Controlled Thermal Resources Limited, in the matter of Controlled Thermal Resources Limited (No 2) [2022] FCA 1497

Federal Court of Australia|2022-12-12|Before: Cheeseman J

THE COURT NOTES THAT:

There has been produced to the Court a statement in writing by the Australian Securities and Investments Commission (ASIC) in accordance with section 411(17)(b) of the Corporations Act 2001 (Cth) stating that ASIC has no objection to the Scheme of Arrangement between the plaintiff, Controlled Thermal Resources (CTR) and its shareholders (CTR Shareholders), which was agreed to by the CTR Shareholders at a meeting on 22 November 2022. THE COURT ORDERS THAT:
Pursuant to section 411(4)(b) of the Act, the Scheme of Arrangement between CTR and the CTR Shareholders agreed to by those shareholders at the meeting held on 22 November 2022 (Scheme), in the form contained in Annexure A hereto be and is hereby approved.
The Plaintiff lodge with the Australian Securities and Investments Commission a copy of these Orders with Annexure A, being the approved Scheme.
Pursuant to section 411(12) of the Act, CTR be exempted from compliance with section 411(11) of the Act in respect of the Scheme.
Pursuant to rule 39.34 of the Federal Court Rules 2011 (Cth), these orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

Parties Name Controlled Thermal Resources Limited ACN 166 638 142 Short form name CTR Notice details Level 16, 71 Eagle Street, Brisbane QLD 4000 Email Attention Rod Colwell, Eric Thayer

