FEDERAL COURT OF AUSTRALIA

Planet Innovation Holdings Ltd, in the matter of Planet Innovation Holdings Ltd [2026] FCA 1194

ORDERS

OTHER MATTERS:

A.    The Court notes that the Australian Securities and Investments Commission (ASIC) was provided with at least 14 days’ notice of the hearing of this application.

B.    The Court is satisfied that ASIC has had a reasonable opportunity to:

(a)    examine the terms of the proposed scheme of arrangement to which the application relates and a draft explanatory statement relating to that arrangement; and

(b)    make submissions to the Court in relation to the proposed scheme of arrangement and the draft explanatory statement.

C.    The Court notes the letter from ASIC to the directors of the plaintiff dated 17 August 2026 produced at the hearing, which is annexure LJC18 to the Third Crosby Affidavit.

THE COURT ORDERS THAT:

1.    Pursuant to r 2.13(1) of the Federal Court (Corporations) Rules 2000 (Cth) (Rules), Meiban Innovation (Melbourne) Pty Ltd (ACN 687 578 972) (Meiban) has leave to be heard in this proceeding without becoming a party to it.

2.    Pursuant to s 411(1) of the Corporations Act 2001 (Cth) (Act) the plaintiff, Planet Innovation Holdings Ltd (ACN 152 424 916) (Planet Innovation), convene and hold the following two meetings of its shareholders to consider and, if thought fit, agree to (with or without any modifications, alterations or conditions) a scheme of arrangement (Scheme) proposed between Planet Innovation and its holders of fully-paid ordinary shares, other than Meiban (the Excluded Shareholder) (Planet Innovation Shareholders), the terms of which are set out in Annexure A to these orders:

(a)    a meeting of Planet Innovation Shareholders, other than Eduardo Vom, Zen Innovations Pty Ltd as trustee for the Vom Family Trust, Sam Lanyon, Heidi Lianne Sick as trustee for the Sick Family Trust, Stuart Elliott, Namoi Victoria Elliot as trustee for the Elliott Family Trust and Troy O’Callaghan (together the Founder Shareholders) (together the General Shareholders), such meeting to be held at 10:00 am (Melbourne time) on Monday, 21 September 2026 (General Scheme Meeting); and

(b)    a meeting of the Founder Shareholders, such meeting to be held immediately after the General Scheme Meeting but not before 10:30 am (Melbourne time) on Monday, 21 September 2026 (Founder Scheme Meeting),

(each a Scheme Meeting and together the Scheme Meetings).

3.    The General Scheme Meeting is to be conducted electronically through an online platform without General Shareholders being physically present, such online platform to be accessed in accordance with the instructions included in the Notice of General Scheme Meeting to be sent to General Shareholders in accordance with order 5 below.

4.    The Founder Scheme Meeting is to be conducted electronically through an online platform without Founder Shareholders being physically present, such online platform to be accessed in accordance with the instructions included in the Notice of Founder Scheme Meeting to be sent to Founder Shareholders in accordance with order 6 below.

5.    Pursuant to s 411(1) and s 1319 of the Act, the General Scheme Meeting be convened by sending on or before 20 August 2026 to those General Shareholders appearing on Planet Innovation’s register of members as at 7.00pm (Melbourne time) on 18 August 2026 (Register Time):

(a)    In the case of General Shareholders who have elected to receive electronic shareholder communications from Planet Innovation (Email General Shareholders) an email substantially in the form of Annexure LJC6 to the affidavit of Lauren Jade Crosby dated 17 August 2026 (Second Crosby Affidavit), which includes access by an embedded link or links to an online portal or website where Email General Shareholders can:

(i)    view and download an electronic copy of the document substantially in the form of Annexure LJC12 to the affidavit of Lauren Jade Crosby affirmed 17 August 2026 (Third Crosby Affidavit) (Scheme Booklet) which contains, among other things, the Notice of General Scheme Meeting at Annexure D to the Scheme Booklet; and

(ii)    lodge their proxy for the General Scheme Meeting and voting instructions online; and

(iii)    access an online portal or website that is accessible by the Email General Shareholder to listen to and participate in the General Scheme Meeting online;

(b)    in the case of General Shareholders who have elected to receive physical documents (Electing Postal General Shareholders), the following documents by pre-paid post (or in the case of an Electing Postal General Shareholder whose registered address is outside Australia, by pre-paid airmail) addressed to the relevant addresses recorded in Planet Innovation's register:

(i)    a physical copy of the Scheme Booklet;

(ii)    a personalised hard copy proxy form for the General Scheme Meeting (General Proxy Form), substantially in the form of Annexure LJC15 of the Third Crosby Affidavit; and

(iii)    if the General Shareholder has an address within Australia, a reply paid envelope for the return of that General Proxy Form; or

(iv)    if the General Shareholder has an address outside Australia, a self-addressed envelope addressed to Planet Innovation’s share registry for the return of the General Proxy Form;

(c)    in the case of General Shareholders who are not Email General Shareholders or Electing Postal General Shareholders (Non Electing General Shareholders), sending the following documents by pre-paid post (or in the case of a Non Electing General Shareholder whose registered address is outside Australia, by pre-paid airmail) addressed to the relevant addresses recorded in Planet Innovation's register:

(i)    a letter in respect of the General Scheme Meeting, substantially in the form of Annexure LJC7 to the Second Crosby Affidavit, which contains the URL address of a website from which the Non Electing General Shareholder can:

A.    access and download an electronic copy of the Scheme Booklet;

B.    lodge an online electronic voting form containing a proxy appointment; and

C.    access an online platform to listen and participate in the Scheme Meeting;

(ii)    a personalised hard copy General Proxy Form;

(iii)    if the General Shareholder has an address within Australia a reply paid envelope for the return of that General Proxy Form; and

(iv)    the General Shareholder has an address outside Australia, a self-addressed envelope addressed to Planet Innovation’s share registry for the return of the General Proxy Form.

6.    Pursuant to s 411(1) and s 1319 of the Act, the Founder Scheme Meeting be convened by sending on or before 20 August 2026 to those Founder Shareholders appearing on the Planet Innovation’s register of members as at the Register Time an email substantially in the form of Annexure LJC4 to the Second Crosby Affidavit, which includes access by an embedded link or links to an online portal or website where Founder Shareholders can:

(a)    view and download an electronic copy of the Scheme Booklet which contains, among other things, the Notice of Founder Scheme Meeting at Annexure E to the Scheme Booklet; and

(b)    lodge their proxy for the Founder Scheme Meeting (substantially in the form of Annexure LJC14 of the Third Crosby Affidavit) and voting instructions online; and

(c)    access an online portal or website that is accessible by the Founder Shareholder to listen to and participate in the Founder Scheme Meeting online.

7.    Planet Innovation cause a copy of the Scheme Booklet to be provided as soon as reasonably practicable, to any General Shareholder or Founder Shareholder if requested by them before the date of the Scheme Meetings, by the method of communication requested by that shareholder.

8.    If Planet Innovation (through its share registry services provider, Computershare Investor Services Pty Ltd (Computershare)) receives an automatic electronic "bounce back" notification that an email referred to in Order 5(a) was not able to be delivered to the nominated electronic address of any General Shareholder (Undelivered Email Recipient), those Undelivered Email Recipients be sent as soon as reasonably practicable:

(a)    a letter in the same form as the letter referred to in Order 5(c);

(b)    a personalised General Proxy Form; and

(c)    a reply paid envelope (for those Undelivered Email Recipients whose registered address is in Australia) or a self-addressed envelope (for those Undelivered Email Recipients whose registered address is outside Australia) for the return of the General Shareholder's General Proxy Form.

9.    Subject to these orders, the Scheme Meetings are to be convened, held and conducted in accordance with the provisions of:

(a)    Part 2G.2 of the Act (save for any replaceable rule that is displaced or modified by the Planet Innovation’s constitution) that apply to a meeting of Planet Innovation's members; and

(b)    Planet Innovation's constitution that apply in relation to meetings of members and that are not inconsistent with Part 2G.2 of the Act.

10.    Voting on any resolution(s) to approve the Scheme is to be conducted by way of a poll.

11.    The General Shareholders who are eligible to vote at the General Scheme Meeting will be those names recorded in the register of members of Planet Innovation at 11:00 am (Melbourne time) on 19 September 2026.

12.    The Founder Shareholders who are eligible to vote at the Founder Scheme Meeting will be those names recorded in the register of members of Planet Innovation at 11:00 am (Melbourne time) on 19 September 2026.

13.    A proxy in respect of the General Scheme Meeting or the Founder Scheme Meeting will be valid and effective if, and only if, the proxy form is completed and delivered in accordance with its terms or a proxy is lodged online in accordance with the relevant instructions by 10:00 am (Melbourne time) on 19 September 2026.

