Limited [2020] FCA 1868 at [23]-[24], Markovic J summarised the principles that apply when considering whether the Court should order the convening of a meeting of a company’s members (or creditors) under section 411(1) of the Corporations Act as follows (see also, e.g., Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited [2015] FCA 341 at [12]):

At the first court hearing, the Court will order the convening of a scheme meeting and approve a draft explanatory statement to be sent to scheme members if it is satisfied of the following matters:

(1)    the plaintiff is a Pt 5.1 body;

(2)    the proposed scheme is a compromise or (relevantly) an arrangement within the meaning of s 411(1) of the Act;

(3)    the scheme booklet will provide proper disclosure to shareholders;

(4)    the scheme is bona fide and properly proposed;

(5)    the Australian Securities and Investments Commission (ASIC) has had a reasonable opportunity to examine the terms of the scheme and the scheme booklet and make submissions to the Court, and has had 14 days’ notice of the date of the first court hearing; and

(6)    the procedural requirements of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules) have been met,

see Orion Telecommunications Ltd, re Orion Telecommunications Ltd [2007] FCA 1389 at [5].

In addition, “the court will not ordinarily summon a meeting unless the scheme is of such a nature and case in such terms that, if it receives the statutory majority at the … meeting the court would be likely to approve it on the hearing of a petition which is unopposed”: F T Eastment & Sons Pty Ltd v Metal Rood Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72.

16    Insofar as the Court’s discretion to exercise the power under section 411(1) of the Corporations Act once those necessary preconditions have been met is concerned, in SILK Laser Australia Limited, in the matter of SILK Laser Australia Limited [2023] FCA 1191 at [24], Halley J said:

In MOQ [Limited, in the matter of MOQ Limited [2022] FCA 1160] at [12]-[17], I explained that the following principles guided the exercise of the Court’s discretion:

…

(b) At the first court hearing, the Court exercises its supervisory jurisdiction in order to review the scheme and to raise any queries that it might have with the plaintiff: Alstom Signalling Solutions Pty Ltd, in the matter of Alstom Signalling Solutions Pty Ltd v Alstom Transport Australia Pty Limited [2016] FCA 838 at [21] (Gleeson J). The Court needs to be satisfied that there are no obvious flaws in the scheme and that there is an adequate explanation provided to persons who have a financial interest in the proposed scheme: In the matter of Coca-Cola Amatil Limited [2021] NSWSC 270 at [13] (Black J).

(c) The Court should consider at the first court hearing whether the proposed scheme is not inappropriate and whether it is one that sensible business people might consider is of benefit to its members: Australian Leaders Fund Ltd v Equity Trustees Ltd, in the matter of Australian Leaders Fund Ltd [2021] FCA 88 at [15] (Stewart J), citing Re Sonodyne International Ltd (1994) 15 ACSR 494 at 499 (Hayne J); Integra Mining Limited, in the matter of Integra Mining Limited [2012] FCA 1414 at [11] (McKerracher J); and Amcom at [10].

(d) The Court does not need to be satisfied that no better scheme could have been proposed and ultimately, that is a question for the members themselves to determine at the scheme meeting: Associated Advisory Practices Limited, in the matter of Associated Advisory Practices Limited {2013] FCA 761 at [22] (Farrell J); Coca-Cola Amatil at [13]; and Leaders Fund at [15].

(e) Although the second court hearing is when the Court makes its final determination, in practice, the first court hearing is where the Court will typically intervene if it has concerns. A reason advanced for this, is that the market views the approval by the Court of the convening of scheme meetings as providing assurance that the scheme, at least in form and substance, has received a preliminary clearance by the Court and that trading in the company’s securities thereafter will proceed on that basis: Re Archaean Gold NL (1997) 23 ACSR 143 at 147 (Santow J); Leaders Fund at [15].

17    It is well established that the question of whether or not to accept particular consideration for securities is quintessentially a commercial matter for the members to assess, and they ought not be prevented from having the opportunity to do so, provided that the Court can be satisfied that they are acting on sufficient information and with time to consider what they are voting on: see, e.g., Re AWA Mutual Limited [2023] FCA 1551 at [54] (Anderson J); Re Newcrest Mining Limited [2023] FCA 1080 at [30] (Beach J); Re Oz Minerals Limited [2023] FCA 197 at [15] (Beach J); Re Carbon Revolution Limited [2023] FCA 1081 at [22] (Moshinsky J).

FORMAL REQUIREMENTS MET

18    I am satisfied that each of the necessary preconditions to the Court’s exercise of power under section 411(1) was established by the evidence upon which Amaero relied, namely:

(a)    Amaero is registered under the Corporations Act, and thus is a “Part 5.1 body”.

(b)    The proposed schemes are each an “arrangement” within the meaning of section 411, which contemplates a wide class of arrangements that are within the company’s power, not contrary to law and that touch or concern the company’s rights: see, e.g., Re Silver Lake Resources Limited [2024] NSWSC 631 at [9] (Black J). Proposals for re-domiciliation or top-hatting schemes are such an arrangement.