Each person registered as a holder of fully paid ordinary shares in CTR as at the Record Date. 1 DEFINED TERMS & Interpretation 1.1 Defined terms In this Scheme, except where the context otherwise requires: Affiliate means, in relation to any specified person (other than a natural person), any other person (which shall include a natural person) directly or indirectly Controlling or Controlled by such specified person or under direct or indirect common control with such specified person. ASIC means the Australian Securities and Investments Commission. Business Day means a day that is not a Saturday, Sunday, bank holiday or public holiday in the place where the relevant act is to be done. Conditions Precedent means the conditions precedent set out in clause 3.1 of the Scheme Implementation Deed. Control has the meaning given to that term in section 50AA of the Corporations Act and Controlling and Controlled have the corresponding meaning. Controlled Thermal Resources or CTR means Controlled Thermal Resources Limited ACN 166 638 142. Corporations Act means the Corporations Act 2001 (Cth), as amended from time to time. Court means the Federal Court of Australia, or such other court of competent jurisdiction under the Corporations Act agreed to by CTR and CTR US HoldCo. CTR Board means the CTR Directors from time to time. CTR Director means a director of CTR from time to time. CTR Group means, collectively, CTR and each of its Related Bodies Corporate other than CTR US HoldCo. CTR Share means a fully paid ordinary share in the capital of CTR. CTR Share Register means the register of CTR Shareholders maintained by or on behalf of CTR in accordance with the Corporations Act. CTR Shareholder means a person who is registered in the CTR Share Register as the holder of one or more CTR Shares, from time to time. CTR US HoldCo means Controlled Thermal Resources Holdings Inc., a company incorporated in the State of Delaware, United States with file number 20223398280 and whose registered office is at 1209 Orange Street, in the City of Wilmington, Country of New Castle, Delaware 19801. CTR US HoldCo Share means a share of common stock of CTR US HoldCo. CTR US HoldCo Shareholder means a person who is registered in the CTR US HoldCo Share Register as the holder of one or more CTR US HoldCo Shares, from time to time. CTR US HoldCo Share Register means the register of CTR US HoldCo shareholders maintained by or on behalf CTR US HoldCo maintained in accordance with the Delaware General Corporation Law. Deed Poll means the deed poll to be executed by CTR US HoldCo substantially in the form of Schedule 3 to the Scheme Implementation Deed, or in such other form as agreed in writing between CTR and CTR US HoldCo. Effective means, when used in relation to a Scheme, the order of the Court made under section 411(4)(b) of the Corporations Act in relation to the Scheme taking effect pursuant to section 411(10) of the Corporations Act, but in any event at no time before an office copy of the order of the Court is lodged with ASIC. Effective Date means the date on which the Scheme becomes Effective. Encumbrance means any encumbrance, mortgage, pledge, charge, lien, assignment, hypothecation, security interest, title retention, preferential right or trust arrangement and any other security arrangement of any kind given or created and including any possessory lien in the ordinary course of business whether arising by law or contract. End Date means 31 March 2023, or such later date as agreed to in writing between CTR and CTR US HoldCo. Explanatory Statement means the statement pursuant to section 412 of the Corporations Act, which will be registered by ASIC in relation to the Scheme, copies of which will be included in the Scheme Booklet. Implementation Date means the fifth Business Day after the Record Date, or such other date agreed to in writing by CTR and CTR US HoldCo. Independent Expert means BDO Corporate Finance (WA) Pty Ltd ACN 124 031 045. Independent Expert's Report means the report prepared by the Independent Expert in relation to the Scheme including any updates or amendments to this report made by the Independent Expert. Ineligible Foreign Holder means any Scheme Participant whose address shown on the CTR Share Register as at the Record Date is a place outside Australia, the United States, New Zealand, Switzerland and the United Kingdom and such other jurisdictions as agreed in writing between the parties, unless, no less than three Business Days prior to the Scheme Meeting, CTR and CTR US HoldCo agree in writing that it is lawful and not unduly onerous or unduly impracticable to issue that CTR Shareholder with the Scheme Consideration when the Scheme becomes Effective. Record Date means 7pm on the second Business Day following the Effective Date, or such other date (after the Effective Date) as CTR and CTR US HoldCo may agree in writing. Related Body Corporate has the meaning given to that term in section 50 of the Corporations Act. Sale Agent means a person to be appointed by CTR US HoldCo to sell the CTR US HoldCo Shares that would otherwise be issued to or for the benefit of Ineligible Foreign Holders under the terms of the Scheme. Scheme means the scheme of arrangement pursuant to Part 5.1 of the Corporations Act proposed between CTR and CTR Shareholders as set out in this document, together with any alterations or conditions made or required by the Court under section 411(6) of the Corporations Act and approved in writing by CTR US HoldCo and CTR. Scheme Booklet means the information booklet to be despatched to all CTR Shareholders and approved by the Court in connection with the Scheme, including this Scheme, the Explanatory Statement in respect of the Scheme, the Independent Expert's Report and the notice of meeting. Scheme Consideration means one CTR US HoldCo Share for every Scheme Share held by that Scheme Participant on the Record Date as described in clause 6.2(c). Scheme Implementation Deed means the Scheme Implementation Deed dated on or about 29 September 2022 between CTR and CTR US HoldCo, as amended or varied from time to time. Scheme Meeting means the meeting of CTR Shareholders convened by the Court in relation to the Scheme pursuant to section 411(1) of the Corporations Act and includes any adjournment of that meeting. Scheme Order means the orders of the Court made under section 411(4)(b) of the Corporations Act (and, if applicable and subject to clause 8.9, section 411(6) of the Corporations Act) in relation to the Scheme. Scheme Participant means each person who is a CTR Shareholder on the Record Date. Scheme Shares means all of the CTR Shares on issue on the Record Date. Scheme Transfer means, for each Scheme Participant, a duly completed and executed proper instrument of transfer of the Scheme Shares held by that Scheme Participant for the purposes of section 1071B of the Corporations Act, which may be a master transfer for all Scheme Shares. Second Court Date means the first day on which the application made to the Court for an order pursuant to section 411(4)(b) of the Corporations Act approving the Scheme is heard or, if the application is adjourned for any reason, the first day on which the adjourned application is heard. Subsidiary has the meaning given to that term in Division 6 of Part 1.2 of the Corporations Act. 1.2 Interpretation In this Scheme: (a) the singular includes the plural and vice versa, and a gender includes other genders; (b) another grammatical form of a defined word or expression has a corresponding meaning; (c) a reference to a clause, paragraph, or schedule is to a clause or paragraph of, or schedule to, this agreement, and a reference to this document includes any schedule; (d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time; (e) a reference to A$, dollar, Australian dollar or $ is to Australian currency; (f) a reference to time is to time in Sydney, New South Wales time, unless otherwise noted; (g) a reference to a party is to a party to this agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes; (h) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; (i) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (j) a word or expression defined in the Corporations Act and not otherwise defined in this agreement has the meaning given to it in the Corporations Act; (k) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; (l) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; (m) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this document or any part of it; and (n) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day. 2 Preliminary 2.1 CTR (a) Controlled Thermal Resources Limited (CTR) is an unlisted public limited liability company incorporated in Australia. CTR was incorporated on 6 November 2013 in Queensland, Australia under the laws of the Commonwealth of Australia and is regulated by Australian law, including the Corporations Act. CTR's registered office is at Level 16, 71 Eagle Street, Brisbane QLD 4000. (b) As at the date of the Scheme Implementation Deed, there are 520,725,485 CTR Shares on issue. 2.2 CTR US HoldCo Controlled Thermal Resources Holdings Inc. (CTR US HoldCo) is a company incorporated in the State of Delaware. CTR US HoldCo was incorporated on 30 August 2022 under the Delaware General Corporation Law for the purpose of re-domiciling the parent company of CTR Group to the United States. 2.3 Effect of the Scheme If this Scheme becomes Effective: (a) all of the Scheme Shares (together with all rights and entitlements attaching to the Scheme Shares) will be transferred to CTR US HoldCo and CTR will become a Subsidiary of CTR US HoldCo on the Implementation Date; (b) in consideration of the transfer to CTR US HoldCo of each Scheme Share held by a Scheme Participant, CTR US HoldCo will, on the Implementation Date, provide or procure the provision to each Scheme Participant the Scheme Consideration in accordance with the terms of the Scheme Implementation Deed, this Scheme and the Deed Poll; (c) CTR will enter the name of CTR US HoldCo in the CTR Share Register as the holder of all the Scheme Shares; (d) it will bind CTR and all Scheme Participants, including those who do not attend the Scheme Meeting, those who do not vote at the Scheme Meeting and those who vote against this Scheme at the Scheme Meeting; and (e) it will override the constitution of CTR, to the extent of any inconsistency. 2.4 Agreement to implement this Scheme CTR and CTR US HoldCo have agreed, by executing the Scheme Implementation Deed, to implement the terms of this Scheme and the steps contemplated to follow the implementation of this Scheme, to the extent those steps are required to be done by each of them. 2.5 Deed Poll (a) This Scheme attributes actions to CTR US HoldCo but does not itself impose an obligation on CTR US HoldCo to perform those actions. CTR US HoldCo has undertaken in favour of each Scheme Participant, by executing the Deed Poll, that it will fulfil its obligations under the Scheme Implementation Deed and do all acts and things necessary or desirable on its part to give full effect to this Scheme, including to issue to each Scheme Participant the Scheme Consideration for each Scheme Share held by the Scheme Participant. (b) CTR undertakes in favour of each Scheme Participant to enforce the Deed Poll against CTR US HoldCo on behalf of and as agent and attorney for the Scheme Participants. 3 Conditions Precedent 3.1 Conditions Precedent This Scheme is conditional upon, and will have no force or effect until, the satisfaction of each of the following conditions: (a) Satisfaction of Conditions Precedent: All of the Conditions Precedent being satisfied or waived (other than the condition in clause 3.1(b) (Court Approval) of the Scheme Implementation Deed) in accordance with the Scheme Implementation Deed by the times set out in the Scheme Implementation Deed; (b) Scheme Implementation Deed: As at 8:00 am on the Second Court Date, the Scheme Implementation Deed not having been terminated in accordance with its terms; (c) Deed Poll: As at 8:00 am on the Second Court Date, the Deed Poll not having been terminated in accordance with its terms; (d) Court approval: Approval of the Scheme by the Court pursuant to section 411(4)(b) of the Corporations Act and if applicable, CTR and CTR US HoldCo having accepted in writing any modification or condition made or required by the Court under section 411(6) of the Corporations Act; (e) Satisfaction of Court conditions: Such other conditions made or required by the Court under section 411(6) of the Corporations Act in relation to this Scheme and agreed to by CTR and CTR US HoldCo as having been satisfied or waived; (f) Scheme Order: Lodgement with ASIC of an office copy of the order of the Court approving the Scheme pursuant to section 411(10) of the Corporations Act; and (g) Effect: the Scheme Order comes into effect, pursuant to section 411(10) of the Corporations Act. 3.2 Effect of Conditions The satisfaction of each condition in clauses 3.1(a) to 3.1(g) (inclusive) of this Scheme (Condition) is a condition precedent to the operation of this Scheme. 