FEDERAL COURT OF AUSTRALIA Amcor Ltd, in the matter of Amcor Ltd [2013] FCA 1183 Citation: Amcor Ltd, in the matter of Amcor Ltd [2013] FCA 1183 Parties: AMCOR LTD ACN 000 017 372 File number(s): NSD 2132 of 2013 Judge(s): JAGOT J Date of judgment: 1 November 2013 Catchwords: CORPORATIONS - scheme of arrangement Legislation: Corporations Act 2001 (Cth) Date of hearing: 1 November 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 10 Counsel for the Plaintiff: R G McHugh SC Solicitor for the Plaintiff: Corrs Chambers Westgarth IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2132 of 2013 IN THE MATTER OF AMCOR LTD BETWEEN: AMCOR LTD ACN 000 017 372 Plaintiff JUDGE: JAGOT J DATE OF ORDER: 1 NOVEMBER 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to subsection 411(1) of the Corporations Act 2001 (Cth) (Corporations Act): a. the Plaintiff, Amcor Limited (ACN 000 017 372) (Amcor), convene a meeting (Scheme Meeting) of the holders of ordinary shares in Amcor (Shareholders) for the purpose of considering and, if thought fit, agreeing (with or without modification) to a scheme of arrangement proposed to be made between Amcor and its Shareholders (Scheme), the terms of which are set out in Annexure C of the document which is Exhibit 1 in this proceeding (Scheme Booklet); b. the Scheme Meeting be held at 10.00am (AEDT) on 9 December 2013, at the Clarendon Auditorium at the Melbourne Convention and Exhibition Centre, 2 Clarendon Street, South Wharf, Victoria 3006; c. the Chairperson of the Scheme Meeting be Chris Rogers and in his absence Graeme Liebelt; d. the Chairperson appointed to the Scheme Meeting has the power to adjourn the Scheme Meeting in his absolute discretion; e. all voting at the Scheme Meeting be by poll as declared by the Chairperson; and f. the explanatory statement for the Scheme substantially in the form contained in the Scheme Booklet be approved for distribution to Amcor Shareholders. 2. By 8 November 2013, there be dispatched to each Amcor Shareholder (who in accordance with the Corporations Act has consented to receiving shareholder communications electronically) an email substantially in the form of Annexure A to these orders to the nominated email address of the Amcor Shareholder. 3. It shall not be necessary for a document substantially in the form of the Scheme Booklet and a proxy form substantially in the form of the document at tab 10 of exhibit RD 1 (Proxy Form) to be delivered personally or dispatched by prepaid post or other means to an Amcor Shareholder referred to in paragraph 2 of these Orders. 4. There be dispatched to each Amcor Shareholder (other than those Shareholders referred to in paragraph 2 of these Orders) by 8 November 2013: a. a document substantially in the form of the Scheme Booklet; b. a Proxy Form; c. a reply paid (for use in Australia only) envelope addressed to Link Market Services Limited for the return of the proxy form, in the case of each Amcor Shareholder who has a registered address in Australia, by prepaid post and, in the case of each Amcor Shareholder who has a registered address outside Australia, by prepaid airmail or air courier, in each case addressed to the relevant address set out in the Amcor register of members; 5. Amcor place an advertisement in The Australian newspaper, substantially in the form of "Annexure B" to these Orders, on or before 9 December 2013 and Amcor shall otherwise be exempted from compliance with the requirement to publish such notice following the Scheme Meeting and prior to the second court hearing for approval of the Scheme pursuant to Rule 3.4(3)(a) of the Federal Court (Corporations) Rules 2000 (Cth). 6. Pursuant to section 1319 of the Corporations Act, Amcor be exempted from compliance with the requirements of rule 2.15 of the Federal Court (Corporations) Rules 2000 save that regulation 5.6.13 of the Corporations Regulations 2001 shall apply to the Scheme Meeting. 7. Exhibit AJL 1 to the affidavit of Andrew John Lumsden sworn 1 November 2013 be treated as confidential and may only be used for the purposes of the Proceeding. Access to the exhibit be limited to the following persons: a. any legal representatives of Amcor; b. any judge, employee or other personnel of this Court; and c. any person associated with the recording transcript at any hearing in the Proceeding 8. The proceedings be stood over to 9:30am on 16 December 2013 before Justice Jagot for the hearing of any application to approve the Scheme. 9. Liberty to restore to the list. 10. These orders to be entered forthwith Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2132 of 2013 IN THE MATTER OF AMCOR LTD BETWEEN: AMCOR LTD ACN 000 017 372 Plaintiff JUDGE: JAGOT J DATE: 1 NOVEMBER 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application under s 411(1) of the Corporations Act 2001 (Cth) for orders convening a meeting of the shareholders of Amcor Limited to vote on a proposed scheme of arrangement. The scheme relates to the separation of Amcor's Australasia and packaging distribution businesses, (Orora Business) by way of a de-merger of Orora Limited, a wholly owned subsidiary of Amcor, into a separately listed company on the Australian Stock Exchange. The proposed transaction, as set out in the evidence, involves the separation of Orora from Amcor with the result that there will be two ASX listed companies, Amcor and Orora. 