14.    Pursuant to r 3.3(2) of the Rules, notwithstanding s 249Y(3) of the Act, the appointment of a proxy in respect of the General Scheme Meeting or the Founder Scheme Meeting may be revoked or suspended by the appointing Planet Innovation Shareholder (Planet Innovation Appointor) attending and taking part in the General Scheme Meeting or the Founder Scheme Meeting, at their election.

15.    Jonathan Ling or failing him, Charles Euan Pizzey, be the chairperson of the General Scheme Meeting and the Founder Scheme Meeting.

16.    The Chair of the General Scheme Meeting and the Founder Scheme Meeting shall have the power to adjourn the General Scheme Meeting and the Founder Scheme Meeting to such time, date and place (including electronically) as he considers appropriate.

17.    The Chair of the General Scheme Meeting and the Founder Scheme Meeting shall have the power to postpone the Scheme Meeting to such time, date and place as she or he considers appropriate (provided that such date is no more than two weeks after the date of the General Scheme Meeting set out in order 2(a) or the Founder Scheme Meeting in order 2(b)) and, in that event, notwithstanding any other part of these orders:

(a)    Planet Innovation Shareholders who are eligible to vote at the postponed General Scheme Meeting or the postponed Founder Scheme Meeting will be those whose names are recorded on Planet Innovation’s register of members are 11:00am (Melbourne time) on the date that is two calendar days before the date of the postponed General Scheme Meeting or the postponed Founder Scheme Meeting;

(b)    A proxy form in respect of the postponed General Scheme Meeting or the postponed Founder Scheme Meeting will be valid and effective if, and only if, it is completed and delivered in accordance with its terms at least 48 hours before the time scheduled for the postponed General Scheme Meeting or the postponed Founder Scheme Meeting; and

(c)    A reference in these orders to the General Scheme Meeting or the Founder Scheme Meeting is taken to include a reference to the postponed General Scheme Meeting or the postponed Founder Scheme Meeting.

18.    Planet Innovation is to publish a notice on its website (www.planetinnovation.com.au) in substantially the form of Annexure B to these Orders on or before Tuesday, 15 September 2026, or if the Scheme Meetings are postponed in accordance with order 17 above, on or before the date that is 5 calendar days before the Second Court Date (as defined in the Scheme).

19.    Pursuant to r 1.13 of the Rules, compliance with the following requirements of the Rules is dispensed with:

(a)    r 2.4(1) to the extent that the rule requires the affidavit filed with the Originating Process to state all the facts in support of the Originating Process;

(b)    r 2.15;

(c)    r 3.4 and Form 6.

20.    The further hearing of the Originating Process is adjourned to the Honourable Justice Beach at 10:15 am (Melbourne time) on Tuesday, 29 September 2026.

21.    Planet Innovation be granted liberty to apply.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Annexure A

Scheme of Arrangement

[The order entered is available on the Commonwealth Courts Portal, which attaches the Scheme]

Annexure B

Notice of hearing to approve Scheme of Arrangement

[The order entered is available on the Commonwealth Courts Portal, which attaches the notice]

REASONS FOR JUDGMENT

BEACH J:

1    Planet Innovation Holdings Ltd, an unlisted public company, applies pursuant to s 411(1) of the Corporations Act 2001 (Cth) for orders that Planet Innovation convene two separate meetings of the holders of its ordinary shares other than the excluded shareholders (participating PI shareholders) for the purposes of agreeing to a scheme of arrangement proposed to be made between Planet Innovation and the participating PI shareholders.

2    The scheme, if implemented, will result in the acquisition by Meiban Innovation (Melbourne) Pty Ltd of all of the shares in Planet Innovation other than those shares already held by it. Meiban holds 19.9% of the total issued share capital in Planet Innovation and is an excluded shareholder for the purposes of the scheme. Meiban is an indirect wholly owned subsidiary of Meiban United Pte. Ltd, a company incorporated in Singapore. The scheme consideration of $1.60 per share represents an aggregate scheme consideration of $116,890,523. Planet Innovation has 246 shareholders of whom 50 are current employees, 29 are former employees and with the remaining 167 being investors in Planet Innovation.

3    Now whilst the scheme consideration under the scheme is the same for all participating PI shareholders, it is a condition of the scheme that the four founders of Planet Innovation, each of whom is an executive director of Planet Innovation, being Mr Stuart Elliott, Mr Eduardo Vom, Mr Samuel Lanyon and Mr Troy O’Callaghan (the founders) or their respective nominated entity enter into share subscription agreements under which they each agree to subscribe for $2,000,000 in shares in Meiban United subject to the scheme becoming effective (the Meiban scrip issue condition). The founders including their associated entities collectively hold 33.38% of the shares in Planet Innovation. It is also a condition of the scheme that each founder along with three other key employees enters into an employment contract with Planet Innovation, Meiban or an associated entity.

4    As the founders, by reason of the Meiban scrip issue condition, are being offered the opportunity to subscribe for shares in Meiban United and that opportunity is not being offered to other Planet Innovation shareholders, the independent board committee of Planet Innovation determined that the founders should constitute a separate class of members for the purpose of voting on the scheme.

5    Accordingly, orders for two separate scheme meetings are sought, being a meeting of participating PI shareholders other than the founder shareholders and a meeting of the founder shareholders.

6    It is proposed that the scheme meetings will proceed as virtual meetings through the Computershare meeting platform. The general scheme meeting will be held at 10:00 am on 21 September 2026. The founder scheme meeting is proposed to be held immediately after the general scheme meeting.

7    On 17 August 2026, Planet Innovation received a letter from ASIC confirming that it does not currently intend to intervene to oppose the proposed scheme.

Some relevant background

8    Planet Innovation’s principal place of business is in Box Hill, Victoria, although it has facilities in Irvine, California. Planet Innovation provides product development, commercialisation, digital and manufacturing services to companies around the world with a focus on diagnostics, life sciences and healthcare industries.

9    The Meiban Group was established in 1986 as a plastic moulding house in Singapore and has expanded to become a global contract development and manufacturing organisation offering a range of product development and advanced manufacturing solutions primarily for the medical technology sector. The Meiban Group provides product design and engineering services needed to develop and commercialise complex products, and is engaged in a strategic partnership with Planet Innovation to develop innovative instruments and consumables for regulated medical technology sectors including diagnostics, life sciences, medical devices, and cell and gene therapy industries. The Meiban Group has a network of seven facilities spanning Singapore and Malaysia, alongside a digitalised production environment known as the iSmart Factory. The Meiban Group employs over 1,800 employees across Singapore, Malaysia, the United States and Australia. Meiban is a special purpose company that was incorporated on 29 May 2025 for the purposes of acquiring 19.9% of the shares in Planet Innovation and subsequently acquiring all of the scheme shares under the scheme. Other than the entry into of documents associated with those purposes and taking any steps in connection with those documents, including the transaction, Meiban has not undertaken any other trading or business activities.

10    A scheme implementation deed (SID) was entered into between Planet Innovation and Meiban on 11 June 2026. As Planet Innovation is not a disclosing entity for the purposes of the continuous disclosure regime, a public announcement of the SID was not required to be made at the time the SID was entered into. But Planet Innovation made an announcement of the SID on 13 August 2026. On that date the SID was augmented by a side deed between the same parties, but I do not need to linger on its terms.

11    Planet Innovation’s capital comprises 91,206,713 fully paid ordinary shares. Of those, 18,150,136 Planet Innovation shares are held by Meiban, representing 19.9% of Planet Innovation’s total issued capital. Meiban is an excluded shareholder for the purposes of the scheme and accordingly the number of Planet Innovation shares to be acquired under the proposed scheme is 73,056,577, being the Planet Innovation shares currently on issue less the Planet Innovation shares held by Meiban as an excluded shareholder.

12    The term excluded shareholder is defined in the SID to mean any Planet Innovation shareholder who (a) is a Meiban group member or (b) holds any Planet Innovation shares on behalf of or for the benefit of any Meiban group member and who does not hold Planet Innovation shares on behalf of, or for the benefit of, any other person. Clause 3.5 of the SID provides that Meiban consents to being an excluded shareholder and to being excluded from any entitlement to receive the scheme consideration under the scheme or to vote in respect of the scheme. Further, clause 3.5(b) provides that if any other Meiban group member acquires any Planet Innovation shares after the date of the SID, that entity will be an excluded shareholder for the purposes of the scheme and Meiban will procure that group member’s consent to being excluded from any entitlement to receive the scheme consideration under the scheme or to vote in respect of the scheme. But as at 14 August 2026, the only excluded shareholder for the purposes of the definition of that term in the SID is Meiban.

13    The SID annexed the proposed scheme and deed poll. By a side deed entered into between Planet Innovation and Meiban on 13 August 2026, which I have just referred to, amendments were made to each of the scheme and the deed poll.