3.3 Certificate in relation to Conditions (a) CTR and CTR US HoldCo will provide to the Court on the Second Court Date a certificate signed by CTR US HoldCo and CTR (or such other evidence as the Court requests) stating whether or not the Conditions have been satisfied or waived (other than the condition for Court Approval in the Scheme Implementation Deed) as at 8:00am on the Second Court Date. (b) The certificate referred to in this clause 3.3 will constitute conclusive evidence of whether such Conditions have been satisfied or waived as at 8:00am on the Second Court Date. 4 The Scheme 4.1 Effective Date Subject to clause 4.2, this Scheme will come into effect pursuant to section 411(10) of the Corporations Act on and from the Effective Date. 4.2 End Date Without limiting any rights under the Scheme Implementation Deed, this Scheme will lapse and be of no further force or effect (and CTR US HoldCo is released from any obligations and any liability in connection with this Scheme or the Deed Poll) if: (a) the Effective Date has not occurred on or before the End Date; or (b) the Scheme Implementation Deed or Deed Poll is terminated in accordance with its terms, unless CTR or CTR US HoldCo otherwise agree in writing (and, if required, as approved by the Court). 5 Implementation of the Scheme 5.1 Lodgment of Scheme Order with ASIC If the Conditions (other than the condition for Court Approval in the Scheme Implementation Deed) are satisfied, CTR will lodge with ASIC in accordance with section 411(10) of the Corporations Act an office copy of the Scheme Order as soon as practicable, and in any event by no later than 5:00pm on the first Business Day after the date on which the Court makes that Scheme Order (or on such other Business Day as CTR and CTR US HoldCo agree). 5.2 Transfer of Scheme Shares Subject to the Scheme becoming Effective, on the Implementation Date: (a) subject to the provision of the Scheme Consideration in accordance with clause 6, the Scheme Shares, together with all rights and entitlements attaching to the Scheme Shares at the Implementation Date, must be transferred to CTR US HoldCo, without the need for any further act by any Scheme Participant (other than acts performed by CTR as agent and attorney of the Scheme Participants under clause 8.1 or otherwise), by: (i) CTR delivering to CTR US HoldCo a duly completed Scheme Transfer, executed on behalf of the Scheme Participants by CTR; and (ii) CTR US HoldCo executing that Scheme Transfer, attending to the stamping of the Scheme Transfer (if required) and delivering it to CTR for registration; (b) immediately after receipt of the Scheme Transfer in accordance with clause 5.2(a)(ii), but subject to the stamping of the Scheme Transfer (if required), CTR must enter the name of CTR US HoldCo in the CTR Share Register in respect of the Scheme Shares transferred to CTR US HoldCo in accordance with the Scheme; and (c) to the extent permitted by law, the Scheme Shares will be transferred to CTR US HoldCo free from all Encumbrances. 5.3 Timing Notwithstanding any other provision of this Scheme, while CTR US HoldCo Shares forming the Scheme Consideration must be issued (and the CTR US HoldCo Share Register updated to record their issuance) on the Implementation Date, any requirements under clause 6 for the sending of holding statements or allotment advices (or equivalent) may be satisfied as soon as practicable after the Implementation Date. 5.4 Entitlement to Scheme Consideration Subject to this Scheme becoming Effective, in consideration of the transfer of the Scheme Shares to CTR US HoldCo, and subject to the other terms and conditions of this Scheme, on the Implementation Date: (a) each Scheme Participant (who is not an Ineligible Foreign Holder) will be issued the Scheme Consideration in respect of the Scheme Shares held by them on the Record Date in accordance with clause 6 of this Scheme; and (b) the Sale Agent will be issued the Scheme Consideration CTR US HoldCo in respect of the Scheme Shares held by all Ineligible Foreign Holders on the Record Date in accordance with clause 6 of this Scheme. 5.5 Sequence of transactions Subject to the provisions of clause 6 of this Scheme, the transactions which form part of this Scheme will be implemented in the following sequence on the Implementation Date: (a) each Scheme Participant will receive the Scheme Consideration for the Scheme Shares held by that Scheme Participant on the Record Date; and (b) in exchange, all Scheme Shares will be transferred to CTR US HoldCo. 6 Scheme Consideration 6.1 Scheme Consideration On the Implementation Date, CTR US HoldCo must issue the Scheme Consideration to: (a) the Scheme Participants (other than Ineligible Foreign Holders) in accordance with clause 6.2(c)(i) of this Scheme; and (b) the Sale Agent in respect of all Ineligible Foreign Holders on the Record Date to be dealt with in accordance with clause 6.4(b) of this Scheme. 6.2 Issue of Scheme Consideration (a) Not later than one Business Day after the Record Date, CTR will give to CTR US HoldCo a notice specifying the persons to whom CTR US HoldCo Shares CTR US HoldCo are to be issued pursuant to clause 5.4 and the number of CTR US HoldCo Shares CTR US HoldCo to which they are entitled (including the number to be issued to the Sale Agent). (b) On the Implementation Date, CTR US HoldCo must issue to each Scheme Participant the Scheme Consideration for each Scheme Share transferred to CTR US HoldCo on the Implementation Date by that Scheme Participant. (c) The obligation of CTR US HoldCo to issue the Scheme Consideration under this Scheme will be satisfied by CTR US HoldCo: (i) in the case of a Scheme Participant who holds Scheme Shares (other than an Ineligible Foreign Holder), issuing one CTR US HoldCo Share for every Scheme Share held by that Scheme Participant on the Record Date; and (ii) in the case of an Ineligible Foreign Holder, issuing the Sale Agent such number of CTR US HoldCo Shares in accordance with clause 6.4 that Ineligible Foreign Holders would otherwise have been entitled to. (d) CTR US HoldCo covenants in favour of CTR (in its own right and separately as trustee and nominee for each of the Scheme Participants) that: (i) the CTR US HoldCo Shares to be issued under the Scheme and Deed Poll will be duly and validly authorised and will, on and from their issue, rank equally in all respects with all existing CTR US HoldCo Shares (if any); (ii) the CTR US HoldCo Shares issued as Scheme Consideration will be entitled to participate in and receive any dividends or distribution of capital paid and any other entitlements accruing in respect of CTR US HoldCo Shares on and after the Implementation Date; and (iii) on issue, each such CTR US HoldCo Share will be validly issued, fully paid and free from any Encumbrance or third-party rights or any kind. 6.3 CTR US HoldCo Shares - registration and notices The obligation of CTR US HoldCo to issue CTR US HoldCo Shares under clause 6.2(c)(i) will be satisfied by CTR US HoldCo, on the Implementation Date, entering in the CTR US HoldCo Share Register the name of each person who is to receive CTR US HoldCo Shares. 6.4 Ineligible Foreign Holders (a) CTR US HoldCo has no obligation under this Scheme to issue any Scheme Consideration in the name of an Ineligible Foreign Holder under the Scheme. (b) The CTR US HoldCo Shares, that would but for clause 6.4(a), have been issued in the name of an Ineligible Foreign Holder as Scheme Consideration, must be issued by CTR US HoldCo to the Sale Agent and CTR US HoldCo must: (i) enter the name and registered address of the Sale Agent into the CTR US HoldCo Share Register on the Implementation Date in respect of the CTR US HoldCo Shares required to be issued to it under clause 5.4(b); and (ii) a holding statement is sent to the registered address of the Sale Agent, representing the number of CTR US HoldCo Shares issued to it. (c) CTR US HoldCo must: (i) procure that the Sale Agent: (A) as soon as reasonably practicable after the Implementation Date, sells all the CTR US HoldCo Shares issued to the Sale Agent pursuant to clause 6.4(b) in such manner at such price and other terms as the Sale Agent determines in good faith for the benefit of the Ineligible Foreign Holders; and (B) promptly after receiving the proceeds in respect of the sale of all of the CTR US HoldCo Shares referred to in clause 6.4(c)(i)(A), accounts to the Ineligible Foreign Holders for the proceeds of the sale of all of the CTR US HoldCo Shares (after deduction of any applicable brokerage, stamp duty and other costs, taxes and charges) (Proceeds); and (C) as soon as reasonably practicable, remit to each Ineligible Foreign Holder the amount 'A' calculated in accordance with the following formula and rounded down to the nearest cent: A = (B ÷ C) x D where B = the number of CTR US HoldCo Shares that would otherwise have been issued to that Ineligible Foreign Holder had it not been an Ineligible Foreign Holder and which were issued to the Sale Agent; C = the total number of CTR US HoldCo Shares which would otherwise have been issued to all Ineligible Foreign Holders and which were issued to the Sale Agent; and D = the Proceeds, by: (I) making a deposit in Australian dollars into a bank account notified by the Ineligible Foreign Holders to CTR and recorded in the CTR Share Register on the Record Date; or (II) dispatching, or procuring the dispatch of, a cheque for the relevant amount in Australian dollars drawn in the name of the Ineligible Foreign Holders (or in the case of joint holders, in accordance with clause 6.4) by ordinary pre-paid post to the address of that Ineligible Foreign Holder appearing in the CTR Share Register on the Record Date. (d) In the event that the Sale Agent believes, after consultation with CTR, that an Ineligible Foreign Holder is not known at its address appearing in the CTR Share Register on the Record Date, the Sale Agent may credit the amount payable to that Ineligible Foreign Holder to a separate bank account of CTR US HoldCo to be held until the Ineligible Foreign Holder claims the amount or the interest is dealt with in accordance with unclaimed money legislation, and CTR US HoldCo must hold the amount in trust but any amount accruing from the amount will be to the benefit of CTR US HoldCo. An amount credited to the account is to be treated as having been paid to the Ineligible Foreign Holder. CTR US HoldCo must maintain records of the amounts paid, the people who are entitled to the amounts and any transfers of the amounts. (e) Payment by CTR US HoldCo to an Ineligible Foreign Holder in accordance with this clause 6.4 satisfies in full the Ineligible Foreign Holder's right to the Scheme Consideration. (f) None of CTR US HoldCo, CTR or the Sale Agent gives any assurance as to the price that will be achieved for the sale of the CTR US HoldCo Shares described in this clause 6, and the sale of the CTR US HoldCo Shares under this clause 6 will be at the risk of the Ineligible Foreign Holder. (g) Each Ineligible Foreign Holder appoints CTR as its agent to take any necessary or appropriate actions, or to receive on its behalf any financial services guide or other notice which may be given by the Sale Agent to the Ineligible Foreign Holder, in connection with its appointment or sales. 