Background
Amaero Ltd, an ASX-listed company, sought to re-domicile its corporate group from Australia to the United States by interposing a new Delaware-incorporated holding company, Amaero US HoldCo, at the top of its group structure. The mechanism chosen was a dual scheme of arrangement under Part 5.1 of the Corporations Act 2001 (Cth): one scheme for shareholders and one for option holders. Under the proposed schemes, all issued Amaero shares and options would be transferred to Amaero US HoldCo, with shareholders receiving one CHESS Depositary Interest (CDI) representing a beneficial interest in 1/40th of an Amaero US HoldCo share, and option holders receiving equivalent replacement options. The 1/40 consolidation ratio was designed so that the economic interest of each security holder in the group would remain unchanged.
At the first court hearing on 7 May 2026, Owens J made orders convening the requisite scheme meetings: Amaero Ltd, in the matter of Amaero Ltd [2026] FCA 596. The scheme booklet was registered with ASIC and dispatched to all shareholders and option holders. Given low early proxy participation (below 2.5% as at 28 May 2026), Amaero conducted an outbound telephone proxy solicitation campaign on 2 June 2026, contacting its top 500 non-voting shareholders ahead of the proxy deadline. The scheme meetings were held on 5 June 2026. Amaero also sought to rely on the Court’s approval of the schemes to satisfy the exemption from registration under section 3(a)(10) of the US Securities Act of 1933 for the CDIs and options to be issued as scheme consideration.
At the second court hearing on 10 June 2026, Amaero applied for Court approval of both schemes under section 411(4)(b) of the Corporations Act. No shareholder, option holder, or other person appeared to oppose the application, and ASIC provided a written statement of no objection under section 411(17)(b).
The Court’s Holding
Owens J approved both schemes pursuant to section 411(4)(b) of the Corporations Act and granted an exemption from section 411(11) under section 411(12) so that the Court’s orders need not be annexed to future copies of Amaero’s constitution. The Court was satisfied on all relevant criteria: the scheme meetings were properly convened and conducted in accordance with the convening orders; the statutory majorities were achieved (99.94% of shareholder votes and 100% of option holder votes in favour); all conditions precedent had been certified as satisfied or waived; the schemes were fair and reasonable; there was full and fair disclosure to security holders; ASIC raised no objection; and no public policy concerns were present. The Court found that voter turnout — while modest in absolute terms — exceeded participation rates at Amaero’s three most recent general meetings and did not indicate any irregularity or suggest that security holders had been deterred from voting.
Regarding the US Securities Act exemption, the Court noted (following Re Central Pacific Minerals NL [2002] FCA 239 and Re Permanent Trustee Company Limited [2002] NSWSC 1177) that it is not the Australian court’s role to determine whether its processes satisfy US regulatory requirements. Nevertheless, the Court recorded the relevant facts for the benefit of US regulators: the hearing was open to the public; all security holders who would receive CDIs or options had standing to appear and were given advance notice via the scheme booklet, ASX announcements, and the publicly listed court calendar; the Court independently assessed the fairness and reasonableness of the schemes; and the independent expert concluded the schemes were in the best interests of security holders.
The exemption from section 411(11) was granted on the orthodox basis that the schemes effected a re-domiciliation without altering Amaero’s constitution or affecting the substantive rights of security holders, making annexation of the Court orders to the constitution unnecessary.
Key Takeaways
- A dual scheme of arrangement (covering both shareholders and option holders) is a viable mechanism for re-domiciling an Australian public company to a foreign jurisdiction by inserting a new holding company, provided the economic interests of existing security holders are preserved.
- Low absolute voter turnout will not defeat scheme approval if participation exceeds the company’s own historical meeting rates and there is no evidence of irregularity in notice or dispatch — apathetic non-voters are not presumed to oppose the scheme.
- To support a section 3(a)(10) exemption under the US Securities Act of 1933, Australian courts will record relevant procedural facts (public hearing, standing of affected persons, fairness assessment) in their reasons, but will not themselves determine whether their processes satisfy US requirements.
- An outbound proxy solicitation campaign conducted consistently with the scheme booklet is permissible without prior Court approval, provided the Court is notified in advance of the hearing.
- A section 411(12) exemption from the section 411(11) annexation requirement is appropriate where schemes do not alter the company’s constitution or affect the substantive rights of security holders.
Why It Matters
This decision provides a recent and detailed procedural template for Australian companies seeking to re-domicile to the United States through a dual scheme of arrangement. It confirms that the Federal Court will approve such structures where economic equivalence is maintained, security holders are properly informed, and the requisite statutory thresholds are met — even where shareholder engagement is modest by absolute measure. The careful treatment of the US Securities Act section 3(a)(10) exemption, drawing on earlier authorities, will be of practical value to counsel structuring cross-border transactions that require reliance on the Australian court approval process to avoid US securities registration obligations.
More broadly, the judgment consolidates the multi-factor framework applied at second court hearings under section 411(4)(b), reaffirming that the Court exercises a genuine supervisory discretion — not a rubber stamp — while giving significant weight to the informed commercial judgment of security holders who voted overwhelmingly in favour.