Supreme Court New South Wales Medium Neutral Citation: In the matter of Bionomics Ltd [2024] NSWSC 1440 Hearing dates: 28 October, 8 November 2024 Date of orders: 8 November 2024 Decision date: 12 November 2024 Jurisdiction: Equity - Corporations List Before: Black J Decision: Order convening scheme meeting and associated orders made. Catchwords: CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, to agree to proposed scheme of arrangement – Whether requirements to order scheme meeting are satisfied. Legislation Cited: - Corporations Act 2001 (Cth), s 411 - Securities Act 1933 (US), s 3 Cases Cited: - Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 - F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 - OPUS Group Ltd, in the matter of OPUS Group Ltd [2018] FCA 959 - Re Absolute Equity Performance Fund Ltd [2022] FCA 933 - Re Capitol Health Limited [2024] FCA 1120 - Re CSR Ltd (2010) 183 FCR 358; [2010] FCAFC 34 - Re Ellerston Global Investments Ltd [2020] NSWSC 879 - Re Excelsior Gold Ltd [2018] FCA 2064 - Re Foundation Healthcare Ltd (2002) 42 ACSR 252; [2002] FCA 742 - Re Graincorp Ltd [2020] FCA 143 - Re Icannex Healthcare Ltd [2023] FCA 1441 - Re InvoCare Ltd [2023] NSWSC 1180 - Re News Corporation Ltd (2004) 51 ACSR 394; [2004] FCA 1480 - Re Orion Telecommunications Limited [2007] FCA 1389 - Re Pacific Smiles Group Limited [2024] NSWSC 812 - Re Permanent Trustee Co Ltd (2002) 43 ACSR 601; [2002] NSWSC 1177 - Re Staging Connections Group Ltd [2015] FCA 1012 - Re Sundance Energy Australia Ltd [2019] FCA 1944 - Re Villa World Ltd [2019] NSWSC 1207 - Re Vocus Group Ltd [2021] NSWSC 630 - Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd [2018] WASC 308 - Re Wridgways Australia Ltd [2010] FCA 1187 Category: Principal judgment Parties: Bionomics Limited (Plaintiff) Representation: Counsel: I Ahmed SC (Plaintiff) Solicitors: Hamilton Locke (Plaintiff) File Number(s): 2024/385137 Judgment Nature of the application and background 1. By Originating Process filed on 17 October 2024, Bionomics Ltd ("Bionomics") applies under s 411 of the Corporations Act 2001 (Cth) ("Act") for orders relating to a proposed scheme of arrangement and associated orders. The proposed scheme is a members' scheme under which a company incorporated in Delaware in the United States, Neuphoria Therapeutics Inc ("Neuphoria") will acquire all of the ordinary fully paid shares in Bionomics. The purpose of the scheme is to permit Bionomics to redomicile to the United States. 2. On 1 October 2024, Bionomics announced by way of press release that it had entered into a scheme implementation agreement ("SIA") with Neuphoria. That press release referred to the fact that the purpose of the scheme was to allow Bionomics to redomicile to the United States and noted that, under the proposed scheme, shareholders in Bionomics would receive a proportionate interest in Neuphoria. That proposition required qualification, as the scheme was initially structured, in respect of shareholders holding smaller parcels of shares in Bionomics. 3. By way of background, Bionomics is a biotechnology company that is engaged in the research, development and commercialisation of treatments for central-nervous system disorders. Its securities were quoted on the Australian Securities Exchange until 2023, but it was then delisted. Since December 2021, American Depositary Shares ("ADS") referrable to Bionomics shares have traded on the Nasdaq Global Market ("Nasdaq") in the United States. Those ADSs are governed by a Deposit Agreement dated 17 December 2021 between Bionomics, Citibank NA and the holders of the ADSs ("Deposit Agreement"). Each ADS is referrable to 180 ordinary fully paid shares in Bionomics. 4. Bionomics has on issue 3,514,922,864 ordinary shares; 97,424,330 options; and a 5-year warrant to purchase up to 12,652,572 ADSs. Approximately 500 ADS holders collectively hold ADSs that are referrable to approximately 2.9 billion Bionomics shares. Unusually, the vast majority (approximately 95%) of shares in Bionomics are held within the ADS structure and the remainder of Bionomics shares are held by approximately 3,500 shareholders who together hold less than 200,000 shares and are classified as "Small Parcel Holders" under the proposed scheme. This issue contributed to a disclosure difficulty when this matter was first listed on 28 October 2024, where the scheme booklet did not then adequately disclose that the effect of the scheme (in its then form) would be that about 95% of shareholders in Bionomics (by number) would be excluded from taking up Neuphoria shares unless they opted out of the share sale facility. That disclosure issue has now been addressed by Bionomics, both by allowing those shareholders to take up Neuphoria shares unless they elect to participate in the share sale facility and by improving the disclosure in the scheme booklet. As at 31 October 2024, one shareholder would also be classed as an Ineligible Overseas Shareholder (as defined) for the purposes of the proposed scheme. 