Federal Court of Australia

Australian Strategic Materials Limited, in the matter of Australian Strategic Materials Limited [2026] FCA 616

ORDERS

THE COURT ORDERS THAT:

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

(a)    the plaintiff is to convene and hold:

(i)    a meeting (Share Scheme Meeting) of the holders of its fully paid ordinary shares (other than ‘Excluded Target Shareholders’, being Energy Fuels Inc. and its subsidiaries to the extent they are holders of fully paid ordinary shares in the plaintiff) (Scheme Shareholders) to consider and, if thought fit, approve (with or without amendment) a proposed scheme of arrangement between the plaintiff and the Scheme Shareholders (Share Scheme), the terms of which are contained in Annex 3 to the Scheme Booklet (a copy of which is at Annexure
MRJ-7 to the affidavit of Matthew Robert James Johnson affirmed on 13  May 2026 (Second Johnson Affidavit), as amended by Annexure MRJ-12 to the affidavit of Matthew Robert James Johnson affirmed on 14 May 2026 (Third Johnson Affidavit));

(ii)    a meeting (Option Scheme Meeting) of the holders of options to acquire fully paid ordinary shares in the plaintiff (Scheme Optionholders) to consider and, if thought fit, approve (with or without amendment) a proposed scheme of arrangement (Option Scheme) between the plaintiff and the Scheme Optionholders, the terms of which are contained in Annex 4 to the Scheme Booklet,

(together, the Scheme Meetings);

(b)    the Scheme Meetings are to be held at Dexus Place Perth, Level 16, 240 St  Georges Terrace, Perth WA 6000 at the following times:

(i)    the Share Scheme Meeting is to be held at 11.00 am AWST on 22 June 2026; and

(ii)    the Option Scheme Meeting is to be held at the later of 11.30 am AWST on 22 June 2026 and the conclusion or adjournment of the Share Scheme Meeting.

2.    Pursuant to s 411(1) of the Corporations Act, the Scheme Booklet, which contains the explanatory statement required by s 412(1)(a) of the Corporations Act, be approved for distribution to Scheme Shareholders and Scheme Optionholders, subject to:

(a)    the incorporation of the amendments to Annex 3 outlined in Annexure
MRJ-12 to the Third Johnson Affidavit;

(b)    the inclusion of final and completed annexures to the Scheme Booklet as follows:

(i)    the report of BDO Corporate Finance Australia Pty Ltd, the Independent Expert in relation to the Share Scheme and Option Scheme; and

(ii)    the report of KPMG Financial Advisory Services (Australia) Pty Ltd, the Investigating Accountant in connection with the Scheme Booklet;

(c)    the correction of any minor typographical or grammatical errors and final typesetting, formatting and page numbering;

(d)    any minor amendments required, requested or approved by the Australian Securities and Investments Commission (ASIC) for registration under s 412(6) of the Corporations Act;

(e)    correction or update of any relevant date references, interests held by shareholders of the plaintiff or shareholders of Energy Fuels Inc., issued capital or last trading prices, or other references to figures and data; and

(f)    the addition to the notices of Scheme Meetings contained in Annexes 7 and 8 to the Scheme Booklet of the names of the chairperson (Gavin Murray Smith) and alternate chairperson (Lisa Koch) of the Scheme Meetings and a signature block.

3.    Subject to these orders and pursuant to s 1319 of the Corporations Act, the Scheme Meetings are to be:

(a)    convened using the notices of meetings substantially in the form contained in:

(i)    Annex 7 to the Scheme Booklet, for the Share Scheme; and

(ii)    Annex 8 to the Scheme Booklet, for the Option Scheme,

with any necessary amendments contemplated by order 2 above;

(b)    convened, held and conducted:

(i)    in accordance with the provisions of Pt 2G.2 of the Corporations Act that apply to members of a company and the provisions of the plaintiff’s constitution (save for rule 14.4), as provided at Annexure RJS-1 to the affidavit of Rowena Jane Smith affirmed on 6 May 2026 (Smith Affidavit), that are not inconsistent therewith and that apply to meetings of members;

(ii)    pursuant to the arrangements for attending, participating and voting described in the notices of Scheme Meetings contained in the Scheme Booklet; and

(iii)    as if r 2.15 of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules) does not apply.

