FEDERAL COURT OF AUSTRALIA Atlassian Corporation Pty Limited, in the matter of Atlassian Corporation Pty Limited (No 2) [2014] FCA 60 Citation: Atlassian Corporation Pty Limited, in the matter of Atlassian Corporation Pty Limited (No 2) [2014] FCA 60 Parties: ATLASSIAN CORPORATION PTY LIMITED File number(s): NSD 2421 of 2013 Judge(s): YATES J Date of judgment: 4 February 2014 Catchwords: CORPORATIONS – schemes of arrangement – second hearing - approval Legislation: Corporations Act 2001 (Cth) s 411 Cases cited: Atlassian Corporation Pty Limited, in the matter of Atlassian Corporation Pty Limited [2013] FCA 1451 Date of hearing: 4 February 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Plaintiff: Mr I Jackman SC Solicitor for the Plaintiff: Herbert Smith Freehills IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2421 of 2013 IN THE MATTER OF ATLASSIAN CORPORATION PTY LIMITED ABN 46 122 325 777 ATLASSIAN CORPORATION PTY LIMITED Plaintiff JUDGE: YATES J DATE OF ORDER: 4 FEBRUARY 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (Corporations Act): (a) the scheme of arrangement between Atlassian Corporation Pty Limited (Atlassian Australia) and its members holding fully-paid class B ordinary shares (Class B Ordinary Share Scheme), in the form contained in Annexure C of the scheme booklet which is behind tab 1 of exhibit SMJ-1 to the affidavit of Suzanne Margaret Julian sworn on 31 January 2014 in the proceeding (Scheme Booklet), be approved; (b) the scheme of arrangement between Atlassian Australia and its members holding fully-paid series A preference shares (Series A Preference Share Scheme), in the form contained in Annexure D of the Scheme Booklet, be approved; (c) the scheme of arrangement between Atlassian Australia and its members holding fully-paid series B preference shares (Series B Preference Share Scheme), in the form contained in Annexure E of the Scheme Booklet, be approved; (d) the scheme of arrangement between Atlassian Australia and its members holding fully-paid restricted shares (Restricted Share Scheme), in the form contained in Annexure F of the Scheme Booklet, be approved; (e) the scheme of arrangement between Atlassian Australia and the holders of options over unissued class B ordinary shares in Atlassian Australia (Class B Ordinary Option Scheme), in the form contained in Annexure K of the Scheme Booklet, be approved; and (f) the scheme of arrangement between Atlassian Australia and the holders of options over unissued restricted shares in Atlassian Australia (Restricted Option Scheme), in the form contained in Annexure L of the Scheme Booklet, be approved. 2. Pursuant to s 411(12) of the Corporations Act, Atlassian Australia be exempted from compliance with s 411(11) of the Corporations Act in relation to each of the Class B Ordinary Share Scheme, the Series A Preference Share Scheme, the Series B Preference Share Scheme, the Restricted Share Scheme, the Class B Ordinary Option Scheme and the Restricted Option Scheme (together, the Schemes). 3. These orders be entered forthwith. THE COURT NOTES THAT: 4. Atlassian UK will rely on the Court's approval of the Schemes for the purposes of qualifying for exemption from the registration requirements of the U.S. Securities Act of 1933, provided for by s 3(a)(10) of that Act, in connection with the implementation of, and the provision of consideration under, the Share Schemes and the Option Schemes. 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 2421 of 2013 IN THE MATTER OF ATLASSIAN CORPORATION PTY LIMITED ABN 46 122 325 777 ATLASSIAN CORPORATION PTY LIMITED Plaintiff JUDGE: YATES J DATE: 14 FEBRUARY 2014 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The plaintiff (Atlassian) seeks orders pursuant to s 411(4)(b) of the Corporations Act 2001 (Cth) (the Act) approving six schemes of arrangement. 2 On 13 December 2013, I made orders pursuant to s 411(1) and s 1319 of the Act providing for the convening of various meetings of Atlassian's members and optionholders to consider and, if thought fit, approve the schemes relevant to those members and optionholders. My reasons for making those orders are given in Atlassian Corporation Pty Limited, in the matter of Atlassian Corporation Pty Limited [2013] FCA 1451 (my earlier reasons). My earlier reasons provide the background to the proposal of the schemes as well as an overview of the schemes. My earlier reasons should be read with these reasons. Where appropriate, I will use the same abbreviations in these reasons. 3 The six scheme meetings have been held. Each scheme received the requisite approval of members or optionholders. All conditions precedent to the schemes coming into effect (other than Court approval) have been satisfied or waived. No person has come forward to oppose approval being granted by the Court to the schemes. Additional evidence 4 The following additional evidence was read or tendered: The affidavit of Scott Farquhar made 29 January 2014. Mr Farquhar acted as Chairman of the various scheme meetings held on 29 January 2014. His affidavit deals with, amongst other things, the manner in which the various meetings were held and the results of voting. The affidavit of Suzanne Margaret Julian made 31 January 2014. Ms Julian is employed by Link Market Services Limited (Link) as Senior Manager – Capital Markets. Her affidavit deals with, amongst other things, Link's maintenance of Atlassian's share register and options register; the printing and dispatch of the scheme booklet and other relevant documents; and the receipt and processing of proxy forms. Ms Julian deposes that no invalid proxy forms were received in relation to any of the meetings. The affidavit of Michael Lindsay Spruyt made 31 January 2014. Mr Spruyt is employed by Link as a Senior Client Relationship Manager. His affidavit deals with, amongst other things, the calculation of voting entitlements for optionholders; the preparation of proxy summary reports providing a break-up of voting and proxy directions in relation to the various meetings; the registration of attendees at the various meetings (only two optionholders attended the convened meeting for restricted optionholders); and the recording