2 Overall, the proposal involves shareholders of Amcor retaining their existing Amcor shares but receiving one share in Orora for every Amcor share they hold on the relevant scheme record date, which is expected to be 24 December 2013. This excludes ineligible overseas shareholders where it is proposed that their Orora shares will be transferred to an agent appointed by Amcor for sale on their behalf. The steps proposed in this de-merger are conventional. They involve, first, a reduction of the share capital of Amcor, which is also to be put to the vote on the proposed date, a dividend for an amount representing the difference between the fair value of Orora shares and the capital reduction amount, which is to be applied equally against each Amcor share, and then application of the amount of the capital reduction and the de-merger dividend as consideration for the transferred Amcor shareholders of the one Orora share for every Amcor share they hold. 3 Accordingly, leaving aside ineligible overseas shareholders, no amount of cash will be paid to Amcor shareholders as a result of either the capital reduction or the de-merger dividend. 4 As set out in the written submissions, the basic principle is that a meeting will not ordinarily be convened unless the scheme is of such a nature and cast in such terms that, assuming it receives the statutory majority at the proposed meeting, the court would be likely to approve the scheme on the hearing of the application for approval, if it be unopposed. In this case, I am satisfied that it is reasonable to suppose that sensible business people might consider the proposed arrangement to be in their best interests. 5 As set out in the evidence, the directors of Amcor have unanimously recommended a vote in favour of the scheme by their shareholders and they have also expressed the belief, based on expert material that is also in evidence, that the capital reduction which is proposed will not materially prejudice Amcor's abilities to pay its creditors. The application is supported by an expert report from Grant Samuel & Associates Pty Limited. Their overall conclusions are, first, that the potential benefits of the de-merger outweigh the potential cost, disadvantages and risks with the consequence that the proposed de-merger is in the best interests of Amcor shareholders. They also confirmed the opinion expressed by the directors that the capital reduction will not materially prejudice Amcor's ability to pay its existing creditors. 6 Apart from this, I am satisfied, in accordance with the written submissions, that the treatment of ineligible overseas shareholders, as well as the treatment of certain employees of Amcor who have rights and benefits pursuant to various incentive plans and retention share payment plans, do not result in the constitution of any separate class. The treatment of the ineligible shareholders, by which they keep their existing shares in Amcor and obtain the proceeds of the sale of their shares in Orora, does not constitute them as a class separate from other Amcor shareholders. 7 Also disclosed in the information to be provided to shareholders is the proposed treatment of employees subject to the incentives and retention share payment plans. The consequence, as explained, is that some senior managers will forfeit awards under the long term incentive plan but in consideration for this forfeit, there will be a pro rata deferred compensation payment. As explained in the scheme booklet, the one-off incentive payment will be in the form of a payment made by Amcor to senior managers in March 2015, conditional upon continued employment with Orora. Again, I accept that the treatment of these participants in Amcor's incentive plans does not create a separate class. 8 I should note, even at this stage, that I have been informed that if at the second court hearing approval is granted to the scheme, Amcor and Orora intend to rely upon this approval for the purposes of exemption under s 3(a)(10) of the US Securities Act 1933, in accordance with the implementation of the scheme and the issue of Orora shares in accordance with the scheme. 9 The only other matter I wish to note is that there has been placed into evidence before me a letter from the Australian Securities Investment Commission (ASIC) in the usual terms. That letter is dated 31 October 2013. It confirmed that ASIC has had notice of the hearing of the application, which has been adequate for it to examine the terms of the proposed scheme and that it does not propose to appear, and indeed ASIC has not appeared today. 10 In those circumstances, I am satisfied that I should make the orders sought. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate: Dated: 1 November 2013