6.5 Joint holders In the case of Scheme Shares held in joint names: (a) the CTR US HoldCo Shares to be issued under this Scheme will be issued to and registered in the names of the joint holders; and (b) any other document required to be sent under this Scheme will be forwarded to the registered address recorded in the CTR Share Register; and (c) in respect of any Ineligible Foreign Holder, any cheque required to be paid to Scheme Participants will be payable to the joint holders and will be forwarded to the registered address recorded on the CTR Share Register on the Record Date. 6.6 Scheme Participants' agreement If the Scheme becomes Effective: (a) each Scheme Participant (other than an Ineligible Foreign Holder) will be deemed to have agreed to become a member of CTR US HoldCo and to have accepted the CTR US HoldCo Shares issued to that holder under this Scheme subject to, and to be bound by, the constituent documents of CTR US HoldCo; (b) each Scheme Participant that is an Ineligible Foreign Holder agrees and acknowledges that the payment to it of an amount in accordance with clause 6.4(c) constitutes the satisfaction in full of its entitlement under this Scheme; and (c) each Scheme Participant agrees to the transfer of their Scheme Shares, together with all rights and entitlements attaching to those Scheme Shares, in accordance with the terms of this Scheme. 7 DEALINGS IN Scheme SHARES 7.1 Determination of Scheme Participants (a) Each Scheme Participant will be entitled to participate in the Scheme. (b) For the purpose of establishing the identity of Scheme Participants, dealings in CTR Shares will only be recognised if registrable transmission applications or transfers in registrable form in respect of those dealings are received on or before the Record Date at the place where the CTR Share Register is kept. 7.2 CTR's obligation to register CTR must register any transmission application or transfer received in accordance with clause 7.1 by the Record Date. 7.3 Transfers after the Record Date (a) If the Scheme becomes Effective, a CTR Shareholder (and any person claiming through that holder) must not dispose of, or purport or agree to dispose of, any CTR Shares or any interest in them after the Record Date (other than a transfer to CTR US HoldCo in accordance with the Scheme and any subsequent transfers by CTR US HoldCo or its successors in title). (b) CTR will not accept for registration or recognise for any purpose any transfer, transmission or application in respect of CTR Shares received after the times specified in clause 7.1, or received prior to such times but not in registrable form, other than a transfer to CTR US HoldCo in accordance with this Scheme and any subsequent transfers by CTR US HoldCo or its successors in title. 7.4 Maintenance of CTR Share Register For the purpose of determining entitlements to the Scheme Consideration, CTR will, until the Scheme Consideration has been issued to Scheme Participants, maintain or procure the maintenance of the CTR Share Register in accordance with this clause 7. The CTR Share Register in this form will solely determine entitlements to the Scheme Consideration. 7.5 Effect of certificates and holding statements (a) Subject to provision of the Scheme Consideration and registration of the transfer to CTR US HoldCo, any statements of holding in respect of CTR Shares will cease to have effect after the Record Date as documents of title in respect of those shares. (b) After the Record Date, each entry current on the CTR Share Register on the Record Date (other than entries in respect of CTR US HoldCo and its successors in title) will cease to have effect except as evidence of entitlement to the Scheme Consideration. 7.6 Details of Scheme Participants As soon as practicable after the Record Date, and in any event within one Business Day of the Record Date, CTR will ensure that details of the names, registered addresses and holdings of CTR Shares for each Scheme Participant, as shown in the CTR Share Register on the Record Date, are available to CTR US HoldCo in such form as CTR US HoldCo reasonably requires. 8 General Scheme Provisions 8.1 Appointment of CTR as agent and attorney On this Scheme becoming Effective, each Scheme Participant, without the need for any further act, is deemed to have irrevocably appointed CTR and all of its directors and officers (jointly and severally) as its attorney and agent for the purposes of: (a) enforcing the Deed Poll against CTR US HoldCo; and (b) doing all things and executing any deeds, agreements, instruments, transfers or other documents as may be necessary or desirable to give full effect to this Scheme and the transactions contemplated by it, including the effecting of a valid transfer or transfers (or the execution and delivery of any Scheme Transfers) as contemplated by clause 5.2, and CTR accepts such appointment. CTR as attorney and agent of each Scheme Participant, may sub delegate its functions, authorities or powers under this clause 8.1 to all or any of its directors and officers (jointly, severally or jointly and severally). 8.2 Agreements and consents of Scheme Participants Each Scheme Participant: (a) irrevocably agrees to the transfer of their Scheme Shares, together with all rights and entitlements attaching to those Scheme Shares, to CTR US HoldCo in accordance with the terms of the Scheme; (b) the variation, cancellation or modification (if any) of the rights attached to its CTR Shares constituted by or resulting from the Scheme; and (c) irrevocably consents to CTR and CTR US HoldCo doing all things and executing all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the terms of the Scheme and the transactions contemplated by it, without the need for any further act by that Scheme Participant. 8.3 Warranty by Scheme Participants Each Scheme Participant warrants to CTR US HoldCo and is deemed to have authorised CTR to warrant to CTR US HoldCo as agent and attorney for the Scheme Participant by virtue of this clause 8.1, that: (a) all their Scheme Shares (including any rights and entitlements attaching to those shares) transferred to CTR US HoldCo under the Scheme will, as at the date of the transfer, be fully paid and free from all Encumbrances; (b) all of their Scheme Shares will be fully paid on the date of transfer; and (c) they have full power and capacity to sell and to transfer their Scheme Shares (including any rights and entitlements attaching to those shares) to CTR US HoldCo under the Scheme. 8.4 Binding instruction or notifications Except for a CTR Shareholder's tax file number and except as prohibited by law, all instructions, notifications or elections given by a CTR Shareholder to CTR or the CTR Share Registry that is binding or deemed binding between the CTR Shareholder and CTR or the CTR Share Registry (as applicable) relating to CTR or CTR Shares, including, without limitation, instructions, notifications or elections relating to: (a) whether distributions or dividends are to be paid by cheque or into a specific account; and (b) notices or other communications from CTR (including by email), will be deemed from the Implementation Date (except to the extent determined otherwise by CTR US HoldCo in its sole discretion) to be made by the Scheme Participant to CTR US HoldCo to be a binding instruction, notification or election to, and accepted by, CTR US HoldCo in respect of any CTR US HoldCo Shares provided to that Scheme Participant until and unless that instruction, notification or election is revoked or amended in writing addressed to CTR US HoldCo or its agent, provided that any such instructions, notifications or elections accepted by CTR US HoldCo will apply to and in respect of the CTR US HoldCo Shares issued as Scheme Consideration only to the extent that they are: (a) not inconsistent with the other provisions of this Scheme; or (b) recognised under Australian law or CTR US HoldCo's constituent documents. 8.5 Further assurances Each Scheme Participant and CTR will execute documents and do all things and acts necessary or expedient in order to implement this Scheme. 8.6 Authority of CTR Each of the Scheme Participants consents to CTR doing all things necessary for or incidental to the implementation of this Scheme. 8.7 Scheme binding This Scheme binds CTR and all Scheme Participants from time to time (including those who do not attend the Scheme Meeting, those who do not vote at that meeting or vote against this Scheme) and, to the extent of any inconsistency, overrides the constitution of CTR. 8.8 Beneficial entitlement to Scheme Shares Immediately from the time that CTR US HoldCo has satisfied its obligations under clauses 5.4 and 6 pending registration by CTR of CTR US HoldCo in the CTR Share Register as the holder of the Scheme Shares: (a) CTR US HoldCo will be beneficially entitled to the Scheme Shares transferred to it under this Scheme; and (b) each Scheme Participant, without the need for any further act by that Scheme Participant: (i) irrevocably appoints CTR US HoldCo as attorney and agent (and directs CTR US HoldCo in each capacity) to appoint any director, officer, secretary or agent nominated by CTR US HoldCo as its sole proxy and, where applicable, its corporate representative to attend shareholder meetings of CTR, exercise the votes attached to the Scheme Shares registered in the name of the Scheme Participant and sign any shareholders resolution of CTR; (ii) undertakes not to otherwise attend or vote at any such meetings or sign any such resolutions, whether in person, by proxy or by corporate representative other than pursuant to clause 8.8(b)(i); (iii) must take all other actions in the capacity of a registered holder of Scheme Shares as CTR US HoldCo reasonably directs; and (iv) acknowledges and agrees that in exercising the powers referred to in this clause 8.8(b), any director, officer, secretary or agent nominated by CTR US HoldCo may act in the best interests of CTR US HoldCo as the intended registered holder of the Scheme Shares. 8.9 Scheme alterations and conditions If the Court proposes to approve this Scheme subject to any conditions or alterations under section 411(6) of the Corporations Act, CTR may, by its counsel on behalf of all persons concerned consent to only such of those conditions or alterations to this Scheme to which CTR US HoldCo has consented, such consent not to be unreasonably withheld or delayed. 8.10 Limitation of liability None of CTR or CTR US HoldCo nor any of their respective officers or agents is liable for anything done or omitted to be done in the performance of this Scheme or the Deed Poll in good faith. 8.11 Notices (a) Where a notice, transfer, transmission application or other communication referred to in this Scheme is sent by post to CTR, it will not be deemed to be received in the ordinary course of post or on a date other than the date (if any) on which it is actually received at CTR's registered office or at the office of the CTR Share Register. (b) The accidental omission to give notice of the Scheme Meeting to any CTR Shareholders, or the non-receipt of such a notice by any CTR Shareholders, will not, unless ordered by the Court, invalidate this Scheme or the proceedings at the Scheme Meeting. 8.12 Further assurances Each party must, at its own expense, whenever requested by the other party, promptly do or, to the extent reasonably practicable, arrange for others to do everything, including executing any documents, reasonably necessary to give full effect to this Scheme and the transactions contemplated by this Scheme. 8.13 Enforcement of Deed Poll CTR undertakes in favour of each Scheme Participant that it will enforce the Deed Poll against CTR US HoldCo on behalf of and as agent and attorney for the Scheme Participants. 8.14 Costs and stamp duty All duty (including stamp duty), and any related fines, penalties and interest, payable in connection with the transfer by Scheme Participants of the Scheme Shares to CTR US HoldCo pursuant to the Scheme will be payable by CTR US HoldCo. 8.15 Governing Law (a) This Scheme is governed by and will be construed according to the laws of New South Wales. (b) Each party irrevocably: (i) submits to the non-exclusive jurisdiction of the courts of New South Wales and of the courts competent to determine appeals from those courts, with respect to any proceedings that may be brought at any time relating to this Scheme; and (ii) waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if the venue of those proceedings fall within clause 8.15(b)(i).