(c)    There will be proper disclosure of relevant matters to shareholders and option holders by the scheme booklet, which contains the prescribed information. The information to be provided is regulated by section 412 of the Corporations Act, and reg 5.1.01 and Schedule 8 of the Corporations Regulations 2001 (Cth). Those requirements are satisfied here (save to the extent that ASIC has granted relief from compliance). During the hearing I raised certain matters that I considered should be disclosed, or more clearly disclosed, in the scheme booklet. I was provided with an amended booklet, which I admitted as Exhibit 2, which I am satisfied addresses my concerns.

(d)    The scheme is bona fide and properly proposed. By the scheme implementation deed, Amaero has committed itself to propounding the scheme which provides prima facie evidence of this fact: Re ELMO Software Pty Ltd [2023] NSWSC 12 at [18] (Black J).

(e)    ASIC has been given more than 14 days’ notice of this hearing as required under section 411(2) of the Corporations Act. It has also had a reasonable opportunity to consider the terms of the schemes and the draft scheme booklet, having been provided with a draft on 20 April 2026. At the hearing, I was directed to SLR-2 which contains a letter from ASIC stating that ASIC did not propose to appear at the first Court hearing and confirmed that ASIC had 14 days’ notice of the hearing as well as a reasonable opportunity to examine the terms of the proposed schemes and the draft explanatory statement.

(f)    An ASIC company search of Amaero was conducted on 20 April 2026, being no earlier than 7 days before the originating process was filed on 22 April 2026 (after being lodged on 21 April 2026), in conformity with rule 2.4(2) of the Federal Court (Corporations) Rules 2000 (Cth).

(g)    The chairpersons and the alternate chairpersons nominated for the proposed scheme meetings have each confirmed the matters required by rule 3.2(b) of the Corporations Rules.

(h)    Rule 3.4 of the Corporations Rules sets out certain requirements regarding the form of notice to be published for the hearing of this application pursuant to section 411(4) of the Act. For the second Court hearing in this matter, Amaero seeks dispensation from rule 3.4 (and Form 6) because it proposes to give notice of that hearing by way of an ASX and company website announcement. I am satisfied that it is appropriate to exercise the Court’s power under rule 1.3 of Corporations Rules to relieve Amaero of the requirement to comply with rule 3.4.

(i)    Rule 2.4(1) of the Corporations Rules requires an originating process to be supported by an affidavit stating the facts in support of the process. Amaero seeks dispensation from this requirement on the basis that the affidavit of Mr Pembroke-Birss did not do so. I am satisfied that it is appropriate to exercise the Court’s power under rule 1.3 of Corporations Rules to relieve Amaero of the requirement to comply with rule 2.4(1).

(j)    The proposed draft orders for the convening of the scheme meeting identify the scheme as required by rule 3.3(1) of the Corporations Rules.

19    I am also satisfied that there is otherwise no apparent reason why the scheme should not, in due course, receive the Court’s approval, if the necessary majority of votes are achieved. I note, in particular, the independent expert’s conclusion that both the proposed share scheme and proposed option scheme are in the best interests of the shareholders and option holders (as applicable).

Discretion

20    Consistent with Amaero’s ex parte disclosure obligation, counsel drew my attention to the following aspects of the scheme in the course of oral and written submissions. For the reasons outlined below, I am satisfied that none of these matters provide a reason to decline to order the convening of the meetings in relation to the schemes the subject of this application.

Performance risk and funding

21    Clause 5(b) of the Schemes of Arrangement Practice Note (GPN-SOA) states:

Where a special purpose vehicle with minimal assets is to acquire securities of substantial value under a scheme, a risk of a scheme not completing is likely to be material to securityholders, irrespective of the fact that their securities are not transferred to that special purpose vehicle until the consideration is paid. Disclosure of such a risk is also important to maintaining a fully informed market. Evidence should be led at the first Court hearing of the availability of the funding or other financial support on which the special purpose vehicle will rely to complete the scheme.

22    In this case, however, Amaero US HoldCo is not required to pay any cash under the terms of either scheme. Similarly, no funding or financial support is required to issue the CDIs or options in Amaero US HoldCo in accordance with the schemes. All that is required of Amaero US HoldCo, relevantly, is that it issue securities.

23    In that regard, I was informed that Amaero had received an opinion from US counsel that the deeds poll entered into by Amaero US HoldCo were legally binding and enforceable against it. In terms, however, the affidavit evidence only went so far as to say that the advice received was that the deeds poll would not result in a violation of any laws of the State of Delaware or applicable US federal laws. When I raised what seemed to me to be a discrepancy, I was informed that the advice also confirms that the deeds poll have been duly authorised, executed and delivered. There is nothing on the face of the deeds poll that would suggest any concern about their validity or enforceability. In light of the assurances offered to me, and the terms of clause 5(a) of the Schemes Practice Note, I am satisfied that there is no issue on this account warranting a refusal to confirm the scheme meetings.

