Exhibit 10.7
SHAREHOLDERS AGREEMENT
Date: 5 April 1994
BIOTRANSPLANT INCORPORATED
(BTI)
CASTELLA RESEARCH PTY LTD
ACN 000 000 000
(Castella)
SECURE SCIENCES PTY LTD
ACN 064 139 948
(Secure)
STEM CELL SCIENCES PTY LTD
ACN 063 293 130
(the Company)
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION.....................................................2
1.1 Definitions...............................................................2
1.2 Delegation................................................................6
1.3 Interpretation............................................................6
1.4 Headings..................................................................7
2. STRUCTURE OF THE COMPANY...........................................................7
2.1 Conditions Precedent......................................................7
2.2 Authorised capital........................................................7
2.3 Articles of Association...................................................7
2.4 Issue of Capital in the Company...........................................7
2.5 Options...................................................................8
2.6 First Directors...........................................................9
2.7 Secretary and public officer..............................................9
2.8 Registered office.........................................................9
2.9 Banking...................................................................9
2.10 Auditors..................................................................9
2.11 Financial year............................................................9
3. BUSINESS OF THE COMPANY............................................................9
3.1 Nature of business........................................................9
4. THE BOARD OF DIRECTORS............................................................10
4.1 Board....................................................................10
4.2 Chairman.................................................................10
4.3 No Casting Vote..........................................................10
5. BOARD POWERS AND MEETINGS.........................................................10
5.1 Meetings.................................................................10
5.2 Powers...................................................................10
5.3 Unanimous Board Approval.................................................11
5.4 Qualification of Clause 5.3..............................................12
5.5 Status Quo for Deadlock..................................................13
5.6 Business plans...........................................................13
5.7 Director's Expenses......................................................13
5.8 Directors' Fees..........................................................13
6. SHAREHOLDERS TO XXXXXX DEVELOPMENT IN COMPANY.....................................13
6.1 Shareholders to use best endeavours......................................13
7. ADDITIONAL FUNDING OF THE COMPANY.................................................14
7.1 Additional Funding.......................................................14
8. GENERAL MANAGER...................................................................14
8.1 Appointment by the Board.................................................14
8.2 Powers and Duties........................................................14
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9. FINANCIAL REPORTS; DIVIDEND AND BORROWING POLICIES; AND SECONDMENTS...............14
9.1 Financial reports........................................................14
9.2 Declaration of dividends.................................................15
9.3 Performance Bonds and Guarantees.........................................15
9.4 Secondments..............................................................16
10. CONFIDENTIALITY OF THE COMPANY'S TECHNOLOGY AND KNOW-HOW..........................16
10.1 Covenants................................................................16
10.2 Exclusions...............................................................16
11. DEADLOCK IN MANAGEMENT............................................................17
11.1 Deadlock in Management...................................................17
11.2 Procedures to Resolve Deadlock or Disputes...............................17
12. DEADLOCK-BREAKING MECHANISM.......................................................18
12.1 Transfer of Shares to resolve deadlock...................................18
13. DEFAULT...........................................................................18
13.1 Events of Default........................................................18
13.2 Remedies for Events of Default...........................................19
13.3 Invoking of Pre-emption Rights...........................................20
13.4 Valuation of Shares on Breach............................................20
13.5 Winding up...............................................................22
13.6 Consequences of Winding Up...............................................22
14. STATEMENT ON SHARE CERTIFICATES...................................................22
14.1 Share certificates to refer to restrictions on transfer..................22
15. ARBITRATION.......................................................................23
15.1 Neutral Venue............................................................23
16. EFFECT OF SHARE TRANSFER..........................................................23
16.1 Conditions of Transfer...................................................23
17. RELATIONSEIP OF THE SHAREHOLDERS..................................................24
17.1 No partnership or agency.................................................24
17.2 Rights and obligations are several.......................................24
18. MISCELLANEOUS.....................................................................24
18.1 Period of Agreement......................................................24
18.2 Further assurance........................................................25
18.3 Paramountcy of this Agreement............................................25
18.4 Entire Agreement.........................................................25
18.5 Modification.............................................................25
18.6 Service of notices.......................................................25
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18.7 Reading down; severance..................................................27
18.8 Waiver does not excuse later breach......................................27
18.9 Assignment...............................................................27
18.10 Each Shareholder bears its own expenses..................................28
18.11 Governing law............................................................28
18.12 Public announcements.....................................................28
18.13 Counterparts.............................................................28
18.14 English Language.........................................................28
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AGREEMENT made at Melbourne on 5 April 1994
BETWEEN BIOTRANSPLANT INCORPORATED a corporation organized and
existing under the laws of the State of Delaware and having
its principal office at, 13th Street, Building 96, Charlestown
Navy Yard, Charlestown, MA, United States of America
AND CASTELLA RESEARCH PTY LTD CAN 000 000 000 a company
incorporated in the State of Victoria and having its
registered office in that State at the offices of Xxxxxx
Xxxxx & Co Ptv Ltd, at 000 Xxxxxxxxxx Xxxx Xxxx Xxxxxx in
its own capacity and as trustee of the X.X. Xxxxxxx Family
Trust
AND SECURE SCIENCES PTY LTD ACN 064 139 948 a company incorporated
in the State of Victoria and having its registered office in
that State at the offices of R.D. Larsson & Co, Xxxxx 00, 000
Xx Xxxxx Xxxx, Xxxxxxxxx in its own capacity and as trustee of
the Secure Sciences Unit Trust
AND STEM CELL SCIENCES PTY LTD ACN 063 293 130 a company
incorporated in the State of Victoria and having its
registered office in that State at Xxxxx 00, 000 Xx Xxxxx
Xxxx, Xxxxxxxxx (the "Company")
RECITALS
A. BTI has agreed to provide equity capital to the Company in return for
ownership, licenses, and rights to direct part of the research of the
Company.
B. BTI and the Company have agreed to enter into a research and license
agreement which governs the interests of those parties in research and
intellectual property rights.
C. The Company is a development-stage venture established in Australia for the
purpose of advancing and exploiting several proprietary stem cell-related
technologies.
D. The present issued capital of the Company is 2 ordinary shares of $1.00
each, with one ordinary share fully paid being held by each of Castella and
Secure.
E. The Shareholders intend to own the issued capital of the Company in the
following proportions:
BTI: 30%
Castella: 15%
Secure: 55%
F. The Shareholders wish by this Agreement to record their agreement as to how
the Company will be owned, controlled and funded by them.
THE PARTIES AGREE:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement unless the contrary intention appears:
"ARTICLES OF ASSOCIATION" means the articles of association of the
Company as they will be once clause 2 of this Agreement has been
implemented and as amended from time to time and a reference to an
"ARTICLE" is a reference to the specified provision of the Articles of
Association.
a reference to a person who is an "ASSOCIATE" of another person is a
reference to a person who is an associate of that other person within
the meaning of all of the provisions of Division 2, Part 1.2 of the
Corporations Law.
"AUDITORS" means the Company's auditors.
"BOARD" means the board of directors of the Company from time to time.
"XXXXXXX CONSULTANCY AGREEMENT" means the consultancy agreement between
Castella, the Company and Xx. Xxxxxxx, in the form of the draft annexed
hereto and marked "C".
"XXXXXXX COVENANT" means the deed of confidentiality and
non-competition between Xx. Xxxxxxx the Company and BTI in the form of
the draft annexed hereto and annexed "D".
"BTI" means BioTransplant Incorporated or where the context requires,
any body corporate in the BTI group which acts on behalf of BTI.
"BTI OPTIONS" means the options to be issued to BTI by the, Company on
the Effective Date pursuant to clause 2.5.
"BTI RESEARCH AND LICENSE AGREEMENT" means the Research and License
Agreement between BTI and the Company in the form of the draft annexed
hereto and marked "B".
"BUSINESS" means the business of the Company as described in clause
3.1.
"CASTELLA" means Castella Research Pty Ltd ACN 000 000 000 in its own
capacity and s trustee of the X. X. Xxxxxxx Family Trust or where the
context requires, any body corporate in the Castella group which acts
on behalf of Castella Research Pty Ltd ACN 000 000 000.
"CASTELLA OPTIONS" means the options to be issued to Castella by the
Company on the Effective Date pursuant to clause 2.5.
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"CHANGE IN CONTROL" means:
(a) in the case of a Shareholder which is a corporation, where a
person that did not (directly or indirectly) effectively
control such corporation at the date when such corporation
first acquired Shares in the Company, acquires (directly or
indirectly, and whether alone or with others) effective
control of the majority of the issued voting shares of such
corporation, without the prior written consent of the other
Shareholders;
(b) in the case of a natural person, where that natural person
does not continue to control the exercise of the right to vote
and the power to transfer all of the Shares in the Company
held by that natural person; and
(c) in respect of a Trustee Shareholder, where effective control
of a Trustee Shareholder, a Trust or all or any Trust Assets
changes from that subsisting at the date hereof without the
prior written consent of the other Shareholders;
where:
(d) in paragraph (a), in determining whether a person (whether
alone or with others) is in a position (directly or
indirectly) to effectively control a Shareholder regard will
be had to voting rights, rights to receive income, rights to
appoint directors and any other matter which reasonably
relates to control;
(e) in paragraph (c) "effective control":
(i) in respect of a Trustee Shareholder means control
within the meaning of paragraph (a) (in the case of a
body corporate) or paragraph (b) (in the case of an
individual);
(ii) in respect of the Trust or Trust Assets means:
(1) control of the ability to replace the Trustee
Shareholder as trustee of the Trust and/or appoint
a new trustee of that Trust;
(2) control of the ability to direct or authorise the
Trustee Shareholder, in its capacity as Trustee of
the Trust, to do, or not do, anything; or
(3) control of the ability to appoint or select
beneficiaries under the Trust or to direct or
authorise any person so to do; and
(f) in paragraphs (c) and (e):
(i) "Trustee Shareholder" means each of Castella and
Secure;
(ii) "Trust" in relation to Castella, means the X.X. Xxxxxxx
Family Trust established by a Deed of Settlement dated
2 March 1983 and in relation to Secure, means either or
both of the Secure Sciences Unit Trust established
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by a Deed dated 30 March 1994 and the Xxxxxxxxx
Investment Trust established by a Deed dated 30 March
1994; and
(iii) "TRUST ASSETS" means each of the assets of the said X.
X. Xxxxxxx Family Trust, the said Secure Sciences Unit
Trust and the said Xxxxxxxxx Investment Trust
respectively, as the case requires.
"CONDITIONS PRECEDENT" means:
(a) the execution and exchange of the Original License Agreement by
and between the University of Edinburgh operating through its
Centre for Genome Research and the Company;
(b) the execution and exchange of the BTI Research and License
Agreement by and between BTI and the Company;
(c) the execution and exchange of the Xxxxxxx Consultancy Agreement
by and between Castella the Company and Xx. Xxxxxxx;
(d) the execution and exchange of the Xxxxxxxxx Consultancy Agreement
by and between Secure, the Company and Xx. Xxxxxxxxx;
(e) the execution and exchange of the Xxxxxxx Covenant by and
between, Xx. Xxxxxxx, the Company and BTI; and
(f) the execution and exchange of the Xxxxxxxxx Covenant by and
between Xx. Xxxxxxxxx, the Company and BTI.
"DIRECTORS" means the directors of the Company from time to time.
"XX. XXXXXXX" means Xxxxxxx Xxx Xxxxxxx of 00 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxx in the State of Victoria.
"XX. XXXXXXXXX" means Xxxxx Xxxxx Xxxxxxxxx of 0 Xxxx Xxxxxx Xxxx
Xxxxxxxx in the State of Victoria.
a reference to a person "ENTITLED TO" shares in a company is a
reference to a person entitled to those shares within the meaning of
section 609 of the Corporations Law.
"EFFECTIVE DATE" means Tuesday 5 April 1994 or such other date as the
Shareholders may agree, as at immediately following the shareholders
meeting to be convened on that day pursuant to clause 2.3.
"GENERAL MANAGER" means the general manager or president appointed
pursuant to clause 8.
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"GROUP" means, (in relation to BTI) BTI and its related bodies
corporate, (in relation to Castella) Castella and its related bodies
corporate, and (in relation to, Secure). Secure and its related bodies
corporate.
"HOLDING COMPANY" means a body corporate which owns or controls
(directly or indirectly) a majority of the voting shares of a
Shareholder.
"INSOLVENCY EVENT", in relation to a Shareholder, means the occurrence
of any of the following events in relation to the Shareholder:
(a) the Shareholder becomes an externally administered body corporate
as defined by the Corporations Law;
(b) a resolution is passed by creditors or members of the Shareholder
that the Shareholder become an externally administered body
corporate as defined by the Corporations Law (other than for the
purposes of any reconstruction or amalgamation of the Shareholder
group);
(c) a controller as defined by the Corporations Law is appointed to
the Shareholder or to any of its assets; or
(d) the Shareholder becomes insolvent as defined by the Corporations
Law.
"MANAGEMENT SHAREHOLDERS" means Castella and Secure.
"XXXXXXXXX CONSULTANCY AGREEMENT" means the consultancy agreement
between Secure, the Company and Xx. Xxxxxxxxx in the form of the draft
annexed hereto and marked "E".
"XXXXXXXXX COVENANT" means the deed of confidentiality and
non-competition between Xx. Xxxxxxxxx, the Company and BTI in the form
of the draft annexed hereto and marked "F".
"OPTION TERMS" means the terms and conditions which will attach to the
BTI Options, the Castella Options and the Secure Options, as set out in
Schedule 1.
"ORIGINAL LICENSE AGREEMENT" means the License Agreement between the
University of Edinburgh operating through its Centre for Genome
Research and the Company in form of the draft annexed hereto and marked
"G".
"RELATED BODY CORPORATE" has the meaning given in the Corporations Law.
"SECURE" means Secure Sciences Pty Ltd ACN 064 139 948 in its own
capacity and as trustee of the Secure Sciences Unit Trust or where the
context requires, any body corporate in the Secure group which acts on
behalf of Secure Sciences Pty Ltd ACN 064 139 948,
"SECURE OPTIONS" means the options to be issued to Secure by the
Company on the Effective Date pursuant to clause 2.5.
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"SHARES" means the issued shares in the Company from time to time,
being "A" shares and/or "B" shares.
"SHAREHOLDERS" means BTI, Castella and Secure including their
respective nominees, successors and permitted assigns and
"SHAREHOLDER" means any one of the Shareholders.
"TRANSFER NOTICE" has the meaning given in Article 7.4 of the Articles
of Association.
"TRUST EVENT" means:
(a) any Trustee Shareholder ceasing for any reason or at any time to
be the sole trustee of a Trust;
(b) any Trust being determined or for any reason ceasing to exist;
(c) any distribution of the capital of a Trust being made by a
trustee of a Trust;
(d) a Trustee Shareholder exercising in its own favour personally any
right of indemnification, reimbursement, recoupment, lien or
charge to which it might be entitled personally against the Trust
or in respect of any Trust Assets other than in the ordinary
course of business of the Trust; or
(e) any beneficiary of a Trust, or the beneficiaries of a Trust
together, becoming absolutely entitled to the Trust Assets as
against the trustee of the Trust,
without the prior written consent of BTI (such consent not to be
unreasonably withheld). In this definition the phrases "Trustee
Shareholder", "Trust" and "Trust Assets" bear the same meaning as in
paragraph (f) of the definition of "Change in Control".
"VOTING SHARE" has the meaning given in the Corporations Law.
1.2 DELEGATION
From time to time a Shareholder may procure a member of its group to
comply with that Shareholder's obligations in relation to the Company
and its Business, on behalf of the Shareholder. Each Shareholder shall
always remain liable for the acts and omissions of its group members.
1.3 INTERPRETATION
In this Agreement unless the contrary intention appears:
(a) words importing the plural number include the singular number and
vice versa;
(b) words importing persons include corporations;
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(c) words importing a gender include the other genders;
(d) all references to currency are to Australian currency.
1.4 HEADINGS
The headings in this Agreement are not part of it and shall not affect
its meaning.
2. STRUCTURE OF THE COMPANY
2.1 CONDITIONS PRECEDENT
(a) Notwithstanding any other provision of this Agreement, this
Agreement shall not take effect unless and until the Conditions
Precedent are satisfied;
(b) The Shareholders and the Company must do everything which is
reasonable and within their respective powers in a prompt and
efficient manner to ensure satisfaction of the Conditions
Precedent on or before the Effective Date; and
(c) If the Conditions Precedent are not satisfied on or before the
Effective Date despite paragraph (b), then any Shareholder may
terminate this Agreement by notice in writing to the other
Shareholders. Termination will not affect the right of any
Shareholder to bring an action against any other party for a
breach of paragraph (b) occurring before such termination,
2.2 AUTHORISED CAPITAL
On the Effective Date:
(a) the 2 ordinary shares of $1.00 each presently on issue, as
referred to in Recital D, shall be re-classified as "B" Shares;
and
(b) the authorised capital of the Company shall be increased to
$2,000,000 divided into 2,000,000 ordinary shares of $ 1. 00 each
comprising 1,000,000 "A" Shares and 1,000,000 "B" Shares.
2.3 ARTICLES OF ASSOCIATION
On the Effective Date by a meeting of shareholders, the Articles of
Association of the Company shall be converted to the form of the draft
annexed hereto and marked "A".
2.4 ISSUE OF CAPITAL IN THE COMPANY
On the Effective Date:
(a) BTI shall subscribe for, fully pay-up and be issued with 300 "A"
shares in the capital of the Company issued at a price of,
4,685.00 per share (being $1.00 par and $4,684.00 premium per
share) for a total consideration of $1,405,500.00.
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(b) Castella shall subscribe for, fully pay-up the par value of and
be issued with 149 "B" shares in the capital of the Company
issued at par of $1.00 for a total consideration of $149.00; and
(c) Secure shall subscribe for, fully pay-up the par value of and be
issued with 549 "B" shares in the capital of the Company issued
at par of $1.00 for a total consideration of $549.00.
so that immediately thereafter, BTI will hold 300 "A" shares, Castella
will hold 150 "B" shares and Secure will hold 550 "B" shares.
2.5 OPTIONS
(a) On the Effective Date the Company shall issue the following
options (with the Option Terms attaching) to the Shareholders to
subscribe for further shares:
(i) to BTI, an option to subscribe for, fully pay-up and be
issued with a further 300 "A" shares in the capital of the
Company issued at a price of $4,685.00 per share (being
$1.00 par and $4,684.00 premium per share) for a total
consideration of $1,405,500.00 at any time on or before the
first anniversary of the Effective Date (the "FIRST BTI
OPTION");
(ii) to BTI, an option to subscribe for, fully pay-up and be
issued with a further 600 "A" shares in the capital of the
Company issued at a price of $4,685.00 per share (being
$1.00 par and $4,684.00 premium per share) for a total
consideration of $2,811,000. 00 at any time on or before the
second anniversary of the Effective Date (the "SECOND BTI
OPTION");
(iii) to Castella an option to subscribe for, fully pay-up the
par value of and be issued with a further 150 "B" shares in
the capital of the Company issued at par of $1.00 for a
total consideration of $150.00 on the first anniversary of
the Effective Date;
(iv) to Castella, an option to subscribe for, fully pay-up the
par value of and be issued with a further 300 "B" shares in
the capital of the Company issued at par of $1.00 for a
total consideration of $300.00 on the second anniversary of
the Effective Date;
(v) to Secure an option to subscribe for, fully pay-up the par
value of and be issued with a further 550 "B" shares in the
capital of the Company issued at par of $1.00 for a total
consideration of $550.00 on the first anniversary of the
Effective Date; and
(vi) to Secure, an option to subscribe for, fully pay-up the par
value of and be issued with a further 1100 "B" shares in the
capital of the Company issued at par of $1.00 for a total
consideration of $1100.00 on the second anniversary of the
Effective Date.
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(b) if the First BTI Option is not exercised on or before the first
anniversary of the Effective Date, then the Second BTI Option
will lapse.
2.6 FIRST DIRECTORS
From the Effective Date the first Directors shall be Xx. Xxxxxxx (the
first Chairman who, for the purposes of this Agreement, shall be
regarded as having been appointed by Castel1a). Xx. Xxxxxxxxx (who,
for the purposes of this Agreement, shall be regarded as having been
appointed by Secure) and Xx. Xxxxxx Xxxxxxxx, President and Chief
Executive Officer of BTI, (who, for the purposes of this Agreement,
shall be regarded as having been appointed by BTI).
2.7 SECRETARY AND PUBLIC OFFICER
From the Effective Date the first secretary of the Company and its
first public officer shall be Xx. Xxxxxxx
2.8 REGISTERED OFFICE
The registered office of the Company shall be at Xxxxx 00, 000 Xx
Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx.
2.9 BANKING
The Company's banker shall be Australia and New Zealand Banking Group
Limited (420 St. Kilda Road branch) and the first signatories to the
Company's bank account shall be determined by the Board on the
Effective Date.
2.10 AUDITORS
The Auditors shall be KPMG Peat Marwick of 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx.
2.11 FINANCIAL YEAR
The financial year of the Company shall be based on a calendar year.
3. BUSINESS OF THE COMPANY
3.1 NATURE OF BUSINESS
From the Effective Date the business of the Company shall be:
(a) to develop, research, manufacture, sell, license and otherwise
exploit products, processes, technologies and techniques in stem
cell and cell biology;
(b) in particular, the Company will undertake to implement the
RESEARCH Plan in Appendix A of the BTI Research and License
Agreement and other RESEARCH plans prepared pursuant to the BTI
Research and License Agreement from time to time, which describe
the application of the Company's technology to the porcine
9
system and BTI's mini-swine for the purposes of developing a
universal donor pig useful in xenotransplantation; and
(c) such other business or businesses as all of the Shareholders may
hereafter agree.
4. THE BOARD OF DIRECTORS
4.1 BOARD
The Company shall, until otherwise agreed by all of by the
Shareholders, have a Board consisting of 3 Directors, of which:
(a) 1 Director may be appointed, removed and replaced by BTI;
(b) 1 Director may be appointed, removed and replaced by Castella;
and
(c) 1 Director may be appointed, removed and replaced by Secure.
A quorum of all Board meetings shall, subject to this Agreement, be an
even number, consisting of a minimum of 2 Directors, one of which must
represent BTI and one of which must represent either of the Management
Shareholders.
4.2 CHAIRMAN
The Board shall elect a Chairman from amongst its members subject to
the following rules:
(a) for the period of 2 years from the Effective Date the Chairman
shall be Xx. Xxxxxxx and for the next 2 years thereafter the
Chairman shall be Xx. Xxxxxxxxx: and
(b) thereafter the Chairman from year to year is to be such person as
the Board may decide pursuant to the Articles of Association.
4.3 NO CASTING VOTE
The Chairman of Directors shall not have nor purport to exercise any
power of a casting vote.
5. BOARD POWERS AND MEETINGS
5.1 MEETINGS
The Board shall meet on a quarterly basis and at such other times as
may be required.
5.2 POWERS
The Board shall have responsibility for matters concerning policy and
direction of the Company.
