Nordic Bank plc v International Harvester Australia Ltd

1. The Court notes the letter from ASIC to the directors of the Plaintiff (Viridian) dated 21 August 2025 produced at the hearing.

1. Pursuant to subsection 411(1) and section 1319 of the Corporations Act 2001 (Cth) (Act), Viridian convene and hold a meeting (Ordinary Scheme Meeting) of the members of Viridian holding ordinary shares (Ordinary Shareholders):

(a) for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed Scheme between Viridian and Ordinary Shareholders (Ordinary Share Scheme), the terms of which are set out at pages 125 to 145 of Annexure GK-2 to the affidavit of Gowri Kangeson affirmed on 28 July 2025 (Kangeson Affidavit); and

(b) to be held on 24 September 2025 commencing at 3:00pm (AEST) and to be conducted electronically through an online platform.

1. Pursuant to subsection 411(1) and section 1319 of the Act, Viridian convene and hold a meeting (Sentinel Scheme Meeting) of the members of Viridian holding sentinel shares (Sentinel Shareholders):

(a) for the purpose of considering and, if thought fit, agreeing (with or without modification) to the proposed Scheme between Viridian and Sentinel Shareholders, the terms of which are set out at pages 158 to 177 of Annexure GK-2 to the Kangeson Affidavit (Sentinel Share Scheme); and

(b) to be held on 24 September 2025 commencing at 4:00pm (AEST) and to be conducted electronically through an online platform.

1. Pursuant to subsection 411(1) and section 1319 of the Act, the Ordinary Scheme Meeting and the Sentinel Scheme Meeting (collectively, Scheme Meetings) be convened by sending on or before 28 August 2025 to each Viridian shareholder an email substantially in the form of the draft email at Annexure GC-7 to the affidavit of Glenn Calder affirmed 18 August 2025 (Calder Affidavit) and which attaches an electronic copy of each of the following documents (Email):

(a) a letter substantially in the form of the draft letter at Annexure GC-8 to the Calder Affidavit (Letter);

(b) a document substantially in the form which appears at Annexure EC-2 to the affidavit of Elliott Chi Lam Cheung affirmed on 20 August 2025, and which annexes (amongst other things) a Notice of Meeting for each Scheme Meeting and a copy of the proposed Ordinary Scheme and the proposed Sentinel Scheme (Explanatory Booklet);

(c) a proxy form substantially in the form of the draft at Annexure GC-9 to the Calder Affidavit (Proxy Form);

(d) an election form as follows:

(i) for Ordinary Shareholders, an election form substantially in the form of the draft at Annexure GC-10 to the Calder Affidavit (Ordinary Election Form);

(ii) for Sentinel Shareholders, an election form substantially in the form of the draft at Annexure GC-11 to the Calder Affidavit (Sentinel Election Form); and

(iii) for persons who are both Ordinary Shareholders and Sentinel Shareholders, a copy of the Ordinary Election Form and the Sentinel Election Form;

(e) in the case of shareholders who are not natural persons, a Deed of Adherence to the Holdco Shareholders Deed substantially in the form of the document at Annexure GC-12 to the Calder Affidavit (Deed of Adherence).

1. If it after comes to the attention of Viridian that any email dispatched in accordance with order 3 above has returned an undeliverable or undelivered receipt for a shareholder's nominated email address then, in respect of that shareholder, Viridian is to dispatch by post, within a reasonable time thereafter, to the physical address of that shareholder set out in the Viridian register of members, a physical copy of each of the following documents:

(a) the Email;

(b) the Letter;

(c) the Explanatory Booklet;

(d) a Proxy Form;

(e) an Ordinary Election Form and/or a Sentinel Election Form; and

(f) in the case of shareholders who are not natural persons, a Deed of Adherence.

1. A proxy in respect of the Scheme Meetings will be valid and effective if, and only if, it is lodged in accordance with the instructions on the proxy form by 2:00pm (AEST) on 22 September 2025.
2. James Joughin or, failing him, Raamy Shahien, be chairperson of each Scheme Meeting.
3. At the Ordinary Scheme Meeting, each Ordinary Shareholder, present and entitled to vote, is to be entitled to one vote for each fully paid ordinary share in the capital of Viridian that the Ordinary Shareholder is registered as holding at 5:00pm (AEST) on 22 September 2025.
4. At the Sentinel Scheme Meeting:

(a) each Sentinel Shareholder holding fully paid Sentinel shares, present and entitled to vote, is to be entitled to one vote for each Sentinel share in the capital of Viridian that the shareholder is registered as holding at 5:00pm (AEST) on 22 September 2025; and

(b) each Sentinel Shareholder holding partly paid Sentinel shares, present and entitled to vote, is to be entitled to a fraction of a vote for each partly paid Sentinel share equivalent to the proportion of the amount paid on the total amount paid and payable for that Sentinel Share the shareholder is registered as holding at 5:00pm (AEST) on 22 September 2025.

1. Voting on the resolutions to agree to the Schemes is to be conducted by way of a poll.
2. The chairperson of each Scheme Meeting shall have the power to adjourn the Scheme Meeting to such time, date and place as she or he considers appropriate and, in that event, the voting entitlements of shareholders set out in orders 7 and 8 above will apply, save that the relevant date for determining eligibility to vote will be the date that is two calendar days before the date that the adjourned meeting resumes.
3. Viridian shall have power to postpone the Scheme Meeting to such time, date and place as it considers appropriate and, in that event, notwithstanding any other part of these orders:

(a) the voting entitlements of shareholders set out in orders 7 and 8 above will apply, save that the relevant date for determining eligibility to vote will be the date that is two calendar days before the date that the adjourned meeting resumes;

(b) a proxy in respect of the Scheme Meetings will be valid and effective if, and only if, it is lodged in accordance with the instructions on the proxy form at least 48 hours before the time scheduled for the commencement of the postponed Scheme Meeting; and

(c) a reference in these orders to a Scheme Meeting is taken to include a reference to the postponed meeting.