14    Under the proposed scheme, participating PI shareholders will receive cash consideration of $1.60 per Planet Innovation share in exchange for the transfer of their Planet Innovation shares to Meiban. Based on 73,056,577 Planet Innovation shares, the aggregate scheme consideration is $116,890,523. As to the funding of the aggregate scheme consideration, Meiban will fund the scheme consideration through a combination of cash, intra–group letters of support and committed bank financing.

15    Under clause 3.2(b) of the SID, subject to the scheme becoming effective, Meiban has undertaken and warranted to Planet Innovation, in Planet Innovation’s own right and as trustee for each of the scheme shareholders, that in consideration of the transfer to Meiban of all scheme shares pursuant to the terms of the scheme, on the implementation date Meiban will accept that transfer and will provide to each scheme shareholder the scheme consideration for each scheme share held by them in accordance with the terms of the scheme subject to the repayment of employee loans. Further, clause 5.2(j) of the SID provides that Meiban must before 5:00pm on the date that is two business days before the first court date execute a relevant deed poll. This has been attended to.

16    The transfer of the scheme shares to Meiban under clause 4.2 of the scheme is subject to the deposit of the aggregate scheme consideration into a trust account under clause 5.2(a) of the scheme and the payment from the trust account of the scheme consideration under clause 5.2(b) of the scheme to the scheme shareholders. Having the transfer of the Planet Innovation shares to Meiban being subject to the payment of the scheme consideration out of the trust account to the scheme shareholders effectively removes any performance risk in so far as the transfer of the Planet Innovation shares to Meiban in return for the scheme consideration is concerned.

17    As I have already said, the independent board committee determined that the founder shareholders should constitute a separate class of members for the purpose of voting on the scheme given that the founders by reason of the Meiban scrip issue condition are being offered the opportunity to subscribe for shares in Meiban United and that opportunity is not being offered to other Planet Innovation shareholders. In my view that determination is reasonable and appropriate in the circumstances. I will elaborate on the separate class question later.

18    Planet Innovation operates an employee share plan. Under that plan, Planet Innovation group employees entered into loan agreements with limited recourse provisions with a number of employees and directors to facilitate their acquisition of Planet Innovation shares. Clause 8.2 of the SID addresses the proposed treatment of these loans. In essence, under clause 5.2(i) of the scheme, those loans will be repaid up to $1.60 per share from the scheme consideration with the balance of the scheme consideration being payable to the relevant Planet Innovation shareholder. Where the scheme consideration payable to a scheme shareholder is less than the employee loan amount owed by that scheme shareholder, the shortfall amount will be treated in accordance with the limited recourse repayment terms of the employee share plan, with the consequence that it will not be recoverable after the disposal of such a scheme share under the scheme. The proposed treatment of the employee loans is addressed in the Chairman’s letter and in the scheme booklet. In this regard, the Chairman’s letter states that if the scheme consideration payable to a particular scheme shareholder in respect of a scheme share is less than the amount of the loan which Planet Innovation Pty Ltd, as the lender for the purposes of the employee share plan, is owed by that scheme shareholder in respect of that scheme share, such shortfall amount will be treated in accordance with the limited recourse repayment terms of the employee share plan, with the effect that it will not be recoverable by Planet Innovation Pty Ltd after disposal of such a scheme share under the scheme. Further, it is noted that the transfer restrictions relating to the employee loan shares are to be removed to enable those shares to be transferred to Meiban under the terms of the scheme.

19    Clause 8 of the SID also addresses the treatment of Planet Innovation options. In essence, clause 8.1(a) of the SID states that Planet Innovation must take such action as agreed with Meiban to ensure that, subject to the scheme becoming effective, there are no outstanding Planet Innovation options or Planet Innovation equity incentives as at the effective date.

20    Planet Innovation also operates an employee share option plan. In May 2026 all Planet Innovation options held by both current and former employees, save for options held by one particular former employee, were cancelled, with payments made to those option holders either in connection with or in consideration of the cancellation of those options. As to the options held by that one particular former employee, that person, who held options with an exercise price of $1.10, was given the opportunity to exercise those options but did not do so and such options were then cancelled by Planet Innovation. There were post employment related reasons as to why that former employee was not offered a payment for the cancellation of that person’s options as per the approach adopted in respect of the other former employees who held Planet Innovation options.

21    Payments were made by Planet Innovation in May 2026 from what was known as the Historical Performance Rewards Pool (the rewards pool). As to those payments, and by way of summary, the following can be noted.

22    In the years between 2015 and 2021, in lieu of cash bonuses, some employees including the founders had received options or loan funded shares. Both the employee share option plan and the employee share plan were designed to reward employees for their contribution to the success of Planet Innovation. Those employees who elected to take up options or employee loan shares rather than receive a cash bonus assisted Planet Innovation’s cash flow at the relevant time.

23    In May 2026, the Planet Innovation Board resolved to establish the rewards pool in the amount of $1.7 million. At that time, whilst there was no certainty that the SID would be entered into, the Planet Innovation Board considered that there were reasonable prospects that the SID would be entered into in light of the negotiations then taking place. Planet Innovation made payments of $1.7 million from the rewards pool to employees who had received options or loan funded shares. Those cash payments were made as a reward for those employees’ exceptional historical performance whilst also having regard to the extent to which those employees had received options or loan funded shares in lieu of cash bonuses in the years between 2015 and 2021. Further, these payments were made in recognition that, despite the employee share plan and employee share option plan having been designed to reward employees for their contribution to the success of the Planet Innovation Group, in many cases the grants under those plans had not delivered value to the employees commensurate with their contribution. In making these payments, Planet Innovation adopted a consistent allocation methodology with a benchmark price that was adopted to give effect to what was considered to be fair treatment. The payments out of the rewards pool comprised $687,739 in respect of options of employees and $1,030,832 in respect of loan funded shares, noting that some employees held both options and loan funded shares. These payments were made in late May 2026 and were not conditional on the scheme becoming effective and were made prior to the entry of the SID on 11 June 2026. No adjustments to loan balances for loan–funded Planet Innovation shares were made as part of this process.

24    Given the importance of these employees to the future success of the business regardless of the potential transaction with Meiban, as well as the relatively strong cash position of the business, the Planet Innovation Board determined that it was appropriate to reward these employees with a cash payment as a reward for mostly underwater loan funded shares or options. Given the reward was earned based on past actual performance, it was not deemed appropriate to link this to the scheme becoming effective.

25    In May 2026, Planet Innovation paid the amount of $48,735 in aggregate to former employees who held options for the cancellation of their options. These payments were made to a small group of former employees whom the Planet Innovation Board granted good leaver status for particular reasons, including long service. In most cases these former employees remain employees of companies that were spun out from Planet Innovation.

26    Similar payments to those made out of the rewards pool had not previously been made by Planet Innovation. Further, the entire amount of $1.7 million has been paid out of the rewards pool and it is not proposed that any such further payments be made by Planet Innovation. The payments out of the rewards pool included payments made to the founders ($417,214) which reflect the extent to which the founders had made relevant elections to take up options or loan funded shares during the relevant period. Apart from the founders, there were 38 current Planet Innovation employees and six former Planet Innovation employees who received payments from the rewards pool with such payments being in the range of $2,503 to $170,032.

27    In May 2026, Planet Innovation agreed to pay an amount of approximately $2.5 million as a retention incentive payment to key employees of the Planet Innovation Group (the retention pool). The concept of key employees for the purposes of the retention pool comprises 21 employees in number, of whom 20 are Planet Innovation shareholders. The key employees in this regard do not include the founders or any other director of Planet Innovation.

28    The retention pool payments are to be made in two tranches, the first 25% to be paid in December 2026 and the remaining 75% in December 2027. The retention pool payments are not conditional upon the scheme becoming effective, although the first tranche will be accelerated and become payable upon implementation if the scheme is implemented prior to December 2026.

29    Further, there are short term incentive plans in which three of the four founders participate. There are no payments under those plans that are connected with the scheme or the implementation of the scheme.

30    Further, no class question arises as regards the cancellation of the options, the proposed treatment of the employee loan shares, the rewards pool or the retention pool.

31    Further, under the SID a break fee is payable by Planet Innovation upon the occurrence of certain events. Those events do not include the situation where either the general shareholders or the founder shareholders do not vote in favour of the scheme at their respective scheme meeting, unless the SID is terminated pursuant to clause 10.2(c) of the SID in connection with a Planet Innovation recommending director withdrawing, qualifying or adversely changing their recommendation or voting intention. The amount of the break fee is $1,459,307. Based on the total number of Planet Innovation shares currently on issue, being 91,206,713, which includes the shares held by Meiban, and the scheme consideration amount of $1.60 per share, the break fee represents just under 1% of the fully diluted equity value of Planet Innovation as implied by the scheme consideration, being approximately $145,930,740. But based on the number of Planet Innovation shares proposed to be acquired by Meiban under the scheme being 73,056,577 Planet Innovation shares, the break fee represents approximately 1.25% of the aggregate value of those shares based on $1.60 per share, being the aggregate scheme consideration amount of $116,890,523. Further, pursuant to clause 10.3 of the SID, a reverse break fee in the same amount as the break fee is payable by Meiban to Planet Innovation in the circumstances set out in that clause. I should say now that I have no difficulty with the amounts or triggers for both the break fee and the reverse break fee.