INTRODUCTION 1 These reasons relate to the orders made on the day of the second court hearing approving a scheme of arrangement under s 411(4)(b) of the Corporations Act 2001 (Cth). For the purpose of these reasons, familiarity is assumed with Controlled Thermal Resources Limited, in the matter of Controlled Thermal Resources Limited [2022] FCA 1292 (CTR (No 1)). Defined terms used within have the same meaning as in CTR (No 1). 2 At the first court hearing on 28 October 2022, the Court made convening orders requiring CTR to convene and hold a Scheme Meeting to consider the proposed Scheme. The Scheme Meeting was held on 22 November 2022, and the resolution to agree to the Scheme was passed by the requisite statutory majorities. Implementation of the Scheme is expected to occur on 14 December 2022, subject to Court approval and the Scheme becoming effective.

CONCLUSION IN SUMMARY FORM 3 For the reasons which follow, I was satisfied that all relevant statutory and procedural requirements have been met and that it is appropriate in the exercise of the Court's discretion to approve the Scheme. Accordingly, I made orders substantially in the form sought by CTR.

THE SCHEME 4 As noted in CTR (No 1), the commercial purpose of the Scheme is to redomicile the CTR Group to Delaware - see [4] to [5] of CTR (No 1), and the diagrams depicting the structure of the CTR Group pre and post implementation of the proposed scheme attached therein as schedules 1 and 2. 5 On 30 September 2022, CTR and CTR US HoldCo entered into a SID. The SID provides that, subject to a number of conditions precedent, CTR US HoldCo will acquire all of the issued shares of CTR in consideration of the CTR shareholders being provided with all of the issued shares in CTR US HoldCo, by way of the proposed Scheme. The exchange of an eligible shareholder's interest in CTR for an interest in CTR US HoldCo will be on a one-for-one basis. Ineligible Foreign Holders will receive monetary consideration for the transfer of their ordinary shares to CTR US HoldCo and not scrip consideration for the reasons identified at CTR (No 1) at [11]. The evidence at the second hearing confirmed that, in accordance with the expectation at the first court hearing (see CTR (No 1) at [13]), as at 7.00 PM on 20 November 2022, there were no CTR shareholders noted in the CTR share register with an address outside Australia, United States of America, New Zealand, Switzerland or the United Kingdom.