1. Pursuant to r 1.3 of the Federal Court (Corporations) Rules 2000 (Cth), compliance with rr 2.4(1), 2.15, 3.4 and Form 6 is dispensed with.
2. By no later than 28 August 2025, Viridian is to publish an announcement on its website substantially in the form which appears Annexure GC-13 to the Calder Affidavit, which sets out the details for the second Court hearing and the process for any person wishing to appear at that hearing to oppose the approval of the relevant Scheme.
3. The further hearing of the Originating Process is adjourned to the Honourable Justice Anderson at 9:30 am (Melbourne time) on 30 September 2025 (or as soon thereafter as the business of the Court allows) for the hearing of any application to approve the Schemes.

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

1. The plaintiff (Viridian) applies for orders under s 411(1) of the Corporations Act 2001 (Cth) (Act) to convene two meetings of its members (Scheme Meetings) to consider two proposed schemes of arrangement (Schemes) which, if implemented, will result in the acquisition of all of Viridian's shares by Vivid Bidco Pty Ltd (Bidco).
2. Viridian is an Australian diversified financial services business which provides retail clients and advice firms with financial advice, lending, investments and digital solutions. Viridian is an unlisted public company limited by shares. It has approximately 500 shareholders, most of which are employee shareholders.
3. The share capital of Viridian comprises 2 classes of shares: Ordinary Shares and Sentinel Shares. Ordinary Shares are ordinary voting shares. Sentinel Shares are issued to employees of Viridian, and are non-voting shares, but carry a right to dividends. Some Sentinel Shares are fully paid, and others partly paid. Once a Sentinel Share is fully paid, it can be converted into an Ordinary Share at the discretion of the directors of Viridian.
4. In light of these two classes of Viridian shares, two schemes are proposed as follows:

(a) the Ordinary Scheme, being a scheme between Viridian and the holders of Ordinary Shares as at the Record Date (Ordinary Scheme Shares and Ordinary Scheme Shareholders); and

(b) the Sentinel Scheme, being a scheme between Viridian and the holders of Sentinel Shares as at the Record Date (Sentinel Scheme Shares and Sentinel Scheme Shareholders).

1. The two Schemes are inter-conditional, in the sense that it is a condition precedent of each Scheme that the Court approves both Schemes. However, Bidco may waive the condition precedent of the Ordinary Scheme requiring approval of the Sentinel Scheme, in which case the Ordinary Scheme would proceed on its own. There is no ability for Bidco to waive the condition precedent of the Sentinel Scheme requiring approval of the Ordinary Scheme, so that if the Ordinary Scheme does not proceed, the Sentinel Scheme cannot proceed.
2. The commercial purpose of the Schemes is to effect the acquisition of all the shares in Viridian by Bidco, which is a special purpose Australian proprietary company that was incorporated for the purpose of the Schemes. Bidco is indirectly wholly-owned by funds and their related entities (TA Funds) managed and/or advised by TA Associates, L.P. (together with its affiliated entities, TA Associates). In particular, the TA Funds hold 100% of the shares in Vivid Holdco Limited (Holdco), and Holdco owns 100% of the shares Bidco (via intermediate subsidiaries).
3. TA Associates is a global private equity firm, based out of Boston, Massachusetts, targeting investments in technology, financial services, healthcare, consumer, and business services, with investee companies located across the globe.
4. If the Schemes are implemented:

(a) Bidco will acquire all of the Ordinary Scheme Shares and all of the Sentinel Scheme Shares (Scheme Shares);

(b) the holders of the Scheme Shares (Scheme Shareholders) will receive, at their election, cash of $5.35 per Scheme Share, shares in Holdco, or a mix of cash and shares in Holdco;

(c) the share capital of Holdco will comprise Holdco Class A Shares (held by the TA Funds), Holdco Class B Shares (held by the relevant former Viridian Ordinary Scheme Shareholders who receive scrip consideration) and Holdco Sentinel Shares (held by the relevant former Viridian Sentinel Scheme Shareholders who receive scrip consideration);

(d) Viridian will become a wholly-owned subsidiary of Bidco;

(e) the TA Funds will hold at least 63.1% of the voting power in Holdco, with the Scheme Shareholders who receive scrip consideration holding at most the remaining approximately 36.9% of the voting power in Holdco; and

(f) the TA Funds will hold at least 51.4% (up to 75.1%) of Viridian on a look through basis, and the Scheme Shareholders holding at least 24.9% (up to 48.6%) of Viridian on a look through basis.

1. The parties' obligations in respect of the Schemes are set out in a Scheme Implementation Deed (SID) dated 27 June 2025, which annexes the proposed Schemes and a draft of the deed polls.
2. The directors of Viridian have formed the view that the respective Schemes are in the best interests of the respective classes of Viridian shareholders, and they unanimously recommend that shareholders vote in favour of the Schemes. In addition, each director of Viridian holds both Ordinary Shares and Sentinel Shares, which they intend to vote in favour of the relevant Scheme.
3. The directors of Viridian have appointed Grant Thornton Corporate Finance Pty Ltd (Independent Expert) to prepare an independent expert report in relation to the Schemes (IER). In the IER, the Independent Expert expresses the opinion that each Scheme is fair and reasonable, and is therefore in the best interests of the relevant class of Viridian shareholders.
4. Viridian has prepared an explanatory statement in relation to the Schemes (Explanatory Booklet). The Explanatory Booklet sets out a detailed description of the Schemes and their advantages and disadvantages, and contains a number of annexures (including the Notices of Scheme Meeting, the Schemes, the Deed Polls and the IER). It also explains the reasons for the recommendations by the Viridian directors that Viridian shareholders vote in favour of the Schemes.
5. A copy of the draft Explanatory Booklet (including its annexures) was first lodged with the Australian Securities and Investments Commission (ASIC) on 5 August 2025. Amendments have since been made to the draft Explanatory Booklet, and the amended versions have been provided to ASIC. A copy of the current draft of the Explanatory Booklet (including its annexures) is at Annexure GC-3 to the Calder Affidavit. It is proposed that a copy of the Explanatory Booklet substantially in this form will be provided to Viridian shareholders if the Court makes the orders sought by Viridian.
6. ASIC has provided a letter dated 21 August 2025 stating that, based on its review of the material provided to it at this stage, ASIC does not propose to appear to make submissions or intervene to oppose the Schemes at this stage. ASIC noted its position that it would not provide a statement under s 411(17)(b) of the Act until the second, or confirmation, hearing.
7. Viridian submits that it is appropriate for the Court to make orders convening the Scheme Meetings, as the proposed Schemes are of such a nature that they would likely be approved by the Court at the second Court hearing.