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5.3 UNANIMOUS BOARD APPROVAL
Subject to clause 5.4, unanimous approval of all of the members of the
Board shall be required for adoption and implementation of:
(a) annual business plans and budgets arising under the BTI Research
and License Agreement;
(b) requests to the Shareholders for additional funds, whether by way
of subscription for additional equity or loans;
(c) the appointment or termination of the General Manager or other
executive officers and the resolution of any issues arising from
the Xxxxxxx Consultancy Agreement or the Xxxxxxxxx Consultancy
Agreement;
(d) any change to the location of the Company's operations or
offices;
(e) the acquisition, grant, surrender, sale, disposal or termination
of or change to any material rights, agreements or arrangements
in which BTI has an actual, prospective or contingent interest
under the BTI Research and Licence Agreement;
(f) the acquisition, grant, surrender, sale, disposal or termination
of or change to any technology or rights to intellectual property
of any description in relation to the Business (or of or to any
material licences relating thereto) in which BTI has an actual,
prospective or contingent interest under the BTI Research and
Licence Agreement and also for the resolution of any issues
arising from the Original License Agreement and the BTI Research
and License Agreement;
(g) the sale or purchase of any material fixed assets of the Company;
(h) the creation of any encumbrance over any asset of the Company;
(i) the Company entering into any arrangement or incurring any
liability which is not in the ordinary course of the Business;
(j) the Company entering into any arrangement or incurring any
liability which is not on arms length terms;
(k) granting an employee of the Company a total salary package
exceeding $100,000 per annum;
(l) the creation of any committees of the Board or the delegation of
any power of the Board;
(m) the appointment or removal of the Auditor;
(n) the recommendation or declaration of any interim or final
dividend;
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(o) any material deviation from any annual business plans or budgets
approved by the Board under paragraph (a) of this clause;
(p) any material alteration in the Business, the merger of the
Business with any other business, the acquisition of any business
or the entering into of any new business;
(q) disposal of the Business or any substantial part of it or the
disposal of any subsidiaries;
(r) the appointment of a liquidator to the Company or any proposal to
wind up the Company;
(s) the acquisition of any equity or security convertible into
equity;
(t) the issue of shares, debentures, convertible notes, options or
other equity or debt securities of the Company other than under
clause 2.4 or clause 2.5;
(u) any change in bank account signatories;
(v) the formation or acquisition of any subsidiaries;
(w) capital expenditure exceeding $50,000 other than in accordance
with the BTI Research and License Agreement;
(x) any borrowing causing the Company's total borrowings to exceed $
100,000;
(y) any proposed amendment to the Company's memorandum or articles of
association; and
(z) any proposed variation of rights attaching to Shares.
5.4 QUALIFICATION OF CLAUSE 5.3
(a) All paragraphs of clause 5.3 except paragraphs (e), (f), (p) and
(v) shall cease to operate on the first to occur of the
following:
(i) midnight (Melbourne time) on the first anniversary of the
Effective Date, if the First BTI Option has not been
exercised on or before that time; or
(ii) midnight (Melbourne time) on the second anniversary of the
Effective Date, if the Second BTI Option has not been
exercised on or before that time; or
(iii) midnight on the third anniversary of the Effective Date.
(b) Paragraphs (e), (f), (p) and (v) of clause 5.3 shall only cease
to operate at the end of the RESEARCH TERM (as defined in the BTI
Research and License Agreement).
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(c) Apart from the matters mentioned in clause 5.3, decisions of the
Board shall be by majority vote.
5.5 STATUS QUO FOR DEADLOCK
In the event of deadlock (as defined in Clause 11.1) at Board level in
relation to a matter referred to in clause 5.3, the provisions of
clauses 11 and 12 shall apply.
Pending the resolution of any such deadlock, the status quo in respect
of that matter and the conduct of the Business shall continue.
5.6 BUSINESS PLANS
The Shareholders will cause the Board to prepare in relation to each
financial year of the Company a business plan and annual budget in the
format approved by the Board and will cause the Board to see that
during the relevant financial year the Company's Business is managed
in accordance with that business plan and annual budget.
5.7 DIRECTOR'S EXPENSES
The Company shall meet the reasonable travelling and accommodation
expenses of Directors necessarily incurred in relation to attending
meetings of the Board or otherwise for the Business.
5.8 DIRECTORS' FEES
The Directors shall not be entitled to be paid directors' fees or
remuneration merely as directors by the Company unless and until
otherwise unanimously resolved by all Shareholders.
6. SHAREHOLDERS TO XXXXXX DEVELOPMENT IN COMPANY
6.1 SHAREHOLDERS TO USE BEST ENDEAVOURS
Each Shareholder shall use its best endeavours (consistently with due
prudence and the other provisions of this Agreement) to:
(a) xxxxxx the development and profitable operation of the Business
and each Shareholder will provide such assistance as may from
time to time reasonably be requested of it by the Company or
which all of the Shareholders agree would assist in the
development of the Business; and
(b) safeguard the long term interest, stability and growth of the
Company.
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7. ADDITIONAL FUNDING OF THE COMPANY
7.1 ADDITIONAL FUNDING
To the maximum extent practicable the Company shall be managed and run
on a self funding basis. It is intended that, if the Board determines
that the Company requires additional funding or financial
accommodation, the first source of such funding shall in all cases be
through additional venture capital from professional equity investors
or corporations.
8. GENERAL MANAGER
8.1 APPOINTMENT BY THE BOARD
The Company shall have either a general manager or president, and such
other managers with such powers and duties, as the Board may authorise.
8.2 POWERS AND DUTIES
The powers, duties and responsibilities of the General Manager shall
include (but not be limited to) the following:
(a) to prepare reports and recommendations for presentation to the
Board;
(b) to prepare all budgets of the Company for presentation to the
Board;
(c) to hire and fire employees, execute contracts with suppliers or
subcontractors or other contracts with third parties, as
authorised by Board resolution;
(d) to execute and carry out the resolutions of the Board; and
(e) to conduct the Company's daily business operations in accordance
with the powers that may from time to time be delegated to the
General Manager by the Board.
9. FINANCIAL REPORTS; DIVIDEND AND BORROWING POLICIES; AND SECONDMENTS
9.1 FINANCIAL REPORTS
The Shareholders shall ensure that the Company:
(a) adopts appropriate management information systems and management
reporting formats;
(b) causes its financial affairs to be audited by the Auditors in
accordance with statutory requirements at the end of each
financial year, and at the request and cost of the requesting
Shareholder at such other times as such Shareholder may request;
14
(c) provides to each of the Directors and to each of the Shareholders
as soon as available, and in any event within 90 days after the
end of each financial year of the Company, a copy of the audited
balance sheet of the Company as at the end of that financial
year, a copy of the audited profit and loss account of the
Company and a copy of the cash flow statement for that financial
year in all reasonable detail and subject to any contrary
determination by the Board prepared in conformity with generally
accepted Australian accounting principles and practices at the
relevant time (including the Australian Accounting Standards and
the Approved Accounting Standards) consistently applied;
(d) provides to each of the Directors as soon as available, and in
any event not later than 30 days after the end of each quarter, a
copy of the balance sheet of the Company and a copy of the cash
flow statement as at the end of that quarter;
(e) provides such figures and confirmations to each Shareholder as
may be reasonably required by that Shareholder for inclusion in
or for the preparation of its own accounts and reports within 30
days after the end of each quarter and each financial year of
that Shareholder or within such other period as may be agreed
upon by the Shareholders;
(f) provides to each of the Directors and to each Shareholder within
21 days after the end of the relevant accounting month all
monthly reports and as soon as available other financial accounts
projections budgets and reports that may be prepared on behalf of
the Company from time to time as well as any other information as
may be required by the Board from time to time; and
(g) provides to each of the Directors and to each Shareholder within
7 days of the end of each accounting month a monthly sales and
orders analysis for the Company.
9.2 DECLARATION OF DIVIDENDS
The dividend policy shall be determined by the Board from time to time
in accordance with this Agreement and sound business practice PROVIDED
always that the long term interest, stability and growth of the
Company shall be safeguarded.
9.3 PERFORMANCE BONDS AND GUARANTEES
To the maximum extent possible the Company will obtain any necessary
bank guarantees, performance bonds and the like required for the
ordinary course of its business, supported by the security of its
assets, without the need for guarantor or other support from the
Shareholders. Subject to the foregoing, and if required by a unanimous
resolution of the Board, the Shareholders shall join in supporting the
Company in procuring adequate performance bonds, bank guarantees
(other than guarantees of the Company's borrowings), and the like from
reputable trading banks as required by the Company's customers, and
shall share in the liabilities, costs and expenses of such support as
follows:
- as to 30% of liabilities, costs and expenses - BTI;
15
- as to 15% of liabilities, costs and expenses - Castella;
- as to 55% of liabilities, costs and expenses - Secure.
9.4 SECONDMENTS
From time to time, as determined by unanimous resolution of the Board,
each Shareholder will second necessary staff to the Company on a cost
recovery basis, and for a period, to be approved by the Board.
10. CONFIDENTIALITY OF THE COMPANY'S TECHNOLOGY AND KNOW-HOW
10.1 COVENANTS
It is contemplated that each party hereto will disclose to the others
proprietary and confidential technology, inventions, technical
information, materials and the like provided in any form, including,
but not limited to, drafts, copies, excerpts, notes and summaries
thereof which are owned or controlled by them or which they are
obliged to maintain in confidence ("Confidential Information"). Each
party hereto agrees to maintain such Confidential Information in
confidence and not to disclose any such Confidential Information to a
third party without the prior written consent of the others and to use
such Confidential Information only for the purposes of this Agreement.
10.2 EXCLUSIONS
A party (the "RECIPIENT") may reveal Confidential Information of
another party (the "PROVIDER") which the recipient establishes:
(a) is required by law to be revealed, provided that the recipient
immediately notifies the provider of the requirement and takes
lawful steps and permits the provider the opportunity to oppose
or restrict such disclosure to preserve as far as possible the
confidentiality of the Confidential Information;
(b) is in or enters the public domain other than through a breach of
this Agreement;
(c) is revealed to an AFFILIATE, a SUBLICENSEE under a sub-licence or
a third party in accordance with the provisions of BTI Research
and License Agreement;
(d) was known to the recipient before its disclosure by the provider
other than by way of a breach of Clause 10.1; or
(e) is furnished to the recipient by a third party legally entitled
to furnish such information and not under an obligation of
confidentiality to the provider.
16
11. DEADLOCK IN MANAGEMENT
11.1 DEADLOCK IN MANAGEMENT
(a) If a disagreement occurs as between BTI on the one hand, and
either of the Management Shareholders on the other hand, in
relation to any matter considered by the Shareholders in a
meeting, in relation to the Company or by the Board in a meeting
in the discharge of its proper functions, including but not
limited to the future of the Company or the conduct of the
Business; or
(b) if a failure occurs of a Shareholder or its representative to
attend a duly convened Board meeting or Shareholders' meeting and
two adjournments thereof (after such meetings have been adjourned
for 14 days on each occasion and due notice thereof given to all
parties),
and such disagreement or failure is one which in the reasonable
opinion of any Shareholder prejudices or may prejudice the proper and
efficient operation of the Company or the conduct of the Business
(hereafter referred to as the "deadlock") and further the deadlock is
not resolved within 30 days of it arising, the matter shall, at the
request of that Shareholder or any Director nominated by Shareholder,
be referred to and/or discussed by the Shareholders or their nominees
("MEETING OF SHAREHOLDERS"). The Shareholders shall forthwith consult
in good faith for a period of not more than 30 days with a view to
achieving a mutually acceptable decision.
11.2 PROCEDURES TO RESOLVE DEADLOCK OR DISPUTES
(a) If the Meeting of Shareholders fails to resolve the deadlock
within the aforesaid period of 30 days, then clause 12.1 shall be
invoked unless it is agreed at the Meeting of Shareholders that
the chief executive of BTI and a representative nominated by the
Management Shareholders shall meet ("MEETING OF RESPECTIVE
DIRECTORS") at such place and time to discuss and endeavour to
resolve the deadlock in a manner acceptable to all Shareholders.
(b) If it is agreed at the Meeting of Shareholders that the Meeting
of Respective Directors shall take place, then the following
conditions shall apply:
(i) the Meeting of Respective Directors shall take place within
30 days of the agreement to hold such meeting at such place
and time agreed at the Meeting of Shareholders; and
(ii) if the deadlock is not settled or withdrawn within 30 days
of holding the Meeting of Respective Directors (or such
shorter or longer period agreed in writing by the respective
directors), then clause 12.1 shall be invoked.
17
12. DEADLOCK-BREAKING MECHANISM
12.1 TRANSFER OF SHARES TO RESOLVE DEADLOCK
(a) If the deadlock remains unresolved notwithstanding clause 11,
then any of the Shareholders may give a written notice to the
others (the Shareholder giving the notice hereinafter referred to
as the "OFFEROR") signifying its intention to sell all the issued
shares (the "TRANSFER SHARES") in the Company held by the
Offeror.
(b) If, in any respect of any one deadlock, more than one Shareholder
has given a notice under clause 12.1(a), the notice given by the
Shareholder which made the request under clause 11.1 shall be
treated as the operative notice and all other notices under
clause 12.1(a) shall be disregarded.
(c) If an agreement is reached between the Offeror and the other
Shareholders under which the Offeror will sell the Transfer
Shares to one or both of the other Shareholders within 30 days of
the giving of the notice by the Offeror, then the Transfer Shares
shall be sold by the Offeror at the price and in the manner as
agreed by the parties. If the parties cannot agree on the price
and/or the manner of selling the Transfer Shares within 30 days
of giving the notice hereunder by the Offeror, then Article 7
shall apply as if the notice given hereunder was a Transfer
Notice given pursuant to Article 7.4.
13. DEFAULT
13.1 EVENTS OF DEFAULT
If any of the following events ("EVENT OF DEFAULT") occur:
(a) (i) a Shareholder is in breach of any of its material
obligations under this Agreement or the Articles of
Association; or
(ii) Castella is in breach of any of its material obligations
under the Xxxxxxx Consultancy Agreement; or
(iii) the Engagement under the Xxxxxxx Consultancy Agreement is
terminated pursuant to Clause 12 thereof; or
(iv) Xx. Xxxxxxx is in breach of any of his covenants or
obligations under the Xxxxxxx Covenant: or
(v) Secure is in breach of any of its material obligations under
the Xxxxxxxxx Consultancy Agreement: or
(vi) the Engagement under the Xxxxxxxxx Consultancy Agreement is
terminated pursuant to Clause 12 thereof; or
18
(vii) Xx. Xxxxxxxxx is in breach of any of his covenants or
obligations under the Xxxxxxxxx Covenant.
and, in the case of a breach, if it is a breach which is capable
of being remedied, the breach is not remedied to the reasonable
satisfaction of a Shareholder who requires the breach to be
remedied within 30 days after written notice requiring the breach
to be remedied is given by that Shareholder to:
(viii) the Shareholder in breach; or
(ix) Castella, in the case of any breach by Castella or Xx.
Xxxxxxx; or
(x) Secure, in the case of any breach by Secure or Xx.
Xxxxxxxxx,
as the case requires;
(b) an Insolvency Event in relation to either Castella or Secure or
in relation to the ultimate holding company of either Castella or
Secure;
(c) a Change in Control in respect of either Castella or Secure, and
BTI does not give its consent thereto (such consent not to be
unreasonably withheld);
(d) a deadlock occurs for the purposes of clause 11, which has not,
despite clause 12 and the Articles of Association, been resolved
within 12 months from when the deadlock first arose;
(e) a period of 4 months has elapsed after the determination of the
"Fair Price" pursuant to Article 7.9 and no sale of Shares has
resulted pursuant to the operation of Article 7, (in
circumstances where Article 7.4 was triggered, without any
deadlock); or
(f) a Trust Event in relation to either Castella or Secure,
then the provisions of clause 13.2 shall apply.
13.2 REMEDIES FOR EVENTS OF DEFAULT
(a) If an Event of Default occurs under clause 13.1(a), not involving
a breach by BTI, then BTI may elect to invoke either clause 13.4
or clause 13.5.
(b) If any Event of Default concerning Castella or Secure occurs
under clause (b) or (c) or (f), BTI may elect to invoke either
clause 13.4 or clause 13.5.
(c) If BTI commits an Event of Default under clause 13.1(a), either
of the Management Shareholders may elect to invoke either clause
13.3 or clause 13.4 (and upon either of the Management
Shareholders electing to invoke either clause 13.3(a) or clause
13.4, the right of the other to do so shall thereupon cease);
(d) If an Event of Default under Clause 13.1(d) occurs:
19
(i) provided that BTI has not failed to exercise either the
First BTI Option or the Second BTI Option before they lapse;
then BTI and BTI alone may elect to invoke either Clause
13.4 or Clause 13.5; or
(ii) if either the First BTI Option or the Second BTI Option has
lapsed because of a failure to exercise them by BTI before
expiry, then any Shareholder may elect to invoke Clause 13.4
or Clause 13.5 (and upon any Shareholder making any such
election the right of the other Shareholders to do so shall
thereupon cease);
(e) If an Event of Default under Clause 13.1(e) occurs, BTI may sell
its Shares (or any of them) to any third party at any price and
on any terms and conditions without complying with Article 7;
(f) If any Event of Default occurs involving a breach by:
(i) either Castella or Xx. Xxxxxxx, then those of the Castella
Options which have not been exercised by the time the Event
of Default first occurs will thereupon lapse; or
(ii) either Secure or Xx. Xxxxxxxxx, then those of the Secure
Options which have not been exercised by the time the Event
of Default first occurs will thereupon lapse.
13.3 INVOKING OF PRE-EMPTION RIGHTS
A Shareholder entitled to invoke this clause 13.3 may, without
limiting its rights or remedies by notice in writing:
(a) elect, as a buyer of Shares, to invoke the operation of the
Pre-emption Rights in Article 7 of the Articles of Association,
and on service of such notice the other Shareholders will be
deemed to have served on the Company a Transfer Notice in respect
of all of the Shares held by that Shareholder with the Shares
being valued in accordance with Article 7.9; or
(b) elect, as a seller of Shares, to invoke the operation of the
Pre-emption Rights in Article 7 of the Articles of Association,
and on service of such notice that Shareholder will be deemed to
have served on the Company a Transfer Notice in respect of all of
the Shares held by that Shareholder with the Shares being valued
in accordance with Article 7.9.
13.4 VALUATION OF SHARES ON BREACH
(a) Where paragraph (b) does not apply, a Shareholder entitled to
invoke this clause 13.4 may request ("REQUEST") the Company to
activate Article 7.9 in order to determine the Fair Price of each
Share as at the date of the Request. The Company shall thereupon
proceed to implement Article 7.9, which will then apply mutatis
mutandis. Once the Fair Price has been determined and advised to
all
20
Shareholders, the Shareholder who made the Request may within
60 days, and subject to obtaining any necessary FATA consent in
terms of Article 7.13, acquire all the Shares:
(i) held by BTI, when this Clause 13.4 is invoked as a result of
a breach by BTI; or
(ii) held by Castella, when this Clause 13.4 is invoked as a
result of a breach by either Castella or Xx. Xxxxxxx or as a
result of termination of the Engagement under the Xxxxxxx
Consultancy Agreement: or
(iii) held by Secure, when this Clause 13.4 is invoked as a
result of a breach by either Secure or Xx. Xxxxxxxxx or as a
result of termination of the Engagement under the Xxxxxxxxx
Consultancy Agreement; or
(iv) held by all other Shareholders, when this clause 13.4 is
invoked under Clause 13.2(d);
(each a "transferring Shareholder") and upon tender of payment in
cash or bank cheque of the Fair Price for each of those Shares
then each transferring Shareholder shall be bound to transfer all
the Shares it holds (at the office of the Company, during
business hours, upon 7 days' notice of settlement). Article 7.11
will apply mutatis mutandis.
(b) Where BTI is entitled to invoke this Clause 13.4 because of the
operation of Clause 12.1(b) of the Xxxxxxx Consultancy Agreement
or the Xxxxxxxxx Consultancy Agreement, then BTI may require
("Requirement") the Auditors to determine and certify to the
Shareholders within one month of the making of such Requirement
the sum per Share considered by the Auditors to be the net asset
value on a consistent basis with the Company's annual accounts
(prepared or audited by the Auditors) of each of the Shares as at
the date of the Requirement (the "NET ASSET PRICE"). To determine
the Net Asset Price the Auditors shall determine the amount which
they consider to be the value, as at the date of the Requirement,
of the entire net assets of the Company and shall divide that
amount by the number of Shares issued in the capital of the
Company. The Auditors shall be allowed unrestricted access to all
papers and records of the Company which they may require in order
to determine the Net Asset Price and the Directors and the
Shareholders shall co-operate fully to allow the Net Asset Price
to be determined by the Auditors. The Auditors shall act at the
cost and expense of the Shareholders pro-rata their
shareholdings, and shall act as experts not as arbitrators. Once
the Net Asset Price has been certified in writing and delivered
to all Shareholders, BTI may within 60 days, and subject to
obtaining any necessary FATA consent in terms of Article 7.13,
acquire all the Shares held by Castella (when this Clause 13.4 is
invoked because of the operation of Clause 12.1(b) of the Xxxxxxx
Consultancy Agreement) or by Secure (where this clause 13.4 is
invoked because of the operation of Clause 12.1(b) of the
Xxxxxxxxx Consultancy Agreement) upon tender of payment in cash
or bank
21
cheque of the Net Asset Price for each of those Shares
and Castella or Secure (as the case requires) shall be bound to
transfer all the Shares it holds (at the office of the Company,
during business hours, upon 7 days' notice of settlement).
Article 7.11 will apply mutatis mutandis.
13.5 WINDING UP
A Shareholder entitled to invoke this clause 13.5 shall be entitled to
request and procure that the Company shall be wound up voluntarily.
All the Shareholders must join in taking all necessary action to
procure such winding up within 30 days of being requested to do so. In
default of a Shareholder so acting within 30 days, the Shareholder
entitled to invoke this clause 13.5 shall be deemed to be irrevocably
empowered to vote all of the Shares held by all Shareholders in the
Company and to pass all necessary Board resolutions as are necessary
to effect the winding up of the Company and appointment of a
liquidator to the Company (notwithstanding the quorum or other
requirements for all such Board and Shareholders' meetings).
13.6 CONSEQUENCES OF WINDING UP
(a) In the event of the winding up of the Company, the Company's
assets shall be distributed according to law, with any surplus
being distributed between the Shareholders according to their
shareholding in the Company.
(b) To the extent that any of the Shareholders does not receive
satisfaction in full in the winding up of the Company of all sums
due or to fall due to it, the aggregate shortfall between all
sums due or to fall due to the Shareholders and all amounts
actually recovered by the Shareholders from the Company or its
liquidator (whether by direct payment or the exercise of any
right of set-off or otherwise) shall be calculated and
apportioned between the Shareholders in proportion to their
shareholdings in the Company and payment shall be made by and
between the Shareholders to ensure that each Shareholder bears
its respective share of the aggregate amount of such shortfall
pro rata to its shareholding.