5. After this issue arose at the hearing on 28 October, that hearing was adjourned to 8 November 2024 to allow Bionomics an opportunity to address that issue. Bionomics then revised the structure of its proposed share sale facility for such holders and revised the disclosures made in the scheme booklet, and the latter was plainly necessary to address that disclosure issue. The scheme is now structured such that Small Parcel Holders (as defined) of Bionomics shares may opt-in to a sale facility in respect of the Neuphoria shares that they would otherwise receive, rather than (as in its previous version) being required to take active steps to opt out of that facility if they wish to receive Neuphoria shares, and Bionomics also now draws attention to matters which would be relevant to shareholders' decision whether to do so. 6. Under the revised scheme, Neuphoria will acquire all of the Bionomics shares and, in consideration, each Bionomics shareholder (with the qualifications noted below) will receive one Neuphoria share for every 2,160 Bionomics shares that it holds. Those qualifications are, first, that Neuphoria will issue one Neuphoria share to the ADS Depository for every 2,160 Bionomics shares that are held by Citicorp Nominees Pty Ltd as nominee within that structure. Second, in respect of Ineligible Overseas Shareholders, the shares that they would otherwise be entitled to will be issued to a nominee, who will sell or procure the sale of the Neuphoria shares on Nasdaq and then remit the funds to Neuphoria so that they can be paid to the Ineligible Overseas Shareholders. Third, where a person holds less than 200,000 Bionomics shares as at the "Record Date" (and are classified as a "Small Parcel Holder" under the scheme), they will (under the revised scheme) have the option of "opting-in" to a sale facility, so that the shares to which they would otherwise be entitled will be issued to a nominee who will sell or procure the sale of the Neuphoria shares on Nasdaq and then remit the funds to Neuphoria so that they can be paid to the relevant shareholder. 7. I made the orders sought by Bionomics, in respect of the revised scheme, at the conclusion of the hearing on 8 November 2024. These are my reasons for doing so. I have drawn on the helpful submissions of Mr Ahmed who appeared for Bionomics in this judgment. Affidavit evidence 1. Bionomics reads an affidavit dated 17 October 2024 of Mr Sanderson ("Sanderson 1"). Mr Sanderson is a solicitor acting for Bionomics and addressed formal matters in respect of the scheme. 2. Bionomics also reads an affidavit dated 24 October 2024 of Mr Papapetropoulos and tenders the documents contained in Exhibit SP-1 to that affidavit ("Papapetropoulos 1"). Mr Papapetropoulos is the President and Chief Executive Officer of Bionomics. He addresses the nature of Bionomics business and the proposed scheme, the treatment of options issued by Bionomics, arrangements in relation to the proposed scheme meeting (including in relation to the proposed chair of the meeting and distribution of material to shareholders), verification of the scheme booklet, proposed communications with Bionomics shareholders, and arrangements that are in place in relation to ADSs in respect of Bionomics. By a second affidavit also dated 24 October 2024 ("Papapetropoulos 2"), Mr Papapetropoulos gives evidence as to verification of information as to Neuphoria in the scheme booklet and also addresses a Deed Poll executed by Neuphoria. 3. By a second affidavit dated 25 October 2024 ("Sanderson 2"), Mr Sanderson addresses steps taken in connection with verification of the scheme booklet and communications with ASIC. By a third affidavit dated 25 October 2024 ("Sanderson 3"), Mr Sanderson referred to a further version of the draft scheme booklet. By his fourth affidavit dated 28 October 2024 ("Sanderson 4"), Mr Sanderson addressed further correspondence with ASIC and explained the position of the warrant holder in respect of Bionomics shares. By his fifth affidavit dated 7 November 2024 ("Sanderson 5"), Mr Sanderson addressed the changes that were made in respect of the scheme and draft scheme booklet in the period in which the first Court hearing was adjourned and referred to further correspondence with the Australian Securities and Investments Commission ("ASIC") concerning those matters. By a letter dated 7 November 2024, ASIC indicated that it did not currently propose to appear to make submissions or intervene to oppose the scheme at this hearing. I address its comments in respect of the share sale facility for Small Parcel Holders below. 