1. The evidence in support of the application is contained in the following affidavits:

(a) the affidavit of Gowri Kangeson affirmed 28 July 2025 (Kangeson Affidavit). Ms Kangeson is a lawyer at DLA Piper Australia (DLA), the solicitors for Viridian. The Kangeson Affidavit describes the proposed Schemes in general terms, and annexes a copy of the SID, as well as a copy of an ASIC company extract for Viridian;

(b) the affidavit of Glenn Calder affirmed on 18 August 2025 (Calder Affidavit). Mr Calder is the joint Chief Executive Officer of Viridian, and a director of Viridian. Mr Calder gives evidence about the business and capital structure of Viridian, and provides an overview of the main features of the Schemes and the SID. The Calder Affidavit also addresses various matters in relation to the Explanatory Booklet (including verification) and the Scheme Meetings (including the prescribed matters relating to the proposed chairperson of the Scheme Meetings). Mr Calder addresses director interests and benefits in relation to the Schemes, and the unanimous recommendation of directors that Viridian shareholders vote in favour of the Schemes. Finally, Mr Calder provides an overview of the proposed communications with Viridian shareholders, and addresses the proposal to publish notice of the second Court hearing on Viridian's website;

(c) the affidavit of Robert Kelly sworn on 19 August 2025 (Kelly Affidavit). Mr Kelly is a partner at King & Wood Mallesons, the solicitors for Bidco, and his affidavit describes the verification of the "Bidco Information" in the Explanatory Booklet, addresses the funding arrangements in relation to the Schemes, and annexes the Deed Polls executed by Bidco and Holdco in favour of Scheme Shareholders; and

(d) the affidavit of Elliott Chi Lam Cheung affirmed on 20 August 2025. Mr Cheung is a partner at DLA. His affidavit describes the various communications between DLA and ASIC in respect of the Explanatory Booklet.

1. Additionally, senior counsel for Viridian, during the hearing. handed up the letter from ASIC dated 21 August 2025.

1. The terms of the Schemes are in conventional form for an acquisition scheme. A copy of the proposed Schemes are annexed to the Explanatory Booklet, which also contains an overview of the Schemes in section 5.

1. The consideration for the acquisition of Viridian shares by Bidco will comprise a combination of cash and unlisted shares in Holdco, as follows:

(a) (Ordinary Scheme) Ordinary Shareholders will be able to elect to receive the following consideration (Ordinary Scheme Consideration):

(i) all cash consideration, being $5.35 in cash for each Ordinary Scheme Share (Ordinary Cash Consideration) (subject to the scaleback); or

(ii) all scrip consideration, being one Holdco Class B Share for each Ordinary Scheme Share (representing $5.35 in value per Ordinary Scheme Share) (Ordinary Scrip Consideration); or

(iii) a mixed percentage of the Ordinary Cash Consideration and the Ordinary Scrip Consideration (Ordinary Mixed Consideration) (subject to the scaleback).

(b) (Sentinel Scheme) Sentinel Shareholders will be able to elect to receive the following consideration (Sentinel Scheme Consideration):

(i) all scrip consideration, being one Holdco Sentinel Share for each Sentinel Scheme Share (representing $5.35 in value per Sentinel Scheme Share) (Sentinel Scrip Consideration); or

(ii) the following mixed percentage of cash and scrip (representing $5.35 in value for each Sentinel Scheme Share, regardless of whether the Sentinel Scheme Share is fully or partly paid) (Sentinel Mixed Consideration):

(A) cash consideration, being $5.35 in cash for each Sentinel Scheme Share for up to a certain percentage of the Sentinel Shareholder's Sentinel Scheme shares (at the Sentinel Scheme Shareholder's election), subject to a cap on that percentage of:

(1) if the Paid Up Amount (as defined in the Sentinel Scheme) as a percentage of the value of the Sentinel Scheme Consideration (being $5.35) is less than 30%, that paid up percentage; or

(B) the remaining percentage of that Sentinel Scheme Shareholder's Sentinel Scheme Shares exchanged for scrip consideration (representing $5.35 per Sentinel Share).

1. Ordinary Shareholders and Sentinel Shareholders must make a scheme consideration election (Election) by 5:00 pm on the date that is 5 Business Days before the date of the Scheme Meetings. If an Ordinary Shareholder or Sentinel Shareholder does not make a valid Election, then that shareholder will be deemed to have elected:

(a) in respect of Ordinary Shareholders: all Ordinary Cash Consideration under the Ordinary Scheme (which is subject to the scaleback); and

(b) in respect of Sentinel Shareholders: Sentinel Mixed Consideration (with the maximum available cash consideration under the Sentinel Scheme).

1. The Minimum Election Condition requires Viridian to receive valid Elections from Ordinary Shareholders which would result in the TA Funds holding no less than 63.1% of the Holdco Ordinary Shares if the Ordinary Scheme were to become effective (and therefore 63.1% of the voting power in Holdco, noting that the Holdco Sentinel Shares will be non-voting shares). This will result in the TA Funds holding at least 51.4% of Viridian, and the Scheme Shareholders holding up to 48.6% of Viridian, in each case on a look through basis.
2. The Minimum Election Condition is a condition precedent of the Ordinary Scheme. If the Minimum Election Condition has not been satisfied or waived by the Election Time (being 5:00 pm on Wednesday, 17 September 2025), either party may terminate the Scheme Implementation Deed in which case neither the Ordinary Scheme nor the Sentinel Scheme will proceed.
3. The election intentions of the Viridian directors and a number of Viridian shareholders are set out in the Letter from the Chairperson on page 9 of the Explanatory Booklet, and they are also summarised at [64] to [67] of the Calder Affidavit. Based on these election intentions, the Viridian board is satisfied that there is a reasonable basis to expect that the Minimum Election Condition will be met.