Extraordinary General Meeting

24    The scheme booklet also includes a Notice of Extraordinary General Meeting which will occur following the option scheme meeting. The meeting is for the purpose of seeking shareholder approval for the issue of unlisted options to Tim Johnson (who has been nominated to the Amaero board of directors) under Amaero’s employee incentive plan, in accordance with ASX Listing Rule 10.14.

25    The scheme booklet at section 6.4(2)(c) sets out that the number of options that are the subject of the option scheme will vary depending on whether the resolution to be considered at the EGM is approved.

26    I am satisfied that this issue has been appropriately disclosed to shareholders and option holders.

US Securities Act of 1933 exemption

27    Pursuant to the terms of the schemes, Amaero US HoldCo is required to issue securities. In doing so, it is subject to the laws of the United States governing the issuance of securities, including the Securities Act of 1933. The scheme booklet will not, however, be filed with or reviewed by the US Securities and Exchange Commission, and the CDIs and options will not be registered under the Securities Act. Disclosure to this effect is contained in section 10.7(9) of the scheme booklet. Rather, Amaero US HoldCo intends to rely on an exemption from the general registration requirements of the Securities Act. In particular, section 3(a)(10) provides an exemption for securities issued in exchange for other securities in the following terms (emphasis added):

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

…

(10) Except with respect to a security exchanged in a case under title 11, 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;

28    Amaero has indicated that Amaero and Amaero US HoldCo propose to rely on the second Court hearing in relation to these schemes, assuming this Court’s approval is given, in order to bring themselves within that exemption. This is not the first time that such an approach has been taken. In Re Central Pacific Minerals NL [2002] FCA 239, Emmett J said this:

28    The securities in SPP that will be issued as consideration are subject to the Securities Act 1933 (U.S.). However, s 3(a)(10) of the Securities Act 1933, contains certain exemptions from compliance with that Act. The relevant requirement for the exemption for any security that is issued and exchanged for bona fide securities, is that the terms and conditions of such issuance and exchange have been approved by a court 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 have had the right to appear.

29    One of the requirements for the operation of s 3(a)(10) is that the proposed issuer of securities in respect of which the exemption is to be claimed must advise the court whose order will be relied upon, that the issuer will rely on s 3(a)(10) on the basis of the court’s approval. That requirement has been satisfied.

30    The evidence before me indicates that for the exemption to be effective, the court in question must have sufficient information before it to determine the value of both the securities to be surrendered and the securities to be issued in the proposed transaction. The exemption will be available only if the court in question both holds a hearing to determine whether the proposed terms and conditions are fair to all those who will receive securities in the exchange and to approve the fairness of the terms and conditions of the proposed exchange. Such a hearing must be open to everyone to whom securities would be issued in the proposed exchange and notice of the hearing in appropriate terms must be provided in a timely manner.

31    It is not for this Court to express any view as to whether the procedures or processes of the Court are sufficient to satisfy the requirements of the exemption in s 3(a)(10). However, it is clear that, on the hearing of an application for an order approving an arrangement under s 411(4)(b) of the Corporations Act, any security holder is entitled to be heard. The application for approval takes place in open court after formal notification and advertisement in daily newspapers circulating in Australia. Applications for approval may be opposed and indeed, there are instances of approval being refused in the light of opposition and submissions advanced at a hearing at the third stage to which I have referred.

29    See also: Re Simeon Wines Ltd [2002] SASC 204; (2002) 42 ACSR 454 at [21]-[26] (Lander J), Re Permanent Trustee Co Ltd [2002] NSWSC 1177; (2002) 43 ACSR 601 at [11]-[15] (Barrett J), and Re Solution 6 Holdings Limited [2004] FCA 1049; (2004) 50 ACSR 113 at [37]-[44] (Jacobson J).

30    The question of approval of the schemes is a matter to be considered at the second Court hearing. For now, it is enough to record that there is nothing in the indication that Amaero and Amaero US HoldCo propose to take the course outlined above that would provide a reason not to convene the scheme meetings.

Break fee and exclusivity provisions

31    As is noted in section 7.5 of the scheme booklet, Amaero is not obligated to pay a break fee to Amaero US HoldCo if the schemes do not become effective. There are similarly no exclusivity provisions. It follows that none of the issues that may arise in connection with such provisions arise here.

CONCLUSION

32    For the foregoing reasons, I am satisfied that the proposed schemes of arrangement are of such a nature, and cast in such terms, that, if they achieve the statutory majorities at the scheme meetings, the Court would be likely to approve them. Accordingly, I will make the orders sought by the plaintiff to convene the scheme meetings.

Associate:

Dated:    13 May 2026