14. STATEMENT ON SHARE CERTIFICATES
14.1 SHARE CERTIFICATES TO REFER TO RESTRICTIONS ON TRANSFER
The Shareholders shall cause the Company to endorse on each of the
Company's share certificates the following legend:
"The shares to which this certificate relates are subject to and
transferable only in accordance with the provisions of Article 7
of the Company's Articles of Association and the Shareholders
Agreement dated 5 April 1994 between BioTransplant Incorporated,
Castella Research Pty Ltd., Secure Sciences Pty Ltd. and the
Company."
22
15. ARBITRATION
15.1 NEUTRAL VENUE
Any matter or disagreement under this Agreement or relating to the
Company (other than those referred to in clauses 11.1 and 12 or
arising out of clause 13) shall be submitted to an arbitrator to so
decide any such matter or disagreement. The arbitrator shall conduct
the arbitration in accordance with the Rules of the International
Chamber of Commerce unless the parties agree otherwise. If the parties
are unable to mutually select an arbitrator, the arbitrator shall be
selected in accordance with the procedures of the International
Chamber of Commerce. The decision and award rendered by the arbitrator
shall be final and binding. Judgment upon the award may be entered in
any court having jurisdiction thereof. Any arbitration pursuant to
this Clause shall be held in London, England, in the English language
or such other place as may be mutually agreed upon in writing by the
parties.
16. EFFECT OF SHARE TRANSFER
16.1 CONDITIONS OF TRANSFER
Upon one Shareholder transferring all of its Shares to another
Shareholder or Shareholders ("ACQUIRING SHARES") (for any reason), the
following provisions shall apply and shall be given effect to as a
condition of completion of the Acquiring Share transfer:
(a) the Shareholder or Shareholders transferring its or their Shares
("TRANSFEROR") to the acquiring Shareholder ("TRANSFEREE") shall
be entitled to receive:
(i) payment of all outstanding loans owing to the Transferor by
the Company less the Transferor's Contribution (if
applicable);
(ii) a release and/or satisfactory indemnity in respect of all
guarantees, performance bonds, letters of credit, insurance
policies and the like given by the Transferor to support the
Company's obligations subject to the Transferor adequately
securing to the reasonable satisfaction of the Transferee
any and all liability of the Transferee with respect to the
Transferor's Contribution (if applicable); and
(iii) payment of the price for its Shares (subject only to
set-off (if applicable) for any liquidated amount which at
that time has been finally determined as payable to the
Transferee (whether by way of damages for breach of contract
or otherwise).
In this clause 16.1(a), the "Transferor's Contribution" means
where the net assets of the Company (as determined by the
Auditors of the Company acting as independent experts) on the
date of the transfer of the Acquiring Shares is a negative amount
(the "Negative Amount") the amount determined by multiplying the
percentage that the number of Acquiring Shares bears to the total
issued Shares of the Company with the Negative Amount. For the
purpose of calculating the net assets of the Company, it shall be
deemed that the net present value of all contingent liabilities
including bank guarantees, performance bonds and leases and
letters of credit have been called for payment;
23
(b) the Transferor must tender the written resignation of any
Director then appointed by it or them to the Board;
(c) completion must occur within 30 days of the price of the
Acquiring Shares being agreed or determined by valuation, in
Melbourne, in business hours at the office of the Company or its
solicitors;
(d) unless then already terminated, the BTI Research and License
Agreement shall remain in full force and effect in accordance
with its terms;
(e) if Castella ceases to be a Shareholder, the Xxxxxxx Consultancy
Agreement shall be deemed to terminate contemporaneously with
that cessation, without prejudice to the continued operation of
its provisions which are expressed to have continuing effect
after such termination; and
(f) If Secure ceases to be a Shareholder, the Xxxxxxxxx Consultancy
Agreement shall be deemed to terminate contemporaneously with
that cessation, without prejudice to the continued operation of
its provisions which are expressed to have continuing effect
after such termination.
17. RELATIONSHIP OF THE SHAREHOLDERS
17.1 NO PARTNERSHIP OR AGENCY
Nothing in this Agreement shall create or constitute or be deemed to
create or constitute a partnership between the Shareholders for the
purposes of any Partnership Act, the Income Tax Assessment Act or any
other law of any jurisdiction and except as specifically provided
herein no Shareholder shall act or represent or hold itself out as
having authority to act as agent of or in any way bind or commit
another Shareholder to any obligation.
17.2 RIGHTS AND OBLIGATIONS ARE SEVERAL
The rights, duties, obligations and liabilities of the Shareholders
shall be several and not joint or collective and nothing herein
contained shall be construed as creating a partnership of any kind or
an association or a trust, each Shareholder being individually
responsible for only its own obligations as set out in this Agreement.
18. MISCELLANEOUS
18.1 PERIOD OF AGREEMENT
This Agreement shall terminate automatically if:
24
(a) one Shareholder acquires all of the Shares held by the other
Shareholders; or
(b) the Company is placed into liquidation,
but without prejudice to the rights of any party in respect of any
breach of this Agreement by another party occurring prior to
termination.
18.2 FURTHER ASSURANCE
The parties covenant and agree that each will do all acts and things
and execute all deeds and documents and other writings as are from
time to time reasonably required for the purposes of or to give effect
to this Agreement.
18.3 PARAMOUNTCY OF THIS AGREEMENT
(a) If there is any inconsistency between the provisions of this
Agreement and the Articles of Association, the former shall,
unless the contrary intention appears, prevail to the extent of
the inconsistency.
(b) If there is any inconsistency between the provisions of this
Agreement and the BTI Research and License Agreement, the latter
shall, unless the contrary intention appears, prevail to the
extent of the inconsistency.
18.4 ENTIRE AGREEMENT
This document, together with the Articles of Association, the Original
License Agreement, the BTI Research and License Agreement, the Xxxxxxx
Consultancy Agreement, the Xxxxxxxxx Consultancy Agreement, the
Xxxxxxx Covenant and the Xxxxxxxxx Covenant incorporates the entire
agreement of the Shareholders and their associates and the Company in
relation to the Company and matters connected with the Company and
supersedes all previous agreements, arrangements and understandings,
written and oral, between the Shareholders in relation to the same.
18.5 MODIFICATION
This Agreement may not be modified, amended, added to or otherwise
varied except by a document in writing signed by each of the parties
or signed on behalf of each party by a director under hand.
18.6 SERVICE OF NOTICES
All notices, requests, consents and other documents authorised or
required to be given by or pursuant to this Agreement shall be given
in writing and either personally served or sent by certified or
registered mail addressed or sent by facsimile transmission as
follows:
25
BTI
To: BioTransplant Inc.
Address: 13th Street, Building 96
Charlestown Navy Yard
Xxxxxxxxxxx XX 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Attention: CEO
Facsimile: 000 000 0000
with a copy to:
Xxxxxx X Xxxxxxx, Esq
Carella, Byrne, Bain, Gilfillan, Xxxxxx, Xxxxxxx
& Olstein
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx XX 00000
Xxxxxx Xxxxxx of America
Facsimile: 000 000 0000
Castella, Secure or the
Company
To: Xx. Xxx Xxxx
Address: R.D. Larsson & Co.
Xxxxx 00
000 Xx Xxxxx Xxxx
Xxxxxxxxx Victoria
Facsimile: (00) 000-0000
with a copy to:
Xx. Xxxxx Xxxxxx
Holding Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxx
Facsimile: (00) 000-0000
Notices, requests, consents and other documents ("NOTICES") shall be
deemed served or given:
(a) if personally served by being left at the address of the party to
whom the Notice is given between the hours of 9:00 am and 5:00 pm
on any Business Day, then in such case at the time the Notice is
so delivered;
(b) if sent by registered or certified mail, at the certified date of
delivery;
(c) if sent by facsimile transmission, on receipt by the sender of
confirmation of successful transmission.
26
Any party may change its address for receipt of Notices at any time by
giving notice of such change to the other party. Any Notice given under
this Agreement may be signed on behalf of any party by the duly
authorised representative of that party and shall be sent to all other
parties to this Agreement.
18.7 READING DOWN; SEVERANCE
The covenants, undertakings and conditions and each and every part
thereof contained in this Agreement shall be severable and shall be so
construed as not to infringe the law of Australia or the law of any
Australian State or of any other relevant jurisdiction. If any such
covenant, undertaking or condition on its true interpretation is found
to infringe any such law, that covenant, undertaking or condition shall
be read down to such extent as may be necessary to ensure that it does
not so infringe any such law and as may be reasonable in all the
circumstances so as to give it a valid operation of a partial
character. In the event that the infringing covenant, undertaking or
condition cannot be so read down, it shall be deemed void and severable
and shall be deemed deleted from this Agreement to the same extent and
effect as if never incorporated herein and the Shareholders shall
negotiate with each other for the purpose of substituting an
appropriate clause so far as is practicable in lieu of such deleted
covenant, undertaking or condition.
18.8 WAIVER DOES NOT EXCUSE LATER BREACH
The waiver by a Shareholder of any breach of any term of this Agreement
shall not prevent the subsequent enforcement of that term in respect of
and shall not be deemed a waiver of any subsequent breach of that term.
18.9 ASSIGNMENT
(a) This Agreement shall not be assigned by any of the parties
without the prior written consent of the other parties (which
consent shall not be unreasonably withheld or delayed), except
that BTI without the consent of the other parties may assign this
Agreement to an AFFILIATE (as defined in the BTI Research and
License Agreement) or to a successor in interest or to a
permitted transferee of BTI's Shares or in the case of a sale or
transfer of all or substantially all of the portion of the
business to which the BTI Research and License Agreement relates
provided that such assignee shall agree to be bound by the terms
and conditions of this Agreement and to acquire all Shares held
by BTI provided further that in the foregoing circumstances, BTI
shall promptly provide the Company with a copy of such executed
assignment.
(b) Subject to the limitations on assignment herein, this Agreement
shall be binding upon and inure to the benefit of the successors
in interest and assigns of the parties hereto. Any such successor
or assignee of a party's interest shall expressly assume in
writing the performance of all the terms and conditions of this
Agreement to be performed by said party.
27
18.10 EACH SHAREHOLDER BEARS ITS OWN EXPENSES
Each of the Shareholders shall bear its own expenses of and incidental
to the preparation and execution of this Agreement but any stamp duty
payable on or in respect of this Agreement shall be borne by the
Shareholders equally.
18.11 GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the law from time to time of the State of Victoria and the parties
agree to submit to the non-exclusive jurisdiction of the courts and
arbitration processes in that State.
18.12 PUBLIC ANNOUNCEMENTS
Each of the parties shall procure that neither it nor any of its
related bodies corporate shall make any public announcement or
disclosure to any person in relation to this Agreement or information
of which it has become aware in connection with this Agreement unless
it first consults with and obtains the agreement in writing of the
other parties, which agreement shall not be unreasonably withheld,
provided that:
(a) following such consultation no party shall be entitled to
withhold agreement in the case of a public announcement or
notification where and to the extent that the same is required by
law or the listing rules of any applicable stock exchange;
(b) a party shall be entitled to make such disclosures to the
directors, secretary, professional advisers and bankers of that
party and its related bodies corporate so long as the party uses
all reasonable endeavours to ensure that the matters disclosed
are kept confidential.
18.13 COUNTERPARTS
This Agreement may be signed in any number of counterparts and all such
counterparts taken together shall be deemed to constitute one and the
same document.
18.14 ENGLISH LANGUAGE
This Agreement is written in English in two counterparts, each of which
is deemed to be an original.
28
SIGNED as an agreement.
SIGNED SEALED AND DELIVERED by ) [SIGNED BY XXXXXXXX X X XXXX]
BIOTRANSPLANT INCORPORATED by ) ---------------------------
its duly appointed attorney pursuant to ) (Signature)
Power of Attorney dated 28 March 1994 in )
the presence of: )
[SIGNED BY XXXXX XXXXXX]
---------------------------
(Signature of Witness)
[XXXXX XXXXXX]
---------------------------
(Name of Witness in Full)
THE COMMON SEAL of )
CASTELLA RESEARCH PTY LTD ACN )
000 000 000 was affixed by the authority of )
the Board of Directors in the presence of: )
[SIGNED BY XXXXXXX XXX XXXXXXX] [SIGNED BY XXXXX XXXXXXX]
-------------------------------------------- ---------------------------
(Signature of Director) (Signature of Director)
[XXXXXXX XXX XXXXXXX] [XXXXX XXXXXXX]
-------------------------------------------- ---------------------------
(Name of Director in Full) (Name of Director in Full)
THE COMMON SEAL of )
SECURE SCIENCES PTY LTD ACN 064 )
139 948 was affixed by the authority of the )
Board of Directors in the presence of: )
[SIGNED BY XXXXX XXXXX XXXXXXXXX] [SIGNED BY XXXXXXXXXXX XXXX
XXXXXXXXX]
-------------------------------------------- ---------------------------
(Signature of Secretary/Director) (Signature of Director)
[XXXXX XXXXX XXXXXXXXX] [XXXXXXXXXXX XXXX XXXXXXXXX]
-------------------------------------------- ---------------------------
(Name of Secretary/Director in Full) (Name of Director in Full)
29
THE COMMON SEAL of STEM CELL )
SCIENCES PTY LIMITED ACN 063 293 )
130 was affixed by the authority of the )
Board of Directors in the presence of: )
[SIGNED BY XXXXX XXXXX XXXXXXXXX] [SIGNED BY XXXXXXX XXX XXXXXXX]
-------------------------------------------- ---------------------------
(Signature of Secretary/Director) (Signature of Director)
[XXXXX XXXXX XXXXXXXXX] [XXXXXXX XXX XXXXXXX]
-------------------------------------------- ---------------------------
(Name of Secretary/Director in Full) (Name of Director in Full)
30
SCHEDULE 1
OPTION TERMS
1. DEFINITIONS
In these terms unless the contrary intention appears:
"OPTION HOLDERS" means BTI, Castella and Secure;
"OPTIONS" means the options conferred on the Option Holders by this
Agreement;
"NOTICE OF EXERCISE OF OPTION" means a notice of exercise of option in
the form set out in the Schedule to these Option Terms;
2. EXERCISE OF OPTIONS
(a) Options may only be exercised in full. No partial exercise of
Options is permitted.
(b) An option is exercisable by the holder by delivering to the
Company a Notice of Exercise of Option together with the exercise
price for each option exercised and the option certificate in
respect of the options. Remittances must be payable by bank
cheque or other immediately available funds to Stem Cell Sciences
Pty Ltd and (in the case of a bank cheque) should be crossed "not
negotiable".
(c) In the event that an Option Holder complies with the provisions
of paragraph (b) the Company will allot and issue the shares the
subject of the Option Holder's Option to the Option Holder prior
to 5:00 pm on that date which is 7 days after the date of
delivery of the Notice of Exercise of Option by the Option
Holder.
3. AUTHORISED CAPITAL
The Company shall at all relevant times keep set aside out of its
authorised capital such number of ordinary shares as would be necessary
to satisfy the right to exercise options conferred under the Agreement
on BTI, Castella and Secure. The Company shall not cause, procure or
permit to be done anything would have the effect of reducing the number
of ordinary shares so set aside below the number necessary for the said
purpose.
4. RECONSTRUCTION OF CAPITAL
(a) In the event of any reconstruction of the issued capital of the
Company, the number or nominal value of the options to which BTI,
Castella and Secure are each entitled under the Agreement shall
be reconstructed in the same proportion as the issued capital of
the Company is reconstructed (subject to the same provisions with
respect to rounding of entitlements as sanctioned by the meeting
of shareholders approving the reconstruction of capital) but in
all respects the terms for the exercise of options shall remain
unchanged.
31
(b) In the event of any reconstruction (including consolidation,
sub-division, reduction or return) of the issued capital of the
Company, the number of options or the exercise price of options
or both will be reconstructed (as appropriate) in a manner which
will not result in any benefits being conferred on Option Holders
which are not conferred on shareholders and (subject to the
provisions with respect to rounding of entitlements as sanctioned
by the meeting of shareholders approving the reconstruction of
capital) in all other respects the terms of the exercise of
Options will remain unchanged.
5. NO TRANSFER OF OPTIONS PERMITTED
The options:
(a) are personal to the Option Holder;
(b) may not be transferred or assigned to or encumbered or mortgaged
in favour of any other person; and
(c) may not be exercised by or on behalf of any person except the
Option Holder.
6. NOTICES
Notices to Option Holders may be given by the Company in the manner
prescribed by the Articles of Association of the Company for the giving
of notices to members of the Company and the relevant provisions of the
Articles of Association apply with all necessary modifications
applicable to the Option Holder.
32
SCHEDULE
NOTICE OF EXERCISE OF OPTION
NOTICE IS HEREBY GIVEN BY [INSERT NAME OF RELEVANT OPTION HOLDER] (the "Option
Holder") to the Company that the Option Holder hereby irrevocably exercises the
option hereafter described and granted to the Option Holder by the Company by
the Shareholders Agreement dated 5 April 1994.
OPTION
[INSERT DESCRIPTION OF OPTION BEING EXERCISED]
Dated this day of 199__.
------- -------------------
THE COMMON SEAL of [INSERT NAME OF )
RELEVANT OPTION HOLDER] )
was affixed by the authority of the Board of )
Directors in the presence of: )
)
(Signature of Secretary/Director) (Signature of Director)
-------------------------------------------- ---------------------------
(Name of Secretary/Director in Full) (Name of Director in Full)
[or other binding attestion]
33
ANNEXURE "A"
Corporations Law
A Company Limited by Shares
ARTICLES OF ASSOCIATION
of
STEM CELL SCIENCES PTY LIMITED
ACN 063 293 130
Corporations Law
A Company Limited by Shares
ARTICLES OF ASSOCIATTON
OF
STEM CELL SCIENCES PTY LIMITED
ACN 063 293 130
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In these Articles, unless the contrary intention appears:
"ALTERNATE DIRECTOR" means a person for the time being holding office
as an alternate director under Article 21.
"BOARD" means the board of directors of the Company.
"BTI" means BioTransplant Incorporated a corporation organised and
existing under the laws of the State of Delaware and having its
principal office at 13th Street, Building 96, Charlestown Navy Yard,
Charlestown, MA, United States of America.
"BTI RESEARCH AND LICENSE AGREEMENT" means the Research and License
Agreement between BTI and the Company.
"BUSINESS DAY" means any day on which all banks are generally open for
business in Melbourne.
"CASTELLA" means Castella Research Pty Ltd ACN 000 000 000.
"COMPANY" means Stem Cell Sciences Pty Limited ACN 063 293 130.
"CORPORATION" means any body corporate, whether formed or incorporated
within or outside the State.
"DIRECTOR" means a Director for the time being of the Company.
"MANAGEMENT SHAREHOLDERS" means Castella and Secure.
"OFFICE" means the registered office for the time being of the Company.
"PAID UP" includes credited as paid up.
"REGISTER" means the register of shareholders to be kept to comply with
the Corporations Law.
"RELATED BODY CORPORATE" means a corporation that is deemed to be
related to the Company by virtue of section 50 of the Corporations Law.
"REPRESENTATIVE" means a person appointed under Article 15.1 read with
section 249(3) of the Corporations Law but not limited to specified
meetings as required by section 249(3).
"SEAL" means the common seal of the Company.
"SECRETARY" means the secretary for the time being of the Company, and
if there are joint secretaries, any one or more of such joint
secretaries.
"SECURE" means Secure Sciences Pty Ltd ACN 064 139 948.
"SHAREHOLDERS" means BTI, Castella and Secure.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement between BTI,
Castella, Secure and the Company as of the date BTI first acquired
Shares in the Company.
"SPECIALLY RELATED BODY CORPORATE" means in relation to a given
corporation the Special Subsidiaries of that corporation, any holding
company of which that corporation is a Special Subsidiary and the
Special Subsidiaries of every such holding company.
"SPECIAL SUBSIDIARY" means a corporation which is a subsidiary within
the meaning of all of the sub-paragraphs of section 46(a) of the
Corporations Law as in force on 1 March 1994.
"STATE" means the State of Victoria.
1.2 INTERPRETATION: MEANING OF CERTAIN WORDS
In these Articles unless the contrary intention appears:
(a) words importing the singular number include the plural number and
vice versa;
(b) words importing the masculine gender include the feminine gender
and vice versa;
(c) words importing persons include Corporations;
(d) an expression used in a particular Part or Division of the
Corporations Law that is given by that Part or Division a special
meaning for the purposes of that Part or Division has in any of
these Articles that deals with a matter dealt with by that Part
or Division unless the contrary intention appears the same
meaning as in that Part or Division.
2
1.3 INTERPRETATION: APPLICATION OF THE CORPORATIONS LAW
Section 110B of the Corporations Law applies in relation to these
Articles as if they were an instrument made, granted or issued under
the Corporations Law as amended from time to time.
1.4 INTERPRETATION: HEADINGS
The headings to these Articles are not part of these Articles and shall
not affect their meaning.
1.5 APPLICATION OF TABLE A
The Regulations contained in Table A of Schedule 1 to the Corporations
Law shall not apply to the Company.
2. PROPRIETARY COMPANY
The Company is a proprietary company and accordingly:
(a) the right to transfer the shares of the Company is restricted in
the manner and to the extent hereinafter appearing;
(b) the number of shareholders of the Company (counting joint holders
of shares as one person and not counting any person in the
employment of the Company or of any subsidiary of the Company or
any person who while previously in the employment of the Company
or of any subsidiary of the Company was and thereafter has
continued to be a shareholder of the Company) shall not be more
than 50 (or any lower number stipulated in these Articles);
(c) the Company shall not issue any invitation to the public to
subscribe for or make any offer to the public to accept
subscriptions for any shares in or debentures of the Company; and
(d) the Company shall not issue any invitation to the public to
deposit money with or make any offer to the public to accept
deposits of money with the Company for fixed periods or payable
at call whether bearing or not bearing interest.
3. SHARE CAPITAL
3.1 AUTHORISED CAPITAL DIVIDED INTO "A" SHARES AND "B" SHARES
(a) The authorised capital of the Company is $2,000,000 divided into
2,000,000 ordinary shares of $1.00 each comprising 1,000,000 "A"
Shares and 1,000,000 "B" Shares. The "A" Shares and the "B"
Shares shall in all respects rank pari passu.
3
(b) "A" Shares may be held only by BTI, or a permitted transferee
from BTI. "B" Shares may be held only by the Management
Shareholders or a permitted transferee from them.
4. SHARE ISSUES
4.1 BOARD CONTROL
Subject to Article 3, shares in the Company's capital shall be issued
subject to a resolution of the Board.
5. REGISTERED HOLDER ABSOLUTE OWNER
5.1 NO EQUITABLE INTERESTS RECOGNISED
Except as required by law or otherwise provided in the Articles, the
Company shall be entitled to treat the registered holder of any share
as the absolute owner thereof, and accordingly shall not, except as
ordered by a court of competent jurisdiction or as required by statute,
be bound to recognise any equitable or other claim to or interest in
such share on the part of any other person whether or not it has notice
of same.