1. The Ordinary Cash Consideration and Ordinary Mixed Consideration alternatives are subject to a pro rata scaleback mechanism (Scaleback) if the Maximum Interest Threshold is exceeded. That is, if Ordinary Shareholders make Elections (or Deemed Elections) such that the TA Funds would acquire more than 75.1% of the share capital of Viridian on a look through basis on implementation of the Ordinary Scheme (and, if it has become effective, the Sentinel Scheme), the Scaleback will apply to cash elections under the Ordinary Scheme. This is to ensure that the interest of the TA Funds does not exceed that 75.1% threshold (on a look through basis). If the Scaleback applies, Ordinary Shareholders will receive the Ordinary Scrip Consideration instead of the Ordinary Cash Consideration for the scaled-back proportion of their Ordinary Scheme Shares.
2. The combined effect of the Minimum Election Condition and the Maximum Interest Threshold will be to ensure that, if the Schemes are implemented, the TA Funds would acquire between 51.4% and 75.1% of the share capital of Viridian on a look through basis.

1. The Viridian Board also intends to determine to pay a fully franked cash dividend of up to 8 cents per Viridian share prior to implementation (Special Dividend). The final decision of the Viridian Board regarding the determination to pay the Special Dividend is subject to applicable legal requirements and the financial position of Viridian at the relevant time. The Special Dividend will not have any impact on the amount of the Scheme Consideration.

1. The key steps under the Schemes are as follows:

(a) Viridian shareholders will vote on the Schemes at the Scheme Meetings (assuming that the Court makes orders that Viridian is to convene the Scheme Meetings);

(b) if the Schemes are to proceed, all conditions precedent (other than Court approval) must be either satisfied or waived by the applicable time, which for most conditions precedent is 8:00 am on the date of the second Court hearing;

(c) if the Schemes are agreed to by the requisite majorities of shareholders at the Scheme Meetings and approved by the Court, they become effective on the lodging of an office copy of the Court's approval orders with ASIC;

(d) if the Schemes become effective, they will be implemented on the Implementation Date.

1. The principles that apply upon an application to convene a scheme meeting are well known.
2. In Re Amcor Ltd [2019] FCA 346, Beach J described the Court's role as follows, at [47]:

My function on an application to order the convening of a meeting is supervisory. At this stage I should generally confine myself to ensuring that certain procedural and substantive requirements have been met including dealing with adequate disclosure, with limited consideration of issues of fairness. But having said that, it is appropriate to consider the merits or fairness of a proposed scheme at the convening hearing if the issue is such as would unquestionably lead to a refusal to approve a proposed scheme at the approval hearing, that is, the proposed scheme appears now to be on its face "so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further". But in the present case, in my view there is no issue arising from the Scheme which would unquestionably lead to a refusal to approve the Scheme at the approval hearing. It cannot be said that the Scheme on its face is "so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further". Put another way, the Scheme is not of such a nature and cast in such terms that if it receives the support of the statutory majorities at the meeting, nevertheless I would not be likely to approve it at the second court hearing.

(Citations omitted, original emphasis.)

1. It is well established that the question of whether or not to accept particular consideration for shares is quintessentially a commercial matter for the members to assess, and they ought not be prevented from having the opportunity to do so, provided that the Court can be satisfied that they are acting on sufficient information and with time to consider what they are voting on: See Re AWA Mutual Limited [2023] FCA 1551 at [54]; Re Newcrest Mining Limited [2023] FCA 1080 at [30]; Re Oz Minerals Limited [2023] FCA 197 at [15]; Re Carbon Revolution Limited [2023] FCA 1081 at [22].
2. Therefore, if the arrangement is one that seems fit for consideration by the meeting of members, and is a commercial proposition likely to gain the Court's approval if passed by the necessary majorities, then orders should be made to convene the meeting.
3. The Court's task at the first Court hearing is to assess, first, whether the statutory prerequisites to the making of orders convening a meeting have been met and, second, whether it is appropriate for the Court to exercise its discretion in favour of making those orders.

1. Section 411(1) requires that the plaintiff has made an application in relation to a compromise or arrangement that is proposed between a Part 5.1 body and its members. Viridian has satisfied these requirements:

(a) this application was made by Originating Process filed on 30 July 2025;

(b) a "Part 5.1 body" is defined in s 9 to include a company registered under the Act, which

(c) each of the proposed Schemes are an "arrangement" within the meaning of s 411(1).

1. Section 411(2)(a) requires that 14 days' notice of the hearing of this application must be given to ASIC. This requirement has been satisfied.
2. Section 411(2)(b) requires that ASIC be given a reasonable opportunity to examine the terms of the proposed scheme and the draft explanatory statement, and to make submissions to the Court. These requirements have been satisfied.
3. Rule 2.4(1) of Federal Court (Corporations) Rules 2000 (Cth) (Rules) requires that, unless the Court otherwise directs, an originating process must be supported by an affidavit stating the facts in support of the process. The Kangeson Affidavit (which was filed with the originating process) has been prepared in accordance with the relevant Practice Note, and the orders sought include an order dispensing with the additional requirements of r 2.4(1) of the Rules.
4. As required by r 2.4(2) of the Rules, the evidence includes an ASIC company extract in relation to Viridian carried out no earlier than 7 days before the originating process was filed.
5. As required by r 3.2(a) and (b) of the Rules, the necessary evidence about the willingness of the proposed chairperson and alternate chairperson to chair the Scheme Meetings has been provided, as has evidence of any prior dealings of those persons with Viridian and any conflicts of interest.
6. As required by r 3.3(1) of the Rules, the orders (if made) will annex a copy of the proposed Schemes.
7. The information to be provided to members is regulated by s 412 of the Act and reg 5.1.01 and Schedule 8 of the of the Corporations Regulations 2001 (Cth) (Regulations). In particular, s 412(1) of the Act and Schedule 8 (Part 3) of the Regulations set out the disclosure requirements of the explanatory statement (which is included within the Explanatory Booklet). There are three aspects to the requirements of s 412(1):

(a) first, the explanatory statement must explain the effect of the compromise or arrangement, and in particular state any material interest of the directors, and the effect on those interests of the compromise or arrangement so far as it is different from the effect on the like interests of other persons. The effect of the Schemes is addressed in the letter from the Chairman of Viridian in the Explanatory Booklet, and it is also addressed in section 5 of the Explanatory Booklet, and the required information in relation to the material interests of directors is addressed in section 11 of the Explanatory Booklet;

(b) secondly, the explanatory statement must set out the prescribed information, being the information set out in reg 5.1.01 and Schedule 8 of the Regulations. The evidence as to verification of the Explanatory Booklet in the Calder Affidavit and the Kelly Affidavit demonstrates that this requirement has been satisfied; and

(c) thirdly, the explanatory statement must set out any other information that is material to the making of a decision whether or not to agree to the compromise or arrangement. In this respect, it is submitted, and I accept, that the Explanatory Booklet is clear and comprehensive, and along with the IER annexed to the Explanatory Booklet, contains a detailed evaluation of the Schemes, presented in a way that enables Viridian shareholder to form their own view of the merits of the Schemes.