32    Further, the scheme booklet uses the term “Planet Innovation recommending directors”. The Planet Innovation recommending directors are the directors of Planet Innovation other than Mr Cheok Kai Hock, who is the Meiban nominee director. Mr Hock does not make a recommendation in relation to the scheme, given his position as a nominee of Meiban on the Planet Innovation Board and the conflict of interest that arises from that position.

33    Each Planet Innovation recommending director recommends that participating PI shareholders vote in favour of the scheme in the absence of a superior proposal and provided that the independent expert continues to conclude that the scheme is in the best interests of Planet Innovation shareholders other than excluded shareholders. The voting recommendation of the Planet Innovation recommending directors is made in respect of the scheme consideration only. The Planet Innovation recommending directors do not make any recommendation in relation to whether the founders should agree to subscribe for shares in Meiban United in connection with the Meiban scrip issue condition.

34    The interests of the directors include the Meiban scrip issue condition and the rewards pool payments and each director, other than the Meiban nominee director and Mr Jonathan Ling each of whom do not hold Planet Innovation shares, will receive the scheme consideration for their Planet Innovation shares if the scheme is implemented. These interests do not impact the ability of any of the directors to whom those interests relate to make a voting recommendation to participating PI shareholders.

35    Further, the independent expert’s report is annexed to the scheme booklet. The opinion of the independent expert, Moore Australia (Vic) Pty Ltd, is that the scheme is not fair but reasonable and therefore in the best interests of participating PI shareholders. Moore has assessed the value of a Planet Innovation share to be in the range of $2.25 to $2.48. The scheme consideration of $1.60 per Planet Innovation share is below this valuation range. Further, the independent expert has also concluded that in respect of the shares in Meiban United proposed to be issued to the founders or any entity nominated by them in connection with the Meiban scrip issue condition, those shares were negotiated at an arm’s length price and there is no indication that such proposal gives the founders a net benefit as participating PI shareholders.

Is the scheme fit for consideration?

36    As to this first and principal question, matters specifically drawn to my attention include the following: (a) the terms of the scheme; (b) the question of the founder shareholders voting as a separate class and the question of class in terms of the treatment of options and employee loan shares, the rewards pool payments and the retention pool payments; (c) the question of Meiban being an excluded shareholder; (d) performance risk and completion risk; (e) the conclusion of the independent expert; (f) the exclusivity provisions; (g) the break fee and reverse break fee; (h) the deemed warranty provision; and (i) the recommendation of the Planet Innovation recommending directors for the scheme and the associated question of director interests and benefits. I only propose to address topics (a), (b), (d) and (e) in detail, together with questions concerning disclosure to the shareholders and also s 411(17).

Some terms of the scheme

37    I have already touched on some aspects of the SID and the scheme. Let me be more specific on some aspects.

38    The following mechanical terms of the scheme are noted as regards the provision of the scheme consideration to scheme shareholders and the transfer of the scheme shares to Meiban: (a) under clause 4.2, the transfer of the scheme shares to Meiban on the implementation date is subject to the payment of the scheme consideration in accordance with clauses 5.1 and 5.2 of the scheme; (b) under clause 5.2(a), Meiban must pay or procure the payment of the scheme consideration by depositing in immediately available funds an amount equal to the aggregate scheme consideration, less the withholding amount, into the trust account defined in the scheme before noon on the business day before the implementation date; (c) under clause 5.2(b), on the implementation date and subject to Meiban paying the aggregate scheme consideration in accordance with clause 5.2(a) and subject to clause 5.2(i), Planet Innovation must pay or procure payment to each scheme shareholder from the trust account an amount equal to the scheme consideration to which that scheme shareholder is entitled, less any withholding amount in respect of that scheme shareholder.

39    Clause 6.7(a) of the SID provides that the reconstitution of the Planet Innovation Board is subject to the implementation of the scheme in accordance with its terms including the scheme consideration for each scheme share having been provided to scheme shareholders.

40    Reference is made to the term “withholding amount” in the scheme, which is defined to have the meaning given in clause 5.2(d) of the scheme. To the extent that this includes the foreign resident capital gains withholdings tax regime, reference is made to the statements made in the tax section of the scheme booklet that the Planet Innovation Board is of the view that Planet Innovation does not own any real property, and that no part of the market value of Planet Innovation’s assets is attributable to direct or indirect interests in taxable Australian real property and that accordingly the foreign resident capital gains withholding tax regime should not operate to require Meiban to withhold an amount from the scheme consideration payable to scheme shareholders that are not tax residents of Australia.

41    The payment of the scheme consideration by Planet Innovation to scheme shareholders under clause 5.2(b) is subject to clause 5.2(i). Clause 5.2(i) relates to the repayment of the employee share loans. Under this clause, Planet Innovation’s obligation to pay the scheme consideration to that scheme shareholder is satisfied by Planet Innovation paying to the relevant Planet Innovation group member (being the lender in respect of the loans) in respect of each employee loan the lesser of the portion of the employee loan which the Planet Innovation group member is owed by that scheme shareholder which is referable to that employee loan share (determined by dividing the total outstanding amount of the relevant employee loan by the number of employee loan shares acquired with that employee loan) and the full amount of the scheme consideration payable to that scheme shareholder under clause 5.2(b) in respect of that employee loan share, in satisfaction of the portion of the outstanding employee loan which is referable to that employee loan share.

42    Further, under clause 5.2(i)(ii), the balance of the scheme consideration payable in respect of that employee loan share, after deducting the payment made in accordance with clause 5.2(i)(i) in respect of that employee loan share and any withholding amount in respect of that employee loan share, is to be paid to that scheme shareholder in accordance with clause 5.2(c).

43    Accordingly, in circumstances where the aggregate amount of the employee loan is equal to or exceeds the amount of the scheme consideration attributable to the relevant loan shares, then the relevant shareholder will not receive any amount of the scheme consideration. In this regard, it is also noted that the payment of the relevant amount by Planet Innovation to a relevant Planet Innovation group member is expressed to be in satisfaction of the portion of the outstanding employee loan which is referable to that employee loan share. Further, where the scheme consideration payable to a scheme shareholder is less than the employee loan amount owed by that scheme shareholder, the shortfall amount will be treated in accordance with the limited recourse repayment terms of the employee share plan, with the consequence that it will not be recoverable after the disposal of such a scheme share under the scheme.

Class considerations

44    The class test is well known and needs no detailed elaboration. I adopt my discussion in Re OZ Minerals Limited [2023] FCA 197 at [61] and my observations in Re Healthscope Limited (2019) 139 ACSR 608; [2019] FCA 542 at [106] to [126].

45    One must be careful about stipulating separate classes and taking a salamied approach. As I said in Healthscope at [118]:

Ultimately one has to be careful of stipulating rigid categories or hard and fast rules, although some cases may be clear one way or the other in terms of the necessity for separate delineation. This is because the “impossible…to consult together with a view to their common interest” criterion requires a commercial evaluative judgment to be made of the transactions, circumstances and consequences said to justify the delineation, in the context of the particular scheme and its effect overall. Moreover, if the asserted discriminating feature can be dealt with at the second court hearing, there is less of a need to be definitive at the first court hearing in terms of class definition except in a clear class. Moreover one should be cautious about stipulating separate classes. It can easily and wrongly empower a minority view; I can of course easily deal with excessive or oppressive majority influences at the second stage as Finkelstein J has pointed out relating to the Opes Prime creditors scheme. If the minority view against a scheme has been put into a separate class, you may have unnecessarily created a power of veto if for the particular scheme all classes need to achieve the requisite statutory majorities for the thing to work. Further, if the minority view against a scheme has been left with the general body but you have put in a separate class a shareholder who would have voted in favour, then you have relatively increased the voting power of the minority in the general body making it easier to defeat the scheme. As I say, all of this suggests that one should be cautious in separating classes except in a clear case. And as Finkelstein J rightly said in effect in Re Opes Prime Stockbroking Ltd (recs and mgrs apptd) (in liq) (2009) 179 FCR 20; 258 ALR 362; 73 ACSR 385; [2009] FCA 813 at [66] one should not be too enthusiastic in taking a salamied approach. A “practical business-like approach” must be adopted. Otherwise you are locking in unnecessary downside, particularly when you do not need to given the second stage approval scrutiny that can take place.