4. I bear in mind that the scheme booklet contains a report from an independent expert, Findex Corporate Finance (Aust) Ltd ("Findex"), which expresses the view that the proposed scheme is in the best interests of Bionomics' shareholders. Findex notes that, while a change of control will be involved, the underlying economic interests of shareholders in eligible jurisdictions (necessarily, excluding "Electing Small Parcel Holders" who elect to participate in the sale facility) will be virtually unchanged and that as a whole they will effectively retain the same existing ownership interests in the underlying assets of Bionomics. Findex also express the opinion that the potential disadvantage to Ineligible Overseas Holders and Electing Small Parcel Holders, in that they will no longer hold equivalent securities in Neuphoria that they previously held in Bionomics and will not be able to benefit in any potential future "upside" that may have resulted from such a holding, does not individually, or together with other potential disadvantages, outweigh the benefits of the scheme to shareholders generally. Applicable principles 1. The Court's role at the first Court hearing in respect of a scheme is to determine, in the exercise of its discretion, whether to approve the convening of a scheme meeting and the explanatory statement if it is satisfied of several matters, namely that the plaintiff is a Pt 5.1 body; the proposed scheme is an "arrangement" within the meaning of s 411 of the Act; the scheme is bona fide and properly proposed; ASIC has had a reasonable opportunity to examine the proposed scheme and explanatory statement, to make submissions and has had 14 days' notice of the proposed hearing date of the first Court hearing; the procedural requirements under the Supreme Court (Corporations) Rules 1999 (NSW) ("Rules") have been met; and there is no apparent reason why the scheme should not, in due course, receive the Court's approval if the necessary majority of votes is achieved: Re Orion Telecommunications Limited [2007] FCA 1389 at [5]; Re Staging Connections Group Ltd [2015] FCA 1012 at [19]; Re Wridgways Australia Ltd [2010] FCA 1187 at [30]; Re Ellerston Global Investments Ltd [2020] NSWSC 879 ("Ellerston") at [25]; Re Vocus Group Ltd [2021] NSWSC 630 at [12]. 2. I am satisfied that each of the preconditions to the exercise of the Court's discretion in s 411 of the Act is satisfied in this case. Bionomics is a company registered under the Act and a Pt 5.1 body. The proposed scheme is an "arrangement" within the scope of s 411 of the Act, where it involves the acquisition of the shares in a company in return for consideration being paid to shareholders. There is no reason to doubt that the scheme is bona fide and properly proposed. As Mr Ahmed points out, the scheme is a form of "top-hat" scheme, by which a company is redomiciled and, in Re Icannex Healthcare Ltd [2023] FCA 1441 ("Icannex Healthcare"), Besanko J observed that there were several examples of the use of a scheme of arrangement in this way, citing, inter alia, Re News Corporation Ltd (2004) 51 ACSR 394; [2004] FCA 1480 and OPUS Group Ltd, in the matter of OPUS Group Ltd [2018] FCA 959. 3. ASIC has also here had a reasonable opportunity to examine the proposed scheme and scheme booklet, to make submissions and has had the necessary notice of this hearing and has indicated that it does not currently propose to appear to make submissions or intervene to oppose the scheme at this hearing. I will refer to its observations in respect of one issue that arose at the hearing below. 4. The relevant procedural requirements have been met and Bionomics proposes to distribute the scheme documents in accordance with common scheme practice. For completeness, Mr Ahmed points out that ADS holders are not Bionomics shareholders, but the process by which the ADS holders will receive the scheme material is addressed at paragraphs 51 to 59 of Mr Papapetropoulos' first affidavit. As soon as practicable after the ADS Depository and Custodian receive the scheme materials, the ADS Depository will set a record date to determine those ADS holders who may give instructions in relation to voting rights under the scheme. The ADS Depository Holder is then required to dispatch a US proxy statement to eligible ADS holders. Upon receiving voting instructions from an eligible ADS holder as specified by the ADS Depository, the ADS Depository will vote, or cause the Custodian to vote, the Bionomics shares represented by ADSs. He also points to the way in which the ADS Depository may distribute the relevant materials to ADS holders. This gives rise to no concern in respect of the scheme. 5. At the first Court hearing, the Court will also consider whether the proposed scheme is fit for consideration at the proposed scheme meeting, in the sense that it is of such a nature and cast in such terms that, if it achieves the statutory majority at the meeting, the Court would be likely to approve it on the hearing of a petition which is unopposed; and that members are to be properly informed as to the nature of the scheme before the scheme meeting: F T Eastment & Sons Pty Ltd v Metal Roof Decking Supplies Pty Ltd (1977) 3 ACLR 69 at 72, approved in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 504; Re Foundation Healthcare Ltd (2002) 42 ACSR 252; [2002] FCA 742 at [36] and [44], cited with apparent approval in Re CSR Ltd (2010) 183 FCR 358; [2010] FCAFC 34 at [58]; Re InvoCare Ltd [2023] NSWSC 1180 ("InvoCare") at [16]-[17]. 