1. Moreover, it is necessary for the Explanatory Booklet to be registered by ASIC before being sent to shareholders. Before registering the Explanatory Booklet, ASIC must conclude that it appears to comply with the requirements of the Act, and must form the opinion that the Explanatory Booklet does not contain any matter that is false in a material particular or materially misleading in the form and context where it appears. Assuming the Explanatory Booklet is registered by ASIC following the first court hearing, this will provide further assurance as to the satisfaction of the relevant disclosure requirements.
2. Finally, the notice required by paragraph 6 of the Practice Note is included in the "Important Notices" section of the Explanatory Booklet.
3. I am satisfied on the evidence that the procedural requirements have been met and that the Court's discretion to make the convening orders is enlivened.

1. The relevant discretionary considerations involve two main questions: first, whether the Schemes are fit for consideration by the members; and second, whether the members are to be properly informed as to the nature of the Schemes.

1. Viridian submits that the Schemes are fit for consideration by the Viridian shareholders in that:

(a) the Schemes are of such a nature and cast in such terms that, if agreed to at the Scheme Meetings, the Court would be likely to approve the Schemes at the second Court hearing;

(b) there is no issue arising from the Schemes which would unquestionably lead to a refusal by the Court to approve the Schemes at the second Court hearing; and

(c) it cannot be said that either Scheme is on its face "so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further".

1. In addressing whether a scheme is fit for consideration by members, the Court will scrutinise the terms of a scheme to satisfy itself that there is no unfairness that would be likely to preclude approval of the scheme. In this respect, the following particular matters are relevant for the Court's consideration:

(a) performance risk;

(b) break fee and exclusivity;

(c) voting intention statements and election intention statements;

(d) Sentinel Shares;

(e) VESOP Co Shares;

(f) prepayment of ICF Loans; and

(g) director benefits.

1. The Schemes provide for Bidco to provide or procure the provision of the Scheme Consideration. Bidco is not a party to the Schemes and not directly bound by them. As such, the Court will wish to ensure that Bidco is bound to perform the actions attributed to it under the Schemes and that its obligations are able to be enforced. This "performance risk" has been addressed by adopting the following safeguards:

(a) first, the terms of the Schemes provide that the transfer of the Scheme Shares to Bidco is subject to the Scheme Consideration having first been provided to Scheme Shareholders in accordance with the Schemes. This effectively eliminates any performance risk insofar as the transfer of the Scheme Shares is concerned; and

(b) secondly, Bidco and Holdco have executed Deed Polls in favour of Scheme Shareholders, binding Bidco and Holdco to perform the actions attributed to each of them under the Schemes, including in relation to the provision of the Scheme Consideration.

1. Bidco's funding arrangements for the Scheme Consideration are explained in section 7.3 of the Explanatory Booklet which notes that:

(a) Based on Viridian's expected fully diluted share capital as at the Record Date (being 47,047,758 Ordinary Shares and 10,703,038 Sentinel Shares):

(i) the maximum amount of cash consideration that may be payable by Bidco in connection with the Schemes is estimated to be $232,047,795 in aggregate (Maximum Cash Consideration); and

(ii) the maximum number of Holdco Shares that would be issued by Holdco in connection with the Schemes is 57,750,796 Holdco Shares;

(b) on 27 June 2025, Viridian entered into an equity commitment letter agreement with Bidco and the TA Funds, under which, and subject to the Schemes becoming effective, the TA Funds irrevocably commit to purchase or cause the purchase of equity securities of Holdco, and equity and/or debt securities of Bidco (or any subsidiaries of Holdco and Bidco, as applicable), for cash up to a specified amount, which in total is sufficient in aggregate to cover the Maximum Cash Consideration. Further, the Kelly Affidavit confirms that each of the TA Funds individually has more available capital than would be required to satisfy the entirety of the Maximum Cash Consideration.

1. I am satisfied on the evidence that the Schemes effectively eliminate any performance risk and that the funding arrangements in relation to the Schemes are not a reason for the Court to refrain from making orders convening the Scheme Meetings.

1. The SID includes a break fee and exclusivity provisions. The break fee represents 1% of the equity value of Viridian, consistent with the Takeover Panel's 1% guideline. I am satisfied that the triggers for the payment of the break fee are conventional for a transaction of this nature.
2. I am satisfied that the terms of the exclusivity provisions in the SID are in a conventional form and contain the usual fiduciary carve-outs and matching-right provisions. The exclusivity provisions apply from the date of the SID (27 June 2025) until the earlier of the End Date (31 December 2025), the Effective Date (1 October 2025), or the termination of the SID.
3. I am satisfied that there is nothing in the terms of the break fee or exclusivity provisions which would prevent the Court from making the orders convening the Scheme Meetings.

Voting intention statements and election intention statements

1. The evidence discloses that a number of Viridian shareholders who hold both Ordinary Shares and Sentinel Shares have advised Viridian that:

(a) they intend to vote all Ordinary Shares held or controlled by them (representing in aggregate approximately 52.0% of the issued Ordinary Shares) in favour of the Ordinary Scheme, in the absence of a superior proposal emerging and subject to the Independent Expert concluding that the Ordinary Scheme is in the best interests of Ordinary Shareholders; and

(b) they intend to vote all Sentinel Shares held or controlled by them (representing in aggregate approximately 66.1% of the issued Sentinel Shares, and 77.8% of the voting power of the Sentinel Shares in favour of the Sentinel Scheme, in the absence of a superior proposal emerging and subject to the Independent Expert concluding that the Sentinel Scheme is in the best interests of Sentinel Shareholders and the Ordinary Scheme is in the best interests of Ordinary Shareholders.

