Federal Court of Australia

Australian Strategic Materials Limited, in the matter of Australian Strategic Materials Limited (No 3) [2026] FCA 1168

ORDERS

THE COURT NOTES THAT:

A.    The plaintiff, EFR Critical Materials Pty Ltd (ACN 696 983 614) and Energy Fuels Inc. will seek to rely on the Court’s approval of the Share Scheme (defined below) for the purpose of qualifying for exemption from the registration requirements of the Securities Act 1933 (US), provided for by s 3(a)(10) of the Securities Act, in connection with the implementation of, and provision of consideration under, the Share Scheme.

THE COURT ORDERS THAT:

1.    Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth), the schemes of arrangement between:

(a)    the plaintiff and the holders of fully paid ordinary shares in the plaintiff (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), in the form set out in Annexure 3 to the Scheme Booklet, a copy of which is at Annexure MRJ-17 to the affidavit of Matthew Robert James Johnson affirmed on 20 July 2026 (Share Scheme); and

(b)    the plaintiff and the holders of options to acquire fully paid ordinary shares in the plaintiff, in the form set out in Annexure 4 to the Scheme Booklet (Option Scheme),

be approved.

2.    Pursuant to s 411(12) of the Corporations Act, the plaintiff be exempt from compliance with s 411(11) of the Corporations Act in relation to the Share Scheme and the Option Scheme.

3.    The plaintiff must lodge a copy of these orders with ASIC as soon as practicable after they are made.

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 approving the convening of a share scheme meeting of Australian Strategic Materials Limited’s (ASM) shareholders and an option scheme meeting of its optionholders for the purpose of considering proposed concurrent schemes and approving 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    On 27 July 2026 I made orders approving the distribution of a supplementary scheme booklet to shareholders and optionholders and to reconvene the scheme meetings on a different date: Australian Strategic Materials Limited, in the matter of Australian Strategic Materials Limited (No 2) [2026] FCA 988.

3    The postponed scheme meetings were held on 12 August 2026. ASM’s shareholders and optionholders approved the schemes by the requisite statutory majorities.

Nature of scheme

4    As summarised in my previous reasons, the schemes form part of a broader transaction by which Energy Fuels Inc. through its nominated subsidiary, EFR Critical Materials Pty Ltd proposes the acquisition of ASM.

5    Section 411(4) of the Corporations Act 2001 (Cth) relevantly provides that an arrangement is binding on the members of a company and the company if, at a meeting convened in accordance with an order of the Court, a resolution in favour of the arrangement is passed by the given statutory majorities, and the arrangement is approved by order of the Court.

6    At the final court hearing on 18 August 2026, ASM sought approval of the schemes. Having regard to the evidence before me, and having heard submissions from senior counsel, I was satisfied that it was appropriate to approve the schemes in accordance with the orders made that day.

7    These are my reasons for doing so. I note that it was apparent from the quality of the papers filed with the Court that a substantial amount of work had been undertaken by the parties involved and their legal teams. This was of great assistance to the Court.

Evidence

8    In addition to the affidavits relied upon for the purpose of the previous hearings, ASM relied on two affidavits of Mr Matthew Johnson of A&O Shearman (his seventh and eighth affidavits filed in this matter). Mr Johnson relevantly deposed to the service of relevant documents on ASIC, ASM’s ASX announcements, the satisfaction or waiver of conditions precedent and ASIC’s ‘no objection’ letter.

9    ASM also relied on a further affidavit of Ms Annaliese Eames, that addressed relevantly communications with ASM shareholders and optionholders, and the publication and dispatch of the supplementary scheme booklet.

10    Mr Gavin Smith, a director of ASM also provided an affidavit that addressed the convening of and results from the scheme meetings.