of votes and results of voting at the various meetings. The affidavit of Mark Philip Bardell made 21 January 2014. Mr Bardell is a partner of Herbert Smith Freehills, the solicitors for Atlassian in this proceeding. Mr Bardell is based in the United Kingdom and holds a practising certificate issued under the Solicitors Act 1974 (UK) entitling him to practise as a solicitor in England and Wales. His affidavit provides evidence that the various deeds poll have been duly executed for the purposes of the laws of England and Wales and would be enforceable in England and Wales according to their terms. The affidavit of Benjamin David Hely made 31 January 2014. Mr Hely is an employed solicitor of Herbert Smith Freehills. His affidavit deals with the dispatch of the notices of meeting (reliance was placed on reg 5.6.13 of the Corporations Regulations 2001 (Cth) and the accompanying Form 530 statement provided by Thomas Shrieve Kennedy, the General Counsel and Company Secretary of Atlassian); the registration of the scheme booklet by ASIC; the valuation of options and the calculation of voting entitlements for optionholders; the advertising of the present hearing; the satisfaction of conditions precedent (other than Court approval) to the schemes becoming effective; and the non-receipt of any notice of intention to appear at this hearing. A conditions precent certificate: Exhibit B. A letter dated 3 February 2014 from ASIC to the directors of Atlassian providing a written statement for the purposes of s 411(17)(b) of the Act: Exhibit C. Consideration 5 I have been provided with written submissions. These have been marked for identification: MFI 2. 6 I am satisfied that there has been compliance with the orders made on 13 December 2013 with respect to the convening and holding of the relevant meetings of members and optionholders. 7 The evidence establishes that: at the meeting of members holding fully-paid class B ordinary shares in Atlassian, 100% of the holders of those shares present and voting (either in person or by proxy) voted in favour of the Class B Ordinary Share Scheme and that 100% of the votes cast on the resolution at that meeting voted in favour of the scheme; at the meeting of members holding fully-paid series A preference shares in Atlassian, 100% of the holders of those shares present and voting (either in person or by proxy) voted in favour of the Series A Preference Share Scheme and that 100% of the votes cast on the resolution at the meeting voted in favour of the scheme; at the meeting of members holding fully-paid series B preference shares in Atlassian, 100% of the holders of those shares present and voting (either in person or by proxy) voted in favour of the Series B Preference Share Scheme and that 100% of the votes cast on the resolution at the meeting voted in favour of the scheme; at the meeting in relation to members holding fully-paid restricted shares in Atlassian, 98% of the holders of those shares present and voting (either in person or by proxy) voted in favour of the Restricted Share Scheme and that 99.64% of the votes cast on the resolution at the meeting voted in favour of the scheme; at the meeting of holders of options over class B ordinary shares in Atlassian, 100% of the optionholders present and voting (either in person or by proxy) voted in favour of the Class B Ordinary Option Scheme and that 100% of the total debts and claims of those optionholders present and voting (either in person or by proxy) were voted in favour of the scheme; and at the meeting of holders of options over restricted shares in Atlassian, 98.72% of the holders of those options present and voting (either in person or by proxy) voted in favour of the Restricted Option Scheme and that 99.87% of the total debts and claims of the restricted optionholders present and voting (either in person or by proxy) voted in favour of the scheme. 8 I am satisfied, therefore, that each scheme was approved by the requisite statutory majorities: see s 411(4)(a) of the Act. 9 As I have noted, all conditions precedent to the schemes coming into effect (other than Court approval) have been satisfied or waived. Atlassian, Atlassian UK and Atlassian AU Holdco have certified that fact. There is also independent proof of that fact. 10 I note ASIC's written statement that it has no objection to the schemes. The requirement of s 411(17) of the Act has therefore been satisfied. 11 I note that the present hearing has been advertised. No notice of appearance (as identified in the advertisement) has been received from any person seeking to oppose approval being granted to the schemes. 12 I am satisfied that each scheme is fair and reasonable. In reaching this conclusion, I have taken into account the following matters: Each scheme was agreed to by an overwhelming majority of members and optionholders voting at the relevant meetings. The directors of Atlassian have recommended approval of the scheme by members and optionholders: see [24] and [25] of my earlier reasons. The independent expert, KPMG Finance, has concluded that the share schemes are in the best interests of Atlassian's members and that the option schemes are in the best interests of Atlassian's optionholders: see [21]-[23] of my earlier reasons. All material information has been provided to Atlassian's members and optionholders. No person has come forward to oppose any of the schemes. 13 I am satisfied that, in all the circumstances, orders should be made under s 411(4)(b) of the Act approving the schemes. Disposition 14 Orders, as sought in the draft orders provided at the hearing, should be made. Atlassian seeks exemption from compliance with s 411(11) of the Act. I am satisfied that that exemption should be granted under s 411(12). I note that Atlassian UK will rely on the Court's approval of the schemes for the purpose of qualifying for exemption from the registration requirements of the Securities Act of 1933 (US), provided by s 3(a)(10) of that Act, in connection with the implementation of, and the provision of consideration under, the share schemes and the option schemes. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Yates. Associate: Dated: 14 February 2014