(a) Ordinary Shareholders of Viridian (including some of the directors) have stated to Viridian that, subject to the same qualifications given in respect of their voting intentions (as stated above), they intend to elect Scrip Consideration under the Ordinary Scheme which, in aggregate, represents 12.4% of the total number of Ordinary Shares expected to be on issue as at the Record Date; and

(b) Sentinel Shareholders (including some of the directors) have stated to Viridian that, subject to the same qualifications given in respect of their voting intentions, they intend to elect Scrip Consideration under the Sentinel Scheme which, in aggregate, represents 47.9% of the total number of Sentinel Shares expected to be on issue as at the Record Date.

1. These matters have been disclosed in the Explanatory Booklet, in the Letter from the Chairperson of Viridian and in section 3 (Frequently Asked Questions) under "Do Viridian's major shareholders support the Schemes?".
2. I am satisfied on the evidence that Viridian has not provided any advantage, benefit, promise or inducement to any shareholders to elicit these intention statements, or to vote in the way described in those intention statements.
3. I am satisfied that the voting intention statements do not, in this case, cause those shareholders to form a separate class.

1. Viridian raises fours issues for the Court's consideration: (i) the treatment of partly-paid Viridian shares under the Scheme; (ii) the voting rights of partly-paid Sentinel shareholders; (iii) the conversion of certain Sentinel Shares; and (iv) the cancellation of certain Sentinel Shares.
2. First, Sentinel Shares are comprised of both fully paid Sentinel Shares and partly paid Sentinel Shares. The partly paid Sentinel Shares are paid up to different amounts. Notwithstanding this, the value of the Sentinel Scheme Consideration will be the same for all Sentinel Shareholders regardless of whether they hold fully paid or partly paid Sentinel Shares, and regardless of the amount paid up on a partly paid Sentinel Share. That is, the Sentinel Scheme will not provide differentiated value based on whether and to what extent Sentinel Shares are fully or partly paid.
3. Viridian submits that this does not give rise to the need for separate classes to be created.
4. Viridian submits, and I accept, that the mere fact that there exists a difference in rights of certain shareholders under a scheme compared to the rights of all other shareholders does not result in the creation of a separate class. Identicality of treatment is not required. The test for what constitutes a separate class is essentially whether the interests of the persons in question are so different as to make it impossible for them to consult together with the other shareholders. In the application of that test, a "practical business-like approach" must be adopted, and one should be cautious in separating classes except in a clear case, as it can easily and wrongly empower a minority view: Re Aston Resources Limited [2012] FCA 229 at [34]; Nordic Bank plc v International Harvester Australia Ltd [1983] VicRp 89; (1983) 2 VR 298 at 301; Re NRMA Ltd (2000) 156 FLR 349; [2000] NSWSC 82 at [80].
5. Viridian submits the relevant difference to be assessed concerns the Sentinel Shares that are to be transferred to Bidco under the Sentinel Scheme. In particular, the partly paid Sentinel Shareholders have not paid up the full value of their Sentinel Shares, whereas the fully paid Sentinel Shareholders have. Notwithstanding this difference, in exchange for transferring their shares to Bidco, the partly paid Sentinel Shareholders will receive scheme consideration of the same value as the fully paid Sentinel Shareholders.
6. Viridian submits, and I accept, that the difference does not result in the two groups of shareholders being unable to consult together with a view to their common interest. This is because the area of difference is outweighed by the areas of common interest between all Sentinel Shareholders, such as to make it possible for all shareholders to consult together.
7. The overall effect of the Sentinel Scheme will be the same for all Sentinel Shareholders, in that:

(a) all Sentinel Shareholders will give up their Sentinel shares along with the rights attached to those shares;

(b) in return, all Sentinel Shareholders will become shareholders in Holdco in the same proportions relative to their holding of Sentinel shares (subject to any election to receive some cash consideration as part of the Sentinel Scheme Consideration); and

(c) all Sentinel Shareholders will be entitled to the same economic benefits which flow from holding shares in Holdco.

1. Secondly, In relation to the voting rights of holders of partly-paid Sentinel Shares, cl 5 of the Sentinel Share terms provides that:

In each of the circumstances prescribed in this clause 5(b), Sentinel Shareholders shall have the same right to vote as holders of Ordinary Shares on the basis of one vote for each Sentinel Share held, and a fraction of a vote for each partly paid Sentinel Share equivalent to the proportion of the amount paid (not credited) on the total amount paid and payable (excluding amounts credited) for that Sentinel Share, ignoring amounts paid in advance of a call.