6. SHARE CERTIFICATES
6.1 SHARE CERTIFICATES TO BE ISSUED UNDER SEAL
Certificates in respect of shares shall be issued under the Seal or,
subject to the Corporations Law, in such other manner as the Board may
determine.
6.2 SHAREHOLDERS' ENTITLEMENT TO SHARE CERTIFICATES
Unless the conditions of the allotment of the shares provide otherwise,
every Shareholder shall be entitled to one certificate, without
payment, in respect of the shares registered in his name, or to several
certificates in reasonable denominations.
6.3 DUPLICATE CERTIFICATE IF ORIGINAL DAMAGED OR DEFACED
If any share certificate, letter of allotment, transfer, receipt or any
other document of title to shares is worn out or defaced, then upon
production thereof to the Board the Board may order the same to be
cancelled and may issue a duplicate in lieu thereof.
6.4 DUPLICATE CERTIFICATE IF ORIGINAL LOST OR DESTROYED
If any share certificate, letter of allotment, transfer, receipt or any
other document of title to shares is lost or destroyed, a duplicate
thereof may be issued upon the conditions set out in the Corporations
Law and upon payment of such fee (not exceeding that prescribed
pursuant to the Corporations Law) as the Board may from time to time
determine.
4
7. TRANSFER OF SHARES
7.1 INSTRUMENT OF TRANSFER COMPULSORY
No transfer of shares shall be registered unless a proper instrument of
transfer has been delivered to the Company. Except as provided by the
Corporations Law or by these Articles, the instrument of transfer of
any shares shall be signed by the transferor and, if required by the
Company, by the transferee.
7.2 DIRECTORS MUST REGISTER TRANSFER MADE IN OBSERVANCE OF PRE-EMPTIVE
RIGHTS BUT MAY REFUSE TO REGISTER OTHER TRANSFERS
The Directors shall be bound to approve and register a transfer of
shares executed in compliance with Article 7 or with the Shareholders
Agreement but may decline to approve and register any other transfer of
shares without being bound to give any reason for such refusal.
7.3 NO TRANSFER UNLESS PRE-EMPTIVE RIGHTS OBSERVED
A Shareholder shall not sell, assign or transfer all or any of its
shares in the capital of the Company or any interest therein except as
provided in this Article 7 or as provided in the Shareholders
Agreement, and any such transfer shall only be proposed for all of the
shares in the Company held by that Shareholder.
7.4 SELLER MUST GIVE TRANSFER NOTICE
Any Shareholder (the "PROPOSING TRANSFEROR") may give a notice in
writing (a "TRANSFER NOTICE") to the other shareholders (the "OTHER
SHAREHOLDERS") and the Company stating that it desires to sell assign
and transfer all (and not some only) of its shares in the capital of
the Company (the "SALE SHARES") to the Other Shareholders (or any one
or more of them).
7.5 RIGHT TO PURCHASE ALL SALE SHARES
The Other Shareholders shall have an exclusive right and option for a
period of 60 days from receipt of a Transfer Notice pursuant to Article
7.4 (the "Option Period") to purchase all (and not some only) of the
Sale Shares.
7.6 ACCEPTING SHAREHOLDERS TO SERVE NOTICE
If any Other Shareholder (an "Accepting Shareholder") wishes to
purchase any or all of the Sale Shares, it shall before the end of the
Option Period serve a notice on the Company (an "Acceptance Notice")
stating its intention to purchase and the number of Sale Shares it
wishes to purchase. The Company shall within 7 days of the end of the
Option Period forward to the Proposing Transferor copies of all
Acceptance Notices received. The Transfer Notice will be deemed
withdrawn at the end of the Option Period if by then the Company has
not received Acceptance Notices for all the Sale Shares and thereupon
the Proposing Transferor will be deemed to have made a request under
Article 7.8(a)(ii).
5
7.7 ACCEPTANCE NOTICES EXCEEDING SALE SHARES
If more than one Accepting Shareholder serves an Acceptance Notice and
the sum of the number of shares specified in the Acceptance Notices is
greater than the number of the Sale Shares, then in default of
agreement to the contrary between the Accepting Shareholders, the Sale
Shares may only be transferred to each of the Accepting Shareholders
pro-rata to their respective holdings of shares in the Company at that
time, provided that none of the Accepting Shareholders can be required
to purchase a greater number of the Sale Shares than stated in its
Acceptance Notice.
7.8 SALE PRICE
(a) If:
(i) the Proposing Transferor and the Accepting Shareholders have
not agreed on the price of the Sale Shares before the end of
the Option Period;
(ii) the Proposing Transferor or any Accepting Shareholder gives
notice to the others of them before the end of the first
business day after the end of the Option Period requesting
that the price of the Sales Shares be determined in
accordance with Article 7.9; or
(iii) clause 12.1(c) of the Shareholders Agreement applies,
then the Proposing Transferor shall be deemed to have made an
offer to sell the Sale Shares to the Other Shareholders under
Article 7.10 at the Fair Price determined pursuant to Article
7.9.
7.9 IF NO AGREED PRICE ACCOUNTANTS ARE APPOINTED TO VALUE SHARES
(a) Where this Article applies, the Company shall within 14 days of
it becoming applicable, request the office in the capital city of
the State of two leading international firms of accountants (not
being the auditors of any Shareholder) appointed by the President
for the time being of the Branch in the State of the Institute of
Chartered Accountants in Australia (the "ACCOUNTANTS"), to
severally determine and certify to the Company within 30 days
after the making of such request the sum per share considered by
the Accountants to be the fair market value, having due regard
to:
(i) maintainable earnings and future cash flow projections;
(ii) market prices for businesses similar to that carried on by
the Company;
6
(iii) the value of the Company as a going concern to a vendor not
unwilling but not anxious to sell and other factors which
the Accountants deem to be relevant; and
(iv) the value of the Company's assets determined on both a
historic cost and replacement cost basis,
of each of the Sale Shares as at the date of the Transfer Notice.
The average of the value of each Sale Share determined by the
Accountants shall be the sale price of each Sale Share (the "FAIR
PRICE").
(b) To determine the Fair Price the Accountants shall determine the
amount which they consider to be the fair market value as at the
date of the Transfer Notice of the entire issued share capital of
the Company and shall divide that amount by the number of shares
issued in the capital of the Company.
(c) The Accountants shall be allowed unrestricted access to all
papers and records of the Company which they may require in order
to determine the Fair Price and the Directors and the
Shareholders shall co-operate fully to allow the Fair Price to be
ascertained by the Accountants.
(d) The Accountants shall act at the cost and expense of the
Proposing Transferor and shall act as experts and not as
arbitrators.
7.10 NEW TRANSFER NOTICE
(a) Upon determination of the Fair Price, the Proposing Transferor
will be deemed to have thereupon issued a new Transfer Notice
under Article 7.4, but with the sale price of each Sale Share
being specified as the Fair Price. Articles 7.5 to 7.7
(inclusive) will apply (mutatis mutandis) to such Transfer
Notice;
(b) If within 60 days after the determination of the Fair Price, the
Company has not received Acceptance Notices for all of the Sale
Shares, then the Proposing Transferor shall be entitled (but not
obliged) to acquire from the Other Shareholders all of the shares
held by the Other Shareholders for a price equal to the Fair
Price of each share, payable in cash within 30 days and subject
to clause 16.1 of the Shareholders Agreement.
7.11 REMEDY FOR FAILURE TO TRANSFER SHARES
If the Shareholder or Shareholders which pursuant to this Article 7 has
or have become bound to transfer the shares held by it or them to the
other Shareholders (or any one or more of them) (the firstmentioned
Shareholder(s) being herein referred to as the "TRANSFEROR" and the
other Shareholder(s) being hereinafter referred to as the "TRANSFEREE")
defaults in doing so, one of the Transferee's directors duly nominated
for that purpose by resolution of the Transferee's directors shall,
forthwith upon delivery to the Transferor of a bank cheque for the
purchase price calculated in accordance with these Articles and clause
16 of the Shareholders Agreement, be deemed to be the duly
7
appointed attorney of the Transferor with full power to execute,
complete and deliver in the name and on behalf of the Transferor
transfers to the Transferee of those of the shares held by the
Transferor and the Transferee shall thereupon be entitled to
possession of the scrip for the same and to be registered as
beneficial holder of the shares and to exercise all votes attaching to
such shares.
7.12 CIRCUMSTANCES IN WHICH PREVIOUS PROVISIONS OF THIS ARTICLE DO NOT APPLY
Notwithstanding any of the provisions of this Article 7:
(a) a Shareholder may at any time transfer its shares where all
Shareholders have previously consented in writing to the proposed
transfer;
(b) BTI may transfer its shares without the consent of the other
Shareholders to an AFFILIATE (as defined in the BTI Research and
License Agreement) or to a successor in interest or in the case
of a sale or transfer of all or substantially all of the portion
of the business to which the BTI Research and License Agreement
relates; and
(c) BTI may transfer its shares (or any of them) pursuant to clause
13.2(e) of the Shareholders Agreement.
7.13 FOREIGN ACQUISITIONS AND TAKEOVERS ACT
(a) The obligation of any Shareholder to purchase or sell any Sale
Shares under this Article 7 is subject, if applicable, to the
grant or issue of any consent which may be required to such sale
or purchase from the Treasurer of the Commonwealth of Australia
under the Foreign Acquisitions and Takeovers Act ("FATA"), which
consent (the "FATA CONSENT") will be deemed to have been given
if:
(i) a notice is issued under Part II of the FATA stating either
that the Commonwealth Government or the Treasurer does not
object to the proposed transfer either unconditionally or
with conditions reasonably satisfactory to the other
Shareholders; or
(ii) a notice of the proposed transfer is given to the Treasurer
under Section 26 or 26A of the FATA and the Treasurer ceases
to be empowered by reason of the lapse of time to make any
order under Part II of the FATA in relation to the proposed
transfer.
(b) Where any offer to purchase the Sale Shares under this Article 7
or the Shareholders Agreement is not capable of unconditional
acceptance by any Shareholder to whom it is made (the "PURCHASING
SHAREHOLDER") without the issue of a FATA Consent, then, subject
to Article 7.13 (c), if the Purchasing Shareholder wishes to
accept the offer, it will give prompt written notice to the
Company and the other Shareholders that a FATA Consent is
required by the Purchasing Shareholder, whereupon:
8
(i) any acceptance given or deemed to have been given by the
Purchasing Shareholder will not be binding until the FATA
Consent has been obtained;
(ii) if the relevant offer of the Sale Shares to the Purchasing
Shareholder under Article 7 or under the Shareholders
Agreement limited or was deemed to have limited the period
in which the offer could be accepted to a period of less
than 40 days, the offer will be deemed to be open instead
for a period of 40 days; and
(iii) the Purchasing Shareholder will use its best endeavours to
obtain the required FATA Consent.
(c) If a FATA Consent is required but is not obtained by the
Purchasing Shareholder wishing to accept an offer to purchase
Sale Shares within the acceptance period for that offer (if
applicable, as extended by Article 7.13(b)), the offer made to
that Shareholder will be deemed to have been rejected. In that
event, the Shareholders shall enter into negotiations in good
faith with a view to determining satisfactory avenues available
to each of the Shareholders following the rejection of a FATA
consent and if no satisfactory determination is made by the
Shareholders within three months from the date the parties were
notified that FATA consent was rejected, then the Company will be
wound up.
(d) The Purchasing Shareholder must give prompt written notice to the
Company and the Transferor of the issue or refusal of a FATA
Consent in relation to a proposed purchase by the Purchasing
Shareholder of Sale Shares under this Article 7.13.
8. NO ENCUMBRANCES; FURTHER TRANSFER PROVISIONS
8.1 SHAREHOLDERS MUST NOT MORTGAGE SHARES
A Shareholder shall not create or permit to subsist over all or any of
its shares in the capital of the Company (or any interest therein) any
option mortgage charge or other encumbrance.
8.2 TRANSFEROR IS HOLDER UNTIL TRANSFER REGISTERED
The transferor shall be deemed to remain the holder of a share until
the name of the transferee is entered in the Register in respect
thereof.
8.3 FORM OF SHARE TRANSFERS
Share transfers shall be in any usual form or in any other-form
approved by the Board.
8.4 DELIVERY OF TRANSFERS AND SHARE CERTIFICATES TO COMPANY'S OFFICE
Every instrument of transfer shall be left at the Office or in the
place where a share register is kept, accompanied by the certificate in
respect of the shares to be transferred
9
and such other evidence as the Board may require to prove the title of
the transferor or his right to transfer the shares. All instruments of
transfer which are registered shall be retained by the Company but
(except in the case of fraud) any instrument of transfer which the
Board declines or refuses to register shall on demand be returned to
the transferee.
8.5 CLOSURE OF TRANSFER BOOKS AND REGISTER
The transfer books and register of Shareholders and debenture holders
may be closed during such time or times as the Board thinks fit,
provided that no such book or register shall be closed for more than 30
days in the aggregate in any calendar year.
9. ALTERATION OF CAPITAL
9.1 ORDINARY RESOLUTION TO ALTER CAPITAL
The Company may by ordinary resolution passed at a general meeting
alter the provisions of its Memorandum or Articles of Association in
any one or more of the following ways:
(a) (CREATE NEW SHARES): by increasing its authorised share capital
by the creation of new shares of such amount as it thinks
expedient;
(b) (CONSOLIDATE SHARES): by consolidating and dividing all or any of
its authorised share capital into shares of larger amount than
its existing shares;
(c) (SUBDIVIDE SHARES): by subdividing its shares or any of them into
shares of smaller amount than is fixed by the Articles but so
that in the subdivision the proportion between the amount paid
and the amount (if any) unpaid on each share of a smaller amount
shall be the same as it was in the case of the share from which
the share of a smaller amount is derived; or
(d) (CANCEL SHARES): by cancelling shares that, at the date of the
passing of the resolution to that effect, have not been taken or
agreed to be taken by any person or that have been forfeited, and
by reducing the amount of the Company's authorised share capital
by the amount of the shares so cancelled.
9.2 HOW NEW SHARES TO BE DEALT WITH
A general meeting may determine that before the issue of any new shares
the same or any of them shall be offered in the first instance at par
to all Shareholders in proportion to the amount of the capital held by
them.
10. REDUCTION OF CAPITAL
10.1 SPECIAL RESOLUTION TO REDUCE CAPITAL
Subject to the Corporations Law, the Company may by special resolution
reduce its share capital or any capital redemption reserve fund.
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11. BORROWING POWERS
11.1 BOARD MAY EXERCISE COMPANY'S POWER TO BORROW
The Board may from time to time at its discretion exercise all the
powers of the Company to borrow or raise or secure the payment of money
and to guarantee or to become liable for the payment of money or for
the performance of any obligations by any company or person.
11.2 BOARD MAY EXERCISE POWER TO GIVE SECURITY
The Board may exercise the powers conferred by Article 11.1 in such
manner and upon such terms and conditions in all respects as it in its
absolute discretion thinks fit, and in particular by the issue of
perpetual and redeemable debentures or any charge, xxxx of sale or
other security on the whole or any part of the property of the Company
both present and future.
11.3 SECURITY FROM COMPANY TO INDEMNIFY DIRECTORS
If the Board or any of them or any other person shall become or be
about to become personally liable for the payment of any sum due from
the Company, the Board may execute or cause to be executed any
mortgage, charge, xxxx of sale or security over or affecting the whole
or any part of the assets of the Company by way of indemnity to secure
the Directors or persons so becoming liable as aforesaid from any loss
in respect of such liability.
12. GENERAL MEETINGS
12.1 CONVENING OF GENERAL MEETING
Any Director may convene a general meeting whenever he thinks fit, and
the Board shall convene a general meeting on a requisition of
Shareholders as provided by the Corporations Law.
12.2 ANNUAL GENERAL MEETING
Annual general meetings shall be held in compliance with the
Corporations Law.
12.3 NOTICE PERIOD
Subject to the provisions of the Corporations Law relating to
agreements for shorter notice, where it is proposed to pass a special
resolution, not less than 21 days' notice and in other cases not less
than 14 days' notice of a general meeting shall be given to the
Shareholders.
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12.4 CONTENTS OF NOTICE
A notice of a general meeting shall specify the place, day and hour of
meeting, and in the case of special business, the general nature of
that business and in the case of an election of Directors, the names of
the candidates for election.
12.5 FAILURE TO GIVE NOTICE
The accidental omission to give notice of any general meeting to or the
non-receipt of any such notice by any of the Shareholders shall not
invalidate any resolution passed at any such meeting provided that a
quorum was present at such meeting as required by Article 13.3.
12.6 NOTICE OF ADJOURNMENT MEETING IN CERTAIN CIRCUMSTANCES ONLY
Whenever a general meeting is adjourned for 21 days or more, at least 3
days' notice of the place and hour of such adjourned meeting shall be
given.
13. PROCEEDINGS AT GENERAL MEETINGS
13.1 BUSINESS OF ANNUAL GENERAL MEETING
The business of an annual general meeting shall be to receive and
consider the profit and loss account, the balance sheet, and such other
accounts reports and statements as are required to be laid before the
meeting; to elect Directors in the place of those retiring; to declare
dividends and to transact any other business which under these Articles
or by the provisions of the Corporations Law ought to be or may be
transacted at an annual general meeting.
13.2 SPECIAL BUSINESS
All other business transacted at an annual general meeting and all
business transacted at any other general meeting shall be deemed
special.
13.3 QUORUM FOR GENERAL MEETING
A quorum for a general meeting shall be 2 persons, one being a
Shareholder holding "A" shares or a Representative of such a
Shareholder and the other being a Shareholder holding "B" shares or a
Representative of such a Shareholder. No business shall be transacted
at any general meeting unless the requisite quorum be present at the
commencement of the meeting.
13.4 CHAIRMAN OF GENERAL MEETING
The chairman of the Board or in his absence the deputy chairman shall
preside as chairman at every general meeting of the Company, or, if
there is no such chairman or deputy chairman, or if at any general
meeting neither the chairman nor the deputy chairman are present at the
time appointed for holding the meeting or willing to act, the
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Director or Directors present may choose a Director (other than the
chairman or the deputy chairman) as chairman. If no Director is
present or if all Directors present decline to take the chair, the
Shareholders present shall choose one of their number to be chairman.
13.5 IF QUORUM ABSENT
If at the expiration of half an hour from the time appointed for a
general meeting a quorum is not present, the meeting if convened by the
Board upon a requisition of Shareholders or by such requisitionists as
is provided by the Corporations Law shall be dissolved; but in any
other case it shall stand adjourned to such other day, time and place
as the Board may by notice to the Shareholders appoint (being a date
not earlier than 14 days thereafter), but failing such appointment then
to the same day in the next week at the same time and place as the
meeting adjourned.
13.6 CHAIRMAN HAS NO CASTING VOTE
In the case of an equality of votes at any general meeting the chairman
of the meeting shall neither on a show of hands nor on a poll have a
casting vote.
13.7 VOTING: SHOW OF HANDS OR POLL
At any general meeting a resolution put to the vote of the meeting
shall be decided on a show of hands unless (before or on the
declaration of the result of the show of hands) a poll is demanded:
(a) by the chairman; or
(b) by a Shareholder present in person or by a Representative, having
the right to vote at the meeting.
13.8 QUESTIONS DECIDED BY MAJORITY
Subject to the requirements of the Corporations Law in relation to
special resolutions, a resolution shall be taken to be carried if the
proportion that the number of votes in favour of the resolution bears
to the total number of votes on the resolution exceeds one-half.
13.9 DECLARATION BY CHAIRMAN THAT RESOLUTION CARRIED
A declaration by the chairman that a resolution has on a show of hands
been carried or carried by a particular majority or lost or not carried
by a particular majority and an entry to that effect in the book of
proceedings of the Company shall be conclusive evidence of the fact
without proof of the number or proportion of the votes recorded in
favour of or against such resolution.
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13.10 CONDUCT OF POLL
If a poll has been demanded under this Article 13, it shall be taken in
such manner and at such time and place as the chairman of the general
meeting directs, and either at once or after an interval or adjournment
or otherwise. The result of the poll shall be deemed to be the
resolution of the general meeting at which the poll was demanded. A
poll demanded on the election of a chairman of a general meeting or on
the question of the adjournment of a general meeting shall be taken
forthwith. The demand for a poll may be withdrawn.
13.11 CONTINUATION OF MEETING NOTWITHSTANDING POLL
The demand for a poll shall not prevent the continuance of the meeting
or the transaction of any business other than the question on which a
poll has been demanded.
13.12 ADJOURNMENT OF GENERAL MEETING
The chairman of a general meeting may with the consent of the meeting
and shall if so directed by the meeting adjourn the same from time to
time and from place to place but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place.
14. VOTES OF SHAREHOLDERS
14.1 ONE COLLECTIVE VOTE FOR EACH SIDE
Subject always to clause 5.4 of the Shareholders Agreement on a show of
hands and on a poll in relation to any matter referred to in clause 5.3
of the Shareholders Agreement:
(a) the Shareholder or Shareholders holding "A" Shares present in
person or by proxy or by a Representative shall have one
collective vote;
(b) the Shareholder or Shareholders holding "B" Shares present in
person or by proxy or by a Representative shall have one
collective vote; and
(c) no resolution shall be deemed to have been carried unless
supported by the collective vote of the Shareholder or
Shareholders holding "A" Shares and the collective vote of the
Shareholder or Shareholders holding "B" Shares.
15. REPRESENTATIVES
15.1 APPOINTMENT OF REPRESENTATIVE BY CORPORATION
Any Corporation which is a Shareholder of the Company may by a document
in writing signed or sealed on its behalf authorise such person as it
thinks fit ("REPRESENTATIVE") to act as its representative at all or
any meetings to be held during the continuance of the authority. The
person so authorised is, in accordance with his authority and until it
is revoked by such Corporation, entitled to exercise the same powers on
behalf of the
14
Corporation which he represents as that Corporation could exercise if
it were a natural person who was a Shareholder of the Company.
15.2 PROOF OF APPOINTMENT OR REVOCATION OF APPOINTMENT OF REPRESENTATIVE
A certificate under the seal of the Corporation or hand of a Director
appointed at the request of a Shareholder or such other document as the
chairman of the meeting in his sole discretion considers sufficient
shall be prima facie evidence of the appointment or of the revocation
of the appointment (as the case may be) of a Representative under this
Article 15, and notwithstanding anything hereinbefore contained the
certificate or such other document evidencing the appointment of a
Representative shall be deposited at or sent by post or facsimile to
the Office before the time scheduled for the commencement of the
meeting at which the Representative purports to exercise any powers
pursuant to it.
16. DIRECTORS
16.1 NUMBER OF DIRECTORS
The number of Directors shall be 3 or such other number being a
multiple of 3 (not being less than 3 or more than 6) as the
Shareholders may from time to time determine at a general meeting.
16.2 "A" SHAREHOLDERS APPOINT ONE-THIRD THE NUMBER OF DIRECTORS
The holder or holders of all of the "A" Shares issued in the Company
shall have the right to appoint up to one-third of the Directors and
the Directors so appointed are hereinafter referred to as Directors
appointed by the "A" Shareholders.