4.    Pursuant to s 1319 of the Corporations Act:

(a)    at the Share Scheme Meeting:

(i)    the Scheme Shareholders who are eligible to vote will be those whose names are recorded in the register of the members of the plaintiff at 7.00 pm AEST on 20 June 2026 (Share Scheme Voting Time);

(ii)    two Scheme Shareholders present and entitled to vote, in person or by proxy or power of attorney or by a corporate representative (if applicable), shall constitute a quorum;

(iii)    each Scheme Shareholder, present and entitled to vote, will be entitled to one vote for each fully paid ordinary share in the capital of the plaintiff that the Scheme Shareholder is registered as holding at the Share Scheme Voting Time; and

(iv)    voting on the resolution on whether to approve the Share Scheme is to be conducted by way of a poll (declared by the chairperson);

(b)    at the Option Scheme Meeting:

(i)    the Scheme Optionholders who are eligible to vote will be those whose names are recorded in the register of optionholders of the plaintiff at 7.00 pm AEST on 20 June 2026 (Option Scheme Voting Time);

(ii)    two Scheme Optionholders present and entitled to vote, in person or by proxy or power of attorney or by a corporate representative (if applicable), shall constitute a quorum;

(iii)    each Scheme Optionholder, present and entitled to vote, will be entitled to one vote for each option in the plaintiff that the Scheme Optionholder is registered as holding at the Option Scheme Voting Time; and

(iv)    voting on the resolution on whether to approve the Option Scheme is to be conducted by way of a poll (declared by the chairperson);

(c)    Gavin Murray Smith, or failing him, Lisa Koch, be the chairperson of each of the Scheme Meetings and report the result of each of the Scheme Meetings to this Court; and

(d)    the chairperson of the Scheme Meetings has the power to adjourn or postpone each of the Scheme Meetings in his or her absolute discretion to such time, date and place that the chairperson considers appropriate, and, in that event, notwithstanding any other part of these orders:

(i)    if the Share Scheme Meeting is postponed:

A.    only Scheme Shareholders whose names are recorded in the register of members of the plaintiff at 7.00 pm AEST on the date which is two calendar days before the date of the postponed meeting will be eligible to vote at the Share Scheme Meeting;

B.    a proxy in respect of the Share Scheme Meeting will be valid and effective if a proxy form is completed and delivered in accordance with its terms or a proxy is lodged online in accordance with the instructions at least 48 hours before the time scheduled for the postponed meeting; and

C.    a reference in these orders to the Share Scheme Meeting is taken to include a reference to the postponed meeting; or

(ii)    if the Option Scheme Meeting is postponed:

A.    only Scheme Optionholders whose names are recorded in the register of optionholders of the plaintiff at 7.00 pm AEST on the date which is two calendar days before the date of the postponed meeting will be eligible to vote at the Option Scheme Meeting;

B.    a proxy in respect of the Option Scheme Meeting will be valid and effective if a proxy form is completed and delivered in accordance with its terms or a proxy is lodged online in accordance with the instructions at least 48 hours before the time scheduled for the postponed meeting; and

C.    a reference in these orders to the Option Scheme Meeting is taken to include a reference to the postponed meeting.

5.    The board of directors of the plaintiff shall have the power to approve for lodgement on the plaintiff’s Australian Securities Exchange (ASX) platform announcements regarding corrections, clarifications or changes to the arrangements for the Scheme Meetings where, in the board’s discretion, such corrections, clarifications or changes are necessary to ensure that Scheme Shareholders and Scheme Optionholders as a whole will have a reasonable opportunity to participate in the Scheme Meetings, and such announcements will be taken to be sufficient notice of any corrections, clarifications or changes to the meeting arrangements, provided they are made before 11.00 am AWST on 22 June 2026 and are explained by the chairperson at the commencement of each Scheme Meeting.

