Federal Court of Australia

Australian Strategic Materials Limited, in the matter of Australian Strategic Materials Limited (No 2) [2026] FCA 988

ORDERS

THE COURT ORDERS THAT:

1.    The orders of the Court dated 15 May 2026 in these proceedings, as amended by orders of the Court dated 2 June 2026 (First Court Hearing Orders) be supplemented, amended or vacated, as applicable, in accordance with these orders.

Scheme Meetings

2.    Order 1(b) of the First Court Hearing Orders be amended as follows:

(a)    the postponed Share Scheme Meeting is to be held at 11.30 am AWST on 12 August 2026, at Dexus Place Perth, Level M, 240 St Georges Terrace, Perth WA 6000; and

(b)    the postponed Option Scheme Meeting is to be held the later of 12.00 pm AWST on 12 August 2026 and the conclusion or adjournment of the Share Scheme Meeting at Dexus Place Perth, Level M, 240 St Georges Terrace, Perth WA 6000.

3.    The time for the approval of announcements regarding corrections, clarifications or changes to the arrangements for the Scheme Meetings under order 5 of the First Court Hearing Orders be extended to 11.30 am AWST on 12 August 2026.

4.    The notices of meeting issued to Scheme Shareholders and Scheme Optionholders under order 3(a) of the First Court Hearing Orders are deemed to be valid for the postponed Scheme Meetings referred to in order 2 above.

5.    Valid proxy forms for the Share Scheme Meeting that have been lodged by Scheme Shareholders are deemed to still be valid provided that the Scheme Shareholder continues to be a registered shareholder at 11.30 am AWST on 10 August 2026 and unless:

(a)    the proxy form has been withdrawn;

(b)    the proxy form has been revoked; or

(c)    a new proxy form is submitted by the same Scheme Shareholder, which will be taken to revoke any previously submitted proxy form,

Scheme Shareholders who voted in favour of the Share Scheme are deemed to have voted in favour of the resolutions to be considered at the postponed Share Scheme Meeting.

6.    Valid proxy forms for the Option Scheme Meeting that have been lodged by Scheme Optionholders are deemed to still be valid provided that the Scheme Optionholder continues to be a registered optionholder at 12.00 pm AWST on 10 August 2026 and unless:

(a)    the proxy form has been withdrawn;

(b)    the proxy form has been revoked; or

(c)    a new proxy form is submitted by the same Scheme Optionholder, which will be taken to revoke any previously submitted proxy form,

Scheme Optionholders who voted in favour of the Option Scheme are deemed to have voted in favour of the resolutions to be considered at the postponed Option Scheme Meeting.

7.    By no later than 12 August 2026, the plaintiff is to publish an announcement via the ASX in the form outlined in Annexure MRJ-27 to the affidavit of Matthew Robert James Johnson affirmed 20 July 2026, containing the substance of the matters set out in Form 6 of the Federal Court (Corporations) Rules 2000 (Cth), giving notice of the hearing of its application pursuant to s 411(4), and if necessary, s 411(6) of the Corporations Act 2001 (Cth).

Supplementary Scheme Booklet

8.    Pursuant to s 411(1) and s 1319 of the Corporations Act, the Supplementary Scheme Booklet (a copy of which is at Annexure MRJ-30 to the affidavit of Matthew Robert James Johnson affirmed 24 July 2026 (Fifth Johnson Affidavit), as amended by Annexure MRJ-33 to the affidavit of Matthew Robert James Johnson affirmed 27 July 2026) be approved for distribution to Scheme Shareholders and Scheme Optionholders (as defined in the First Court Hearing Orders), subject to:

(a)    the inclusion, as an annexure to the Supplementary Scheme Booklet, of the finalised and completed summary letter and replacement report of the Independent Expert (BDO Corporate Finance Australia Pty Ltd) in relation to the Share Scheme and Option Scheme;

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

(c)    any minor amendments required, requested or approved by ASIC; and

(d)    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.