46    But the matter is fairly clear here.

Two separate scheme meetings

47    Whilst the scheme consideration under the scheme is the same for all participating PI shareholders being $1.60 per Planet Innovation share held by them, which amount is to be dealt with in accordance with the terms of the scheme, it is a condition of the scheme that the founders or their respective nominated entity enter into share subscription agreements under which they each agree to subscribe for $2,000,000 in shares in Meiban United subject to the scheme becoming effective. As I have said, the founders including their associated entities collectively hold 33.38% of the shares in Planet Innovation.

48    This condition is contained in clause 4.1(k) of the SID and is defined in the scheme booklet as the Meiban scrip issue condition.

49    As the founders, by reason of the Meiban scrip issue condition, are being offered the opportunity to subscribe for shares in Meiban United and that opportunity is not being offered to other Planet Innovation shareholders, it is appropriate that the founder shareholders should constitute a separate class of members for the purpose of voting on the scheme.

50    The proposed acquisition of an equity interest in the acquirer group by certain scheme company shareholders in a scheme of arrangement transaction, or the retention of an equity interest in the scheme company by a shareholder retaining some of their shares in the scheme company, whether that proposed acquisition or retention be under the terms of the scheme or part of the broader transaction, is a matter that has been addressed in various cases including through the prism of the class question.

51    The transaction structures considered by the authorities including in the context of the class question under which it has been proposed that a scheme company shareholder either acquire an equity interest in the acquirer group, or retain some of their shares in the scheme company, whilst the remaining shareholders only receive a cash consideration under the proposed transaction include the following structures as identified by Mr Greg Ahern for Planet Innovation and which I will briefly elaborate on.

52    First, one has two classes of scheme shareholders but one scheme of arrangement. Under this structure, one group of shareholders has the ability under the terms of the scheme to elect to receive a mix of cash and scrip (or wholly scrip) in the acquirer company whereas the remaining shareholders are to receive solely cash consideration under the terms of the same scheme.

53    Second, one has two separate schemes of arrangement. Under this structure there is one scheme of arrangement for those shareholders receiving cash only and a separate scheme of arrangement for those shareholders who have the ability to elect between cash or scrip or a mixture of cash and scrip, and there is inter–conditionality between the two schemes.

54    Third, one has the case where the relevant target shareholder or shareholders retain a certain number of their shares in the scheme company but where there is one class of scheme shareholder for the purposes of the scheme. Under this structure, only a certain percentage of the scheme company shares of a particular shareholder or shareholders are to be acquired by the acquirer under the proposed scheme of arrangement, with the remainder being retained by that shareholder or those shareholders following implementation of the scheme. As to the balance of the shares held by that shareholder or shareholders, they are to be acquired under the terms of the scheme along with the shares of all the other shareholders and all shareholders, including those who are to retain a portion of their shares, vote in the same class. See for example Re Wellcom Group Limited [2019] FCA 1655 where the retained shares were the subject of a put and call option entered into between the acquirer and the relevant shareholder.

55    Fourth, one has the case of one scheme of arrangement and one class of shareholder, but where certain shareholders have the ability as part of the broader transaction to subscribe for equity in the acquirer not using the cash scheme consideration but using other proceeds to be received as part of the broader transaction. Let me give an example. In Re Mason Stevens Group Limited [2025] NSWSC 84 there was one scheme under which all shareholders were to receive the same cash scheme consideration. Certain key executives of the scheme company had executed a deed poll agreeing to reinvest all or part of the proceeds of the cancellation of their scheme company options and/or the cash incentive payments, triggered by the change in control of the scheme company, in scrip in the acquirer on or after implementation of the scheme. The same opportunity was to be offered to other persons who remained employees and who wished to subscribe for not less than a certain dollar amount in shares. It was accepted that these matters did not require separate classes but the votes of the relevant individuals were to be tagged.

56    Fifth, there is one other scheme structure to be noted, being the structure under which all scheme shareholders have the ability to make a cash or scrip (or mix of both) election but where it is a condition of the scheme that certain key management shareholders make a scrip election.

57    Now there are some similarities between the present scheme structure before me and the fourth scheme structure exemplified in Mason Stevens as regards the subscription for shares in the acquirer group. The proposed subscription in both cases is or was to take place pursuant to arrangements which are or were part of the broader transaction but outside of the terms of the scheme. And the source of funds to be applied towards the subscription of the shares was not or was not required to be the scheme consideration payable under the terms of the scheme. In Mason Stevens, the relevant source of funds was all or part of the proceeds of the cancellation of the scheme company options and/or the cash incentive payments triggered by the change in control of the scheme company. But in the present case the Meiban scrip issue condition does not specify a source of funds for the proposed subscription of the shares. But there are also some distinguishing features. The distinguishing features in the present case relate to both the dollar amount of the proposed share subscription by the founders and the percentage of the Planet Innovation shares held by the founders. In Mason Stevens, the aggregate dollar amount to be reinvested in acquirer scrip pursuant to the relevant deed polls was $1,787,241 with two of the directors each committing to reinvest $750,000. This was in the context where the aggregate scheme consideration in that transaction was $199.8 million. So, in Mason Stevens the amount to be reinvested was relatively small. But in the present case, the aggregate amount to be subscribed for in scrip by the founders under the Meiban scrip issue condition is $8 million and the aggregate scheme consideration is $116,890,523.

58    Now had the transaction before me theoretically been structured such that under the terms of the scheme the founders had the ability to subscribe for up to $8 million in scrip with an associated deed under which they undertook to do so, then the transaction would have been akin to the first transaction structure identified above with two classes for the reasons given in cases such as Re Uniti Group Limited (2022) 160 ACSR 602; [2022] FCA 671. Structuring the present transaction in such a way would have required the founders to use part of their scheme consideration towards the subscription for shares, whereas the current structure provides flexibility as to the source of funds for this purpose.

59    In Re Uniti Group Limited, I observed as follows (at [27] to [29]) regarding the one scheme, two classes structure in that case:

Under the Scheme, the rollover shareholders have the option to receive TopCo securities for some or all of their Uniti shares, whereas other Uniti shareholders can only receive the cash consideration. In light of the different treatment of the rollover shareholders from other shareholders, it is necessary that the rollover shareholders form a separate class for the purposes of considering and agreeing to the Scheme.

Further and as I have already noted, each rollover shareholder has entered into an agreement with MBC to vote his Uniti shares in favour of the Scheme, which is irrevocable. This provides a further basis as to why separate classes are necessary. Not only is the form of consideration to be different, but it is also inappropriate for the other shareholders’ collective view to be indirectly contaminated by the contractual restrictions on voting to which the rollover shareholders are subject.

Accordingly, it is appropriate to order the convening of two meetings of Uniti shareholders: one comprising the rollover shareholders; and one comprising all other Uniti shareholders. This is the accepted course in cases of this nature.

60    In that case I considered that in light of the different treatment of the rollover shareholders from the other shareholders it was necessary for there to be separate classes. The entry into the relevant agreements to vote in favour of the scheme which was irrevocable was a further basis as to why I considered that separate classes were necessary. In the present case, the founders have not entered into irrevocable voting agreements, although as part of the group of Planet Innovation recommending directors they have made a voting recommendation to participating PI shareholders, but such a voting recommendation is not relevant to the present class question that I am addressing.

61    In all of the circumstances, in my view it is quite appropriate that the founder shareholders should constitute a separate class of members for the purpose of voting on the scheme.

Cash payments or incentives

62    There is also a consistent line of authority to the effect that a recipient of cash payments or incentives in connection with a scheme who is also a shareholder is not required to meet as part of a separate class; see Re OZ Minerals Limited at [63] and Re SILK Laser Australia Limited [2023] FCA 1191 at [39] per Halley J. The observations made in cases about no separate class meeting being required are often made in the context where the cash payment or incentive was conditional on the scheme becoming effective and it has been consistently held that the additional cash payment or incentive does not mean that the rights of the recipients of those cash payments are so dissimilar as to make it impossible for them to consult together with the other shareholders at one meeting with a view to their common interest.

63    In Re Capitol Health Limited [2024] FCA 1120, I outlined the position on the topic of cash payments or incentives at [83] to [91] and do not need to repeat those observations.

64    In the present case, the cash payments that have been made or are proposed to be made include payments from the rewards pool and payments from the retention pool.

65    None of these payments give rise to the need for separate classes. As to the payments from the rewards pool, these were made in late May 2026 and were not conditional on the scheme becoming effective and were made prior to the entry of the SID on 11 June 2026. As noted above, these payments were made to employees who had received options or loan funded shares. Those cash payments were made as a reward for those employees’ exceptional historical performance whilst also having regard to the extent to which those employees had received options or loan funded shares in lieu of cash bonuses in the years between 2015 and 2021, either due to their own elections or due to cash constraints applicable to the Planet Innovation Group at the relevant time. Further, these payments were made in recognition that, despite the employee share plan and employee share option plan having being designed to reward employees for their contribution to the success of the Planet Innovation Group, in many cases the grants under those plans had not delivered value to the employees commensurate with their contribution.

