Re Amcor Ltd (No 2)

In the case of Re Amcor Ltd (No 2), the matter was heard by the Federal Court of Australia in a second hearing concerning a members' scheme of arrangement. The dispute involved the approval of a scheme of arrangement under section 411(4)(b) of the Corporations Act 2001 (Cth) and an exemption under section 411(12) of the same Act, specifically regarding compliance with section 411(11). The scheme in question pertained to the reorganisation of Amcor Ltd and its subsidiaries, with a focus on the conditions precedent to the scheme and the reliance on an exemption under the Securities Act of 1933 (US). The central issues before the court were whether the scheme was fair and reasonable to the shareholders and whether the company should be exempted from the requirement to annex a copy of the court’s approval order to every copy of the company’s constitution.

The court assessed the fairness and reasonableness of the scheme based on several factors, including the overwhelming support of the scheme shareholders, the independent expert’s opinion that the scheme was in the best interests of the shareholders, the absence of any opposition to the scheme, and the comprehensive disclosure in the scheme booklet. Additionally, the court considered the reliance on the Securities Act of 1933 exemption, which was necessary for the scheme to proceed. The court was also tasked with determining whether to exempt Amcor from the requirement to annex the court’s order approving the scheme to its constitution, as stipulated under section 411(11) of the Corporations Act. The court concluded that such an exemption was appropriate given that the scheme would not alter the company’s constitution or the rights of its shareholders, creditors, or other persons dealing with it. The court found that the scheme would be adequately disclosed to current shareholders, and there would be no ongoing purpose served by annexing the orders to the company’s constitution after the scheme's implementation.

The court exercised its discretion to approve the scheme, considering the overwhelming support from the shareholders, the independent expert’s opinion, and the absence of opposition. The court also granted the exemption from compliance with section 411(11) of the Corporations Act, finding that the scheme would not affect the company’s constitution or the rights of its shareholders, creditors, or other persons dealing with it. Consequently, the court issued orders approving the scheme and exempting Amcor from the requirement to annex the court’s approval order to its constitution. The orders were made pursuant to sections 411(4)(b) and 411(12) of the Corporations Act, and the scheme terms are detailed in Annexure A to the orders.