6.    Subject to registration of the Scheme Booklet with ASIC pursuant to s 412(6) of the Corporations Act, the plaintiff shall, on or before 21 May 2026, dispatch the Scheme Booklet substantially in the form approved in order 2 above to each Scheme Shareholder and registered on the plaintiff’s register of members, and to each Scheme Optionholder whose name is recorded in the plaintiff’s register of optionholders, at 5.00 pm AWST on 15 May 2026 (Register Time), by sending:

(a)    in the case of each Scheme Shareholder and Scheme Optionholder who has nominated an email address for the purpose of receiving shareholder communications electronically (Electing Email Holders), an email substantially in the form of Annexure MRJ-8 to the Second Johnson Affidavit (for Scheme Shareholders) or Annexure MRJ-9 to the Second Johnson Affidavit (for Scheme Optionholders), with instructions regarding how to:

(i)    access and download the Scheme Booklet online;

(ii)    access, complete and lodge an online election form substantially in the form of Annexure RJS-15 to the Smith Affidavit; and

(iii)    access, complete and lodge an online proxy form in respect of the Scheme Meetings substantially in the form outlined at pages 606 to 607 of Annexure MRJ-7 to the Second Johnson Affidavit (for Scheme Shareholders) (Share Scheme Proxy Form) or at pages 615-616 of Annexure MRJ-7 to the Second Johnson Affidavit (for Scheme Optionholders) (Option Scheme Proxy Form);

(b)    in the case of each Scheme Shareholder and Scheme Optionholder who has expressly elected to receive physical shareholder communications by post, including notices of meeting and annual reports (Electing Postal Holder), using the methods of service set out in order 7 below:

(i)    a physical copy of the Scheme Booklet;

(ii)    a physical copy of a personalised Share Scheme Proxy Form (for Scheme Shareholders);

(iii)    a physical copy of a personalised Option Scheme Proxy Form (for Scheme Optionholders);

(iv)    in the case of each Electing Postal Holder who has a registered address in Australia, a priority pre-paid post envelope for the return of completed documents addressed to Automic Group (Automic); and

(v)    in the case of each Electing Postal Holder who has a registered address outside of Australia, an unpaid airmail or air courier envelope addressed to Automic.

(c)    in the case of each Scheme Shareholder and Scheme Optionholder who is not an Electing Email Holder or Electing Postal Holder (Non-Electing Holders), using the methods of dispatch set out in order 7 below:

(i)    a letter substantially in the form of Annexure MRJ-10 to the Second Johnson Affidavit (for Scheme Shareholders) or Annexure MRJ-11 to the Second Johnson Affidavit (for Scheme Optionholders);

(ii)    a physical copy of a personalised Share Scheme Proxy Form (for Scheme Shareholders);

(iii)    a physical copy of a personalised Option Scheme Proxy Form (for Scheme Optionholders);

(iv)    in the case of each Non-Electing Holder who has a registered address in Australia, a priority pre-paid post envelope addressed to Automic; and

(v)    in the case of each other Non-Electing Holder who has a registered address outside of Australia, an unpaid airmail or air courier envelope addressed to Automic.

7.    The plaintiff shall dispatch the documents identified in order 6 above:

(a)    to each Electing Postal Holder or Non-Electing Holder who has a registered address in Australia, by priority prepaid post; and

(b)    to each other Electing Postal Holder or Non-Electing Holder who has a registered address outside of Australia, by prepaid international airmail or air courier.

8.    The plaintiff shall not be obliged to send documents in accordance with order 6 to any person who becomes a shareholder or optionholder of the plaintiff after the Register Time.

9.    If it comes to the plaintiff’s attention that any email dispatched to an Electing Email Holder in accordance with order 6(a) results in the return of a receipt or notice that the email was undeliverable, then the plaintiff will as soon as practicable thereafter dispatch the documents identified in order 6(c) to the Electing Email Holder using the method of dispatch set out in order 7, as if the Electing Email Holder was a Non-Electing Holder.

10.    Dispatch of the documents referred to in order 6 above, in accordance with the terms of orders 6 to 9 above, is to be taken to be sufficient notice of the Scheme Meetings.

11.    Pursuant to r 5.04(1) and r 5.04(3) (Item 23(a)) of the Federal Court Rules 2011 (Cth), evidence of the dispatch of the Scheme Booklet in accordance with these orders may be given by way of statement on oath or affirmation on information and belief, at the hearing on 25 June 2026 of an application under s 411(4)(b) of the Corporations Act and, if necessary, s 411(6) of the Corporations Act, for approval of the Share Scheme and the Option Scheme.