ROLE OF THE COURT 6 I recently summarised the principles in relation to the role of the court at the second court hearing in considering whether to make orders under s 411(4)(b) of the Act in Nearmap Ltd, in the matter of Nearmap Ltd (No 2) [2022] FCA 1464 at [5] to [7]: 5 I gratefully adopt the recent summary of the applicable principles in respect of approving a scheme of arrangement by O'Callaghan J in Re PayGroup Limited (No 2) [2022] FCA 1350 at [29] to [30]: 29 The role of the court in approving a scheme of arrangement is supervisory. The court is not bound to approve it merely because it previously made orders for the convening of a meeting or because the statutory majorities were achieved. That said, as Jacobson J observed in Re Seven Network Limited (No 3) [2010] FCA 400; (2010) 267 ALR 583 at 588 [32], "the court will usually approach the task upon the basis that the members are better judges of what is in their commercial interests than the court". 30 The cases establish that the following matters should be taken into account, namely that: (a) the orders of the court convening the scheme meeting were complied with; (b) the resolution to approve the scheme was passed by the requisite majority, and whether other statutory requirements have been satisfied; (c) 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) the scheme is fair and reasonable so that an intelligent and honest shareholder, properly informed and acting alone, might approve it; (e) there was full and fair disclosure to shareholders of all information material to the decision whether to vote for or against the scheme; (f) 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; and (g) the court is satisfied under s 411(17) that the scheme has not been proposed to avoid Chapter 6 of the Act, or that the plaintiff has a statement from ASIC that it has no objection to the scheme. 6 In considering the approval given at the Scheme Meeting, it is relevant to consider whether in passing the resolution at the Scheme Meeting (Scheme Resolution), shareholders acted in good faith and for proper purposes, and whether there is any evidence of oppression of the minority. 7 The considerations relevant to the exercise of the Court's discretion are well established. For present purposes, it suffices to extract the following passage in which Beach J described the Court's role as follows (Re Amcor (No 2) [2019] FCA 842 (at [7] and [11])): …In essence, my role at the second court hearing is to assess the Scheme taking into account whether the Scheme is sufficiently fair and reasonable such that an intelligent and honest shareholder properly informed and acting alone might approve it. Of course, I can only approve a scheme of arrangement if the requisite majority of shareholders vote in favour of it, but I am not bound to approve the Scheme simply because I previously made orders for the convening of a Scheme meeting and subsequently the requisite majority agreed to it. But I accept that shareholders voting collectively at the Scheme meeting are better judges than I of what is to their commercial advantage and in their interests and accordingly, absent good reason, I should give effect to their intentions. … 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.

STATUTORY AND PROCEDURAL REQUIREMENTS 7 On the basis of the evidence led by CTR, and the written and oral submissions, I was satisfied that CTR has demonstrated that it has complied with the convening orders, and the statutory and procedural requirements.

Dispatch of Scheme materials 8 Based on the evidence led by CTR at the second court hearing, I was satisfied that after the Scheme Booklet was registered with ASIC under s 412(6) of the Act, the Scheme materials were dispatched to Scheme Shareholders in accordance with the relevant requirements of the convening orders, and that CTR has complied with the convening orders requiring it to cause a copy of the Scheme Booklet to be provided if requested by a shareholder.

Full and fair disclosure to members 9 On the basis of the evidence relied upon at the first court hearing, I was satisfied that the Scheme Booklet was adequate in meeting the disclosure obligations imposed by s 412 of the Act: CTR (No 1) at [35] to [38]. The verification processes undertaken in respect of the Scheme Booklet have been addressed in the evidence. Since the first court hearing, the Scheme Booklet has been registered by ASIC. Having regard to ss 412(6) and 412(8), registration of the Scheme Booklet by ASIC provides further assurance in relation to the adequacy of the disclosure in the Scheme Booklet. I was satisfied that there has been full and fair disclosure to Scheme Shareholders of all material information.

Receipt and processing of proxy voting instructions 10 The evidence demonstrates that CTR complied with the requirements with respect to proxies in Part 2G.2, Division 6 of the Act.