6. I have also summarised the principles which apply to the exercise of the Court's discretion whether to convene a scheme meeting in, among many cases, Re Villa World Ltd [2019] NSWSC 1207 ("Villa World") at [15]-[19]; see also Re Absolute Equity Performance Fund Ltd [2022] FCA 933 at [18]-[22]. I accept that, subject to several further matters noted by Mr Ahmed that I address below, there is nothing in the terms of the scheme, or in its effect on Bionomics shareholders, that would otherwise warrant the Court declining to approve the scheme at the second Court hearing, if it receives the statutory majorities required by s 411(4)(a)(ii) of the Act at the scheme meeting. The treatment of Small Parcel Holders 1. Mr Ahmed points out that the scheme, in its revised form, adopts an "opt-in" model for Small Parcel Holders' participation in the share sale facility, rather than a more traditional "opt-out" model. He submits and I accept that this does not give rise to any relevant unfairness or otherwise present an impediment to the convening of the scheme meeting. He rightly recognises that "opt-in" models have been adopted in cases including Re Wesfarmers Ltd; Ex parte Wesfarmers Ltd [2018] WASC 308 at [98] ("Wesfarmers"); Re Excelsior Gold Ltd [2018] FCA 2064 at [40] ("Excelsior"); Re Sundance Energy Australia Ltd [2019] FCA 1944 ("Sundance"), where an "opt-in" model was adopted in a scheme for the purposes of the redomiciliation of a company; and Re Graincorp Ltd [2020] FCA 143 ("Graincorp") at [29]-[31]. Mr Ahmed points out that Bionomics has agreed to pay all brokerage and related costs, levies and fees associated with those Small Parcel Holders who elect to sell their shares through the sale facility, and that is no doubt an advantage to those shareholders. 2. Mr Ahmed also submits that the treatment of Small Parcel Holders and Ineligible Overseas Shareholders does not require the creation of separate classes. He submits and I accept that the test to be applied in determining whether separate classes are required involves considering whether the rights of shareholders are "so dissimilar as to make it impossible for [them] to consult together [with other shareholders] with a view to their common interest", and it is in a case of such impossibility that it would be necessary for a separate class to be constituted. Mr Ahmed submits that the rights of the Small Parcel Holders and Ineligible Overseas Shareholders are not so dissimilar to the rights of other shareholders as to make it impossible for them to consult together, and points out that a separate class was not required, because the rights of those shareholders were not so dissimilar from the rights of other shareholders as to make consultation impossible, in Wesfarmers at [96]-[98], Excelsior at [40]-[43], Graincorp at [29]-[31] and Sundance at [14]. I accept that proposition in respect of the amended share sale facility, although I would have had greater difficulty in doing so had the position remained that 95% of shareholders by number would be excluded from the company unless they made an election to the contrary. I accept that, as Mr Ahmed points out, it has consistently been held that a share sale facility for Ineligible Overseas Shareholders does not require that they be placed in a separate class. 3. ASIC also made several helpful comments in its letter dated 7 November 2024 as to the disclosure issues in respect of the treatment of Small Parcel Holders which had arisen in this matter. ASIC there noted, as I have also noted above, that Bionomics has now restructured the sale facility for the scheme from an 'opt-out' to an 'opt-in' facility, and the scheme booklet has been updated to provide additional disclosure. ASIC also drew attention to Beach J's review of different approaches to "small parcel shareholders" in Re Capitol Health Limited [2024] FCA 1120 at [93]-[98], where his Honour observed that: "Further, the treatment of unmarketable parcel shareholders whereby they receive cash rather than scrip does not require separate classes. The treatment of unmarketable parcel shareholders can arise in different scheme contexts, including in an all scrip scheme where the scrip consideration to which they would otherwise have been entitled are issued to and sold by a sale agent (like the position with ineligible foreign shareholders) and a scheme involving a choice between cash consideration or scrip consideration (or a combination of both) and where the unmarketable parcel shareholder only has the option of receiving the cash consideration. The proposed treatment of unmarketable parcel shareholders is now common and there is a proper justification for not burdening registers of public companies with small holdings whilst also enabling a small shareholder to efficiently exit the register. Unmarketable parcel shareholders could nevertheless make an election to opt-in to receive the scrip consideration, and having the ability to opt-in clearly