12.    A proxy form, appointment of a corporate representative, or power of attorney to act on behalf of a Scheme Shareholder in respect of the Share Scheme Meeting will be valid and effective if, and only if, it is completed and delivered to Automic by 11.00  am AWST on 20 June 2026.

13.    A proxy form, appointment of a corporate representative, or power of attorney to act on behalf of a Scheme Optionholder in respect of the Option Scheme Meeting will be valid and effective if, and only if, it is completed and delivered to Automic by 11.30  am AWST on 20 June 2026.

14.    By no later than 19 June 2026, the plaintiff is to publish an announcement via the ASX in the form outlined in Annexure MRJ-13 to the Third Johnson Affidavit containing the substance of the matters set out in Form 6 of the Corporations Rules, giving notice of the hearing of its application pursuant to s 411(4), and if necessary s 411(6), of the Corporations Act.

15.    Pursuant to r 1.3 of the Corporations Rules, the plaintiff is exempted from compliance with the following requirements of the Corporations Rules:

(a)    rule 2.4(1), to the extent that rule requires the affidavit filed with the Originating Process to state the facts in support of the process;

(b)    rule 2.15; and

(c)    rule 3.4 and Form 6.

16.    EFR Critical Materials Pty Ltd (ACN 696 983 614) is granted leave to be heard in these proceedings as an interested person, pursuant to r 2.13 of the Corporations Rules.

17.    The proceeding be adjourned to 10.15 am AWST on 25 June 2026, for the hearing of an application pursuant to s 411(4)(b) and, if necessary, s 411(6) of the Corporations Act, to approve the Share Scheme and the Option Scheme.

18.    The plaintiff must lodge an office copy of these orders with ASIC as soon as practicable after these orders are made.

19.    The plaintiff have liberty to apply upon giving 24 hours’ notice to ASIC.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    Energy Fuels Inc. proposes the acquisition of Australian Strategic Minerals Limited (ASM) by way of Court-approved schemes of arrangement. These reasons relate to the first court hearing on 15 May 2026, at which orders were made convening the relevant meetings and approving the distribution of the explanatory statement by way of a scheme booklet.

Proposed concurrent schemes

2    ASM is a public company limited by shares, is listed on the ASX and registered in Victoria under Australian law. It is a producer of critical metals for advanced and clean technologies. In particular it is developing the Dubbo Project, a rare earths and critical minerals mining and processing project in New South Wales, and operates the Korean Metals Plant, a rare earth and metals alloys metallisation plant in South Korea.

3    Energy Fuels is a United States-based uranium and critical materials company, incorporated in the Province of Ontario, Canada, but with its office in Colorado. It produces several raw materials, including rare earth elements, uranium and vanadium. I was told that it is the largest producer of uranium in the United States, and that its White Mesa Mill in Utah is the only operating conventional uranium mill in North America capable of processing uranium and rare earth elements through solvent extraction at scale. Energy Fuels is subject to the laws of Ontario, the applicable laws of Canada and applicable United States federal securities laws. Its shares are listed on the New York and Toronto stock exchanges

4    The acquisition of ASM would be undertaken through Energy Fuels’ nominated subsidiary, EFR Critical Materials Pty Ltd.

5    The proposed transaction comprises two separate but concurrent schemes of arrangement:

(1)    the share scheme, being a scheme of arrangement under which EFR will acquire all of the fully paid ordinary shares in ASM; and

(2)    the option scheme, being a scheme of arrangement under which all ASM options will be transferred to EFR in exchange for cash consideration.

6    A scheme implementation deed was entered into by ASM and Energy Fuels in January 2026, and has subsequently been amended and restated.

7    If the share scheme becomes effective, EFR will acquire all ASM Shares on issue as at the scheme record date.

8    The scheme consideration for the ASM shares comprises both scrip (CHESS depository interests in EFR shares or fully paid EFR shares) and cash. A scheme shareholder can elect to receive the scrip component of the consideration as CDIs or EFR shares.