Conduct of Scheme Meeting and voting results 11 The written submissions provided by CTR in advance of the second court hearing addressed the requirements of the convening orders in relation to the conduct of the Scheme Meeting, and the evidence led demonstrated that the Scheme Meeting was held at the required time and place on the required date, and in the required manner. 12 At all relevant times there were 341 CTR shareholders who collectively held 521,450,485 issued ordinary shares in the company. A total of 84 CTR shareholders were present in person or via online attendance at the Scheme Meeting. A total of 191 proxy votes representing 443,654,371 shares were cast in favour of the proposed Scheme, there were 24 open proxies representing 4,723,991 shares, and there were no proxy votes cast against the proposed Scheme. The computer-generated poll report prepared by the Link Market team records that 251 members holding 503,845,344 shares voted in person, virtually or by proxy in favour of the proposed Scheme, and no votes were cast against the scheme. 13 Voter turnout was high - 251 out of 341 shareholders (73.6%) - and satisfied the headcount test in s 411(4)(a)(ii)(A), which requires that the scheme resolution be passed by a majority in number of members present and voting in person or by proxy. The votes cast (being, on a poll, one vote per fully paid share according to article 53.1(2) of the CTR Constitution) were 503,845,344 out of a total issued capital of 521,450,485, or 96.6%. 14 In accordance with s 411(4)(a)(ii) of the Act, the Scheme Resolution was passed by a majority in number of members present and voting (either in person or by proxy) at the Scheme Meeting, and by the requisite special majority of the votes cast on the Scheme Resolution.

Advertisement of second court hearing 15 In accordance with r 3.4 of the Federal Court (Corporations) Rules 2000 (Cth), CTR published a notice of the hearing to approve the Scheme in The Australian newspaper not later than 5 days' prior to the date fixed for the hearing of the application, and the notice was in accordance with Form 6. 16 Prior to the second court hearing, CTR did not receive any formal or informal notice that any person intended to appear to oppose the Scheme, or for any other reason. Indeed, there were no appearances at the second court hearing from any shareholder or other interested party wishing to oppose the Scheme.

Conditions Precedent 17 At the second hearing a joint conditions precedent certificate executed as a deed poll by each of CTR and CTR US HoldCo dated 12 December 2022 was tendered confirming that all of conditions precedent have been satisfied or waived (other than the conditions relating to the Court's approval of the Scheme). 18 I was satisfied that all conditions precedent to the Scheme, other than the Court's approval and the lodgement of the Court's approval order with ASIC, had been satisfied or waived. In the circumstances, any future doubt as to the binding nature of the Scheme had been removed: Re Vault Intelligence Ltd (No 2) [2020] FCA 1504 at [25].

DISCRETION 19 I was satisfied that all statutory and procedural requirements were met. I now turn to consider whether in the exercise of discretion the Scheme should be approved.

The Scheme is fair and reasonable 20 I was satisfied that the Scheme is fair and reasonable, in the sense that an intelligent and honest shareholder, properly informed and acting alone, might approve the Scheme. My reasons are as follows. 21 First, the support of the Scheme Shareholders, as reflected in the voting results of the Scheme Meeting, establishes that prima facie the Scheme is fair: Re Amcor Limited (No 2) [2019] FCA 842 at [33]r at [7] to [11]. 22 Secondly, the CTR directors recommended that CTR shareholders vote in favour of the Scheme for the reasons given in the Scheme Booklet, and each stated their intention to vote the CTR shares held or controlled by them in favour of the Scheme: see CTR (No 1) at [22]. 23 Thirdly, the independent experts opined that the Scheme is in the best interests of Scheme Shareholders: see CTR (No 1) at [23]. One of the independent experts has provided an affidavit of 25 October 2022 in which he confirms that he continues to hold the view that the Scheme is in the best interests of Scheme Shareholders, notwithstanding that since providing his report, CTR has released its audited annual report for the financial year ending 2022 which includes minor changes to the financial position stated in the unaudited financial information on which the expert previously relied. 24 Fourthly, the disclosures in the Scheme Booklet included a detailed description of the proposed Scheme, including the potential benefits and disadvantages of the Scheme: see CTR (No 1) at [6] to [9]. 25 Fifthly, the consideration provided to eligible members of CTR under the proposed Scheme comprises a one-for-one scrip exchange and will not materially change an eligible member's underlying ownership interest in the business. At the second court hearing, evidence was tendered to confirm that CTR US HoldCo and CTR respectively had not raised debts or entered into financing arrangements between 28 October 2022 and the second court hearing. Further, that they had no intention to do so until after implementation of the Scheme. Similarly, evidence was tendered to confirm that CTR US HoldCo and CTR respectively had not raised any equity, by share issuance or otherwise, between 28 October 2022 and the second court hearing and that they had no intention to do so until after implementation of the Scheme. 26 Sixthly, no shareholder sought to oppose the orders approving the Scheme, and no evidence suggested any oppression in the conduct of the Scheme Meeting. 27 Finally, the Scheme contains adequate measures to protect shareholders against performance risk: see CTR (No 1) at [53]. 28 Accordingly, I was satisfied that the Scheme is fair and reasonable in the requisite sense.

Good faith and no oppression 29 There is nothing to suggest that the Scheme has been proposed other than in good faith, or that the CTR shareholders voted other than in good faith and for proper purposes. There is also no suggestion of oppression of any minority, and no evidence that any third party will be disproportionately adversely affected by the operation of the Scheme, which received strong support from those who voted on the Scheme Resolution.

Matters brought to the attention of the Court 30 At the first court hearing, CTR raised for the consideration of the Court two matters warranting the Court's attention. I was satisfied that those matters did not present an impediment to the Court approving the Scheme. 31 The first matter was in respect of Ineligible Foreign Holders. As noted above, the evidence suggested that there are no Ineligible Foreign Holders. In any event, if that proves to be wrong, the sale mechanism and consequent treatment of Ineligible Foreign Holders is adequately disclosed in the Scheme Booklet and it is similar to that considered to be appropriate in a number of cases: CTR (No 1) at [51]. 32 The second matter was in respect of the treatment of CTR Performance Rights and CTR Indeterminate Rights which will roll over to become rights against CTR US HoldCo if the Scheme is implemented: see CTR (No 1) at [14] to [17]. The evidence at the second court hearing confirmed that, as at 8 December 2022, none of the CTR Performance Rights or CTR Indeterminate Rights on issue have been exercised by Isdell. Counsel for CTR confirmed that the position was unchanged as at the second court hearing. Isdell as trustee for the JIB Trust has given a letter of undertaking to CTR with respect to the Performance Rights, stating that it will not (and it is the intention of Isdell that it will not) exercise any of the Performance Rights prior to implementation of the proposed Scheme. In CTR (No 1) at [49], I concluded that it was not necessary to create a separate class comprised of the holders of the CTR Performance Rights and CTR Indeterminate Rights. I adhere to that view and, having regard to the evidence, I was satisfied that no issue arises in relation to CTR Performance Rights and CTR Indeterminate Rights that weighs against the Court approving the Scheme. 33 At the second court hearing, CTR raised one additional matter for the Court's consideration. Following the first court hearing, and without making an application to the Court to approve a supplementary disclosure to Scheme Shareholders, CTR sent some communications to its shareholders with respect to its 2022 Annual Report, which was distributed after the convening orders and after the distribution of the Scheme Booklet. CTR submits that these communications, made in discharge of its statutory reporting obligations, do not affect the integrity of the Scheme Booklet and the efficacy of the disclosure it has made to shareholders pursuant to the convening orders with respect to the proposed Scheme. I reviewed the relevant references to the Scheme in the communications sent in relation to the 2022 Annual Report and was satisfied that CTR's submission should be accepted. The only changes between the unaudited financial information for FY 2022 included in the Scheme Booklet and the audited financial information for FY 2022 included in the 2022 Annual Report were adjustments due to the recognition of a property purchase reversal. The independent expert has expressly opined these changes do not affect his opinion as to the Scheme being, on balance, in the best interests of CTR's shareholders.