Section 411 of the Corporations Act – principles

11    The Court has a discretion whether to approve a scheme under s 411(4), and is not bound to approve it merely because it has previously made orders for the convening of a meeting or the statutory majorities have been achieved: Seven Network Limited, in the matter of Seven Network Limited (No 3) [2010] FCA 400 at [31] (Jacobson J); Crown Resorts Limited, in the matter of Crown Resorts Limited (No 2) [2022] FCA 710 at [11] (Anderson J).

12    The matters the Court must take into account in deciding whether to approve a scheme have been summarised in many cases, including Global Uranium and Enrichment Limited, in the matter of Global Uranium and Enrichment Limited (No 2) [2026] FCA 84 at [15] (Vandongen J) and De Grey Mining Ltd, in the matter of De Grey Mining Ltd (No 2) [2025] FCA 396 at [4] (Feutrill J). Recently in Amaero Ltd, in the matter of Amaero Ltd (No 2) [2026] FCA 736, Owens J provided a useful summary:

[11]    The matters the Court takes into account on an application for approval under section 411(4)(b) are well known and understood. They include the following (see Quickstep Holdings at [20]):

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

(b)    whether the resolution to approve the scheme was passed by the requisite majorities, and whether other statutory requirements have been satisfied;

(c)    whether all conditions to which the scheme is subject (other than Court approval and lodgement of the Court’s orders with ASIC) have been met or waived;

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

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

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

(g)    and whether, under section 411(17) of the Corporations Act, the Court is satisfied that the scheme has not been proposed to avoid Chapter 6 of the Corporations Act or the plaintiff has a statement from ASIC that it has no objection to the scheme.

[12]    The following matters may also be added to the above list:

(h)    the shareholders or creditors have voted in good faith and not for an improper purpose;

(i)    minority shareholders would not be oppressed by the scheme; and

(j)    the scheme does not offend public policy.

See Envirosuite Limited, in the matter of Envirosuite Limited (No 2) [2025] FCA 941 at [11] (Moshinsky J); QV Equities Limited, in the matter of QV Equities Limited (No 2) [2024] FCA 727 at [12]-[14] (Halley J); and Crown Resorts at [13]-[14] (Anderson J).

13    However, the Court is not to substitute its commercial judgment for that of the body of members: Seven Network at [32]. Further as to the reference to what is ‘fair and reasonable’, Beach J said the following in Amcor Limited, in the matter of Amcor Limited (No 2) [2019] FCA 842 at [11]:

Now as I have said, my task is to consider whether the Scheme is fair and reasonable with the test of fairness and reasonableness including a consideration of whether ‘an intelligent and honest [shareholder], properly informed, acting alone, might approve [the scheme]’ (Fowler v Lindholm (2009) 178 FCR 563 at [79] per Emmett, Gordon and Jagot JJ). But the Scheme shareholders’ vote in favour of the Scheme is evidence of its inherent fairness. Put another way, if a majority of the Scheme shareholders have approved the Scheme, it is unlikely that the Scheme would be unreasonable. Further, I do not have to be satisfied that no better Scheme could have been devised.

Formal matters satisfied

14    I was satisfied on the evidence that all formal matters had been complied with regarding the dispatch of the scheme booklet, the advertising of the final court hearing, the conduct of the scheme meetings and the requisite voting majorities.

15    The ASM shareholders and optionholders approved the schemes by the requisite statutory majorities:

(a)    32.6% of ASM shares on issue were voted at the share scheme meeting by 5.29% of ASM shareholders; and

(b)    44.76% of ASM options on issue were voted at the option scheme meeting by 17.75% of ASM optionholders.

16    ASM submitted that low shareholder turnout does not prevent the Court from making orders approving a scheme. Shareholder schemes have been approved in the past with voter turnout lower than 10%: Decimal Software Limited, in the matter of Decimal Software Limited (No 2) [2018] FCA 2040 at [19] (5.21%); Real Energy Corporation Limited, in the matter of Real Energy Corporation Limited (No 2) [2021] FCA 422 at [3] (2.4%) (Yates J); and Essential Metals Limited, in the matter of Essential Metals Limited (No 2) [2023] FCA 1306 at [33] (5.2%) (Jackson J) (Essential Metals (No 2)); Allkem Limited, in the matter of Allkem Limited (No 2) [2023] FCA 1657 (Allkem (No 2)) at [19] (3.96%).