16.3 "B" SHAREHOLDERS APPOINT TWO-THIRDS THE NUMBER OF DIRECTORS
The holder or holders of all of the "B" Shares issued in the capital of
the Company shall have the right to appoint up to two-thirds of the
Directors and the Directors so appointed are hereinafter referred to as
Directors appointed by the "B" Shareholders.
16.4 DIRECTORS REMOVABLE ONLY BY THEIR APPOINTORS
Subject to the Corporations Law a Director appointed by the "A"
Shareholders may only be removed from office by the holder or holders
of a majority of the "A" Shares issued in the Company (by notice signed
by or on behalf of the "A" Shareholders to the Company) and a Director
appointed by the "B" Shareholders may only be removed from office by
the holder or holders of a majority of the "B" Shares issued in the
Company (by notice signed by or on behalf of the "B" Shareholders to
the Company).
16.5 WHEN NOTICE REMOVING DIRECTOR TAKES EFFECT
Every notice under Article 16.4 shall be left at or sent by post to the
Office. Subject to any provisions to the contrary in the notice, from
the time any such notice removing a Director is left at the Office (or
from the time 48 hours after any such notice removing a
15
Director is posted to the Office) the office of the Director so
removed shall be vacated and any Director appointed by the notice to
replace the Director so removed shall be entitled to act.
16.6 RESIGNATION OF DIRECTORS
A Director may resign from his office upon giving notice in writing to
the Company of his intention so to do.
16.7 NO REMUNERATION OF DIRECTORS
Unless and until the Board resolves to the contrary the Directors shall
not be paid out of the funds of the Company remuneration for their
services.
16.8 LIMITED ABILITY OF DIRECTORS TO ACT DURING VACANCIES
The continuing Directors may act notwithstanding any vacancy in their
body; but for so long as the number of Directors is below the minimum
of 3 fixed by these Articles, the Directors shall not act except for
the purpose of convening a general meeting of the Company.
16.9 VACATION OF OFFICE OF DIRECTOR: AUTOMATIC
The office of a Director shall ipso facto be vacated if he:
(a) becomes of unsound mind or a person whose person or estate is
liable to be dealt with in any way under the law relating to
mental health;
(b) is absent without the consent of the Directors from meetings of
the Directors held during a period of 3 months;
(c) is removed under the provisions of Article 16.4;
(d) resigns his office in accordance with Article 16.6; or
(e) otherwise ceases to be a Director by virtue of the Corporations
Law.
17. DIRECTORS' CONTRACTS WITH COMPANY
17.1 DIRECTOR MAY HOLD OTHER OFFICE OF PROFIT
A Director may hold any other office or place of profit under the
Company except that of auditor in conjunction with the office of
Director, on such terms as the Board may arrange.
17.2 CONTRACT NOT AVOIDED WHEN DIRECTOR INTERESTED
No Director shall be disqualified by his office from holding any office
or place of profit under any company in which the Company shall be a
shareholder or otherwise interested
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or from contracting with the Company either as vendor purchaser or
otherwise; nor shall any such contract or any contract or arrangement
entered into by or on behalf of the Company in which any Director
shall be in any way interested be avoided; nor shall any Director be
liable to account to the Company for any profit arising from any such
office or place of profit or realised by any such contract or
arrangement by reason only of such Director holding that office or of
the fiduciary relations thereby established; but the nature of his
interest must be disclosed by him in the manner required by the
Corporations Law and approved by the Board.
17.3 DIRECTOR MAY VOTE WHEN INTERESTED
A Director may vote in respect of any contract or arrangement in which
he is interested provided that he discloses his interest in advance to
the Board.
17.4 INTERESTED DIRECTOR MAY AFFIX SEAL NOTWITHSTANDING INTEREST
A Director may be appointed as the Director in whose presence the Seal
of the Company is to be affixed to any instrument notwithstanding that
he is interested in the contract or arrangement to which the instrument
relates.
17.5 RECORD OF DISCLOSURES BY DIRECTORS
It shall be the duty of the Secretary to record in the minutes any
disclosure given by a Director under this Article 17.
18. RESOLUTIONS BY BOARD
18.1 WRITTEN RESOLUTION APPROVED BY ALL DIRECTORS SAME AS MAJORITY VOTE AT
MEETING
A resolution in writing approved by all the Directors entitled to
receive notice of a meeting of the Board being not less than the number
of Directors required to constitute a quorum shall be as valid and
effectual as if it had been passed at a meeting of Directors duly
convened and held. Such approval may be in writing or may be by telex
or by facsimile to the Office.
18.2 FURTHER PROVISIONS REGARDING WRITTEN RESOLUTIONS
Without limiting the generality of Article 18.1:
(a) if all the Directors have signed a document or have all severally
signed facsimile copies thereof, containing a statement that they
are in favour of a resolution of the Board in terms set out in
the document, a resolution in those terms shall be deemed to have
been passed at a meeting of the Board held on the day on which
the document or facsimile copies were signed and at the time at
which the document or copies were last signed by a Director or,
if the Directors signed the document or copies on different days,
on the day on which, and at the time at which, the document or
copies were last signed by a Director;
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(b) for the purposes of Article 18.2(a), 2 or more separate documents
containing statements in identical terms each of which is signed
by one or more Directors shall together be deemed to constitute
one document containing a statement in those terms signed by
those Directors on the respective days on which they signed the
separate documents;
(c) a reference in Article 18.2(a) to all the Directors does not
include a reference to a Director who, at a meeting of the Board,
would not be entitled to vote on the resolution.
19. MANAGING DIRECTOR
19.1 NO MANAGING DIRECTOR
Unless and until it is unanimously otherwise resolved by the
Shareholders, a managing director shall not be appointed to the
Company.
19.2 RETIREMENT OF MANAGING DIRECTOR
Notwithstanding anything hereinbefore contained, a managing director,
if appointed, shall subject to the provisions of any contract between
him and the Company be subject to the same provisions as to resignation
and removal as the other Directors and he shall ipso facto and
immediately cease to be a managing director if he ceases to hold the
office of Director for any cause whatsoever.
19.3 REMUNERATION OF MANAGING DIRECTOR
The remuneration of any managing director and that of any other full
time executive Director shall be fixed by the Board, and may be by way
of fixed salary or commission on or percentage of profits of the
Company or of any other company in which the Company is interested or
partly in one way and partly in another or others, but shall not be by
way of commission on or percentage of operating revenue.
19.4 POWERS OF MANAGING DIRECTOR
If a managing director is appointed, the Board may from time to time
entrust to and confer upon a managing director for the time being such
of the powers exercisable under these Articles by the Board as it may
in its absolute discretion think fit, and may confer such powers for
such time and to be exercised for such objects and purposes and upon
such terms and conditions and with such restrictions as it deems
expedient. The Board may confer such powers either collaterally with or
to the exclusion of and in substitution for all or any of the powers of
the Board in that behalf and may from time to time revoke, withdraw,
alter or vary all or any of such powers.
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20. PROCEEDINGS OF BOARD
20.1 MEETINGS OF BOARD AND QUORUM FOR SAME
(a) The Board may meet together for the despatch of business, adjourn
and otherwise regulate its meetings as it in its absolute
discretion thinks fit. The quorum necessary for the transaction
of business shall be 2 persons consisting of one Director
appointed by the "A" Shareholders and one Director appointed by
the "B" Shareholders. A Director interested in a contract or
arrangement within the meaning of Article 17 shall be counted in
a quorum notwithstanding his interest.
(b) Without limiting the discretion of the Board to regulate its
meetings under Articles 20.1(a) or 18.1 or 18.2, the Board may if
it thinks fit confer by radio telephone closed circuit television
or other electronic means of audio or audio-visual communication,
and a resolution passed by such a conference shall,
notwithstanding the Directors are not present together in one
place at the time of the conference, be deemed to have been
passed at a meeting of the Board held on the day on which and at
the time at which the conference was held provided that all
Directors vote or approve the relevant resolutions. The
provisions of these Articles relating to proceedings of the Board
apply so far as they are capable of application and mutatis
mutandis to such conferences.
20.2 NOTICE OF BOARD MEETINGS
A Director may at any time, and the Secretary upon the request of a
Director shall, convene a meeting of the Board. Notice of every Board
meeting shall be given to each Director. Except in cases of unforeseen
and necessary urgency, ten clear business days notice shall be given of
all meetings of Board.
20.3 VOTES AT BOARD MEETINGS
Questions arising at any Board meeting shall be decided by a majority
of votes and each Director shall have one vote.
20.4 NO CASTING VOTE FOR CHAIRMAN OF BOARD
In case of an equality of votes the chairman of the meeting shall not
have a second or casting vote.
20.5 DIRECTOR APPOINTED BY TRANSFEROR OF SHARES
For the purposes of these Articles a Director appointed by a
Shareholder who later transfers its Shares to another Shareholder shall
be deemed to be a Director appointed by the latter Shareholder.
19
20.6 CHAIRMAN AND DEPUTY CHAIRMAN OF DIRECTORS
The Board may elect a chairman of the Board. The Board may also elect a
deputy chairman who in the absence of the chairman at a meeting of the
Board may exercise all the powers and authorities of the chairman. If
no chairman or deputy chairman is elected or if at any meeting the
chairman or deputy chairman is not present within half an hour of the
time appointed for holding the same, the Directors present shall choose
one of their number to be chairman of such meeting. The chairman and
the deputy chairman shall hold office until otherwise determined by the
Board or until they cease to be Directors.
20.7 QUORUM EMPOWERED TO EXERCISE POWERS OF BOARD
A meeting of the Board at which a quorum is present shall be competent
to exercise all or any of the authorities powers and discretions by or
under these Articles for the time being vested in or exercisable by the
Board generally.
20.8 COMMITTEE OF DIRECTORS
The Board may delegate any of its powers to committees (including a
scientific advisory committee) consisting of such member or members of
its body as it thinks fit and may from time to time revoke such
delegation. Any committee so formed shall in the exercise of the powers
so delegated conform to any regulations that may from time to time be
imposed upon it by the Board. The meetings and proceedings of any such
committee consisting of 2 or more members shall be governed mutatis
mutandis by the provisions herein contained for regulating the meetings
and proceedings of the Directors so far as the same are not
inconsistent with any regulations made by the Board under this clause.
Where a committee consists of 2 or more members, a quorum shall be any
2 members or such larger number as the committee itself determines.
20.9 DEFECTS IN APPOINTMENT OR QUALIFICATIONS OF DIRECTOR
All acts done at any meeting of the Directors or of a committee of
Directors or by any person acting as a Director shall notwithstanding
that it shall afterwards be discovered that there was some defect in
the appointment of a Director or of the committee or of the person
acting as aforesaid be as valid as if every such person or committee
had been duly appointed.
21. ALTERNATE DIRECTORS
21.1 APPOINTMENT AND REMOVAL OF ALTERNATE DIRECTORS
Each Director shall have power from time to time to appoint any person
(not being an auditor or a partner or employer or employee of an
auditor of the Company) to be an Alternate Director in his place during
such times and from time to time as he shall appoint and shall have
power at his discretion to remove such Alternate Director.
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21.2 NOTICE OF APPOINTMENT OR REMOVAL OF ALTERNATE DIRECTORS
Any appointment or removal as aforesaid shall be effected by telegram,
telex, cable, facsimile or other notice in writing to the Company.
21.3 RIGHTS AND POWERS OF ALTERNATE DIRECTORS
An Alternate Director may act in the place of the Director who
appointed him and shall be entitled to attend and vote at any meeting
of the Directors except while the Director who appointed him is
present, and shall have all the rights and powers other than those
conferred by this Article 21.3, and be subject to the duties of the
Director he represents, and shall be subject in all respects to the
conditions existing with reference to the other Directors except that
he shall not be entitled to be remunerated otherwise than out of the
remuneration of the Director who appointed him.
21.4 REMUNERATION OF ALTERNATE DIRECTORS
In respect of such remuneration (if any) the rights of the Alternate
Director shall be against the Director who appointed him only and not
against the Company.
21.5 ALTERNATE DIRECTOR IS OFFICER OF COMPANY
An Alternate Director shall be an officer of the Company and shall not
be deemed to be the agent of the Director appointing him.
21.6 VOTING RIGHTS OF ALTERNATE DIRECTORS
If the appointee is already a Director of the Company he shall be
entitled to vote at Board meetings on behalf of the Director appointing
him as well as on his own behalf, but for the purpose of determining
whether a quorum is present shall be counted only once.
21.7 ALTERNATE GOES WHEN DIRECTOR GOES
If any Director, who has for the time being an Alternate Director,
shall cease to be a Director, the Alternate Director shall thereupon
cease to be an Alternate Director provided however that when a Director
retires at an annual general meeting pursuant to these Articles and is
re-appointed as a Director at such meeting his Alternate Director (if
any) shall not ipso facto cease to be an Alternate Director unless the
instrument appointing him as an Alternate Director otherwise provides.
An Alternate Director need not be a shareholder of the Company.
21.8 FORM ON APPOINTMENT OF ALTERNATE DIRECTOR
Any instrument appointing an Alternate Director shall as nearly as
circumstances will admit be in the following form or to the effect of
the following:
"[ ]
21
I, the undersigned being a Director of the above named Company
in pursuance of the power in that behalf contained in the
Articles of Association of the Company DO HEREBY NOMINATE AND
APPOINT of to act as Alternate Director in my place and to
exercise and discharge all my duties as a Director.
Signed this day of 19 .",
or in such other form as the Directors may in particular cases accept.
22. OBLIGATION OF SECRECY
Every Director, managing director, manager, Secretary, auditor,
trustee, member of a committee, agent, accountant or other officer of
the Company shall be bound to observe secrecy with respect to all
transactions of the Company with its customers and the state of the
account of any individual and all matters relating thereto; and, if
required by the Directors, shall prior to entering upon his duties or
employment or at any time afterwards, sign and make a declaration in a
book to be kept for that purpose that he will not reveal or make known
any of the matters, affairs or concerns which may come to his knowledge
as such Director, managing director, manager, Secretary, auditor,
trustee, member of a committee, agent, accountant or other officer
whether relating to transactions of the Company with its customers or
the state of the account of any individual or to anything else, to any
person or persons except in the course and in the performance of his
duties, or under compulsion or obligation of law, or when officially
required to do so by the Board or by the auditors for the time being or
by any general meeting of Shareholders.
23. MINUTES
23.1 MINUTES OF ALL PROCEEDINGS TO BE KEPT
The Directors shall cause minutes of all proceedings of general
meetings and of the Board (including committees) to be duly entered in
books kept for such purpose in accordance with the requirements of the
Corporations Law.
23.2 INSPECTION OF MINUTES OF GENERAL MEETINGS
Books containing the minutes of proceedings of general meetings shall
be open for inspection by any Shareholder without charge.
24. POWERS AND DUTIES OF DIRECTORS
24.1 DIRECTORS HAVE POWERS OF THE COMPANY
Subject to the Corporations Law and to these Articles, the management
of the business of the Company shall be vested in the Board and the
Board may exercise all such powers and do all such acts and things as
the Company is authorised or permitted to exercise and do and as are
not hereby or by statute directed or required to be exercised or done
by the Company in general meeting.
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24.2 BOARD MAY EXERCISE COMPANY'S POWER TO BORROW
Without limiting the generality of Article 24.1 hereof, the Board may
exercise all the powers of the Company to borrow money to charge any
property or business of the Company or all or any of its uncalled
capital and to issue debentures or give any other security for a debt
liability or obligation of the Company or of any other person and may
exercise all the powers of the Company in relation to any official seal
for use outside the State and in relation to branch registers.
24.3 BOARD MAY APPOINT ATTORNEY OR AGENT
The Board may, by resolution, power of attorney under seal or other
written instrument, appoint any person or persons to be attorney or
agent of the Company for such purposes, with such powers, authorities
and discretions being powers, authorities and discretions vested in or
exercisable by the Board for such period and subject to such conditions
as it in its absolute discretion thinks fit. Any such appointment may
be on such terms for the protection and convenience of persons dealing
with the attorney or agent as the Board thinks fit and may also
authorise the attorney or agent to delegate all or any of the powers,
authorities and discretions vested in him.
25. SECRETARY
25.1 APPOINTMENT AND REMOVAL OF SECRETARY
A Secretary or Secretaries shall in accordance with the Corporations
Law be appointed by the Board for such term, and upon such conditions
as they may think fit, and any Secretary so appointed may be removed by
the Board.
25.2 ACTING SECRETARY
The Board may also at any time appoint a person as an acting Secretary
or as a temporary substitute for a Secretary who shall for the purpose
of these Articles be deemed to be a "Secretary".
26. THE SEALS
26.1 CUSTODY AND USE OF SEAL
The Board shall provide a Seal for the Company and shall provide for
the safe custody of that Seal, which shall only be used by the
authority of the Board or of a committee of the Board authorised by the
Board in that behalf. Every instrument to which the Seal shall be
affixed shall subject to any provisions contained in this Article be
signed by a Director and shall be countersigned by the Secretary or by
another Director or by some other person appointed by the Board for the
purpose.
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26.2 EFFECT OF SEALING
Any instrument bearing the Seal or an official seal shall if issued for
valuable consideration be binding on the Company notwithstanding any
irregularity touching the authority of the Directors to issue the same
or the circumstances of its issue.
27. RESERVE FUND AND DIVIDENDS
27.1 ESTABLISHMENT AND PURPOSE OF RESERVE FUNDS
Subject always to the Corporations Law, the Board may before
recommending any dividend, set aside out of the profits of the Company
such sum as it thinks proper as a reserve fund to be applied at the
absolute discretion of the Board for any purpose for which the profits
of the Company may be properly applied including, but not limited to
the following: to meet contingencies or for equalising dividends or for
special dividends or for repairing, improving and maintaining any
property of the Company or for such other purposes as the Board shall
in its absolute discretion deem conducive to the interests of the
Company.
27.2 POWER TO INVEST RESERVE FUND
The Board may invest the several sums so set aside upon such
investments as it may in its absolute discretion think fit and from
time to time deal with and vary such investments and dispose of all or
any part thereof for the benefit of the Company. The Board may divide
the reserve fund into such special funds as it in its absolute
discretion thinks fit and employ the reserve fund or any part thereof
in the business of the Company without being bound to keep the same
separate from the other assets. Pending any such application the
reserves may at the absolute discretion of the Board be used in the
business of the Company or be invested in such investments as the Board
thinks fit.
27.3 PROFITS MAY BE CARRIED FORWARD WITHOUT GOING TO RESERVE
The Board may carry forward so much of the profits remaining as it
considers ought not to be distributed as dividends without transferring
those profits to reserve.
27.4 PROFITS TO BE DISTRIBUTED AMONG SHAREHOLDERS IN PROPORTION TO NOMINAL
CAPITAL PAID UP ON THEIR SHARES
Subject to any special rights or restrictions for the time being
attaching to any shares, and subject to Article 28.1, the profits of
the Company shall be divisible among the Shareholders in proportion to
the amount of the nominal share capital paid up on the shares held by
them respectively at the time as at which entitlements thereto are
determined. Subject as aforesaid, any nominal share capital paid up on
a share during the period in respect of which a dividend is declared
shall unless the terms of issue thereof otherwise provide only entitle
the holder of such share to an apportioned amount of such dividend as
from the date of payment. A declaration by the Board as to the amount
of profits available for dividend shall be conclusive.
24
27.5 DECLARATION OF DIVIDENDS
A general meeting or the Board without the sanction of a general
meeting may declare a dividend whether interim or final to be paid to
the Shareholders according to their rights and interests in the profits
at the time of entitlement to dividend and may fix the times for
determining entitlements to and for the payment of the dividend. No
larger dividend shall be declared by a general meeting than is
recommended by the Board and the Board may in its absolute discretion
declare and pay or recommend such dividends as in its opinion the
position of the Company justifies.
27.6 NO INTEREST ON DIVIDENDS
No dividend shall carry interest as against the Company.
27.7 PAYMENT OF DIVIDENDS WITH ASSETS, SHARES OR DEBENTURES
The Board or a general meeting on the recommendation of the Board may
resolve when declaring a dividend that such dividend be paid wholly or
in part by the distribution of specific assets, including paid up
shares in of the Company or of any other Corporation, and the Board
shall give effect to that resolution. Where any dispute arises in
regard to such a distribution the Board may settle the matter as it in
its absolute discretion considers expedient, fix the value for
distribution of the specific assets or any part of those assets, and
may determine that cash payments will be made to any Shareholders on
the basis of the value so fixed in order to adjust the rights of all
parties, and may vest any such specific assets in trustees as the Board
in its absolute discretion considers expedient.
27.8 METHOD OF PAYMENT OF DIVIDENDS
Unless otherwise directed any dividend may be paid by cheque sent
through the post to the registered address of the Shareholder and every
cheque so sent shall be made payable to the person to whom it is sent
and shall be at his risk. Moneys earned by the Company on the amount of
a dividend pending clearance of such a cheque or other collection
thereof by a Shareholder shall be for the benefit of the Company.
27.9 POWER OF RETAIN DIVIDENDS ON WHICH THERE IS A LIEN
The Board may retain any dividends on which the Company has a lien and
may apply the same in or towards satisfaction of the debts liabilities
or engagements in respect of which the lien exists.
27.10 EFFECT ON DIVIDENDS OF TRANSFERS OF SHARES
A transfer of shares shall not pass the right to any dividend declared
thereon and the entitlement to which has accrued before the
registration of the transfer.
25
28. CAPITALISATION OF PROFITS
28.1 PROFITS AND PREMIUMS MAY BE CAPITALISED
The Board or, upon the recommendation of the Board, any general meeting
may from time to time resolve that any moneys, investments or other
assets forming part of the undivided profits of the Company, standing
to the credit of the reserve fund or in the hands of the Company and
available for dividend or any amount representing premiums received on
the issue of shares and standing to the credit of the share premium
account be capitalised and distributed amongst Shareholders.
28.2 PROPORTIONATE DISTRIBUTION OF AMOUNTS CAPITALISED
Such distribution shall be made to such Shareholders as would be
entitled to receive the same if distributed by way of dividend and in
the same proportions on the footing that they become entitled thereto
as capital and that all or any part of such capitalised fund be applied
on behalf of such Shareholders:
(a) in paying up in full either at par or at such premium as the
resolution may provide any unissued shares or debentures of the
Company which shall be distributed accordingly; or
(b) in or towards payment of the uncalled liability on any issued
shares or debentures of the Company, and that such distribution
or payment shall be accepted by such Shareholders in full
satisfaction of their interest in the said capitalised sum.
28.3 DETERMINATION OF ENTITLEMENT TO DISTRIBUTION
The resolution may fix the time as at which entitlements to such
distribution are determined.
28.4 SETTLEMENT OF DISPUTES ABOUT DISTRIBUTION
For the purpose of giving effect to any resolution under Article 28.3,
the Board may settle any dispute which may arise in regard to the
distribution as it thinks expedient and in particular may:
(a) in cases where shares become issuable in fractions, issue
fractional certificates, make cash payments or declare that
fractions be ignored; and
(b) authorise any person to make on behalf of all the Shareholders
entitled to any further shares upon the capitalisation an
agreement with the Company, providing for the issue to them,
credited as fully paid up, of any such further shares or
debentures or for the payment up by the Company on their behalf
of the amounts or any part of the amounts remaining unpaid on
their existing shares by the application of their respective
proportions of the sum resolved to be capitalised and any
agreement made under such authority shall be effective and
binding on all members concerned.