66    To the extent that these payments included payments to option holders either in connection with or in consideration of the cancellation of those options, this also does not give rise to the need for separate classes. In schemes, the cancellation of options is common–place. This position applies even more in the present case where the option cancellation payments were not conditional on the scheme becoming effective.

67    As to the payments from the retention pool, these are to be made in two tranches as I have discussed earlier. The proposed implementation date of the scheme is 8 October 2026 and accordingly the period of acceleration of the first tranche being the 25% tranche would be some two months. Having regard to the authorities on cash payments in the context of a scheme of arrangement, this short period of acceleration does not give rise to any concern from a class perspective.

68    As to payments under the short term incentive plans in which three of the four founders participate, there are no payments under those plans that are connected with the scheme or the implementation of the scheme and so no class question arises for consideration in respect of these payments.

69    Further, reference is also made to the condition of the scheme that each founder along with three other key employees enters into an employment contract with a Planet Innovation group member or a Meiban group member, as determined by Meiban, in agreed form. This condition is contained in clause 4.1(j) of the SID. As these proposed employment contracts relate to the future employment of those employees post implementation of the scheme, these matters are not relevant to consideration of class composition.

Share plan loans

70    In Re SILK Laser, Halley J addressed the proposed treatment of the share scheme loans in that case where all loans were to be repaid in full from the scheme consideration without there being any shortfall. He observed that there was no need to constitute a separate class and said (at [40]):

I am satisfied that the repayment of the Share Scheme Loans, in full, from the Scheme Consideration, will not result in those shareholders forming a separate class to shareholders who do not have such loans. Their shares are being acquired for the same Scheme Consideration and are being valued in the same way as the shares of the other members. The repayment of loans made to shareholders from scheme consideration has been said not to require the creation of separate classes. Further, from a collateral benefit perspective, as the proposed arrangements in the present case involve the entirety of the relevant loan being repaid, neither the fact of the loans nor their proposed treatment mean that those shareholders will receive any additional benefit that other shareholders will not receive.

[citations omitted]

71    In my view and from a class perspective, the same position arises where the scheme consideration amount will not discharge the loan in full and where steps are taken to apply limited recourse provisions to the balance of any outstanding loan. There is no need to constitute a separate class.

72    In Re Village Roadshow Limited [2020] FCA 1669, which involved two alternative schemes being the structure A scheme and the structure B scheme with different base cash scheme consideration amounts and the potential for cash uplifts, the scheme company (VRL) had issued shares under executive incentive arrangements on the basis of a non–recourse loan by VRL to the holders of those shares. The VRL board resolved that the lender would not seek repayment from or take action against any such shareholder where the scheme consideration, as defined in either the structure A scheme or the structure B scheme, was not sufficient to repay the outstanding loan under the employee share plan. From a class perspective, Middleton J observed that no separate class issue seemed to arise (at [112]).

73    In Re Dulux Group Limited (2019) 136 ACSR 546, under the relevant share loan plan the directors could decide, in the context of a change of control transaction, to forgive an amount or percentage of the loan. The number of loan shares in that case represented 1.9% of the company’s shares. It was proposed in that case that the company would forgive 30% of each loan subject to the scheme becoming effective. The scheme booklet disclosed that the value of the loan forgiveness was approximately $12.2 million, which represented about $1.60 per loan share. O’Bryan J (at [43]) noted that one way of viewing the arrangements was that if the scheme became effective, the holders of the loan shares would receive the scheme consideration amount of $9.37 per share plus the loan forgiveness of $1.63 per share. O’Bryan J then observed that “a question arises whether that additional benefit is such as to constitute the holders of the LTEIP shares a different class to other members”.

74    O’Bryan J formed the view that such holders did not constitute a separate class and in doing so stated (at [46]):

In forming that view, I have taken into account the facts that: the LTEIP pre-dated the Scheme and is an ordinary part of the remuneration arrangements for eligible executives; under the rules of the LTEIP, the directors had a pre-existing discretion to forgive a percentage of the share loans and on a number of previous occasions had forgiven up to 30% of the loans; the rules of the LTEIP also anticipated that the directors may exercise their discretion to forgive loans if there was a change in control of the company; the shares the subject of the loans constitute a relatively small proportion of the company’s issued share capital; while the additional benefit that will accrue to holders of the LTEIP shares is not immaterial, it is a modest amount in comparison to the Scheme Consideration.

75    O’Bryan J also observed that the loan forgiveness, if the scheme was approved by shareholders, could be taken into account in deciding whether to approve the scheme at the second court hearing and in that regard, his Honour noted that the company would track the votes of the loan shareholders.

76    These three cases support my view that the need for the holders of the loan shares to constitute a separate class does not arise.

Performance risk and completion risk

77    Let me first address the question of performance risk.

Performance risk

78    In considering whether to approve a scheme involving the participation of a person other than the company and its members (in this case Meiban), it is necessary to ensure that the relevant party is bound to perform the role assigned to it and that its obligations are able to be enforced. Its obligations do not depend upon s 411, which is confined in the present context to the obligations of the company and its members.

79    In this context, it is necessary to give consideration to the question of performance risk as regards the obligations to be performed by the non–scheme party (see Re OZ Minerals Limited at [37]) and, depending upon the nature of the transaction, to give consideration to the question of completion risk.

80    The terms of the scheme as regards the provision of the scheme consideration are addressed above. As can be seen from those terms, if the scheme is approved by the Court and becomes effective, then the transfer of the Planet Innovation shares to Meiban under the scheme is subject to the scheme consideration having been paid by Planet Innovation to the scheme shareholders out of the trust account.

81    Having the transfer of the Planet Innovation shares to Meiban subject to the payment of the scheme consideration to the scheme shareholders out of the trust account effectively removes any performance risk in so far as the transfer of the Planet Innovation shares in return for scheme consideration is concerned.

82    Further, Meiban has entered into a deed poll in favour of the scheme shareholders, under which Meiban undertakes in favour of each scheme shareholder, among other things, to deposit or procure the deposit of the aggregate scheme consideration less the withholding amount, if any, in cleared funds into the trust account before noon on the business day immediately before the implementation date, it being noted that, in accordance with the scheme, any interest on the amount so deposited, less bank fees and other charges, will accrue for the benefit of Meiban.

83    Whilst the deed poll is in place, by reason of the terms of the scheme, scheme shareholders will likely not need to rely on any of the covenants in the deed poll as far as the receipt of the scheme consideration in return for the transfer of their Planet Innovation shares to Meiban is concerned, as noted by me in Re OZ Minerals Limited at [39] in the context of that scheme.

84    It is also noted that under clause 3.2(b) of the SID, subject to the scheme becoming effective, Meiban has undertaken and warranted to Planet Innovation, in Planet Innovation’s own right and as trustee for each of the scheme shareholders, that in consideration of the transfer to Meiban of all scheme shares pursuant to the terms of the scheme, on the implementation date, Meiban will accept that transfer and will provide to each scheme shareholder the scheme consideration for each scheme share held by them in accordance with the terms of the scheme.

Completion risk

85    The aggregate scheme consideration is $116,890,523. As to the funding of the aggregate scheme consideration, the scheme booklet states that Meiban will fund the scheme consideration through a combination of cash, intra–group letters of support and committed bank financing, and also states that the proceeds available from these sources exceeds the maximum amount of the aggregate scheme consideration.

86    As to these funding sources the following may be noted.

87    The scheme booklet states that Meiban has the benefit of: (a) cash reserves of approximately AUD62,000,000 as at the date of the scheme booklet by way of an intra–group loan from the Meiban Group; (b) a deed poll letter of support (support deed poll) under which Meiban Corp Holdings Pte Ltd, the immediate holding company of Meiban and itself a wholly owned subsidiary of Meiban United, has undertaken to provide any necessary funds to enable Meiban to fulfill its financial obligations in respect of the scheme by way of an intercompany loan in cash of not less than AUD33,000,000, in addition to funds already made available to Meiban, deposited in immediately available funds to Meiban’s Australian bank account. Meiban’s right to receive payments under the support deed poll is not subject to any conditions. The funds are expected to be transferred to Meiban in advance of the implementation date to enable Meiban to fulfill its obligations under the scheme.

88    The scheme booklet states that Meiban Corp Holdings has entered into the facility agreement, which includes the acquisition facility as those terms are defined in the scheme booklet. The proceeds of the acquisition facility must be applied towards the scheme consideration payable by Meiban for the acquisition of the scheme shares and associated acquisition costs and fees. Meiban has reallocated a further SGD1,715,488 to the acquisition facility under the facility agreement. The amount to be drawn down is expected to be approximately AUD24,000,000.

89    The scheme booklet also states that the draw–down of the acquisition facility is subject to the satisfaction of certain condition precedent.