1. The position above is reflected in the Viridian constitution (rule 14.6(b)).
2. Courts have accepted that, in the case of voting rights of holders of partly paid shares who are in the same class of members as holders of fully paid shares, it is appropriate to follow the scheme company's constitution and for the voting rights of the holders of partly paid shares to be proportionate to the amounts paid up on their shares. Viridian proposes to follow this course in relation to the Sentinel Scheme.
3. Thirdly, In accordance with the terms of the Sentinel Shares, the Viridian Board has exercised its broad discretion to permit the conversion of 103,966 partly paid Sentinel Shares (representing ~0.93% of the Sentinel Shares on issue) held in aggregate by Jim Tellis, Dolores Diez, James Joughin and Anthony Barry (Converting Shareholders) to fully paid Ordinary Shares on a 1:1 basis on a date that falls between the effective date and the record date (such that the converted Ordinary Shares will be acquired under the Ordinary Scheme).
4. In particular, the Board has exercised its discretion to allow these partly paid Sentinel Shares to convert into Ordinary Shares without requiring the Converting Shareholders to pay the unpaid amounts on their Sentinel Shares upfront. Instead, those amounts will be deducted from the Ordinary Cash Consideration (and any Special Dividend) they receive under the Ordinary Scheme.
5. It is noted that each of the Converting Shareholders other than Mr Barry is a Viridian director (Director Converting Shareholders). The Director Converting Shareholders hold in aggregate 0.7% of the Sentinel Shares on issue.
6. In considering whether these arrangements might amount to a collateral benefit relevant to the exercise of the Court's discretion, the issue is whether a benefit exists for one shareholder in particular, so as to bring into question the overall fairness of the Sentinel Scheme. To determine whether there is a collateral benefit, the court considers the "net benefits" test, to ensure that there is no overall disparity in favour of the party to the non-Scheme transaction. If no net benefit is present, then, prima facie, the equality principle under s 602(c) of the Act is satisfied.
7. The Converting Shareholders will have the unpaid amounts on their partly paid Sentinel Shares deducted from the Ordinary Cash Consideration and any Special Dividend they receive under the Ordinary Scheme. As such, the Converting Shareholders do not receive a net benefit. Therefore, no collateral benefit arises in relation to those Converting Shareholders.
8. Further, the board of Viridian (excluding the Director Converting Shareholders) considered that, despite these arrangements, it is appropriate for these directors to make a recommendation on the Schemes, including because they are not of such materiality to impact their consideration of the Schemes or their ability to make a recommendation to Viridian shareholders.
9. These matters are disclosed in numerous instances in the Explanatory Booklet.
10. The directors' recommendation is contingent upon the Independent Expert continuing to conclude the Schemes are in the best interests of the relevant class of Viridian shareholders (which report the Viridian shareholders receive), which serves as an important cross-check.
11. I am satisfied that it is appropriate for the directors to have made recommendations as these are expected of directors in such transactions and there has been full and prominent disclosure of their interests.
12. Fourthly, on 27 June 2025, Viridian and Bidco executed a separate agreement which had the effect of qualifying the SID in various respects (Disclosure Letter). As set out in Annexure 1 to the Disclosure Letter, prior to the Scheme Meetings, Viridian proposes to convene a general meeting of shareholders to approve the cancellation of certain Sentinel shares (General Meeting) pursuant to section 258D of the Corporations Act (SEN Share Cancellation Resolution). This is disclosed in section 4.4 of the Explanatory Booklet.
13. These Sentinel Shares were forfeited in accordance with their terms prior to entering into the SID. The purpose of the SEN Share Cancellation Resolution is to tidy up the Viridian register before the Record Date (as that term is defined in the SID) for the Schemes.
14. The Schemes are not conditional on shareholder approval of the SEN Share Cancellation Resolution. However, if Viridian shareholders do not approve the SEN Share Cancellation Resolution at the General Meeting, Bidco will still be entitled to terminate the SID under clause 17 of the Disclosure Letter and clause 15.1(a) of the SID, in which case, the Schemes would not proceed and Bidco may be entitled to the Break Fee.
15. The General Meeting is proposed to be convened at 2:00pm (Melbourne time) on 24 September 2025, prior to the Ordinary Scheme meeting. The above requirement that the Schemes be considered separately to the SEN Share Cancellation Resolution is satisfied.

1. Viridian Employee Share Ownership Plan Ltd (VESOP Co) has in place the Viridian Employee Share Ownership Plan (VESOP) which allows Viridian employees to acquire shares in VESOP Co, which in turn entitles VESOP Co shareholders to certain economic benefits in respect of the Ordinary Shares in Viridian that VESOP Co holds. VESOP Co is not a subsidiary of Viridian (and therefore is not within the Viridian group).
2. VESOP Co acquires one Ordinary Share in Viridian for every VESOP Co share it has on issue, and pursuant to the VESOP, whilst VESOP Co holds the legal title to the Ordinary Shares, VESOP Co shareholders are entitled to certain economic benefits of the underlying Ordinary Shares, such as dividends.
3. VESOP Co intends to vote in favour of the Ordinary Scheme, in the absence of a superior proposal and subject to the Independent Expert concluding (and continuing to conclude) that the Ordinary Scheme is in the best interests of the Ordinary Shareholders. VESOP Co will make an election (in its discretion) to receive scheme consideration under the Ordinary Scheme.
4. On implementation of the Ordinary Scheme, VESOP Co will receive scheme consideration under the Ordinary Scheme in accordance with its election subject to the operation of the scaleback mechanism. Once VESOP Co has received its Ordinary Scheme consideration, it will endeavour to distribute the Ordinary Scheme consideration to each VESOP Co Shareholder as soon as possible following implementation.
5. The above matters are disclosed at section 5.3(e) of the Explanatory Booklet. I am satisfied that there is no reason to consider the VESOP as giving rise to any separate class of members or creditors.

1. Viridian has made available pre-approved loans from its wholly owned subsidiary, Infinity Capital Finance Pty Ltd (ICF), to certain Viridian employees for the purpose of them acquiring Viridian securities (Internal ICF Loans). Viridian has requested certain Internal ICF Loan holders to prepay a portion of their Internal ICF Loans. The Internal ICF Loan holder may decline to do so. ICF Loan holders that have agreed to do so have signed an "ICF Loan Repayment Form" pursuant to which they have agreed to prepay their Internal ICF Loan by directing Viridian to deduct from the Special Dividend and any cash component of the Scheme Consideration it receives.
2. Viridian may request additional, or all, Internal ICF Loan holders to prepay their Internal ICF Loans, depending on the aggregate amount of Internal ICF Loan prepayments agreed to by the relevant holders, and the amount of external ICF debt it is required to repay to third parties in accordance with clause 6.1(w) of the SID.
3. I am satisfied that no collateral benefit or differential treatment arises in relation to the prepayment of Internal ICF Loans given that:

(a) Internal ICF Loan holders can decline to prepay their loans (putting them in the same position as an Internal ICF Loan holder that Viridian has not sought prepayment from); and

(b) Viridian may seek prepayments from all Internal ICF Loan holders in the period to implementation if it considers necessary.