9    To the extent Energy Fuels and its subsidiaries hold shares in ASM, they are excluded from the operation of the share scheme.

10    The transfer of the scheme shares from scheme shareholders to EFR is subject to the scheme consideration being provided on the scheme implementation date.

11    If the option scheme becomes effective, EFR will acquire all ASM options on issue as at the option scheme record date, the consideration being by way of cash.

12    Similarly, the transfer of the scheme options from scheme optionholders to EFR is subject to the scheme consideration being provided on the scheme implementation date.

13    The option scheme is conditional on the share scheme becoming effective.

Evidence

14    ASM relied on three affidavits affirmed by Mr Matthew Johnson, and affidavits of each of Ms Rowena Smith and Mr Ross Bhappu.

15    Mr Johnson is the partner at A&O Shearman who advised ASM on the scheme. He provided evidence as to the preparation of the draft scheme booklet and its provision to ASIC, together with copies of documents intended to be dispatched to the shareholders and optionholders and the Court documents. Mr Johnson also adduced evidence of a number of communications from ASIC about the schemes. An Independent Expert Report prepared by BDO Corporate Finance Australia Pty Ltd was an annexure to the draft scheme booklet.

16    Ms Smith is the managing director and chief executive officer of ASM. She adduced evidence as to the business and capital structure of ASM, the background to the schemes, the verification process undertaken by ASM of the information relating to it in the scheme booklet and the expectation that conditions precedent could be met. Importantly, Ms Smith disclosed the interests held by various board members, including her own, a matter to which I will return. Ms Smith also adduced evidence of consent from Mr Gavin Smith to act as chairperson and the consent of the proposed alternate chairperson. I will return to both of these matters.

17    Mr Bhappu is the president, the chief executive officer and a director of Energy Fuels, and a director of EFR. He deposed to the business and capital structure of Energy Fuels and the verification process undertaken by it as to the information in the scheme booklet about Energy Fuels.

18    The Court was also provided with a compliance checklist that referenced the manner in which the information prescribed by s 411(3) and s 412 of the Corporations Act 2001 (Cth) and reg 5.1.01 and Sch 8 of the Corporations Regulations 2001 (Cth) was disclosed.

19    The papers were expressly prepared having regard to the courts’ harmonised approach to schemes of arrangement, adopted in this Court by the Schemes of Arrangement Practice Note (GPN-SOA).

Section 411 of the Corporations Act – principles on first court hearing

20    Section 411(1) of the Corporations Act relevantly provides that where an arrangement is proposed between a Part 5.1 body and its members, the Court may order a meeting of the members to be convened in such manner and to be held in such place as the Court directs.

21    Section 412(1)(a) of the Corporations Act relevantly provides that where a meeting is convened under s 411, the Part 5.1 body must, with every notice convening the meeting, send a statement explaining the effect of the arrangement. It is usual, as in this case, for a scheme booklet to include the explanatory statement.

22    Where the Court makes an order convening a meeting, the Court may also approve the explanatory statement required by s 412(1)(a) to accompany the notice of such a meeting.

23    Section 411 does not set out the criteria that must be satisfied before a meeting is ordered. However, the authorities establish that the Court should order the convening of a scheme meeting and approve the despatch of an explanatory statement if satisfied of the following matters:

(a)    the plaintiff is a Part 5.1 body (defined in the Corporations Act);

(b)    the scheme is an arrangement in respect of which the Court may order a meeting of the members or creditors;

(c)    the explanatory statement (generally included in the scheme booklet) provides adequate disclosure and contains the prescribed information;

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

(e)    that there is no apparent reason why the scheme should not, in due course, receive the Court’s approval if the necessary majority of members’ votes is achieved; and

(f)    any other procedural requirements have been met.

24    These matters are distilled from and discussed in many authorities, including CSR Limited, in the matter of CSR Limited [2010] FCAFC 34; (2010) 183 FCR 358 at [7] (Keane CJ and Jacobson J); Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited [2015] FCA 341 at [9] (McKerracher J); Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd [2018] WASC 308 at [46]-[78] (Vaughan J); In the matter of Ovato Print Pty Ltd [2020] NSWSC 1683 at [19] (Black J); and Chevron (TAPL) Pty Ltd v Chevron Australia Pty Ltd, in the matter of Chevron (TAPL) Pty Ltd [2022] FCA 220 at [17]-[20].