9.    The plaintiff shall, on or before 31 July 2026, dispatch the Supplementary Scheme Booklet in the form approved in order 8 above to each Scheme Shareholder registered on the plaintiff’s register of members, and to each Scheme Optionholder registered on the plaintiff’s register of optionholders, as at 5.00 pm AWST on 27 July 2026 (the New Register Time) by sending:

(a)    in the case of each Electing Email Holder (as defined in the First Court Hearing Orders), an email substantially in the form of Annexure MRJ-28 to the Fifth Johnson Affidavit (for Scheme Shareholders) or Annexure MRJ-29 to the Fifth Johnson Affidavit (for Scheme Optionholders) containing instructions regarding how to access and download the Supplementary Scheme Booklet online;

(b)    in the case of each Electing Postal Holder (as defined in the First Court Hearing Orders), a physical copy of the Supplementary Scheme Booklet; and

(c)    in the case of each Non-Electing Holder (as defined in the First Court Hearing Orders), a letter substantially in the form of Annexure ASE-8 to the affidavit of Annaliese Sarah Eames sworn 20 July 2026 (Eames Affidavit) (for Scheme Shareholders) or Annexure ASE-9 to the Eames Affidavit (for Scheme Optionholders) containing instructions regarding how to access and download the Supplementary Scheme Booklet online.

10.    The plaintiff shall dispatch the documents identified in order 9 above in accordance with order 7 of the First Court Hearing Orders.

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

12.    Dispatch of the documents referred to in order 9 above, in accordance with the terms of orders 10 to 11 above, is to be taken to be sufficient notice of the Scheme Meetings.

13.    The plaintiff shall not be obliged to send the Supplementary Scheme Booklet in accordance with order 9 to any person who has become, or becomes, a shareholder or optionholder of the plaintiff after the New Register Time.

14.    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 Supplementary Scheme Booklet may be given by way of statement on oath or affirmation on information and belief at the hearing on 18 August 2026 of an application under s 411(4)(b) and, if necessary, s 411(6) of the Corporations Act, for approval of the Share Scheme and the Option Scheme.

Application under s 1322 of the Corporations Act

15.    Pursuant to s 1322(4)(d) of the Corporations Act, the time for compliance with orders 6(b)(ii), 6(b)(iii), 6(c)(i), 6(c)(ii) and 6(c)(iii) of the First Court Hearing Orders is extended to 3 June 2026.

Other orders

16.    Orders 12 to 14 of the First Court Hearing Orders be vacated.

17.    The proceeding be adjourned to 10.15 am AWST on 18 August 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 a 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    On 15 May 2026 I made orders relating to Australian Strategic Materials Limited (ASM) approving the convening of a share scheme meeting and an option scheme meeting, and the distribution of a scheme booklet: Australian Strategic Materials Limited, in the matter of Australian Strategic Materials Limited [2026] FCA 616 (ASM (No 1)).

2    These reasons should be read with ASM (No 1) and supplement them.

3    The scheme meetings were scheduled to occur on 22 June 2026, but certain events intervened which resulted in a need for further disclosure. ASM issued a series of ASX releases providing updates and announcing that it was necessary to postpone the scheme meetings.

4    By this application ASM seeks orders facilitating further disclosure by dispatch of a supplementary scheme booklet to the shareholders and optionholders (referred to collectively on occasion as the security holders).

5    ASM has also disclosed that errors were made in relation to the dispatch of the original proxy forms for the scheme meetings, and as to the method of posting. ASM seeks orders under s 1322(4) of the Corporations Act 2001 (Cth) seeking extension of the time for compliance with the Court’s previous orders, so as to address such errors.

6    At the end of the hearing I indicated that orders would be made and issued from chambers as long as, and as soon as, an anticipated affidavit was received that attached a marked-up version of certain amended pages of the proposed supplementary scheme booklet (a copy of the marked-up pages were informally before the Court).

7    Orders were subsequently made. These are my reasons for doing so.

The proposed schemes

8    As summarised in ASM (No 1) (at [2]-[13]), 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.

9    EFR Critical Materials Pty Ltd, a wholly owned subsidiary of Energy Fuels Inc., proposes to acquire:

(1)    100% of the fully paid ordinary shares of ASM by way of a members’ scheme of arrangement; and

(2)    100% of ASM’s quoted options by way of a separate but concurrent creditors’ scheme of arrangement,

both under Part 5.1 of the Corporations Act.

Evidence

10    In addition to the anticipated further (sixth) affidavit, ASM relied on three affidavits of Mr Matthew Johnson of A&O Shearman (his third, fourth and fifth affidavits filed in this matter). Mr Johnson’s fourth affidavit was of particular relevance, relevantly annexing the various announcements made by ASM to the ASX following the first hearing, and the draft supplementary scheme booklet, including the revised expert report prepared by BDO Corporate Finance Australia Pty Ltd.