90    As I said at the outset, Meiban is a special purpose company that was incorporated for the purposes of acquiring 19.9% of the shares in Planet Innovation and subsequently acquiring all of the scheme shares under the scheme.

91    I have been provided with some evidence concerning the sources of funds for the payment of the scheme consideration. Apparently, the acquisition facility is available to be drawn down on certain funds terms, subject to certain conditions precedent which are expected to be satisfied by the scheme becoming effective and that Meiban is not aware of any reason why the acquisition facility will not be available to be drawn down. Further, the funds available to Meiban exceed the maximum amount of aggregate scheme consideration Meiban may be required to pay to scheme shareholders under the scheme. Further, Meiban considers that it will be able to satisfy its obligations to fund the scheme consideration as and when it is due and payable under the terms of the scheme.

92    As regards the deed poll executed by Meiban it is noted that Meiban Corp Holdings, from whom Meiban has the benefit of the support deed poll, is not a party to the deed poll and that the support deed poll (in respect of not less than AUD33,000,000) is not enforceable by Planet Innovation. But it is to be noted that the support deed poll represents only one source of funds proposed to be used to fund the aggregate scheme consideration. Now whilst the support deed poll is not in evidence, it is expressed in the affidavit material before me to be unconditional.

93    Now the structure of a given scheme transaction, including the proposed parties to the SID and deed poll, reflects the negotiations that have taken place between the target and the acquirer and the assessment by the board of the target as to both the terms and structure of the proposed transaction in the relevant commercial context. Whilst in some transactions the parent company of the acquirer may also be a party to the SID and the deed poll that structure may not always be available or possible in a given scheme transaction. Ultimately the question on the matter of completion risk is whether the proposed funding arrangements provide a suitable commercial basis for the scheme to be considered by shareholders.

94    This was the question that I had to consider in Re OZ Minerals Limited. In that case, the proposed acquirer of the shares was BHP Lonsdale Investments Pty Ltd, a wholly owned subsidiary of BHP Group Limited. The parties to the scheme implementation deed were OZ Minerals Limited and BHP Lonsdale and a deed poll had been executed by BHP Lonsdale. BHP Group Limited was neither a party to the scheme implementation deed nor a party to the deed poll.

95    BHP Lonsdale intended to fund payment of the aggregate scheme consideration using a combination of existing cash reserves of the BHP Group and the proceeds of a debt facility. Relevantly, BHP Group Limited had entered into another intra–group deed poll under which BHP Group Limited had irrevocably and unconditionally undertaken to make available and pay, or procure the payment of, such amounts to BHP Lonsdale that in aggregate were equal to the aggregate scheme consideration and all costs associated with the scheme. BHP Lonsdale’s rights to receive payments under this intra–group deed poll were not subject to any conditions and the funds were to be provided by BHP Group Limited to BHP Lonsdale in whatever form and manner the latter required.

96    On the matter of completion risk, after referring to the deed poll that BHP Lonsdale had entered into in favour of OZ Minerals shareholders, I observed (at [40]) that two matters should be noted. First, BHP Group Limited was not a party to that deed poll whereas under other schemes the parent company of the bidder can sometimes be a party to the deed poll. Second, the intra–group deed poll was an undertaking by BHP Group Limited to BHP Lonsdale and was not enforceable by OZ Minerals Ltd or its shareholders, with me putting to one side for the purposes of the discussion any possible Trident trust argument.

97    I then considered the scenario in Re Legend Corporation Ltd [2019] FCA 1249. I said at [42] to [44]:

In Re Legend Corporation Ltd [2019] FCA 1249, which involved a private equity acquirer, consideration was given to the position of a deed poll which had been executed by the special purpose company established for the purposes of the scheme and not by any other entity within that private equity group. Now the structure of private equity transactions in a scheme context, where the funding is often a combination of equity commitments from relevant funds and debt facilities, are different from the position in the case before me where BHP Group Limited has sufficient cash reserves available to pay the scheme consideration. Contrastingly, in Re Legend the fact of the deed poll having only been given by the special purpose company was a reason to refrain from making an order convening a scheme meeting.

Now in Re Legend, the scheme involved a number of safeguards to address the performance risk arising from the obligation of the acquirer to pay the scheme consideration. The first was that the terms of the scheme were such as to prevent any transfer of shares to the acquirer unless and until the scheme consideration has been paid to Legend and received by scheme shareholders. Similarly in the case before me, the transfer of the OZ Minerals shares to BHP is only to take place after the scheme consideration has been paid from the trust account to the scheme shareholders and, further, the SID provides that the reconstitution of OZ Minerals’ board is to follow the implementation of the Scheme in accordance with its terms, including BHP having paid the scheme consideration.

Now in Re Legend, O’Bryan J also observed that the risk remained that the special purpose company (BidCo) became unable to draw down on the equity commitments and debt facilities and defaulted on its obligation to pay the scheme consideration. His Honour said if that were to occur the share transfers would not occur and the transaction would not proceed and the ability of Legend or its shareholders to require BidCo to pay the scheme consideration would be limited by practical considerations. As to these matters, his Honour said (at [39]):

There remains, though, the risk that BidCo becomes unable to draw down on the equity commitments and debt facilities and defaults on its obligation to pay the Scheme consideration. If that were to occur, the share transfers would not occur and the transaction would not proceed. In that event, the ability of Legend or its shareholders to require BidCo to pay the Scheme consideration is limited by practical and legal considerations. Although, as note[d] earlier, BidCo has executed a Deed Poll under which it covenants, in favour of Scheme shareholders, to pay the Scheme consideration to Scheme shareholders, the commercial value of the Deed Poll is reduced by the fact that BidCo is a newly incorporated company and is reliant on equity commitments and debt facilities to meet its obligation to pay the Scheme consideration. Any enforcement of the Deed Poll by Scheme shareholders would be dependent on the ability to enforce the equity commitments and debt facilities held by BidCo…

98    Following reference to those observations, I noted in Re OZ Minerals Limited (at [45]) that O’Bryan J after referring to evidence in that matter considered that the arrangements were commercially reasonable and that while those arrangements did not provide absolute certainty that BidCo would be able to complete the transaction they provided a suitable commercial basis for the scheme to be considered by shareholders and that there was no risk that shareholders would be required to transfer their shares without receiving the promised consideration. I then observed (at [46]) that the observations in Re Legend applied equally, if not more, in the case before me and noted in that regard the following matters.

99    First, BHP Lonsdale was not relying upon equity commitments from private equity funds but upon cash from either or both of the BHP cash reserves, which exceeded the maximum scheme consideration amount, and the BHP transaction facility.

100    Second, whilst the intra–group deed poll was not enforceable by OZ Minerals Ltd, under that deed BHP Group Limited had irrevocably and unconditionally undertaken to make available and pay or procure the payment of such amounts to BHP Lonsdale that in aggregate were equal to the aggregate scheme consideration and all costs associated with the scheme. Further, BHP Lonsdale’s rights to receive payments under the intra–group deed poll were not subject to any conditions and the funds would be provided by BHP Group Limited to BHP Lonsdale in whatever form and manner BHP Lonsdale required.

101    Third, BHP Group Limited had a market capitalisation of some $226 billion with sufficient cash reserves of its own to fund the acquisition of the OZ Minerals shares through its wholly owned subsidiary, BHP Lonsdale.

102    In those circumstances, and given that the terms of the scheme effectively removed any performance risk in so far as the transfer of OZ Minerals shares in return for the scheme consideration was concerned, I considered (at [47]) that the proposed funding arrangements provided a suitable commercial basis for the scheme to be considered by OZ Minerals shareholders.

103    In Re SILK Laser an unconditional and irrevocable undertaking had been given by Wesfarmers to its subsidiary, who was the proposed acquirer of the scheme shares, and the approach in Re OZ Minerals Limited was adopted in that case.

104    Of course the factual circumstances regarding funding in Re OZ Minerals Limited and Re SILK Laser were different to the circumstances in the case now before me, including as to the financial size and cash resources of the Australian corporations in those cases and the fact that the unconditional and irrevocable undertaking in those cases extended to the aggregate amount of the scheme consideration. But the following matters can be taken into account in considering whether the proposed funding arrangements provide a suitable commercial basis for the scheme to be considered by participating PI shareholders.

105    First, whilst the terms of the intra–group loan in the amount of AUD62,000,000 are not expressed including as to enforceability, it does appear that Meiban Group has cash reserves of that amount, representing over half of the aggregate scheme consideration.

106    Second, whilst the support deed poll is not expressed to be irrevocable, the scheme booklet states that Meiban’s right to receive payments under the support deed poll is not subject to any conditions.

107    Third, the evidence suggests that the acquisition facility is available to be drawn down on certain funds terms, subject to certain conditions precedent which are expected to be satisfied by the scheme becoming effective and that Meiban is not aware of any reason why the acquisition facility will not be available to be drawn down.