26
29. ACCOUNTS
29.1 COMPANY TO KEEP
The Company shall cause to be kept such accounting and other records as
will correctly record and explain the transactions and financial
position of the Company and shall keep such records in such manner as
will enable the preparation from time to time of true and fair accounts
of the Company and as will enable such accounts to be conveniently and
properly audited.
29.2 ANNUAL ACCOUNTS TO BE LAID BEFORE ANNUAL GENERAL MEETING
At the annual general meeting in every year the Board shall lay before
the Company a profit and loss account and balance sheet for the last
financial year of the Company together with such other accounts reports
and statements as are required by the Corporations Law.
29.3 COPY OF ACCOUNTS TO BE SENT
A copy of every document which is by Article 29.2 required to be laid
before each annual general meeting shall be sent to all persons
entitled to receive notices of general meetings with the notice of
meeting but in any event not later than 4 months after the end of the
financial year.
30. AUDITORS: APPOINTMENT AND REMOVAL
Auditors of the Company shall be appointed and may be removed as
provided in the Corporations Law and they shall perform such duties and
have such rights and powers as may be provided in the Corporations Law.
31. INSPECTION OF RECORDS
The Board shall determine whether and to what extent and at what time
and places and under what conditions the accounting records and other
documents of the Company will be open to the inspection of Shareholders
other than Directors, and a Shareholder not being a Director does not
(except as provided by law or authorised by the Board) have the right
to inspect or to require or receive any information or to require
discovery of any record or document of the Company or any information
respecting any detail of the Company's trading or business including
any matter which is or may be in the nature of a trade secret or secret
process relating to the conduct of the business of the Company.
32. NOTICES
32.1 METHOD OF SERVICE OF NOTICES
All notices must be in the English language. A notice may be served by
the Company upon any Shareholder either personally or by certified or
registered mail addressed to such Shareholder at its registered place
of address. At the time of giving any notice a
27
Shareholder shall send a courtesy copy by facsimile to the other
parties but such facsimiles will not be treated as formal notice.
Notices shall be deemed validly received at the certificate date of
delivery or when left personally. Any Shareholder may at any time
change its address by notifying the Company and the other Shareholders
of such change.
32.2 AIR-MAIL POSTAGE TO OVERSEAS SHAREHOLDERS WITHOUT AUSTRALIAN ADDRESS
As regards those Shareholders who have no registered place of address
in the Commonwealth of Australia, all notices by mail shall be posted
by air-mail.
32.3 NOTICE BY ADVERTISEMENT
Any notice by a court of law or otherwise required or allowed to be
given by the Company to the Shareholders or any of them by
advertisement shall unless otherwise stipulated be sufficiently
advertised if advertised once in 2 daily newspapers circulating in the
State provided that such notice is promptly given to all the
Shareholders.
32.4 UNREGISTERED TRANSFEREES BOUND BY NOTICES
Every person who by operation of law, transfer or other means
whatsoever becomes entitled to any share shall be bound by every notice
in respect of such share which prior to his name and address being
entered on the Register was given to the person from whom he derived
his title to such share and to every previous holder thereof.
32.5 SIGNATURES ON NOTICE
The signature to any notice to be given by the Company shall be
original.
33. WINDING UP
33.1 DISTRIBUTION OF PROPERTY IN SPECIE
If the Company is wound up the liquidator may with the sanction of a
special resolution divide among the Shareholders in kind the whole or
any part of the property of the Company and may for that purpose set
such value as he considers fair upon any property to be so divided and
may determine how the division is to be carried out as between the
Shareholders or different classes of Shareholders.
33.2 DISTRIBUTION TO BE IN PROPORTION TO NOMINAL SHARE CAPITAL PAID UP
The property of the Company shall be divided amongst the Shareholders
in proportion to the nominal share capital paid up on their shares and
this shall be so whether or not the liquidator exercises the power
given to him by Article 33.1.
28
33.3 SPECIAL RIGHTS PREVAIL
Articles 33.1 and 33.2 are without prejudice to the rights of holders
of shares issued upon special terms and conditions.
33.4 VESTING OF PROPERTY IN TRUSTEES FOR CONTRIBUTORIES
The liquidator may, with the sanction of a special resolution, vest the
whole or any part of such property in trustees upon such trusts for the
benefit of the contributories or any of them as the liquidator thinks
fit.
33.5 ENCUMBERED PROPERTY: SHAREHOLDER NOT COMPELLED TO ACCEPT
No Shareholder shall be compelled to accept any property in respect of
which there is any liability under the provisions of this Article 33.
34. INDEMNITY
Subject to the provisions of section 241 of the Corporations Law (or of
any provisions enacted in place of that provision):
(a) every officer or auditor of the Company shall be indemnified out
of the property of the Company against any liability incurred by
him in his capacity as officer or auditor in defending any
proceedings whether civil or criminal in which judgment is given
in his favour or in which he is acquitted or in connection with
any application in relation to any such proceedings in which
relief is under the Corporations Law granted to him by the Court;
(b) every officer or auditor of the Company shall be indemnified out
of the property of the Company against all costs losses and
expenses including travelling expenses incurred by him in his
capacity as an officer or auditor by reason of any contract
entered into or other act or thing properly done by him as an
officer or auditor or in any way in the discharge of his duties
unless the same arise from his own negligence default breach of
duty or breach of trust and it shall be the duty of the Board to
pay the same out of the funds of the Company; and
(c) no Director or other officer of the Company shall be liable for
the acts, receipts, neglects or defaults of any other Director or
officer or for joining in any receipt or other act for
conformity, or for any loss or expense happening to the Company
through the insufficiency or deficiency of title to any property
acquired by order of the Board for or on behalf of the Company,
or for the insufficiency or deficiency of any security in or upon
which any of the moneys of the Company shall be invested, or for
any loss or damage arising from the bankruptcy, insolvency or
tortious act of any person with whom any moneys, securities or
effects are deposited, or for any loss occasioned by any error of
judgment or oversight on his part, or for any other loss, damage
or misfortune which occurs in the execution of the duties of his
office or in relation thereto, unless the same arises through his
own negligence, default, breach of duty or breach of trust.
00
XXXXXXXX "X"
(Filed as Exhibit 10.11)
ANNEXURE "C"
CONSULTANCY AGREEMENT
Date: 5 April 1994
STEM CELL SCIENCES PTY LTD
ACN 063 293 130
Company
CASTELLA RESEARCH PTY LTD
ACN 000 000 000
Consultant
XX. XXXXXXX XXX XXXXXXX
Nominated Executive
TABLE OF CONTENT'S
1. DEFINITIONS AND INTERPRETATION............................................1
1.1 Definitions......................................................1
1.2 Interpretation...................................................2
2. ENGAGEMENT................................................................2
2.1 Engagement.......................................................2
2.2 Non-exclusivity..................................................2
3. TERM......................................................................3
4. CONSULTANT'S DUTIES.......................................................3
4.1 Specific duties..................................................3
4.2 General duties...................................................3
5. COMPANY'S OBLIGATIONS.....................................................4
6. FEES......................................................................4
6.1 Consultant's retainer............................................4
7. EXPENSES..................................................................4
7.1 No reimbursement of unauthorised expenses........................4
7.2 Consultant responsible for payment of Executives, etc............4
7.3 Initial Expenses.................................................5
8. CONSULTANT'S ACKNOWLEDGEMENTS.............................................5
8.1 Confidential Information.........................................5
8.2 Undertakings.....................................................5
9. CONFIDENTIALITY...........................................................6
10. DISCOVERIES...............................................................6
10.1 Information......................................................6
10.2 Inventions.......................................................6
11. NON-COMPETITION...........................................................7
11.1 During the Engagement............................................7
11.2 After the Engagement.............................................7
11.3 No representations after Engagement terminated...................7
12. TERMINATION...............................................................8
12.1 Immediate termination by the Company.............................8
12.2 Not to prejudice rights..........................................8
13. RETURN OF MATERIALS.......................................................8
13.1 Consultant to return materials...................................8
13.2 Materials to be property of the Company..........................9
i
14. RELATIONSHIP..............................................................9
14.1 Parties' relationships...........................................9
14.2 Consultant indemnifies Company in certain respects...............9
15. FURTHER ACTS..............................................................9
16. NOTICES..................................................................10
16.1 Service of notice...............................................10
17. ASSIGNMENT...............................................................10
17.1 By the Company..................................................10
17.2 By the Consultant...............................................10
18. NO WAIVER................................................................11
19. SEVERABILITY.............................................................11
20. VARIATION................................................................11
21. GOVERNING LAW............................................................11
ii
12
CONSULTANCY AGREEMENT made on 5 April 1994.
BETWEEN STEM CELL SCIENCES PTY LTD ACN 063 293 130 a company
incorporated in Victoria and having its registered office in
that State at Xxxxx 00, 000 Xx. Xxxxx Xxxx, Xxxxxxxxx
("COMPANY")
AND CASTELLA RESEARCH PTY LTD ACN 000 000 000 a company
incorporated in the State of Victoria and having its
registered office in that State at the offices of Xxxxxx Xxxxx
& Co Pty Ltd at 000 Xxxxxxxxxx Xxxx, Xxxx Xxxxxx in its own
capacity and as trustee of the X.X. Xxxxxxx Family Trust
("CONSULTANT")
AND XX. XXXXXXX XXX XXXXXXX of 00 Xxxxxxxx Xxxxxx, Xxxx Ivanhoe in
the State of Victoria ("NOMINATED EXECUTIVE")
RECITALS
A. The Company carries on the Business (as defined in the Shareholders
Agreement).
B. The Consultant carries on the business of providing consulting,
management and administrative services to other organisations.
C. The Company wishes to avail itself of the expertise of the Consultant
and its employees in the Company's areas of business.
IT IS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"BUSINESS DAY" means a day on which banks are open for business in the
State.
"CONFIDENTIAL INFORMATION" has the meaning given in clause 8.
"DOCUMENTS" includes software (including source code and object code
versions) manuals, diagrams, graphs, charts, projections,
specifications, estimates, records, concepts, documents, accounts,
plans, formulae, designs, methods, techniques, processes, supplier
lists, price lists, customer lists, market research information,
correspondence, letters and papers of every description including all
copies of and extracts from the same.
"ENGAGEMENT" means the engagement of the Consultant under this
Agreement.
"EXECUTIVES" means the Nominated Executive and such other persons
employed by the Consultant who are skilled, qualified and experienced
in the Business.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement of even date
herewith between BioTransplant Incorporated, the Consultant, Secure
Sciences Pty Ltd ACN 064 139 948 and the Company.
"STATE" means the State of Victoria.
1.2 INTERPRETATION
In this Agreement:
(a) clause headings are inserted for convenience only and do not
affect interpretation;
and unless the context otherwise requires:
(b) references to a clause will be construed as references to a
clause of this Agreement;
(c) references to "this Agreement" or to any specified provision of
this Agreement or to any other agreement or document will be
construed as references to this Agreement or the specified
provision of this Agreement or that other agreement or document
as amended or substituted with the agreement of the relevant
parties and in force at any relevant time;
(d) references to any statute, ordinance or other law include all
regulations and other enactments thereunder and all
consolidations, amendments, re-enactments or replacements
thereof;
(e) words importing the singular include the plural and vice versa,
words importing a gender include other genders and references to
a person will be construed as including an individual, the estate
of an individual, firm, body corporate, association (whether
incorporated or not), government and governmental,
semi-governmental and local authority or agency; and
(f) words and phrases given a particular meaning in the Shareholders
Agreement, have the same meaning when used in this Agreement.
2. ENGAGEMENT
2.1 ENGAGEMENT
The Company engages the Consultant on the terms of this Agreement and
the Consultant accepts that engagement.
2.2 NON-EXCLUSIVITY
Subject to the provisions of this Agreement including Clause 11, the
Consultant and the Executives may provide their respective services in
relation to matters outside the FIELD (as defined in the BTI Research
and License Agreement) to any other person during the Engagement, but
the Company at all times has first priority over the services of the
Consultant and the Executives.
2
3. TERM
The Engagement commences on 5 April, 1994, and subject to the
provisions for termination of the Engagement contained in this
Agreement, the Engagement will be for a term of 4 years from
commencement ("TERM").
4. CONSULTANT'S DUTIES
4.1 SPECIFIC DUTIES
During the Engagement the Consultant will advise the Company in
relation to such aspects of the Business as the Board from time to time
requires and in particular will be responsible to the Company for
implementation of the RESEARCH plan in Appendix A of the BTI Research
and License Agreement and of all other RESEARCH plans prepared pursuant
to the BTI Research and License Agreement from time to time.
4.2 GENERAL DUTIES
In the discharge of the specific duties the Consultant will:
(a) act with professional skill as consultant to the Company with a
view to promoting, advancing and improving the Business;
(b) comply with all policies, directions and resolutions of the Board
and any nominee of the Board;
(c) subject only to the policies, directions and resolutions of the
Board, act on its own responsibility and initiative and exercise
all powers as may be granted to it by the Board or any nominee of
the Board from time to time;
(d) make regular reports at any intervals or on any occasions as the
Board or any nominee of the Board stipulates, and on any matters
as the Board or any nominee of the Board requires;
(e) at all times provide the Nominated Executive and such number of
other Executives as the parties from time to time agree, and
procure that the Nominated Executive and those Executives devote
all of their time and attention to the Business to ensure its
promotion to the best of their and the Consultant's ability,
subject only to the obligations of the Nominated Executive to the
University of Melbourne as at the date hereof;
(f) cause the Executives to comply with clauses 4.2(a)-(d) in their
performance of the Consultant's duties and cause the Consultant
to perform all duties and exercise any powers as the Board may
from time to time assign to it;
3
(g) permit the Executives to be appointed and act as directors of the
Company or of any related body corporate of the Company if the
Board so requires;
(h) not change, replace or substitute any of the Executives without
the consent in writing of the Company;
(i) perform any services for any related body corporate of the
Company as the Board may from time to time reasonably require;
and
(j) itself, and will ensure that the Executives, refer to the Company
for first refusal any project which comes before the Consultant
or the Executives which is similar to projects handled by the
Company in its ordinary course of business.
5. COMPANY'S OBLIGATIONS
During the Engagement the Company will give the Consultant and the
Executives access to all information in relation to the Business and to
all facilities as they reasonably require to enable them to carry out
the Consultant's duties under this Agreement.
6. FEES
6.1 CONSULTANT'S RETAINER
During the Engagement, the Company will pay to the Consultant a
retainer at the rate of $5,000.00 per month (or other rate as may from
time to time be agreed between the parties), which will be deemed to
accrue rateably from day to day, and be payable in arrears on the last
day of each month.
7. EXPENSES
7.1 NO REIMBURSEMENT OF UNAUTHORISED EXPENSES
The Consultant will perform its obligations under this Agreement at its
own cost, and unless expressly authorised in writing by the Board,
neither the Consultant nor any of the Executives will be entitled to be
reimbursed for any out of pocket expenses incurred in connection with
the performance of the Consultant's duties under this Agreement.
7.2 CONSULTANT RESPONSIBLE FOR PAYMENT OF EXECUTIVES, ETC.
The Consultant will be solely responsible for and solely bear:
(a) the payment of remuneration to the Executives and all its other
servants, agents and contractors, including salaries and wages,
annual leave, sick leave, long service leave and all other
benefits to which any of them may be entitled under any contract
of service with the Consultant or under any award, statute or
common law;
(b) the payment of all taxes and duties in respect of that
remuneration and benefits;
4
(c) maintenance of, and the costs in respect of the maintenance of,
adequate insurance in respect of workers' compensation and all
other risks appropriate to the duties of the Executives,
servants, agents and contractors; and
(d) compliance with, and all costs of compliance with, all other
statutory, award or other legal or contractual requirements with
respect to the Executives, servants, agents and contractors.
7.3 INITIAL EXPENSES
The Company will reimburse the Consultant $25,000.00 within 7 days of
the date of this Agreement for expenses incurred by the Consultant
prior to the date hereof in relation to the Business.
8. CONSULTANT'S ACKNOWLEDGEMENTS
8.1 CONFIDENTIAL INFORMATION
The Consultant acknowledges that:
(a) the property of the Company and its related bodies corporate
includes and will include all knowhow, technology, research,
employee skills, trade and business secrets and other
confidential information and Documents relating to the Business
or other affairs of the Company and its related bodies corporate
or any person with whom the Consultant or any of the Executives
comes into contact as a result of this Agreement, or which come
into the Consultant's or any of the Executives' possession in the
course and by reason of the Engagement, whether or not the same
were originally supplied by the Company or its related bodies
corporate ("CONFIDENTIAL INFORMATION");
(b) the Confidential Information has been and will be acquired by the
Company or its related bodies corporate at the Company's or the
related body corporate's initiative and expense; and
(c) the Company and its related bodies corporate have expended and
will expend effort and money in establishing and maintaining the
Confidential Information.
Accordingly, it is reasonable that the Consultant should enter into the
representations and warranties contained in this Agreement and, if the
Engagement is terminated, the Consultant should continue to be subject
to the restrictions set out in clauses 9, 10 and 11.
8.2 UNDERTAKINGS
At the Company's request, the Consultant will cause the Executives and
any other servant, agent or contractor of the Consultant to execute
confidentiality and non-competition undertakings in favour of the
Company in a form as may be reasonably required by the Company relating
to the matters in this clause 8 and in clauses 9, 10 and 11.
5
9. CONFIDENTIALITY
The Consultant represents and warrants that it will not, and will
procure that the Executives will not (subject only to the contrary
obligations of the Nominated Executive owed to the University of
Melbourne as at the date hereof which remain in existence at the
relevant time), either during the Engagement or at any time thereafter
except in the proper course of the Consultant's duties under this
Agreement or as required by law or by the Company, use or disclose to
any person any Confidential Information, and the Consultant will use
its best endeavours to prevent the unauthorised use or disclosure of
that information by third parties.
10. DISCOVERIES
10.1 INFORMATION
The Consultant represents and warrants that:
(a) it will immediately inform the Company of any matter which may
come to its notice or to the notice of any of the Executives
during the Engagement which may be of interest or of any
importance or use to the Company or its related bodies corporate;
and
(b) it will immediately communicate to the Company any proposals or
suggestions occurring to it or any of the Executives during the
Engagement which may be of service for the furtherance of the
business of the Company or its related bodies corporate.
10.2 INVENTIONS
The Consultant represents and warrants that:
(a) it will immediately communicate to the Company any and all
processes, inventions, improvements, innovations, modifications
and discoveries which it or any of the Executives make, either
alone or in conjunction with others, in connection with or
arising out of the Engagement and in any way connected with any
of the matters in which the Company has been or is now or
hereafter interested during the Engagement ("INVENTIONS"),
whether or not the Inventions are capable of being protected by
copyright, letters patent, registered design or other protection
("PROTECTION"), and the Inventions will be the exclusive property
of the Company; and
(b) it will immediately deliver to the Company full particulars
concerning the Inventions, and at the expense of the Company,
execute all documents and do and execute all such acts, matters
and things as may be necessary or reasonable to obtain Protection
for the Inventions, and to assign to the Company all rights which
may be acquired by it or any of the Executives in relation to
them and to vest tide in them in the Company absolutely.
6
11. NON-COMPETITION
11.1 DURING THE ENGAGEMENT
The Consultant represents and warrants that it will not, and that it
will procure that the Executives will not (subject only to the contrary
obligations of the Nominated Executive owed to the University of
Melbourne as at the date hereof which remain in existence at the
relevant time), during the Engagement either directly or indirectly in
any capacity (including without limitation as principal, agent,
partner, employee, shareholder, unitholder, joint venturer, director,
trustee, beneficiary, manager, consultant or adviser) carry on, advise,
provide services to or be engaged, concerned or interested in or
associated with any business or activity which is competitive with any
business carried on by the Company or any of its related bodies
corporate, or be engaged or interested in any public or private work or
duties which in the reasonable opinion of the Board may hinder or
otherwise interfere with the performance of the Consultant of its
duties under this Agreement.
11.2 AFTER THE ENGAGEMENT
The Consultant represents and warrants that it will not, and that it
will procure that the Executives will not, during the period of 24
months after termination of the Engagement, however that termination
occurs:
(a) anywhere within Australia, the United Kingdom or the United
States of America, directly or indirectly in any capacity
(whether as principal, agent, partner, employee, shareholder,
unitholder, joint venturer, director, trustee, beneficiary,
manager, consultant or adviser) carry on, advise, provide
services to or be engaged, concerned or interested in or
associated with any business or activity which is competitive
with any business carried on by the Company or any of its related
bodies corporate at the date of termination of the Engagement;
(b) canvass, solicit or endeavour to entice away from the Company any
person who or which at any time during the Term or at the date of
termination of the Engagement was or is a client or customer of
or supplier to the Company or any related body corporate of the
Company or in the habit of dealing with the Company or any such
related body corporate;
(c) solicit, interfere with or endeavour to entice away any employee
of the Company or any of its related bodies corporate; or
(d) counsel, procure or otherwise assist any person to do any of the
acts referred to in clauses 11.2(b) and (c).
11.3 NO REPRESENTATIONS AFTER ENGAGEMENT TERMINATED
The Consultant will not represent itself, and will procure that no
Executive will represent himself or herself, as being in any way
connected with the business of the Company or any of its related bodies
corporate at any time after the termination of the Engagement.
7
12. TERMINATION
12.1 IMMEDIATE TERMINATION BY THE COMPANY
The Company may at its sole discretion terminate the Engagement by
giving notice effective immediately if at any time:
(a) the Consultant or any of the Executives is or becomes in breach
of any of the material terms of this Agreement and if it is a
breach which is capable of being remedied and it is the first
occasion on which such type of breach has occurred, the breach is
not remedied to the reasonable satisfaction of the Company within
30 days after written notice is given to the Consultant by the
Company requiring the breach to be remedied; or
(b) the Consultant or any of the Executives is or becomes charged
with any criminal offence involving criminal intent, fraud,
dishonesty or moral turpitude which in the reasonable opinion of
the Board brings the Consultant or any of the Executives or the
Company or any of its related bodies corporate into disrepute; or
(c) the Consultant or any of the Executives is or becomes bankrupt,
or goes into liquidation, or makes a composition or arrangement
with creditors generally, or takes advantage of any statute for
the relief of insolvent debtors; or
(d) any of the Executives is or becomes of unsound mind or a person
whose person or estate is liable to be dealt with under any law
relating to mental health; or
(e) the Consultant is or becomes incompetent in the performance of
its duties under this Agreement; or
(f) the Consultant is or becomes continually or significantly absent
or neglectful of its duties under this Agreement;
(g) the Nominated Executive dies; or
(h) the Consultant ceases to be a shareholder in the Company.
12.2 NOT TO PREJUDICE RIGHTS
Termination of the Engagement will not prejudice any rights or remedies
already accrued to any party under, or in respect of any breach of,
this Agreement.