25    The principles as to the nature of the review at the first court hearing are also well-known and collected in many authorities, including Programmed Maintenance Services Limited, in the matter of Programmed Maintenance Services Limited [2017] FCA 1265 at [11]-[14] (McKerracher J); and Signature Gold Ltd, in the matter of Signature Gold Ltd [2017] FCA 1481 at [22]-[23] (Markovic J).

26    Relevantly, the standard of review is whether the proposed scheme is not inappropriate and is one that sensible business people might consider is of benefit to its members. If the proposed arrangement is one that seems fit for consideration by a meeting of members and is a commercial proposition likely to gain the Court's approval if passed by the necessary majority, then leave should be given to convene the meeting.

The criteria in this case

27    There is no question that ASM falls within the definition of a Part 5.1 body.

28    Nor is there any issue that the proposal before the Court is an arrangement. It concerns a change in the rights of members in their capacity as members of and is of a nature recognised as an arrangement. I do not consider the exclusion of Energy Fuels from participation in relation to any current shares held in ASM is class creating; nor does the disclosure of voting intention by directors have that effect: see generally Wesfarmers at [96]-[98].

29    As to the explanatory statement, it is provided by way of the scheme booklet. Section 412(1) requires the notice to members convening a scheme meeting to be accompanied by an explanatory statement, explaining the effect of the proposed arrangement, and making prescribed disclosure of matters such as directors' relevant interests. It must also provide any information material to the making of a decision by a member, which has not previously been disclosed.

30    In this case, the scheme booklet relevantly addresses the reasons why the ASM directors unanimously recommend that members and optionholders vote in favour of the schemes. It includes key information about the scheme meeting, voting, risk factors, Australian taxation considerations, a comparison of Australian, Canadian and US laws, disclosure of the directors interests in shares, options and performance rights and other information the directors consider material. Relevantly, it also attaches a copy of the respective schemes, deed polls, the BDO report and an assurance report from KPMG Transaction Services in relation ASM’s historical financial accounts.

31    BDO provide the opinion in its report that both the share scheme and the option scheme are fair and reasonable and in the best interests of ASM shareholders and ASM optionholders respectively. The basis for the opinion is provided.

32    I have reviewed the affidavit evidence to ensure that the matters which must be disclosed have been adequately disclosed (including the prescribed matters referred to in s 412(1)(a) of the Corporations Act and Schedule 8 of the Corporations Regulations) and I consider that is the case. The compliance schedule assisted with this task.

33    The Practice Note relevantly notes that the appropriate verification of matters in the explanatory statement is an important component of satisfying the Court that it should order that a scheme meeting be convened. The affidavits of Ms Smith and Mr Bhappu provide such evidence.

34    The final form of the booklet also reflects conferral with ASIC (relevantly disclosed in the second Johnson affidavit).

35    I am satisfied that taking these things together, the scheme booklet will provide ASM shareholders and ASM optionholders with sufficient information to understand and assess the BDO opinion, and the advantages and disadvantages of the proposed schemes. ASM shareholders and ASM optionholders will have a proper opportunity to make an informed decision about whether to vote in favour of the Schemes. Therefore, it is appropriate to approve the explanatory statement for distribution.

36    In addition to those matters and relevant to the remaining criteria, senior counsel disclosed various other matters of particular relevance.

Conditionality

37    The first was to emphasise that the option scheme will not proceed if the share scheme is not given effect. This is made clear in the scheme booklet.

Election for shares

38    The second is the option granted to current ASM shareholders to receive CDIs or shares. The default position is that if they fail to make an election they will be deemed to have elected to receive CDIs. This provides certainty as to the mechanics of the share scheme

Directors’ interests disclosed

39    The directors have made prominent disclosure of their personal interests in the scheme booklet. All directors hold shares in the aggregate amount of some 13.91% of issued share capital. All but one hold options, being in the aggregate of some 5.93% of issued options. Ms Smith also holds performance rights, issued pursuant to an ASM performance rights plan, being an equity incentive plan last approved by ASM shareholders on 26 November 2024.