17    It is appropriate where there is a low voter turn out to consider whether there may have been any issue with respect to dispatch of information to shareholders or any other matter that may have deterred voters from attending or voting at the scheme meeting: Decimal Software at [21]; Essential Metals (No 2) at [35]; Allkem (No 2) at [21].

18    Although there were some issues with initial dispatch of the scheme booklet, such issues have already been addressed. There was no indication that any error in the procedures for dispatch would have affected voter turnout. There were no relevant issues with the dispatch of the supplementary scheme booklet.

19    The authorities often look to other attendance records to see if the voting turnout for the scheme meeting might have been unusual or whether it was consistent with voting patterns for meetings of the company’s members: DDH1 Limited, in the matter of DDH1 Limited (No 3) [2023] FCA 1153 at [15] (Colvin J); Essential Metals (No 2) at [37].

20    The evidence indicated that the voter turnout for the share scheme meeting was greater than at ASM’s 2025 AGM: 72,607,376 shares were voted at the AGM, which is less than for the share scheme meeting, and 271 shareholders voted, which is less than the number of shareholders that voted at the share scheme meeting.

21    Accordingly, although I acknowledge that the turnout figures were low, I was satisfied that the relatively low voter turnout compared to total shareholder numbers was not a reason to decline to approve the share scheme.

22    I was also satisfied that ASIC was provided with copies of all relevant affidavits and with a sealed copy of the orders made at the previous hearings.

Discretionary considerations

Good faith and proper purpose

23    I had no reason to doubt that ASM’s shareholders and optionholders voted in good faith and not for an improper purpose. I took into account that the independent expert, BDO Corporate Finance Australia Pty Ltd, opined that the schemes are fair and reasonable and in the best interests of security holders, in the absence of a superior proposal. BDO has not changed its opinion, including after events that gave rise to the need to issue the supplementary scheme booklet.

24    Further, neither ASIC nor any security holder appeared at the final court hearing to object to its approval.

Fair and reasonable scheme

25    Approval by the requisite majorities is prima facie evidence that the schemes are fair: Allkem (No 2) at [28] . The expert’s opinion provided further support. No superior proposal emerged.

Full and fair disclosure

26    I was satisfied to the necessary level on the evidence before me at the first and supplementary court hearings that there would be full and fair disclosure to ASM security holders regarding the schemes, having regard to the content of the scheme booklet and supplementary scheme booklet. There was nothing new before the Court that changed that view.

Satisfaction of s 411(17)

27    As noted, the Court received a copy of ASIC’s ‘no objection’ statement before the hearing, satisfying the requirements of s 411(17) of the Corporations Act.

Public policy

28    There is no evidence before the Court that any minority ASM security holders have been oppressed or that the schemes offend any aspect of public policy.

Other matters

Communications

29    In ASM (No 1) at [49]-[52], I addressed matters relating to certain statements or communications and media interviews made prior to the first court hearing.

30    Whether material communications or information provided to shareholders outside the scheme booklet have compromised the integrity of the scheme meeting is assessed by the Court at the approval hearing: Seven Network Limited, in the matter of Seven Network Limited (No 2) [2010] FCA 355 at [20] (Jacobson J).

31    Relevantly, there was evidence that Ms Rowena Smith, ASM’s CEO and managing director, delivered a presentation at the Diggers & Dealers Forum on 4 August 2026, prior to the holding of the scheme meetings.

32    ASM’s solicitors, A&O Shearman reviewed Ms Smith’s proposed slides and script for the portion of the presentation relevant to the proposed schemes, and confirmed that the content was consistent with the scheme booklet and supplementary scheme booklet.

33    I am satisfied on the evidence that Ms Smith’s various communications did not compromise the integrity of the scheme meetings.