13. RETURN OF MATERIALS
13.1 CONSULTANT TO RETURN MATERIALS
The Consultant will return or cause the return of all Documents and
other materials relating to or concerning any Confidential Information,
and all materials supplied to the
8
Consultant or the Executives or otherwise in their possession or
within their control and containing or pertaining to any Confidential
Information, including all copies of those Documents and materials
then in existence:
(a) immediately on demand; or
(b) without demand as soon as such Documents and other materials or
any of them are no longer required by the Consultant for the
performance of its duties; or
(c) on the termination of the Engagement.
13.2 MATERIALS TO BE PROPERTY OF THE COMPANY
All notes and memoranda of information concerning any Confidential
Information made or received by the Consultant or any of the Executives
during the course of the Engagement are the property of the Company,
and will be surrendered by the Consultant at the same time as the
Documents and other materials referred to in clause 13.1 are due to be
returned to the Company.
14. RELATIONSHIP
14.1 PARTIES' RELATIONSHIPS
The relationship between the Company and the Consultant is that of
principal and contractor. Nothing in this Agreement will be taken as
constituting the Consultant, the Executives or any other servant, agent
or contractor of the Consultant an employee or servant of the Company
or any of its related bodies corporate.
14.2 CONSULTANT INDEMNIFIES COMPANY IN CERTAIN RESPECTS
The Consultant agrees to indemnify the Company and each of its related
bodies corporate against any action, suit, claim, demand, cost or
expense arising out of or referable to:
(a) any damage, injury or loss caused by or resulting from any wilful
or negligent act or omission or misfeasance of the Consultant,
the Executives or any other servant, agent or contractor of the
Consultant; and
(b) all injury, loss or damage sustained by any of the Executives or
any officer, servant, agent or contractor of the Consultant
incurred while attending to performance of the Consultant's
duties under, or incidental or preparatory to this Agreement,
unless the injury, loss or damage was caused by any wilful or
negligent act or omission of the Company or any officer, servant
or agent of the Company.
15. FURTHER ACTS
Each party will promptly do and perform all further acts, and execute
and deliver all further instruments required by law or reasonably
requested by any other party to
9
establish, maintain and protect the respective rights and remedies
of the parties and to carry out and effect the intent and purpose of
this Agreement.
16. NOTICES
16.1 SERVICE OF NOTICE
All notices, requests, consents and other documents authorised or
required to be given by or pursuant to this Agreement shall be given in
writing and either personally served or sent by certified or registered
mail addressed or sent by facsimile transmission as follows:
The Company or the Consultant or the Nominated Executive:
To: Xx Xxx Xxxx
X.X. Xxxxxxx & Xx.
Xxxxxxx: Xxxxx 00
000 Xx Xxxxx Xxxx
Xxxxxxxxx Victoria
Facsimile: (00) 000-0000
Notices, requests, consents and other documents ("NOTICES") shall be
deemed served or given:
(a) if personally served by being left at the address of the party to
whom the Notice is given between the hours of 9:00 am and 5:00 pm
on any Business Day, then in such case at the time the Notice is
so delivered;
(b) if sent by registered or certified mail, at the certified date of
delivery;
(c) if sent by facsimile transmission, on receipt by the sender of
confirmation of successful transmission.
Any, party may change its address for receipt of Notices at any time by
giving notice of such change to the other party. Any Notice given under
this Agreement may be signed on behalf of any party by the duly
authorised representative of that party and shall be sent to all other
parties to this Agreement.
17. ASSIGNMENT
17.1 BY THE COMPANY
The Company may assign the benefit of this Agreement to any related
body corporate of the Company.
17.2 BY THE CONSULTANT
The Consultant may not assign this Agreement without the prior written
consent of the Company.
10
18. NO WAIVER
Failure or omission by the Company at any time to enforce or require
strict or timely compliance with any provision of this Agreement will
not affect or impair that provision, or the right of the Company to
avail itself of the remedies it may have in respect of any breach of a
provision, in any way.
19. SEVERABILITY
Any provision of this Agreement which is or becomes illegal, void or
unenforceable will be ineffective to the extent only of such
illegality, voidness or unenforceability and will not invalidate the
remaining provisions.
20. VARIATION
This Agreement may not be changed or modified in any way after it has
been signed except in writing signed by or on behalf of all the
parties.
21. GOVERNING LAW
This Agreement is governed by, takes effect and will be construed in
accordance with the laws of the State, and the parties irrevocably and
unconditionally submit to the exclusive jurisdiction of the courts of
the State and courts entitled to hear appeals therefrom.
11
SIGNED as an agreement.
THE COMMON SEAL of STEM CELL )
SCIENCES PTY LTD ACN 063 293 130 )
was affixed by the authority of the )
Board of Directors in the presence of: )
[SIGNED BY XXXXXXX XXX XXXXXXX] [SIGNED BY XXXXX XXXXX
XXXXXXXXX]
-------------------------------------------- ---------------------------
(Signature of Secretary/Director) (Signature of Director)
[XXXXXXX XXX XXXXXXX] [XXXXX XXXXX XXXXXXXXX]
-------------------------------------------- ---------------------------
(Name of Secretary/Director in Full) (Name of Director in Full)
THE COMMON SEAL of )
CASTELLA RESEARCH PTY LTD ACN )
000 000 000 was affixed by the authority of )
the Board of Directors in the presence of: )
[SIGNED BY XXXXXXX XXX XXXXXXX] [SIGNED BY XXXXX XXXXXXX]
-------------------------------------------- ---------------------------
(Signature of Director) (Signature of Director)
[XXXXXXX XXX XXXXXXX] [XXXXX XXXXXXX]
-------------------------------------------- ---------------------------
(Name of Director in Full) (Name of Director in Full)
SIGNED by XX. XXXXXXX XXX ) [SIGNED BY XXXXXXX XXX XXXXXXX]
XXXXXXX in the presence of: )
---------------------------
(Signature)
[SIGNED BY XXXXX XXXXXX]
---------------------------
(Signature of Witness)
[XXXXX XXXXXX]
---------------------------
(Name of Witness in Full)
12
ANNEXURE "D"
DEED OF CONFIDENTIALITY AND
NON-COMPETITION
Date: 5 April 1994
STEM CELL SCIENCES PTY LTD
ACN 063 293 130
Company
XX. XXXXXXX XXX XXXXXXX
Executive
BIOTRANSPLANT INCORPORATED
BTI
TABLE OF CONTENTS
1. INTERPRETATION...................................................1
2. CONFIDENTIALITY..................................................2
3. DISCOVERIES......................................................2
3.1 Information.............................................2
3.2 Inventions..............................................3
4. NON-COMPETITION..................................................3
4.1 During the Engagement...................................3
4.2 After the Engagement....................................3
5. EXECUTIVE'S GUARANTEE AND INDEMNITY..............................4
5.1 Guarantee and Indemnity.................................4
5.2 Absolute Liability......................................4
5.3 Liability not to be Affected............................4
5.4 Continuing Security.....................................5
6. SEVERABILITY.....................................................5
7. VARIATION........................................................5
8. NO WAIVER........................................................5
9. NOTICES..........................................................5
9.1 Service of notice.......................................5
10. GOVERNING LAW....................................................7
i
DEED OF CONFIDENTIALITY AND NON-COMPETITION
DEED made on 5 April 1994
BETWEEN STEM CELL SCIENCES PTY LTD ACN 063 293 130 a company
incorporated in Victoria and having its registered office in
that State at Xxxxx 00, 000 Xx Xxxxx Xxxx Xxxxxxxxx
("COMPANY")
AND XX. XXXXXXX XXX XXXXXXX of 00 Xxxxxxxx Xxxxxx, Xxxx Ivanhoe
in the State of Victoria ("EXECUTIVE")
AND BIOTRANSPLANT INCORPORATED a corporation organised and
existing under the laws of the State of Delaware and having
its principal office at 13th Street, Building 96, Charlestown
Navy Yard, Charlestown MA, United States of America ("BTI")
IT IS AGREED:
RECITALS
A. By a consultancy agreement of even date between the Company, the
Executive and Castella Research Pty Ltd ACN 000 000 000 (the
"CONSULTANT") entered into by the Company at the request of the
Executive (the "CONSULTANCY AGREEMENT") the Consultant has agreed to
provide certain services to the Company.
B. The Executive acknowledges that it is reasonable for the Company (and
BTI as a major shareholder in the Company) to protect the goodwill of
the Business by securing from the Executive covenants restricting the
Executive from engaging in certain activities in competition with the
Company and other covenants as set out in this Deed.
C. The Executive acknowledges further that he will have access to
Confidential Information which represents a valuable asset of the
Company, and accordingly it is reasonable for the Company (and BTI as a
major shareholder in the Company) to further protect the goodwill of
the Business by securing from the Executive a covenant to treat the
Confidential Information as confidential.
D. In consideration of the Company at the request of the Executive
agreeing to execute the Consultancy Agreement, the Executive has agreed
to guarantee the performance of the Consultant under the Consultancy
Agreement.
THIS DEED WITNESSES:
1. INTERPRETATION
In this Deed:
(a) clause headings are for convenience only and do not affect
interpretation;
and unless the context otherwise requires:
(b) references to a clause are references to a clause of this Deed;
(c) references to "this Deed" or to any specified provision of this
Deed or to any other agreement or document will be construed as
references to this Deed or the specified provision of this Deed
or that other agreement or document as amended or substituted
with the agreement of the relevant parties and in force at any
relevant time;
(d) references to any statute, ordinance or other law include all
regulations and other enactments thereunder and all
consolidations, amendments, re-enactments or replacements
thereof;
(e) words importing the singular include the plural and vice versa,
words importing a gender include other genders and references to
a person will be construed as including an individual, the estate
of an individual, firm, body corporate, association (whether
incorporated or not), government and governmental,
semi-governmental and local authority or agency; and
(f) words and phrases given a particular meaning in the Consultancy
Agreement have the same meaning when used in this Deed.
2. CONFIDENTIALITY
Subject always to the contrary obligations of the Executive owed to the
University of Melbourne as at the date hereof which remain in existence
at the relevant time, the Executive covenants, represents and warrants
to the Company and to BTI (each severally and both jointly) that he
will not either during the Engagement or at any time thereafter, except
as required by law or by the Company, use or disclose to any person any
Confidential Information, and will use his best endeavours to prevent
the unauthorised use or disclosure of any Confidential Information by
third parties.
3. DISCOVERIES
3.1 INFORMATION
The Executive covenants, represents and warrants to the Company and to
BTI (each severally and both jointly) that:
(a) he will immediately inform the Company of any matter which may
come to his notice during the Engagement which may be of interest
or of any importance or use to the Company or its related bodies
corporate; and
(b) he will immediately communicate to the Company any proposals or
suggestions occurring to him during the Engagement which may be
of service for the furtherance of the Business of the Company or
its related bodies corporate.
2
3.2 INVENTIONS
Subject always to contrary obligations of the Executive owed to the
University of Melbourne as at the date hereof which remain in existence
at the relevant time, the Executive covenants, represents and warrants
to the Company and to BTI (each severally and both jointly) that:
(a) he immediately communicate to the Company any and all processes,
inventions, improvements, innovations, modifications and
discoveries which he may make either alone or in conjunction with
others in connection with or arising out of the Engagement or in
any way connected with any of the matters in which the Company
has been or is now or hereafter interested during the Engagement
("INVENTIONS"), whether or not the Inventions are capable of
being protected by copyright, letters patent, registered design
or other protection ("PROTECTION"), and the Inventions will be
the sole and exclusive property of the Company; and
(b) he will immediately deliver to the Company full particulars
concerning the Inventions, and will at the expense of the Company
execute all documents and do and execute all such acts, matters
and things as may be necessary or reasonable to obtain Protection
for the Inventions, and to assign to the Company all rights which
may be acquired by it in relation to them and to vest title in
them in the Company absolutely.
4. NON-COMPETITION
4.1 DURING THE ENGAGEMENT
The Executive covenants, represents and warrants to the Company and to
BTI (each severally and both jointly) that he will not without the
prior written consent of the Company during the Engagement either
directly or indirectly in any capacity (including without limitation as
principal, agent, partner, employee, shareholder, unitholder, joint
venturer, director, trustee, beneficiary, manager, consultant or
adviser) carry on, advise, provide services to or be engaged, concerned
or interested in or associated with any business or activity which is
competitive with any business carried on by the Company or any of its
subsidiaries or be engaged or interested in any public or private work
or duties which in the reasonable opinion of the Board may hinder or
otherwise interfere with the performance by the Consultant of its
duties and obligations under the Consultancy Agreement.
4.2 AFTER THE ENGAGEMENT
The Executive covenants, represents and warrants to the Company and BTI
(each severally and both jointly) that he will not during the period of
24 months after termination of the Engagement, however that termination
occurs:
(a) anywhere within Australia, the United Kingdom or the United
States of America, directly or indirectly in any capacity
(whether as principal, agent, partner, employee, shareholder,
unitholder, joint venturer, director, trustee, beneficiary,
3
manager, consultant or adviser) actually carry on, advise,
provide services to or be engaged, concerned or interested in or
associated with any business or activity which is competitive
with any business carried on by the Company or any of its
subsidiaries at the date of termination of the Engagement;
(b) canvass, solicit or endeavour to entice away from the Company any
person who or which at any time during the Term or at the date of
termination of the Engagement was or is a client or customer of
or supplier to the Company or any related body corporate of the
Company or in the habit of dealing with the Company or any such
related body corporate;
(c) solicit, interfere with or endeavour to entice away any employee
of the Company or any of its related bodies corporate; or
(d) counsel, procure or otherwise assist any person to do any of the
acts referred to in clauses 4.2(b) and (c).
5. EXECUTIVE'S GUARANTEE AND INDEMNITY
5.1 GUARANTEE AND INDEMNITY
The Executive unconditionally and irrevocably guarantees for the
benefit of the Company and BTI (each severally and both jointly) the
Consultant's performance of its obligations under the Consultancy
Agreement and indemnifies the Company and BTI (each severally and both
jointly) against all loss, liability and expense which they may suffer
or incur in consequence of any breach or default by the Consultant of
or in performance of the Consultant's obligations. The Executive
declares that the Company and BTI are entitled to enforce their rights
against him immediately on any breach or default by the Consultant. The
Company or BTI will not be required to enforce or exhaust all or any of
its rights against the Consultant before enforcing any of its rights
against the Consultant.
5.2 ABSOLUTE LIABILITY
The liability of the Executive hereunder shall be absolute and shall
not be subject to the execution of any other instrument or document by
any person and shall not be subject to the performance of any condition
precedent or subsequent whatsoever between or amongst any person or
persons whatsoever.
5.3 LIABILITY NOT TO BE AFFECTED
The liability of the Executive hereunder shall not be affected by any
act, omission, matter or thing whatsoever that would otherwise operate
in law or in equity to reduce or release the Executive from such
liability and without limiting the generality of the foregoing such
liability shall not be affected by the granting by BTI or the Company
to the Consultant of time, waiver, indulgence or concession or the
making of any composition or compromise with the Consultant; BTI or the
Company forbearing or neglecting to exercise any right for the
enforcement of its rights against the Consultant; any laches,
acquiescence or other act, neglect, default, omission or mistake by BTI
or the Company;
4
any variation in the terms of this Deed or the Consultancy Agreement
made either with or without the knowledge of the Executive; this Deed
or any obligation owed by the Consultant to BTI or the Company in
relation to the Consultancy Agreement being void, voidable or
otherwise unenforceable by BTI or the Company; the amendment of any
constituent document of the Consultant; or any failure by BTI or the
Company to disclose to the Executive any fact, circumstance or event
relating to the Consultant at any time prior to or during the currency
of this Deed.
5.4 CONTINUING SECURITY
This Deed shall be a continuing security notwithstanding any
termination by the Executive, settlement of account, intervening
payment, express or implied revocation or any other matter or thing
whatsoever and shall continue to secure to BTI and the Company the due
and punctual performance of all of the obligations of the Consultant
under the Consultancy Agreement until the expiration or termination of
that agreement.
6. SEVERABILITY
Any provision of this Deed which is or becomes illegal, void or
unenforceable will be ineffective to the extent only of such
illegality, voidness or unenforceability and will not invalidate the
remaining provisions.
7. VARIATION
This Deed will not be changed or modified in any way after it has been
signed except in writing signed on behalf of each of the parties.
8. NO WAIVER
Failure or omission by the Company or BTI at any time to enforce or
require strict or timely compliance with any provision of this Deed
will not affect or impair that provision in any way, or the right of
the Company or BTI to avail itself of the remedies it may have in
respect of any breach of a provision.
9. NOTICES
9.1 SERVICE OF NOTICE
All notices, requests, consents and other documents authorised or
required to be given by or pursuant to this Deed shall be given in
writing and either personally served or sent by certified or registered
mail addressed or sent by facsimile transmission as follows:
5
The Company:
To: Xx Xxx Xxxx
R.D. Larsson & Co
Address: Xxxxx 00
000 Xx Xxxxx Xxxx
Xxxxxxxxx Victoria
Facsimile: (00) 000-0000
BTI
To: BioTransplant Inc.
Address: 13th Street, Building 96
Charlestown Navy Yard
Xxxxxxxxxxx XX 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Attention: CEO
Facsimile: 000 000 0000
with a copy to:
Xxxxxx X Xxxxxxx, Esq
Carella, Byrne, Bain, Gilfillan, Xxxxxx,
Xxxxxxx & Olstein
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx XX 00000
Xxxxxx Xxxxxx of America
Facsimile: 000 000 0000
The Executive
To: Xx Xxx Xxxx
R.D. Larsson & Co
Address: Xxxxx 00
000 Xx Xxxxx Xxxx
Xxxxxxxxx Victoria
Facsimile: (00) 000-0000
Notices, requests, consents and other documents ("NOTICES") shall be
deemed served or given:
(a) if personally served by being left at the address of the party to
whom the Notice is given between the hours of 9:00 am and 5:00 pm
on any Business Day, then in such case at the time the Notice is
so delivered;
(b) if sent by registered or certified mail, at the certified date of
delivery;
(c) if sent by facsimile transmission, on receipt by the sender of
confirmation of successful transmission.
6
Any party may change its address for receipt of Notices at any time by
giving notice of such change to the other party. Any Notice given under
this Deed may be signed on behalf of any party by the duly authorised
representative of that party and shall be sent to all other parties to
this Deed.
10. GOVERNING LAW
This Deed is governed by, takes effect and will be construed in
accordance with the laws of Victoria, and the parties irrevocably and
unconditionally submit to the exclusive jurisdiction of the courts of
Victoria and courts entitled to hear appeals therefrom.
7
IN WITNESS the parties have executed and delivered this Deed.
THE COMMON SEAL of STEM CELL )
SCIENCES PTY LIMITED ACN 063 293 )
130 was affixed by the authority of the )
Board of Directors in the presence of: )
[SIGNED BY XXXXXXX XXX XXXXXXX] [SIGNED BY XXXXX XXXXX XXXXXXXXX]
-------------------------------------------- ---------------------------
(Signature of Secretary/Director) (Signature of Director)
[XXXXXXX XXX XXXXXXX] [XXXXX XXXXX XXXXXXXXX]
-------------------------------------------- ---------------------------
(Name of Secretary/Director in Full) (Name of Director in Full)
SIGNED, SEALED AND DELIVERED by ) [SIGNED BY XXXXXXX XXX XXXXXXX]
XX. XXXXXXX XXX XXXXXXX in the presence of:
---------------------------
) (Signature)
[SIGNED BY XXXXX XXXXXX]
---------------------------
(Signature of Witness)
[XXXXX XXXXXX]
---------------------------
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED by ) [SIGNED BY XXXXXXXX X X XXXX]
BIOTRANSPLANT INCORPORATED by )
its duly appointed attorney pursuant to ) ---------------------------
Power of Attorney dated 28 March 1994 in ) (Signature)
the presence of: )
[SIGNED BY XXXXX XXXXXX]
---------------------------
(Signature of Witness)
[XXXXX XXXXXX]
---------------------------
(Name of Witness in Full)
8
ANNEXURE "E"
DEED OF CONFIDENTIALITY AND
NON-COMPETITION
Date: 5 April 1994
STEM CELL SCIENCES PTY LTD
ACN 063 293 130
Company
DR. XXXXX XXXXX XXXXXXXXX
Executive
BIOTRANSPLANT INCORPORATED
BTI
TABLE OF CONTENTS
1. INTERPRETATION....................................................1
2. CONFIDENTIALITY...................................................2
3. DISCOVERIES.......................................................2
3.1 Information..............................................2
3.2 Inventions...............................................3
4. NON-COMPETITION...................................................3
4.1 During the Engagement....................................3
4.2 After the Engagement.....................................3
5. EXECUTIVE'S GUARANTEE AND INDEMNITY...............................4
5.1 Guarantee and Indemnity..................................4
5.2 Absolute Liability.......................................4
5.3 Liability not to be Affected.............................4
5.4 Continuing Security......................................5
6. SEVERABILITY......................................................5
7. VARIATION.........................................................5
8. NO WAIVER.........................................................5
9. NOTICES...........................................................5
9.1 Service of notice........................................5
10. GOVERNING LAW.....................................................7
i
DEED OF CONFIDENTIALITY AND NON-COMPETITION
DEED made on 5 April 1994
BETWEEN STEM CELL SCIENCES PTY LTD ACN 063 293 130 a company
incorporated in Victoria and having its registered office in
that State at Xxxxx 00, 000 Xx Xxxxx Xxxx Xxxxxxxxx
("COMPANY")
AND DR. XXXXX XXXXX XXXXXXXXX of 0 Xxxx Xxxxxx, Xxxx Xxxxxxxx in
the State of Victoria ("EXECUTIVE")
AND BIOTRANSPLANT INCORPORATED a corporation organised and
existing under the laws of the State of Delaware and having
its principal office at 13th Street, Building 96, Charlestown
Navy Yard, Charlestown MA, United States of America ("BTI")
IT IS AGREED:
RECITALS
A. By a consultancy agreement of even date between the Company, the
Executive and Secure Sciences Pty Ltd ACN 064 139 948 (the
"CONSULTANT") entered into by the Company at the request of the
Executive (the "CONSULTANCY AGREEMENT") the Consultant has agreed to
provide certain services to the Company.
B. The Executive acknowledges that it is reasonable for the Company (and
BTI as a major shareholder in the Company) to protect the goodwill of
the Business by securing from the Executive covenants restricting the
Executive from engaging in certain activities in competition with the
Company and other covenants as set out in this Deed.
C. The Executive acknowledges further that he will have access to
Confidential Information which represents a valuable asset of the
Company, and accordingly it is reasonable for the Company (and BTI as a
major shareholder in the Company) to further protect the goodwill of
the Business by securing from the Executive a covenant to treat the
Confidential Information as confidential.
D. In consideration of the Company at the request of the Executive
agreeing to execute the Consultancy Agreement, the Executive has agreed
to guarantee the performance of the Consultant under the Consultancy
Agreement.
