Medical Australia Ltd, in the matter of Medical Australia Ltd

Medical Australia Ltd, a public company listed on the Australian Securities Exchange (ASX), applied for an order that it convene a meeting of its members to consider a proposed scheme of arrangement with ICU Medical, Inc., a Netherlands-incorporated company with headquarters in the USA. The scheme involved ICU or its subsidiary, ICU BV, acquiring all issued shares of Medical Australia for $0.086 per share, leading to the delisting of Medical Australia from the ASX. The application was made ex parte and without notice to ICU or ICU BV, as they were bound by a deed poll in favour of each scheme shareholder, ensuring the provision of scheme consideration. The legal issues before the court included whether Medical Australia satisfied the criteria under the Corporations Act 2001 (Cth) for convening a scheme meeting and whether the scheme consideration was adequately protected to mitigate performance risk.

The court found that Medical Australia, as a Pt 5.1 body under the Corporations Act, had the right to convene a meeting to consider the scheme. The proposed scheme booklet was deemed to include all necessary information required by the Corporations Act, satisfying the disclosure obligations. The court also accepted that the scheme’s condition precedent, which required the provision of scheme consideration before the transfer of shares, effectively mitigated any performance risk. Consequently, the court approved the application and ordered Medical Australia to convene the scheme meeting, specifying the date, location, and procedural details. The court also directed that copies of the scheme booklet, proxy forms, and reply envelopes be dispatched to all scheme shareholders.

In conclusion, the court granted the orders sought by Medical Australia, allowing it to proceed with convening the scheme meeting as per the outlined procedures. The court noted that the scheme had been listed for a second hearing to approve the scheme itself, contingent on the lodgement of the court’s orders with the Australian Securities and Investments Commission (ASIC).