11    ASM also relied on a further affidavit of Mr Ross Bhappu, the president, chief executive officer and a director of Energy Fuels. Mr Bhappu relevantly deposed to the verification process undertaken by Energy Fuels, having regard to the ‘new’ information, as referred to below.

12    Ms Annaliese Eames, the company secretary and Chief Legal & External Affairs Officer of ASM, provided an affidavit that addressed relevantly compliance with call scripts in communications with security holders, the dispatch of materials regarding the schemes and how she came to be informed of errors in that regard, the publication of the scheme booklet on ASM’s website, the verification process undertaken in relation to ASM information in the supplementary scheme booklet (including spot checks by A&O Shearman), and the proposed regime for dispatch of the supplementary scheme booklet.

13    Affidavits of Huyen Vo (Campaign Manager, IVE Group) and Lily Wang (Customer Service Manager, Atomic) were also relied upon. The effect of their evidence was that the errors in dispatch (explained below) were accidental, inadvertent and grounded in misunderstandings as to what was required for proper dispatch of the proxy forms to shareholders or optionholders respectively.

The need for further disclosure to security holders

14    The scheme booklet approved for distribution to both shareholders and optionholders by the earlier Court orders included an independent expert’s report prepared by BDO.

15    The consecutive scheme meetings were originally scheduled for 22 June 2026.

16    On 15 June 2026 BDO wrote to the directors of ASM, advising them that having regard to movements in the Energy Fuels’ share price, BDO was required pursuant to ASIC Regulatory Guide 111 to consider the impact of those movements on its independent expert opinion included in the scheme booklet. By a supplementary letter of the same date, BDO informed ASM that it continues to conclude that, in the absence of a superior proposal, the schemes remain fair and reasonable and in the best interests of ASM security holders. ASM issued an ASX release disclosing this information and indicating at that time that the directors continued to recommend the schemes, and that no change to the date of the scheme meetings was anticipated.

17    After dispatch of the scheme booklet, ASM received a press release published by Energy Fuels on 18 June 2026 in relation to a conditional US$725 million financing commitment received by Energy Fuels from the US Office of Strategic Capital (conditional financing commitment).

18    On 19 June 2026 ASM notified the ASX of this development and foreshadowed that supplementary disclosure relating to the schemes would be required.

19    In the same 19 June 2026 notice, ASM announced the postponement of the scheme meetings to a date to be determined.

20    ASM subsequently received another press release published by Energy Fuels on 23 June 2026 announcing that Energy Fuels had entered into a definitive agreement to acquire 100% of Vacuumschmelze GmbH & Co. KG (ultimately this merger, which involved a number of entities, came to be referred to as the VAC merger). Again, ASM notified the ASX of this development and foreshadowed supplementary disclosure.

21    On 26 June 2026 ASM announced to the ASX that a supplementary scheme booklet was being prepared, and that it was hoped that it could be dispatched in late July 2026.

22    By 15 July 2026 BDO had formed the view, disclosed by letter to ASM that given the likely extent of the amendments to their report, they considered it more appropriate and beneficial for shareholders to be provided with a revised report. Accordingly, BDO prepared a single, consolidated report reflecting their updated analysis and conclusions, rather than requiring the original report and a supplementary report to be read together. The report took into account, relevantly, the volatility in the share price of Energy Fuels and the conditional finance and acquisition transactions referred to above.

23    In the supplementary report, BDO concluded that their opinion remained unchanged. They continued to conclude that the share scheme is fair and reasonable and therefore in the best interests of ASM shareholders and that the option scheme is fair and reasonable and therefore in the best interests of ASM optionholders, in the absence of superior proposals.

24    A copy of iterations of the draft supplementary scheme booklet, which were provided to ASIC, were before the Court by way of Mr Johnson’s fourth and fifth affidavits. As noted, certain amendments were also before the Court informally.

Disclosure of changes

25    ASM properly recognised that it must approach the Court for orders before dispatching additional material: Coates Hire Limited No 2, in the matter of Coates Hire Limited [2007] FCA 2105 at [6] (Emmett J); and my reasons in Tawana Resources NL, in the matter of Tawana Resources NL (No 2) [2018] FCA 1724 at [2].

26    The approach to supplementary disclosure is the same as to the initial explanatory statement: see In the matter of The Trust Company Limited [2013] NSWSC 1946 at [7] (Black J). That is, the Court must be satisfied that there has been proper disclosure with nothing misleading or deceptive in any material sense.