US Securities Act exemption

34    ASM and EFR disclosed at the first hearing that they intend to rely on this Court’s approval for the purpose of qualifying for the exemption under s 3(a)(10) of the Securities Act of 1933 (US) from United States registration and prospectus requirements in connection with the scheme consideration.

35    I addressed such issues in Allkem (No 2). For convenience I extract those reasons:

[34]    In summary, in the case of an Australian scheme of arrangement in which the bidder is proposing to issue securities as consideration, including to target members in or who are citizens or residents of the US, the bidder may be able to avoid the need to comply with the US registration/prospectus requirements if the scheme of arrangement satisfies the conditions for the exemption from registration afforded by s 3(a)(10) of the Securities Act of 1933: see generally Amcor Limited at [33].

[35]    The exemption stipulated in s 3(a)(10) of the Securities Act of 1933 is in the following terms:

(10)    Except with respect to a security exchanged in a case under title 11 [of the United States Code], 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.

[36]    There are many examples of second court hearings for schemes where this issue has arisen. In short, the courts have proceeded on the basis that the exemption would be available if the court in question holds a hearing to determine whether the proposed terms and condition are fair to all those who receive securities. I have set out above the approach to whether a scheme is considered fair and reasonable (at [10]-[11]). It is to be noted, however, that it is not for the court to express any view as to whether its procedures or processes are sufficient to satisfy the requirements of the exemption: Aston Resources Limited, in the matter of Aston Resources Limited (No 2) [2012] FCA 401 at [8] (Jacobson J), citing Central Pacific Minerals NL [2002] FCA 239 (Emmett J). Further, the court does not act as the valuer of shares, but is assisted by expert opinion on that matter: Aston Resources at [11], citing Permanent Trustee Company [2002] NSWSC 1177 (Barrett J).

[37]    However, as a line of authorities indicates, a standard approach has been adopted in relation to the exemption, noting particular matters: Atlantic Gold NL, in the matter of Atlantic Gold NL (No 2) [2014] FCA 869 at [8] (Jacobson J); In the matter of Ardent Leisure Limited trading as Ardent Leisure Limited; Ardent Leisure Management Limited in its capacity as the responsible entity of the Ardent Leisure Trust (No 2) [2018] NSWSC 1990 at [19] (Black J); Amcor Limited at [37]-[38]; Tronox Limited, in the matter of Tronox Limited (No 2) [2019] FCA 681 at [51] (O'Callaghan J); Re Ellerston Global Investments Ltd [2020] NSWSC 1108 at [18] (Black J); and Ex Parte Saracen Mineral Holdings Ltd [No 2] [2021] WASC 32 at [63] (Hill J).

36    This issue was recently considered by Owens J in Amaero at [33]-[44].

37    I will follow the approach referred to in Allkem (No 2). Therefore, I note that:

(a)    I was advised before the commencement of the hearing to approve the scheme that reliance would be placed on the s 3(a)(10) exemption of the Securities Act;

(b)    I have been informed that EFR shares or CDIs and cash are to be offered as share scheme consideration, and cash is to be offered as option scheme consideration;

(c)    I held a hearing in open court on 18 August 2026 to consider the fairness and reasonableness of the proposed schemes, and it was open to any member of the public including any ASM shareholder or optionholder to attend;

(d)    notice of the date of the approval hearing was included in the supplementary scheme booklet provided to all security holders of ASM prior to the proposal being considered by the scheme meetings, and was advertised on the ASX, so that those who are affected by the schemes had the opportunity to oppose or otherwise raise objections to the schemes; and

(e)    no ASM security holder gave notice of any intention to appear at the final court hearing to oppose the approval of the scheme, and none in fact opposed it.

Orders

38    Having regard to all of the above matters, I considered it appropriate to exercise the discretion under s 411(4) of the Corporations Act to approve the schemes.

Associate:

Dated:    19 August 2026