mitigates against any class question arising. … Now differing approaches have been adopted regarding the question of elections by unmarketable parcel shareholders, including the approach of no provision for such an election to the approach of the provision by the scheme company of an opt-in notice. But in the present case, under the scheme, an election form is available upon request from the Capitol registry. The ability for an unmarketable parcel shareholder to make such a request is set out in the scheme booklet. Given the relatively small number of unmarketable parcel shareholders on the Capitol register, being some 10.6% of Capitol shareholders by number holding 0.021% of Capitol shares on issue, and the fact that the composition of this group could readily change due to off market sales or transfers of these shares and taking account of the express notice given to such shareholders about the ability to make an election, the approach proposed to be adopted by Capitol is reasonable." 1. Plainly, this issue arose in a heightened form here where 95% (rather than 10.6%) of shareholders by number would fall within the concept of "Small Parcel Holder" in this scheme. 2. ASIC also there pointed to its review of scheme authorities that have noted the treatment of small parcel sale facilities, which had identified 12 opt-out, 7 opt in and 4 mandatory facilities. ASIC observed that: "ASIC has not identified a scheme authority, though, that has weighed the desirability of opt-in or opt-out structures generally, or by reference to small parcel holders by number and issued capital held. … In the scheme authorities ASIC has identified, the largest proportion of small parcel holders by number was around 88% where the scheme had also adopted an opt-in structure for the sale facility. … Additionally, in considering the structure of a sale facility, a Court may wish to have regard to the following factors, which are not intended to be exhaustive: (a) whether the types of financial products that will be sold or purchased through the facility are admitted to quotation on a licensed market or on an approved foreign market to enable the price to be independently determined; (b) whether the method or price mechanism is outside the operation of a licensed market or an approved foreign market (e.g. certain 'book builds'), or whether the method or price mechanism of the financial products that are sold or purchased through the facility is fair and sufficiently capable of being objectively determined; (c) whether the timeframe during which the sale or purchase transactions will be completed from the holder's election to participate in the facility is reasonable in the circumstances; (d) if the scheme proponent suggests the sale facility is more cost effective for small holders than individually appointing a broker, whether the scheme proponent has provided evidence that the sale facility provides a cost-effective way for small parcel holders to sell their shares, including whether brokerage and other transaction costs are disproportionate to the value of the shares; or (e) whether holders are provided with sufficient information about the facility to make an informed decision about whether to participate, including information about: (i) the valuation of the financial products; (ii) how the facility works; (iii) how the proceeds of sale or financial products purchased will be allocated between participating holders; and (iv) what the holder can do instead of participating in the facility. Sale facilities can be a convenient and cost-effective way for small parcel holders to sell their shares or interests at or near their current market value. However, if factors such as those set out above suggest the sale of shares through the sale facility is materially uncertain, and will impact a large number of shareholders, a Court may prefer that a sale facility be structured on an opt-in basis. Such structures will ensure that small parcel holders will, by default, maintain their economic interest through the transaction and retain the opportunity to sell their shares on a voluntary basis." 1. The matters which ASIC has noted may well be relevant to the consideration of a sale facility, particularly when the Court exercises its discretion whether to approve a scheme at a second Court hearing. 