1. Each of the Viridian directors holds shares in Viridian amounting to, in aggregate, 11.5% of the total number or Ordinary Shares and 7.2% of the total number of Sentinel Shares.
2. No Viridian director has a relevant interest in any shares in Bidco or Holdco or TA Associates.
3. Ms Abigail Barnard (Chief Financial Officer and Executive Director) and Mr Raamy Shahien (Joint CEO and Executive Director) have each received a one-off special exertion fee of $25,000 each (excluding superannuation and payroll tax) as contemplated by rule 18.2 of the Viridian Constitution in recognition of the increased workload and significant time commitment (over and above that required for Viridian's ordinary business requirements) involved in connection with the Schemes. That exertion fee is not conditional on the Schemes being implemented.
4. I accept Viridian's submission that fees of this kind, where disclosed in the Explanatory Booklet, do not prevent directors from making a voting recommendation to the relevant shareholders and do not provide reason not to order the convening of a scheme meeting: Re Pacific Smiles Group Limited [2024] NSWSC 812, [17]; Re MyDeal.com.au Ltd [2022] NSWSC 1094 at [41] -[43]; Re Genex Power Ltd [2024] NSWSC 752 at [17] -[18]. The incentivisation through issued securities, which vest or provide value for directors upon a value-adding control transaction, are a positive feature of companies and markets. Similarly, fees for additional exertion during a scheme process, and payment for a new role with the acquirer are not problematic with proper disclosure.
5. Moreover, I am satisfied that the sums are not excessive, extravagant or out of the ordinary having regard to the broader value of the transaction. Courts have been prepared to make orders convening a scheme meeting in circumstances where directors have stood to receive financial benefits considerably larger than the amounts to be received by the directors in this case.
6. There is otherwise no payment or other benefit that is proposed to be made or given to any director of Viridian as compensation for the loss of, or consideration for or in connection with his or her retirement from, office in Viridian in connection with the Scheme.
7. The benefits to be provided to the directors are disclosed in the Explanatory Booklet, and shareholders are told to have regard to these benefits when considering the directors' recommendation in relation to the Schemes.
8. Interests and benefits to directors in relation to a scheme raise two issues for consideration: first, whether there is a need for separate classes; and secondly, the appropriateness of any directors who might receive a benefit making a recommendation to shareholders in relation to the proposed scheme: See Re CW Group Holdings Ltd [2024] FCA 1471 at [47] and Re Japara Healthcare Ltd (2021) 156 ACSR 695; [2021] FCA 1150 at [68].
9. As to the first issue, a question may arise as to whether directors with interests or benefits relating to a scheme and who are also shareholders of the scheme company should form a separate class from those shareholders who do not have such interests or benefits. Viridian submits, and I accept, that the interests and benefits are not of the kind which would require separate classes. All Viridian shareholders will participate in the Schemes on the same basis and receive the same consideration as all other shareholders in relation to each respective Scheme.
10. As to the second issue, Viridian submits, and I accept, that the interests and benefits to be received by the directors do not impact on their ability to recommend the Schemes to shareholders. These interests and benefits are fully and prominently disclosed in the Explanatory Booklet so that shareholders may have regard to them when considering the directors' recommendation that shareholders vote in favour of the Schemes. In particular, the preferable approach is for a director who is to receive a financial benefit to make a voting recommendation, but to disclose the benefit in the Explanatory Booklet: see Re Japara at [72].

1. The second principal aspect relevant to the exercise of the Court's discretion is the adequacy of the information to be provided to shareholders.
2. The disclosure requirements of the explanatory statement (which is included within the Explanatory Booklet) are set out in s 412(1) of the Act and Schedule 8 (Part 3) of the Regulations. The prescription of the contents of the explanatory statement in these provisions provides guidance to the Court in assessing the adequacy of the information being provided to shareholders. I am satisfied, that the information to be provided to shareholders is adequate for the purposes of the exercise of the Court's discretion to convene a shareholders meeting.
3. In addition, the Viridian shareholders will be presented with an appropriately detailed and clear explanation of the Schemes in the Explanatory Booklet, as well as having the benefit of the opinion of the Independent Expert as set out in the IER. The Viridian shareholders also have the benefit of the recommendation of the Viridian directors in relation to the Schemes.

DISPATCH OF EXPLANATORY BOOKLET AND SCHEME MEETING

1. Viridian has filed evidence as to the manner in which the Explanatory Booklet is proposed to be sent to members. All Viridian shareholders have elected to receive communications from Viridian in electronic form, and Viridian accordingly proposes to dispatch the relevant scheme materials via email (with hard copy communications in the event that electronic communications are not successfully delivered to any shareholder).
2. It is proposed that the Scheme Meetings be held virtually. Relevant details for the meetings are set out in the Notice of Ordinary Scheme Meeting and Notice of Sentinel Scheme Meeting annexed to the Explanatory Booklet.

1. Viridian has an email address ("shares@viridianadvisory.com.au") which it uses to communicate with its shareholders.
2. If Viridian's shareholders have questions in relation to the Schemes, they are directed to contact the "shares@viridianadvisory.com.au" email address. This is set out in the Explanatory Booklet at section 3 (Frequently Asked Questions) under the heading "Who can help answer my questions about the Schemes?".
3. I am satisfied, from the evidence before the Court, that the individuals managing the "shares@viridianadvisory.com.au" email address have been instructed that in all discussions with Viridian shareholders relating to the Schemes:

(a) no other, new or materially different information to what is contained in the Explanatory Booklet is to be provided; and

(b) Viridian's shareholders must be reminded to read the Explanatory Booklet in full, including as to advantages and disadvantages of the Schemes, and the Independent Expert's Report.

1. Viridian will report to the Court at the second Court hearing confirming whether the above approach was maintained or whether there was any material deviation from that approach.
2. Rule 3.4 of the Rules provides that, unless the Court otherwise orders, the plaintiff must publish a notice of the hearing of an application for approval of a scheme in a newspaper at least five days before the date of the hearing, and the notice must be in accordance with Form 6. However, paragraph 3(f) of the Practice Note states that the Court will be prepared to dispense with the publication of a notice of the approval hearing in a newspaper, if notice can be given by an announcement made on the ASX, or by an announcement on the scheme proponent's website if it is not listed. Viridian proposes to publish notice of the approval hearing on its website, and seeks an order dispensing with compliance with rule 3.4 of the Rules. I am satisfied that it is appropriate to make such an order in the present case.

1. I am satisfied that the Schemes are of such a nature and cast in such terms that, if they achieve the statutory majorities and the Scheme Meetings, the Court would be likely to approve the Schemes. Accordingly, I will make the orders sought convening the Scheme Meetings.

I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.