Section 411(17) 34 ASIC issued a statement in writing in accordance with s 411(17)(b) of the Act stating that it has no objection to the Scheme. Accordingly, while it does not follow that the Court must necessarily approve the Scheme, it was open for the Court to do so. Given ASIC's position, it was not necessary for the Court to satisfy itself separately under s 411(17)(a) that the Scheme was not proposed for the purpose of enabling any person to avoid the operation of Chapter 6 of the Act. In the circumstances, I was satisfied that a full and fair process has been followed in accordance with s 411 and that s 411(17) did not present a bar to the approval of the Scheme.

Securities Act 1933 (US) 35 As noted at CTR (No 1) at [54] to [56], CTR and CTR US Inc intend to rely on the second court hearing as the relevant hearing at which the fairness and reasonableness of the Scheme was considered by a court for the purposes of applying for an exemption under s 3(a)(10) of the US Securities Act from American registration/prospectus requirements in connection with the implementation of the scheme. This was disclosed in the Scheme Booklet. A similar exemption was obtained in reliance on the approval of the scheme of arrangement in Re Amcor at [33] in which Beach J described doing so as "common practice in schemes of arrangement". 36 In Re Amcor at [37] Beach J applied the approach previously adopted by Jacobson J in Re Solution 6 Holdings Limited [2004] FCA 1049 at [37] to [44] and Re Atlantic Gold NL (No 2) [2014] FCA 869 at [8] where Jacobson J observed: 8 Spur intends to issue securities which constitute the scheme consideration to US shareholders in reliance upon the exemption from registration requirements of the United States Securities Act 1933. The exemption is set out in s 3(a)(10) of that Act. The principles which apply and the approach which has been adopted by the Court were summarised by me in Re Solution 6 Holdings Limited at [37]-[44]. The approach which I propose to take in the present case is in accordance with the approach to which I referred in Solution 6. Importantly, that approach was based on a number of authorities which are generally regarded as the seminal authorities on this question. In accordance with that approach, it is appropriate to note the following: • the scheme contemplates the issue of Spur securities as a scheme consideration; • the Court was advised before commencement of the approval hearing that Atlantic and Spur would rely on the s 3(a)(10) of the US Securities Act exemption on the basis of the Court's approval of the scheme; • the Court was informed of the manner in which the scheme consideration will be calculated and was informed of the securities to be offered as scheme consideration. An independent expert report sworn by the expert concluded that the proposal is in the best interests of Atlantic shareholders. The Court has taken that evidence into account in determining whether the scheme is fair and thus should be approved; • the Court, as it is statutorily required to do, held a hearing to consider the fairness and reasonableness of the proposed scheme; and • that hearing has been open to the public and any person to whom Spur Securities are to be issued has standing to appear. Notice of the date of the hearing was included in the scheme booklet sent to all shareholders of Atlantic prior to the proposal being considered by the meeting of those shareholders and was advertised in a daily newspaper circulating throughout the country. There was no appearance by any shareholder. 37 The present Scheme is a top-hatting scheme. It involves a scrip-for-scrip swap at an exchange rate of 1:1. CTR US Holdco is a newly formed company, and the assets supporting the value of CTR shares are the same assets that will support the value of the shares in CTR US HoldCo. As noted above, evidence tendered at the second court hearing demonstrated that CTR US Hold Co has not, and does not intend to, undertake any capital or debt raising that would impact the correspondence in value of the scrip for scrip consideration. The value of the original shares and the replacement shares is constant before and immediately after the Scheme implementation. In these circumstances, I confirm the following: (1) The Court was advised before the commencement of the approval hearing that the plaintiff intended to rely on the exemption under s 3(a)(10) of the US Securities Act on the basis of the Court's approval of the scheme. (2) In the context of the matters outlined in the chapeau to this paragraph, the Court has been sufficiently informed of the manner in which the scheme consideration will be calculated in order to determine the value of the securities to be offered and surrendered. (3) The Court has held a hearing to consider the fairness and reasonableness of the proposed scheme. (4) The hearing has been open to everyone to whom the securities would be issued, and notice of the hearing in appropriate terms has been provided in a timely manner so that those to whom the new securities are to be issued have had opportunity to oppose or otherwise raise any objection to the scheme. See Avita Medical Limited, in the matter of Avita Medical Limited (No 3) [2020] FCA 896 at [16] to [17], where similar confirmation was given in respect of a top-hatting scheme.

Conclusion - the Scheme is approved under s 411(4)(b) of the Act 38 I was satisfied that all relevant matters were brought to my attention, and that orders should be made approving the scheme.

EXEMPTION FROM SECTION 411(11) 39 CTR requested an exemption from compliance with s 411(11) of the Act. Section 411(11) requires, subject to s 411(12), that a copy of the Court's order approving a scheme of arrangement be annexed to every copy of the company's constitution issued after the order is made. Section 411(12) allows the Court to exempt a body from compliance with this provision or to determine the period during which it shall comply. I was satisfied that exemption from compliance with s 411(11) was appropriate in the circumstances of this Scheme and consistent with authority for the following reasons: (1) the Scheme will not alter the constitution of CTR or the rights of CTR shareholders, creditors or other persons dealing with the company; (2) no ongoing purpose will be served by requiring the orders approving the Scheme to be annexed to CTR's constitution; and (3) current shareholders of CTR are fully informed of the Scheme and will be informed in the event that the Court approves the Scheme. See, for example, Re Amcor at [41]; Healthscope Limited, in the Matter of Healthscope Limited (No 2) [2019] FCA 759; 136 ACSR 259 at [41]; Re APN Property Group Limited (No 3) [2021] VSC 490 at [68] to [69].

CONCLUSION 40 For the reasons given, I made orders in the terms sought by CTR approving the Scheme. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

Corporations Act 2001(Cth)ss 411(4), 412

At a glance

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