2. However, it is not necessary for me to express any view here as to whether opt-out or opt-in structures are generally preferable in dealing with smaller parcels of shares, which may well depend on the circumstances and would generally not be a matter that would need to be addressed at a first Court hearing. The issue which caused difficulty at the hearing of this application on 28 October 2024 was not whether the sale facility was structured as an opt-in or opt-out arrangement (although the latter may require fuller disclosure) but an issue as to the adequacy of disclosure. It seems to me that, at least if the effect of a share sale facility structured on an opt-out basis is that a very large percentage of shareholders (here 95% by number) would cease to hold a direct or indirect interests in a company, absent an election to opt out of that facility, that matter will need to be clearly disclosed in the scheme booklet, even if those shareholders do not hold a large percentage of the shares in the company by value. The scheme booklet will likely also need to identify matters relevant to small shareholders' decision whether to opt out of such a sale facility, and any assessment of whether the scheme is in shareholders' best interests will likely need to have regard to interest of the many shareholders whose shares would be sold under the sale facility. The previous draft of the scheme booklet did not adequately deal with those matters and the revised scheme booklet now adequately addresses them. Further matters 1. Mr Ahmed also addresses several further matters. First, Mr Ahmed points out that performance risk is managed under the scheme by Neuphoria's execution of a deed poll by which it agrees to be bound by the scheme; where this is a scrip scheme; no issue as to funding arises; and the terms of the scheme provide that the transfer of Bionomics shares is conditional on the scheme consideration being provided, and this is an accepted manner of managing performance risk in respect of a scheme of this kind. 2. Second, Mr Ahmed notes that it is proposed that agreements will be entered into with options and warrant holders, which will reflect the current terms of the options and warrants, although transposed to Neuphoria. Mr Ahmed notes that the option holders include certain current directors who have made a recommendation in relation to the scheme and, consistently with the approach adopted by the Court in Re Pacific Smiles Group Limited [2024] NSWSC 812 at [16]-[17], the interests of those directors is prominently disclosed in the scheme booklet where a recommendation is made. I accept that this does not provide a reason to not convene the scheme meeting, or to place option holders who are also shareholders in a separate class to other shareholders. 3. Third, Mr Ahmed notes that the current directors of Bionomics are also directors of Neuphoria, and points out that this is not surprising where the scheme essentially seeks to redomicile Bionomics. I accept that, in this context, the common directorships do not affect the ability of directors to make recommendations or create a separate class, particularly where that matter is disclosed in section 8.2 of the scheme booklet: Icannex Healthcare at [31]. 4. Fourth, Mr Ahmed addresses Bionomics' proposed communications with shareholders, in addition to the scheme booklet and scheme meeting materials, namely an announcement as to the second Court hearing date, the establishment of a telephone line for shareholders to ask questions in relation to the scheme, and an email to shareholders. Bionomics also proposes to issue an election form and an election withdrawal form for Small Parcel Holders and, where a Small Parcel Holder has not provided any response to the communications by approximately two to three weeks' prior to the scheme meeting, Bionomics proposes to issue a "reminder letter" enclosing a copy of the election form. Mr Ahmed notes that Bionomics draws these matters to the Court's attention, although in accordance with recent practice, no orders are sought approving the form of these communications: InvoCare at [26]; Practice Note SC Eq 4 [26(k)]. I had no concerns arising from the proposed communications as to these matters that need to be drawn to Mr Ahmed's attention. 5. Fifth, Mr Ahmed recognises that, given the unusual structure of the Bionomics' register and the fact that the Depository Holder for the ADSs holds the majority of Bionomics shares through the Custodian, it may be necessary for Bionomics to apply for orders dispensing with the application of the "headcount" test at the second Court hearing. I accept that this matter is properly addressed at the second Court hearing once it is known if such an order need be sought, and the circumstances in which it is sought. Exemption under US Securities Act 1. If the scheme is approved by the Court, Neuphoria intends to rely on the Court's approval of the scheme for the purpose of qualifying for exemption from the requirements of s 3(a)(10) of the Securities Act 1933 (US) in connection with the new Neuphoria shares that will be issued pursuant to the scheme. Mr Ahmed recognises that there are several requirements to come within that exemption, including that the issuer of securities advises the Court before the hearing that it will rely on the exemption in the event the Court approves the scheme: Re Permanent Trustee Co Ltd (2002) 43 ACSR 601; [2002] NSWSC 1177 at [11]-[20]. I note this matter which may otherwise be deferred to the second Court hearing. Determination and orders 1. For these reasons, I made the orders sought by Bionomics at the conclusion of the first Court hearing on 8 November 2024. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2024