Judgement (REVISED 22 AUGUST 2022) makes very intersting read,...

Judgement (REVISED 22 AUGUST 2022) makes very intersting read, evolution of discussion is telling – what aN embarrassing shamozzle !
ResApp sought orders to "postpone" a scheme due to take place today,
….ResApp is now seeking to address the difficulties … so as to put accurate and informative information before its shareholders.

it had been informed by the acquirer … that the amount that it had offered ….was its best and final offer
That ASX announcement also indicated that Pfizer had agreed to provide a … bridging loan to "enable ResApp to meet its working capital needs during the scheme period",
if ResApp failed to repay the bridging loan, ……. it was required to grant Pfizer Australia a non-exclusive licence over certain intellectual property….
A first difficulty with that announcement … it offered no explanation as to why ResApp had come to realise, …….that it had so urgent a need for working capital that it was required to enter this transaction and potentially place that intellectual property at risk

second difficulty …… it may have misstated aspects of the bridging loan agreement,
ResApp’s ability to continue as a going concern
Difficulties have arisen from that affidavit evidence, …. The most significant is a statement in the affidavit dated 17 August 2022 of Dr Keating, …, that, in the absence of the bridging loan offered by Pfizer Australia, he believes there would be a question as to ResApp's ability to continue as a going concern
That proposition is not wholly consistent with … the board resolution which approved the relevant arrangements affirms… solvency
It seems to me that that is properly a matter that now warrants a close inquiry,
….In these circumstances, ….ResApp needs both to undertake further analysis ………. It also needs to address issues as to inaccuracy and incompleteness of disclosure
What should be done as to the meeting today

... first possibility is that that meeting should be permitted to continue, ….at least three difficulties with that course. The first ……. Pfizer Australia has made a best and final statement, and that may well be relevant to shareholders who are presently inclined to vote against the scheme ……. Second, if an issue as to ResApp's ability to continue as a going concern …..then fair disclosure of that matter to shareholders may provide a reason to vote in favour of the scheme, to obtain such value as may be available for their shares. Third, …. shareholders need to understand the terms of the loan agreement with Pfizer Australia,…….. All of these matters suggest that a meeting, held…, without a proper understanding of those issues, would involve a real risk that shareholders are misinformed or not adequately informed ….. some shareholders may already not attend that meeting, who would otherwise have done so, because they treat that approval as a formality.
second possibility, …. to revoke the orders previously made by the Court in respect of the scheme, …… that the disclosure difficulties in this scheme may now be irremediable. ……... There are, I think, two reasons that I should not take that course. first is that, while it may be challenging for ResApp to now make disclosure in a way that sufficiently corrects any difficulties of disclosure in the past, it is likely not impossible to do so. Second, ……., if there is an issue as to whether ResApp is a going concern without Pfizer Australia's ongoing support, then shareholders may be disadvantaged if the meeting was cancelled and did not go ahead, and they lost any opportunity to sell their shares at the price presently proposed.
On balance, it seems to me that a third possibility, Brereton J in Re Asciano Ltd (No 2) [2015] NSWSC 1651, …. postponed a scheme meeting so as to preserve the opportunity to proceed with that meeting on a date to be fixed…… That course seems to me to achieve the objectives of, first, allowing the opportunity for shareholders to be properly informed and, second, preserving for them the opportunity of considering a scheme proposal which, depending upon the position in respect of ResApp's inquiries and disclosure as to its financial position, may be attractive to them.
I make the following orders:
The scheme meeting convened by the Plaintiff pursuant to orders previously made by the Court not be held on 19 August 2022 and be postponed to a date to be fixed.
…The proceeding be adjourned to 10:30am on 23 August 2022

VOTE NO