40    The Board deliberated about the treatment of performance rights under the share scheme in the absence of Ms Smith. The board resolved that it would take steps to ensure that all performance rights currently on issue will vest and be converted into ASM shares before the implementation date for the scheme. It is a condition precedent that all such performance rights must vest or lapse before the scheme record date. The end result for Ms Smith, having regard to the vesting of performance rights, the additional cash payment for consideration of shares that will follow, her current entitlements in terms of share consideration and the potential to receive a retention incentive which includes components beyond remuneration, is that she stands to receive a package of benefits should the scheme proceed. I am satisfied that there has been disclosure of such potential under the scheme booklet.

41    The ASM board (excluding Ms Smith) resolved that it remained appropriate for Ms Smith to make a recommendation to shareholders. According to her affidavit, Ms Smith, considered that in light of the importance of the proposed schemes, and her central role as managing director and chief executive officer, it was appropriate for her to make a recommendation; she observed that in her experience the absence of a recommendation from the directors of a target company may have significant or unjustified consequences for a proposal that would otherwise benefit shareholders and optionholders. There remain mechanisms for that view to be modified. Ms Smith said that the other four directors individually considered the proposed schemes and reached the same conclusion in resolving that it was appropriate for them to make a recommendation.

42    The directors unanimously supported the schemes, as disclosed in the scheme booklet.

43    Ultimately these are all matters for consideration by the shareholders and optionholders, but the scheme booklet properly draws attention to them.

Alternate chairperson

44    Mr Smith, a non-executive director of ASM, has agreed to serve as chairperson of the share scheme meeting and the option scheme meeting. Ms Lisa Koch, a solicitor and partner of A&O Shearman, has agreed to serve as alternate chairperson if Mr Smith is unavailable.

45    As noted above, A&O Shearman are the solicitors acting for ASM in the proposed schemes. Ms Smith’s evidence disclosed that no element of A&O Shearman's fee arrangement is tied to implementation of the share scheme or the option scheme, and Ms Koch does not otherwise stand to benefit personally from the implementation of either of the schemes.

46    Rule 14.4 of ASM’s constitution is relevant. By rule 14.4, if the ASM board has appointed a director to chair board meetings, that director may also chair meetings of members. If that director is not present at the time when a members’ meeting is called, or is not willing to chair the meeting, the voting members present must elect a member or director present to chair the meeting. Consequently, the appointment of Ms Koch, who is neither a member or director, as alternate chair appears to contravene rule 14.4 of ASM’s constitution. However, I accept ASM’s submission that this does not prevent the Court making the orders sought in relation to the alternate chairperson under s 1319 of the Corporations Act.

47    A meeting convened under s 411(1) of the Corporations Act is not a general meeting but a meeting convened by the Court. In that context, the appointment is made by the Court. The Court’s power, including under s 1319, extends to making orders that would otherwise contravene a company’s constitution; Re Nzuri Copper Ltd; Ex parte Nzuri Copper Ltd [2019] WASC 189 at [79] (Vaughan J); Sienna Cancer Diagnostics Limited, in the matter of Sienna Cancer Diagnostics Limited [2020] FCA 899 at [115] (Moshinsky J).

48    In these circumstances I see no impediment to the order in relation to Ms Koch being made.

Shareholder communications

49    Where communications with shareholders have occurred before a scheme meeting (apart from by the scheme booklet), the Court must be informed before the approval hearing about any relevant matters that have arisen from the manner in which those communications have occurred. As is usual, ASM indicated that it would comply with this obligation and make any necessary disclosure at the approval hearing.

50    However, in this case there were certain statements or communications and media interviews made prior to the first court hearing that were disclosed to the Court. Those matters included, in particular, statements made by Ms Smith during media interviews that did not address matters relevant to the schemes in a comprehensive manner. For example, in responding to questions in January and March 2026, Ms Smith identified certain conditions precedent but did not refer to the schemes being subject to court approval. Other examples of statements made in January 2026 were set out in the evidence and submissions. Importantly the statements were a considerable period prior to the despatch of the scheme booklet and I accept ASM’s submission that any misapprehension caused by the statements has been remedied by the fulsome disclosure in the scheme booklet.