27    I have addressed the contents of the original scheme booklet in ASM (No 1) at [30]-[35].

28    The supplementary scheme booklet provides information to the shareholders and optionholders about the following matters:

(1)    the updated timetable for the schemes;

(2)    an update regarding the agreement entered into by Energy Fuels for the proposed VAC merger;

(3)    an update regarding the conditional financing commitment;

(4)    an update regarding a US$250 million senior secured term loan facility commitment received from Goldman Sachs Bank USA;

(5)    detailed information regarding risks relating to Energy Fuels, ASM and VAC as an enlarged combined company (the Enlarged Combined Company);

(6)    the pro forma historical financial information of the Enlarged Combined Company;

(7)    other additional supplementary information (such as the treatment of performance rights, which is affected by the change in dates of the scheme meetings); and

(8)    the replacement report from BDO.

29    Also included in the supplementary scheme booklet is the ASM chair’s letter to ASM security holders in which he (Ian Gandel) stated:

After careful consideration of the Energy Fuels Updates and the additional information in this Supplementary Scheme Booklet, the ASM Directors continue to unanimously recommend that:

•    ASM Shareholders vote in favour of the Share Scheme; and

•    ASM Optionholders vote in favour of the Option Scheme,

in each case in the absence of a Superior Proposal and subject to the Independent Expert continuing to conclude that the Schemes are in the best interests of ASM Securityholders.

30    The Chair’s letter also makes clear that the supplementary scheme booklet is to be read with the original scheme booklet.

Power to make orders

31    The Court has power under s 1319 of the Corporations Act to vacate or vary orders made under s 411 in relation to meetings for a scheme of arrangement, including orders adjourning a meeting convened under that section or authorising the dispatch of further explanatory material: Amcom Telecommunications Limited, in the matter of Amcom Telecommunications Limited (No 2) [2015] FCA 410 at [10]-[13] (McKerracher J); Tawana at [20].

32    The matters that might fall for consideration on such an application were summarised in Tawana at [21] as follows:

(a)    whether there remains utility in the proposed scheme (with or without modification) being put to the shareholders in the sense that something is capable of approval at a second court hearing if agreed by the requisite majorities;

(b)    whether any proposed modification to the scheme or some other development in the related transactions is permissible (to the same standard as at the first hearing and in the sense of the modification being lawful and for a proper purpose, fair, not unreasonable and not oppressive of a minority);

(c)    whether the Court should grant leave to despatch any proposed supplementary disclosure to shareholders having regard to:

(i)    there being a change in circumstances that warrants further disclosure;

(ii)    the obligation of the company and its directors to provide members with new material information about a proposed scheme;

(iii)    the Court being satisfied prima facie that there will be proper disclosure by sending the proposed supplementary materials;

(d)    whether there has been notice to ASIC and any indication of ASIC's position (including taking into account [60.91]-[60.93] of the ASIC Regulatory Guide 60);

(e)    whether there are any other matters relevant to the Court's discretion to allow the proposed scheme to be considered; and

(f)    what procedural directions under s 1319 of the Act are appropriate in the circumstances for any adjourned or postponed scheme meeting, including as to:

(i)    despatch of any replacement or supplementary notice of meeting;

(ii)    the sufficiency of notice, both as to time and content;

(iii)    treatment of existing votes and proxies;

(iv)    setting of the time for eligibility to vote;

(v)    validation of any steps and advertisement; and

(vi)    any other consequential or ancillary orders.

33    I consider that the supplementary scheme booklet provides adequate disclosure of the events that have led to the application and that it is appropriate that the security holders be informed of the matters contained in it, with nothing misleading or deceptive in any material sense. I also note that scripts for use in communications with shareholders have been accordingly updated.

34    I consider there remains utility in the scheme. Despite additional factual matters addressed in the BDO report, BDO has reached the same view it previously held, and the directors of ASM continue to recommend it to the security holders.

35    I am satisfied that there has been due verification of the matters in the supplementary scheme booklet.

36    It seems to me that the scheme should still be placed before the shareholders and optionholders for their consideration. It is for them to decide whether they wish to approve the scheme.

37    I am also satisfied that ASIC has remained informed of developments. ASIC informed ASM’s solicitors that it did not wish to make submissions or intervene in relation to this application.

Issues with dispatch

38    There remains the matter of the issues with dispatch.

39    During the process of dispatching the scheme meeting materials to scheme shareholders and scheme optionholders, two administrative errors occurred.