108    Fourth, there are the following commercial considerations: (a) Meiban acquired a 19.9% shareholding in Planet Innovation in July 2025; (b) the entry into of a process deed by Meiban and Planet Innovation dated 4 July 2025 relating to the potential acquisition of the remaining shares in Planet Innovation through a scheme of arrangement; (c) the appointment in September 2025 of Mr Hock to the board of Planet Innovation as the nominee director for Meiban; and (d) the statement by Meiban in the scheme booklet that the Meiban Group is already engaged in a strategic partnership with Planet Innovation to develop innovative instruments and consumables for regulated medical technology sectors including diagnostics, life sciences, medical devices, and cell and gene therapy industries.

109    Further, regarding the matter of debt funding conditions, as noted by Neskovcin J in Re Insignia Financial Ltd [2026] FCA 160 at [43], the conditional nature of the funding arrangements should not lead the Court to decline to convene the scheme meeting at the first court hearing. Concerns about conditionality are better addressed at the second court hearing, when the position should be clearer, particularly as regards third party debt funding obligations. In that case, the acquirer (Daintree BidCo) was a special purpose vehicle established by a foreign private investment firm and where following completion of the scheme the shares in the target company would be held by three entities. Daintree BidCo had entered into a deed poll and the funding of the scheme consideration in that matter involved legally binding equity commitment letters and a legally binding multi–handed debt commitment letter between Daintree BidCo and several international banks and finance parties, with each letter being subject to conditions.

110    As to the debt funding conditions of the acquisition facility in the present case, they can be considered further, if need be, at the second court hearing. The proposed approach to the satisfaction of that condition can be addressed at the second court hearing.

111    Whilst it is reasonably common to have the deed poll executed by another bidder party or for another bidder party to guarantee the obligations of the acquirer it is not universally the case, and whether it is desirable to have the provision of a guarantee from a parent company to support the deed poll must depend on the circumstances.

The independent expert’s report

112    The opinion of the independent expert is that the scheme is not fair but reasonable and therefore is in the best interests of participating PI shareholders. It will be recalled that the concept of fair in this context is taken to be satisfied where the value of the consideration being offered for the scheme shares is equal to or greater than the value of those shares, determined of course by a measure or method independent of the very consideration being offered. But this concept of value does not necessarily have to equate with “fair value” under the separate s 667C compulsory acquisition context for obvious reasons. Contrastingly, the concept of what is reasonable is more fluid and involves broader factors to be considered by the expert including realistic future counterfactuals if there was no scheme.

113    As I observed in Re Newcrest Mining Limited [2023] FCA 1080 at [55], which involved a not fair but reasonable conclusion by the independent expert, a number of cases in the scheme context have considered expert opinions that a scheme is not fair but reasonable but nevertheless ordered the convening of a scheme meeting.

114    In that case, I referred to and discussed the regulatory framework within which independent expert reports are prepared and provided in the scheme context, including the interaction between the concepts of fair and reasonable. As to these concepts, I stated as follows (at [45] to [49]):

Where an expert report is obtained and provided to shareholders, by operation of regulation 5.1.01 and cl 8303 of Sch 8 to the Corporations Regulations 2001 (Cth), the report is required to set out an opinion on whether or not the scheme is in “the best interests of the members of the company” and the reasons for that opinion. Now the ASIC Regulatory Guide 111: Content of expert reports in essence says that this opinion should be prepared on the following bases. The expert should consider and provide an opinion on whether the transaction is “fair”, and whether it is “reasonable”. But these are distinct criteria as I will explain in a moment. Now if the expert concludes that the proposal is both “fair and reasonable”, the expert will also be able to conclude that the scheme is in the best interests of the members of the company. But what if the proposal is not fair but it is reasonable? Can this be in the best interests of members of the company?

Now an offer is “fair” if the value of the consideration is equal to or greater than the value of the securities the subject of the offer.

And an offer is “reasonable” if it is fair. But it might also be “reasonable” if, despite not being “fair”, the expert believes that there are sufficient reasons for security holders to accept the offer in the absence of any higher bid.

Moreover, if the expert concludes that the proposal is “not fair but reasonable”, it is still open to the expert to also conclude that the scheme is “in the best interests of the members of the company”.

But an expert concluding that an offer is not fair, but reasonable, must explain the meaning of this opinion, why the expert has reached this conclusion and the significance of the conclusion to the decision to be made by security holders. The expert report in the present case complies with these requirements.

115    I then went on to address the explanations given by the independent expert and observed (at [54]) that they were clear and detailed and stated that:

… the fact that its opinion is that the transaction is not fair, but reasonable and therefore in shareholders’ best interests, is not a reason to refuse to convene the Scheme meeting.

116    I have adopted the same approach in the present case.

117    As to the fairness assessment, the independent expert report notes that their assessment is on a liquid control basis in accordance with regulatory guidance and that they consider the merits of liquidity, including an adjusted illiquid control price in their reasonableness assessment. It was concluded that the offer price of $1.60 per share was below their estimated pre–scheme value per share on a liquid control basis, and so the scheme was not fair. But it was concluded that the merits of the scheme outweighed the disadvantages of not proceeding with the scheme, and so it was reasonable.

118    Further, the independent expert has also concluded, in respect of the shares in Meiban United proposed to be issued to the founders (or any entity nominated by them) in connection with the Meiban scrip issue condition, that those shares were negotiated on an arm’s length price and there is no indication that such proposal gives the founders a net benefit in their capacity as participating PI shareholders.

Section 411(17)

119    Any operation of s 411(17) is a matter for the second court hearing. In Re Amcor Ltd [2019] FCA 346 (at [88]) I observed:

In my view, s 411(17) does not prevent a bar to a meeting now being ordered to be convened if it seems likely that ASIC will produce the relevant statement at the second court hearing. Given that ASIC does not oppose the application for convening the meeting, it is appropriate for me to proceed at this stage on the basis that an application for approval would be unopposed by ASIC, and that ASIC will in due course provide a statement in the form contemplated by s 411(17)(b).

120    ASIC has given a letter dated 17 August 2026 to the directors of Planet Innovation indicating that it had no opposition to the convening of the scheme meetings.

General

121    In summary, in my view the scheme is fit for consideration by participating PI shareholders. Further, the scheme is of such a nature and cast in such terms that, if agreed to at the two scheme meetings, it would likely be approved at the second court hearing. Further, there is no issue arising from the scheme which would unquestionably lead to a refusal to approve the scheme at this second hearing and it could not be said that the scheme is on its face “so blatantly unfair or otherwise inappropriate that it should be stopped in its tracks before going any further” (Re Foundation Healthcare Ltd (2002) 42 ACSR 252 at [44] per French J). Let me turn to the second question.

Will Planet Innovation shareholders be properly informed?

122    In Re Amcor Ltd (at [90]) I said that the second principal aspect relevant to the exercise of the Court’s power was the adequacy of information to be provided to shareholders. In this regard, I noted that there were five matters that should be addressed, being: (a) information for shareholders; (b) the independent expert’s report; (c) verification of the draft scheme booklet; (d) ASIC’s role; and (e) the Court’s approval of the explanatory booklet.

123    I further observed (at [91]) that there were three aspects to the requirements of s 412(1). As to those three aspects, I said as follows. First, the explanatory statement (scheme booklet) must explain the effect of the compromise or arrangement, and in particular state any material interest of the directors and the effect of those interests on the compromise or arrangement to the extent that it is different from the effect of the like interests of other persons. Second, the explanatory statement must set out the prescribed information. That prescription is in regulation 5.1.01 and Part 3 of Schedule 8 of the Corporations Regulations 2001 (Cth). Third, the explanatory statement must set out any other information that is material to the making of a decision whether to agree with the compromise or arrangement, being information which is within the knowledge of the directors and has not previously been disclosed. As to these matters, in the present case the scheme booklet sets out the features and effects of the scheme and includes the explanatory statement as required by s 412(1)(a) including the prescribed information. Further, there is satisfactory evidence before me that the information in the scheme booklet has been appropriately verified by both Planet Innovation and Meiban in relation to aspects within each of their knowledge and responsibility. Further, ASIC has provided to the directors of Planet Innovation a further letter concerning a waiver from compliance with [8305] of Part 3 of Schedule 8 of the Regulations.

124    Finally, the scheme booklet is required to be registered under s 412(6). And under s 412(8) ASIC must not register a copy of the explanatory statement unless the statement appears to comply with the Corporations Act and ASIC is of the opinion that the statement does not contain any matter that is false in a material particular or materially misleading in the form or context in which it appears. Consistent with the approach adopted in Re OZ Minerals Limited and Re Newcrest Mining Limited, in the circumstances it is not necessary for me to formally approve the scheme booklet.

Conclusion

125    For all these reasons, I made the necessary convening and ancillary orders.

Associate:

Dated:    21 August 2026