51    Importantly, ASM shareholders and ASM optionholders will be given adequate time to review the scheme booklet before having an opportunity to vote at the scheme meetings. Further, shareholders and optionholders are reminded in multiple places to read the scheme booklet carefully and in its entirety: see generally Essential Metals Limited, in the matter of Essential Metals Limited [2023] FCA 240 at [103]; DDH1 Limited, in the matter of DDH1 Limited [2023] FCA 982 at [22], [50]-[51] (Colvin J); and Talon Energy Ltd, in the matter of Talon Energy Ltd [2023] FCA 1362 at [29] (Jackson J).

52    Ultimately, whilst this disclosure is recorded at this point, whether material communications or information provided to shareholders outside the scheme booklet have compromised the integrity of the scheme meeting will be assessed by the Court at the approval hearing: Seven Network Ltd, in the matter of Seven Network Limited (No 2) [2010] FCA 355 at [20] (Jacobson J).

Other matters

53    As to performance risk, each of Energy Fuels and EFR has agreed to execute a deed poll in favour of the scheme shareholders (in the case of the share scheme) and the scheme optionholders (in the case of the option scheme), covenanting to perform the obligations attributed to it under the relevant scheme.

54    The proposed schemes include standard ‘deemed warranty’ and ‘no encumbrance’ provisions.

55    The scheme implementation deed includes the kind of exclusivity provisions that are considered market standard (the exclusivity period runs from 21 January 2026 (the date of the original scheme implementation deed) until the earlier of (a) the date of its termination; (b) 31 August 2026, being the end date; or (c) the date when the share scheme becomes effective. There is a reciprocal break fee. Prominence is given to the break fees in the scheme booklet. The break fee is equal to approximately 0.8% of ASM’s implied equity value and does not exceed the 1% guideline noted in Takeovers Panel Guidance Note 7. I do not consider these provisions to be unduly restrictive such that they might otherwise undermine the fairness of the schemes generally.

US Securities Act exemption

56    For completeness, ASM, EFR and Energy Fuels gave notice to the Court of an intention to rely upon the US Securities Act for an exemption in relation to the scheme consideration. This matter will otherwise be addressed at the second court hearing, in accordance with the approach taken in other schemes: see generally Allkem Limited, in the matter of Allkem Limited (No 2) [2023] FCA 1657 at [33]-[38]; Amaero Ltd, in the matter of Amaero Ltd [2026] FCA 596 at [27]-[30] (Owens J).

ASIC

57    The evidence established that ASM’s legal representatives communicated with ASIC in relation to the content of the explanatory statement (by way of the draft scheme booklet), having particular regard to the nature of the proposed schemes. Relevantly, as to the option scheme, ASIC provided dispensation from the requirement that the explanatory statement provide certain information otherwise required by paras 8201(a), (b), (c), (d) and (e) and paras 8203(a) and (b) of Pt 2 of Sch 8 to the Corporations Regulations. As to the share scheme, ASIC waived the requirement that the explanatory statement state the matters required by para 8302(h) of Pt 3 of Sch 8 to the Corporations Regulations. Such dispensation and waiver were provided on terms. ASIC otherwise provided the standard letter to the effect that it has had a reasonable opportunity to consider the proposed schemes and that it did not seek to appear or make submissions at the first court hearing.

Ancillary orders and dispensations

58    Procedural dispensations that were requested, including as to the manner of advertising, were conventional and there was no reason to withhold dispensation or refuse other standard ancillary relief. Having regard to the ASIC dispensations and waivers that were secured, the procedural requirements have otherwise been met.

Interested party

59    Senior counsel appeared with leave for EFR as an interested party, and supported the making of the orders sought by ASM.

Conclusion

60    There is nothing to suggest that the proposed schemes are other than bona fide and properly proposed. In my view the share scheme and option scheme, if considered and adopted by the ASM shareholders and ASM optionholders, are of such a nature that in the absence of opposition they would likely be approved at the second court hearing.

Orders

61    Accordingly, orders were made at the conclusion of the hearing convening the meetings.

Associate:

Dated:    18 May 2026