40    First, on 29 May 2026 an issue was identified with respect to the hardcopy dispatch of meeting materials. In summary, due to administrative error, certain scheme shareholders were sent a proxy form or an access letter for the option scheme meeting (or both). Certain scheme optionholders were sent a proxy form or access letter for the share scheme meeting (or both).

41    Because of this error, rather than having dispatched all scheme meeting materials to ASM shareholders and ASM optionholders by 21 May 2026 in compliance with orders 6 and 7 of the orders of 15 May 2026, the corrective materials were dispatched to affected ASM security holders on 3 June 2026.

42    In total, over 6,000 security holders were affected by this dispatch issue. The issue was rectified by the dispatch of the correct proxy forms and access letters to the affected recipients, together with a cover letter explaining the errors. ASM announced the issue to the ASX on 4 June 2026.

43    Second, contrary to orders 6(b)(iv) and 6(c)(iv) of the orders of 15 May 2026, certain scheme shareholders and scheme optionholders did not receive ‘priority’ prepaid envelopes with their hardcopy scheme meeting materials. Instead, they received only ordinary prepaid envelopes. Again, over 6,000 recipients were affected by this issue.

44    Section 1322(2) of the Corporations Act provides that a proceeding (broadly defined in s 1322(1)(a)) is not invalidated because of any procedural irregularity (defined broadly in s 1322(1)(b) to include a defect, irregularity or deficiency of notice or time) unless the Court is of the opinion that the irregularity has caused or may cause substantial injustice that (relevantly) cannot be remedied by any order of the Court. Section 1322(4)(d) relevantly provides that the Court may on the application of any interested person make an order extending the time for doing any act or for compliance with a provision of the Corporations Act or in relation to a corporation.

45    In Mosaic Oil NL, in the matter of Mosaic Oil NL (No 2) [2010] FCA 1186 Jacobson J considered that the sending of an invalid proxy form was a procedural error under s 1322(1)(b)(ii) of the Corporations Act. There was in that case a deficiency of notice or time because the amended proxy form was dispatched to shareholders less than 28 days prior to the meeting. However, his Honour took into account that the deficiency was a matter of only two days and considered that it had not caused injustice.

46    His Honour considered it unnecessary for there to be a validating order because validation is brought about by s 1322(2) of the Corporations Act, citing SGIC Insurance Limited v Insurance Australia Limited [2004] FCA 1638 at [12]-[16].

47    In this case, ‘out of an abundance of caution’, ASM seeks relief in relation to the first issue referred to above. It notes that the issue of scheme materials being sent to the wrong recipients has been rectified by subsequent dispatch with an explanatory letter. Security holders were also informed via the ASX announcement. The evidence suggested that of 81 scheme shareholders who had submitted invalid proxy forms, 46 had since corrected them, leaving 35 uncorrected, being approximately 0.16% of the total scheme shares on issue at the relevant date. Only one optionholder had returned an incorrect proxy. Whilst I appreciate that the steps taken to rectify the position have diminished the risk of injustice, there has clearly been some confusion caused as a result of the first dispatch error. In those circumstances I consider it appropriate to grant the relief sought by ASM. The mistakes with dispatch were made honesty and inadvertently. No substantial injustice is caused by the Court extending the time for the dispatch of the materials to the affected security holders.

48    As to the second issue, I accept that the error in failing to use ‘priority’ prepaid envelopes in the hardcopy dispatch of the scheme materials was a procedural irregularity for the purposes of s 1322(2) of the Corporations Act.

49    The evidence is that the use of ordinary prepaid envelopes rather than ‘priority’ prepaid envelopes may add two to three additional business days to Australia Post delivery estimates.

50    ASM submitted that given the intervening postponement of the scheme meetings, ASM security holders have had ample time to return their forms by post, even with ordinary prepaid envelopes. Furthermore, there are other methods by which proxy forms may be lodged by security holders, including online, by email, by fax or in person.

51    I accept ASM’s submission in this regard. This error in dispatch does not affect the validity of the proposed scheme meetings or the scheme resolutions to be put to ASM security holders. It is cured by s 1322(2). In all of the circumstances the error has no prospect of any relevant adverse effects.

Orders

52    For the above reasons, I foreshadowed at the conclusion of the hearing that I would make the orders sought by ASM, conditional upon receipt of Mr Johnson’s sixth affidavit. That affidavit having now been received, the orders have been made.

Associate:

Dated:    28 July 2026