THIS DEED WITNESSES:
1. INTERPRETATION
In this Deed:
(a) clause headings are for convenience only and do not affect
interpretation;
and unless the context otherwise requires:
(b) references to a clause are references to a clause of this Deed;
(c) references to "this Deed" or to any specified provision of this
Deed or to any other agreement or document will be construed as
references to this Deed or the specified provision of this Deed
or that other agreement or document as amended or substituted
with the agreement of the relevant parties and in force at any
relevant time;
(d) references to any statute, ordinance or other law include all
regulations and other enactments thereunder and all
consolidations, amendments, re-enactments or replacements
thereof;
(e) words importing the singular include the plural and vice versa,
words importing a gender include other genders and references to
a person will be construed as including an individual, the estate
of an individual, firm, body corporate, association (whether
incorporated or not), government and governmental,
semi-governmental and local authority or agency; and
(f) words and phrases given a particular meaning in the Consultancy
Agreement have the same meaning when used in this Deed.
2. CONFIDENTIALITY
Subject always to the contrary obligations of the Executive owed to the
University of Melbourne as at the date hereof which remain in existence
at the relevant time, the Executive covenants, represents and warrants
to the Company and to BTI (each severally and both jointly) that he
will not either during the Engagement or at any time thereafter, except
as required by law or by the Company, use or disclose to any person any
Confidential Information, and will use his best endeavours to prevent
the unauthorised use or disclosure of any Confidential Information by
third parties.
3. DISCOVERIES
3.1 INFORMATION
The Executive covenants, represents and warrants to the Company and to
BTI (each severally and both jointly) that:
(a) he will immediately inform the Company of any matter which may
come to his notice during the Engagement which may be of interest
or of any importance or use to the Company or its related bodies
corporate; and
(b) he will immediately communicate to the Company any proposals or
suggestions occurring to him during the Engagement which may be
of service for the furtherance of the Business of the Company or
its related bodies corporate.
2
3.2 INVENTIONS
Subject always to contrary obligations of the Executive owed to the
University of Melbourne as at the date hereof which remain in existence
at the relevant time, the Executive covenants, represents and warrants
to the Company and to BTI (each severally and both jointly) that:
(a) he will immediately communicate to the Company any and all
processes, inventions, improvements, innovations, modifications
and discoveries which he may make either alone or in conjunction
with others in connection with or arising out of the Engagement
or in any way connected with any of the matters in which the
Company has been or is now or hereafter interested during the
Engagement ("INVENTIONS"), whether or not the Inventions are
capable of being protected by copyright, letters patent,
registered design or other protection ("PROTECTION"), and the
Inventions will be the sole and exclusive property of the
Company; and
(b) he will immediately deliver to the Company full particulars
concerning the Inventions, and will at the expense of the Company
execute all documents and do and execute all such acts, matters
and things as may be necessary or reasonable to obtain Protection
for the Inventions, and to assign to the Company all rights which
may be acquired by it in relation to them and to vest title in
them in the Company absolutely.
4. NON-COMPETITION
4.1 DURING THE ENGAGEMENT
The Executive covenants, represents and warrants to the Company and to
BTI (each severally and both jointly) that he will not without the
prior written consent of the Company during the Engagement either
directly or indirectly in any capacity (including without limitation as
principal, agent, partner, employee, shareholder, unitholder, joint
venturer, director, trustee, beneficiary, manager, consultant or
adviser) carry on, advise, provide services to or be engaged, concerned
or interested in or associated with any business or activity which is
competitive with any business carried on by the Company or any of its
subsidiaries or be engaged or interested in any public or private work
or duties which in the reasonable opinion of the Board may hinder or
otherwise interfere with the performance by the Consultant of its
duties and obligations under the Consultancy Agreement.
4.2 AFTER THE ENGAGEMENT
The Executive covenants, represents and warrants to the Company and BTI
(each severally and both jointly) that he will not during the period of
24 months after termination of the Engagement, however that termination
occurs:
(a) anywhere within Australia, the United Kingdom or the United
States of America, directly or indirectly in any capacity
(whether as principal, agent, partner, employee, shareholder,
unitholder, joint venturer, director, trustee, beneficiary,
3
manager, consultant or adviser) actually carry on, advise,
provide services to or be engaged, concerned or interested in or
associated with any business or activity which is competitive
with any business carried on by the Company or any of its
subsidiaries at the date of termination of the Engagement;
(b) canvass, solicit or endeavour to entice away from the Company any
person who or which at any time during the Term or at the date of
termination of the Engagement was or is a client or customer of
or supplier to the Company or any related body corporate of the
Company or in the habit of dealing with the Company or any such
related body corporate;
(c) solicit, interfere with or endeavour to entice away any employee
of the Company or any of its related bodies corporate; or
(d) counsel, procure or otherwise assist any person to do any of the
acts referred to in clauses 4.2(b) and (c).
5. EXECUTIVE'S GUARANTEE AND INDEMNITY
5.1 GUARANTEE AND INDEMNITY
The Executive unconditionally and irrevocably guarantees for the
benefit of the Company and BTI (each severally and both jointly) the
Consultant's performance of its obligations under the Consultancy
Agreement and indemnifies the Company and BTI (each severally and both
jointly) against all loss, liability and expense which they may suffer
or incur in consequence of any breach or default by the Consultant of
or in performance of the Consultant's obligations. The Executive
declares that the Company and BTI are entitled to enforce their rights
against him immediately on any breach or default by the Consultant. The
Company or BTI will not be required to enforce or exhaust all or any of
its rights against the Consultant before enforcing any of its rights
against the Consultant.
5.2 ABSOLUTE LIABILITY
The liability of the Executive hereunder shall be absolute and shall
not be subject to the execution of any other instrument or document by
any person and shall not be subject to the performance of any condition
precedent or subsequent whatsoever between or amongst any person or
persons whatsoever.
5.3 LIABILITY NOT TO BE AFFECTED
The liability of the Executive hereunder shall not be affected by any
act, omission, matter or thing whatsoever that would otherwise operate
in law or in equity to reduce or release the Executive from such
liability and without limiting the generality of the foregoing such
liability shall not be affected by the granting by BTI or the Company
to the Consultant of time, waiver, indulgence or concession or the
making of any composition or compromise with the Consultant; BTI or the
Company forbearing or neglecting to exercise any right for the
enforcement of its rights against the Consultant; any laches,
acquiescence or other act, neglect, default, omission or mistake by BTI
or the Company;
4
any variation in the terms of this Deed or the Consultancy Agreement
made either with or without the knowledge of the Executive; this Deed
or any obligation owed by the Consultant to BTI or the Company in
relation to the Consultancy Agreement being void, voidable or
otherwise unenforceable by BTI or the Company; the amendment of any
constituent document of the Consultant; or any failure by BTI or the
Company to disclose to the Executive any fact, circumstance or event
relating to the Consultant at any time prior to or during the currency
of this Deed.
5.4 CONTINUING SECURITY
This Deed shall be a continuing security notwithstanding any
termination by the Executive, settlement of account, intervening
payment, express or implied revocation or any other matter or thing
whatsoever and shall continue to secure to BTI and the Company the due
and punctual performance of all of the obligations of the Consultant
under the Consultancy Agreement until the expiration or termination of
that agreement.
6. SEVERABILITY
Any provision of this Deed which is or becomes illegal, void or
unenforceable will be ineffective to the extent only of such
illegality, voidness or unenforceability and will not invalidate the
remaining provisions.
7. VARIATION
This Deed will not be changed or modified in any way after it has been
signed except in writing signed on behalf of each of the parties.
8. NO WAIVER
Failure or omission by the Company or BTI at any time to enforce or
require strict or timely compliance with any provision of this Deed
will not affect or impair that provision in any way, or the right of
the Company or BTI to avail itself of the remedies it may have in
respect of any breach of a provision.
9. NOTICES
9.1 SERVICE OF NOTICE
All notices, requests, consents and other documents authorised or
required to be given by or pursuant to this Deed shall be given in
writing and either personally served or sent by certified or registered
mail addressed or sent by facsimile transmission as follows:
5
The Company:
To: Xx Xxx Xxxx
R.D. Larsson & Co
Address: Xxxxx 00
000 Xx Xxxxx Xxxx
Xxxxxxxxx Victoria
Facsimile: (00) 000-0000
BTI
To: BioTransplant Inc.
Address: 13th Street, Building 96
Charlestown Navy Yard
Xxxxxxxxxxx XX 00000
Xxxxxx Xxxxxx xx Xxxxxxx
Attention: CEO
Facsimile: 000 000 0000
with a copy to:
Xxxxxx X Xxxxxxx, Esq
Carella, Byrne, Bain, Gilfillan, Xxxxxx, Xxxxxxx
& Olstein
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx XX 00000
Xxxxxx Xxxxxx of America
Facsimile: 000 000 0000
The Executive
To: Xx Xxx Xxxx
R.D. Larsson & Co
Address Xxxxx 00
000 Xx Xxxxx Xxxx
Xxxxxxxxx Victoria
Facsimile: (00) 000-0000
Notices, requests, consents and other documents ("NOTICES") shall be
deemed served or given:
(a) if personally served by being left at the address of the party to
whom the Notice is given between the hours of 9:00 am and 5:00 pm
on any Business Day, then in such case at the time the Notice is
so delivered;
(b) if sent by registered or certified mail, at the certified date of
delivery;
(c) if sent by facsimile transmission, on receipt by the sender of
confirmation of successful transmission.
6
Any party may change its address for receipt of Notices at any time by
giving notice of such change to the other party. Any Notice given under
this Deed may be signed on behalf of any party by the duly authorised
representative of that party and shall be sent to all other parties to
this Deed.
10. GOVERNING LAW
This Deed is governed by, takes effect and will be construed in
accordance with the laws of Victoria, and the parties irrevocably and
unconditionally submit to the exclusive jurisdiction of the courts of
Victoria and courts entitled to hear appeals therefrom.
7
IN WITNESS the parties have executed and delivered this Deed.
THE COMMON SEAL OF STEM CELL )
SCIENCES PTY LIMITED ACN 063 293 )
130 was affixed by the authority of the )
Board of Directors in the presence of: )
[SIGNED BY XXXXXXX XXX XXXXXXX] [SIGNED BY XXXXX XXXXX XXXXXXXXX]
-------------------------------------------- ---------------------------
(Signature of Secretary/Director) (Signature of Director)
[XXXXXXX XXX XXXXXXX] [XXXXX XXXXX XXXXXXXXX]
-------------------------------------------- ---------------------------
(Name of Secretary/Director in Full) (Name of Director in Full)
SIGNED, SEALED AND DELIVERED by ) [SIGNED BY XXXXX XXXXX XXXXXXXXX]
DR. XXXXX XXXXX XXXXXXXXX in the presence of:)
---------------------------
) (Signature)
[SIGNED BY XXXXX XXXXXX]
---------------------------
(Signature of Witness)
[XXXXX XXXXXX]
---------------------------
(Name of Witness in Full)
SIGNED SEALED AND DELIVERED by ) [SIGNED BY XXXXXXXX X X XXXX]
BIOTRANSPLANT INCORPORATED by ) ---------------------------
its duly appointed attorney pursuant to ) (Signature)
Power of Attorney dated 28 March 1994 in )
the presence of: )
[SIGNED BY XXXXX XXXXXX]
---------------------------
(Signature of Witness)
[XXXXX XXXXXX]
---------------------------
(Name of Witness in Full)
8
ANNEXURE "F"
CONSULTANCY AGREEMENT
Date: 5 April 1994
STEM CELL SCIENCES PTY LTD
ACN 063 293 130
Company
SECURE SCIENCES PTY LTD
ACN 064 139 948
Consultant
XX. XXXXX XXXXXXXXX
Nominated Executive
TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION............................................1
1.1 Definitions......................................................1
1.2 Interpretation...................................................2
2. ENGAGEMENT................................................................2
2.1 Engagement.......................................................2
2.2 Non-exclusivity..................................................2
3. TERM......................................................................3
4. CONSULTANT'S DUTIES.......................................................3
4.1 Specific duties..................................................3
4.2 General duties...................................................3
5. COMPANY'S OBLIGATIONS.....................................................4
6. FEES......................................................................4
6.1 Consultant's retainer............................................4
7. EXPENSES..................................................................4
7.1 No reimbursement of unauthorised expenses........................4
7.2 Consultant responsible for payment of Executives, etc............4
7.3 Initial Expenses.................................................5
8. CONSULTANT'S ACKNOWLEDGEMENTS.............................................5
8.1 Confidential Information.........................................5
8.2 Undertakings.....................................................5
9. CONFIDENTIALITY...........................................................6
10. DISCOVERIES...............................................................6
10.1 Information......................................................6
10.2 Inventions.......................................................6
11. NON-COMPETITION...........................................................7
11.1 During the Engagement............................................7
11.2 After the Engagement.............................................7
11.3 No representations after Engagement terminated...................7
12. TERMINATION...............................................................8
12.1 Immediate termination by the Company.............................8
12.2 Not to prejudice rights..........................................8
13. RETURN OF MATERIALS.......................................................8
13.1 Consultant to return materials...................................8
13.2 Materials to be property of the Company..........................9
i
14. RELATIONSHIP..............................................................9
14.1 Parties' relationships...........................................9
14.2 Consultant indemnifies Company in certain respects...............9
15. FURTHER ACTS..............................................................9
16. NOTICES..................................................................10
16.1 Service of notice...............................................10
17. ASSIGNMENT...............................................................10
17.1 By the Company..................................................10
17.2 By the Consultant...............................................10
18. NO WAIVER................................................................11
19. SEVERABILITY.............................................................11
20. VARIATION................................................................11
21. GOVERNING LAW............................................................11
ii
CONSULTANCY AGREEMENT made on 5 April 1994.
BETWEEN STEM CELL SCIENCES PTY LTD ACN 063 293 130 a company
incorporated in Victoria and having its registered office in
that State at Xxxxx 00, 000 Xx. Xxxxx Xxxx, Xxxxxxxxx
("Company")
AND SECURE SCIENCES PTY LTD ACN 064 139 948, a company
incorporated in the State of Victoria and having its
registered office in that State at the offices of R.D.).
Larsson & Co., Xxxxx 00, 000 Xx Xxxxx Xxxx, Xxxxxxxxx in its
own capacity and as trustee of the Xxxxxxxxx Investment
Trust ("CONSULTANT")
AND DR. XXXXX XXXXX XXXXXXXXX of 0 Xxxx Xxxxxx, Xxxx Xxxxxxxx in
the State of Victoria ("NOMINATED EXECUTIVE")
RECITALS
A. The Company carries on the Business (as defined in the Shareholders
Agreement).
B. The Consultant carries on the business of providing consulting,
management and administrative services to other organisations.
C. The Company wishes to avail itself of the expertise of the Consultant
and its employees in the Company's areas of business.
IT IS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"BUSINESS DAY" means a day on which banks are open for business in the
State.
"CONFIDENTIAL INFORMATION" has the meaning given in clause 8.
"DOCUMENTS" includes software (including source code and object code
versions) manuals, diagrams, graphs, charts, projections,
specifications, estimates, records, concepts, documents, accounts,
plans, formulae, designs, methods, techniques, processes, supplier
lists, price lists, customer lists, market research information,
correspondence, letters and papers of every description including all
copies of and extracts from the same.
"ENGAGEMENT" means the engagement of the Consultant under this
Agreement.
"EXECUTIVES" means the Nominated Executive and such other persons
employed by the Consultant who are skilled, qualified and experienced
in the Business.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement of even date
herewith between BioTransplant Incorporated, the Consultant (in its own
capacity and as trustee of the Secure Sciences Unit Trust), Castella
Research Pty Ltd ACN 000 000 000 and the Company.
"STATE" means the State of Victoria.
1.2 INTERPRETATION
In this Agreement:
(a) clause headings are inserted for convenience only and do not
affect interpretation;
and unless the context otherwise requires:
(b) references to a clause will be construed as references to a
clause of this Agreement;
(c) references to "this Agreement" or to any specified provision of
this Agreement or to any other agreement or document will be
construed as references to this Agreement or the specified
provision of this Agreement or that other agreement or document
as amended or substituted with the agreement of the relevant
parties and in force at any relevant time;
(d) references to any statute, ordinance or other law include all
regulations and other enactments thereunder and all
consolidations, amendments, re-enactments or replacements
thereof;
(e) words importing the singular include the plural and vice versa,
words importing a gender include other genders and references to
a person will be construed as including an individual, the estate
of an individual, firm, body corporate, association (whether
incorporated or not), government and governmental,
semi-governmental and local authority or agency; and
(f) words and phrases given a particular meaning in the Shareholders
Agreement, have the same meaning when used in this Agreement.
2. ENGAGEMENT
2.1 ENGAGEMENT
The Company engages the Consultant on the terms of this Agreement and
the Consultant accepts that engagement.
2.2 NON-EXCLUSIVITY
Subject to the provisions of this Agreement including Clause 11, the
Consultant and the Executives may provide their respective services in
relation to matters outside the FIELD (as defined in the BTI Research
and License Agreement) to any other person during the Engagement, but
the Company at all times has first priority over the services of the
Consultant and the Executives.
2
3. TERM
The Engagement commences on 5 April, 1994, and subject to the
provisions for termination of the Engagement contained in this
Agreement, the Engagement will be for a term of 4 years from
commencement ("TERM").
4. CONSULTANT'S DUTIES
4.1 SPECIFIC DUTIES
During the Engagement the Consultant will advise the Company in
relation to such aspects of the Business as the Board from time to time
requires and in particular will be responsible to the Company for
implementation of the RESEARCH plan in Appendix A of the BTI Research
and License Agreement and of all other RESEARCH plans prepared pursuant
to the BTI Research and License Agreement from time to time.
4.2 GENERAL DUTIES
In the discharge of the specific duties the Consultant will:
(a) act with professional skill as consultant to the Company with a
view to promoting, advancing and improving the Business;
(b) comply with all policies, directions and resolutions of the Board
and any nominee of the Board;
(c) subject only to the policies, directions and resolutions of the
Board, act on its own responsibility and initiative and exercise
all powers as may be granted to it by the Board or any nominee of
the Board from time to time;
(d) make regular reports at any intervals or on any occasions as the
Board or any nominee of the Board stipulates, and on any matters
as the Board or any nominee of the Board requires;
(e) at all times provide the Nominated Executive and such number of
other Executives as the parties from time to time agree, and
procure that the Nominated Executive and those Executives devote
all of their time and attention to the Business to ensure its
promotion to the best of their and the Consultant's ability,
subject only to the obligations of the Nominated Executive to the
University of Melbourne as at the date hereof;
(f) cause the Executives to comply with clauses 4.2(a)-(d) in their
performance of the Consultant's duties and cause the Consultant
to perform all duties and exercise any powers as the Board may
from time to time assign to it;
3
(g) permit the Executives to be appointed and act as directors of the
Company or of any related body corporate of the Company if the
Board so requires;
(h) not change, replace or substitute any of the Executives without
the consent in writing of the Company;
(i) perform any services for any related body corporate of the
Company as the Board may from time to time reasonably require;
and
(j) itself, and will ensure that the Executives, refer to the Company
for first refusal any project which comes before the Consultant
or the Executives which is similar to projects handled by the
Company in its ordinary course of business.
5. COMPANY'S OBLIGATIONS
During the Engagement the Company will give the Consultant and the
Executives access to all information in relation to the Business and to
all facilities as they reasonably require to enable them to carry out
the Consultant's duties under this Agreement.
6. FEES
6.1 CONSULTANT'S RETAINER
During the Engagement, the Company will pay to the Consultant a
retainer at the rate of $5,000.00 per month (or other rate as may from
time to time be agreed between the parties), which will be deemed to
accrue rateably from day to day, and be payable in arrears on the last
day of each month.
7. EXPENSES
7.1 NO REIMBURSEMENT OF UNAUTHORISED EXPENSES
The Consultant will perform its obligations under this Agreement at its
own cost, and unless expressly authorised in writing by the Board,
neither the Consultant nor any of the Executives will be entitled to be
reimbursed for any out of pocket expenses incurred in connection with
the performance of the Consultant's duties under this Agreement.
7.2 CONSULTANT RESPONSIBLE FOR PAYMENT OF EXECUTIVES, ETC.
The Consultant will be solely responsible for and solely bear:
(a) the payment of remuneration to the Executives and all its other
servants, agents and contractors, including salaries and wages,
annual leave, sick leave, long service leave and all other
benefits to which any of them may be entitled under any contract
of service with the Consultant or under any award, statute or
common law;
(b) the payment of all taxes and duties in respect of that
remuneration and benefits;
4
(c) maintenance of, and the costs in respect of the maintenance of,
adequate insurance in respect of workers' compensation and all
other risks appropriate to the duties of the Executives,
servants, agents and contractors; and
(d) compliance with, and all costs of compliance with, all other
statutory, award or other legal or contractual requirements with
respect to the Executives, servants, agents and contractors.
7.3 INITIAL EXPENSES
The Company will reimburse the Consultant $25,000.00 within 7 days of
the date of this Agreement for expenses incurred by the Consultant
prior to the date hereof in relation to the Business.
8. CONSULTANT'S ACKNOWLEDGEMENTS
8.1 CONFIDENTIAL INFORMATION
The Consultant acknowledges that:
(a) the property of the Company and its related bodies corporate
includes and will include all knowhow, technology, research,
employee skills, trade and business secrets and other
confidential information and Documents relating to the Business
or other affairs of the Company and its related bodies corporate
or any person with whom the Consultant or any of the Executives
comes into contact as a result of this Agreement, or which come
into the Consultant's or any of the Executives' possession in the
course and by reason of the Engagement, whether or not the same
were originally supplied by the Company or its related bodies
corporate ("CONFIDENTIAL INFORMATION");
(b) the Confidential Information has been and will be acquired by the
Company or its related bodies corporate at the Company's or the
related body corporate's initiative and expense; and
(c) the Company and its related bodies corporate have expended and
will expend effort and money in establishing and maintaining the
Confidential Information.
Accordingly, it is reasonable that the Consultant should enter into the
representations and warranties contained in this Agreement and, if the
Engagement is terminated, the Consultant should continue to be subject
to the restrictions set out in clauses 9, 10 and 11.
8.2 UNDERTAKINGS
At the Company's request, the Consultant will cause the Executives and
any other servant, agent or contractor of the Consultant to execute
confidentiality and non-competition undertakings in favour of the
Company in a form as may be reasonably required by the Company relating
to the matters in this clause 8 and in clauses 9, 10 and 11.
5
9. CONFIDENTIALITY
The Consultant represents and warrants that it will not, and will
procure that the Executives will not (subject only to the contrary
obligations of the Nominated Executive owed to the University of
Melbourne as at the date hereof which remain in existence at the
relevant time), either during the Engagement or at any time thereafter
except in the proper course of the Consultant's duties under this
Agreement or as required by law or by the Company, use or disclose to
any person any Confidential Information, and the Consultant will use
its best endeavours to prevent the unauthorised use or disclosure of
that information by third parties.
10. DISCOVERIES
10.1 INFORMATION
The Consultant represents and warrants that:
(a) it will immediately inform the Company of any matter which may
come to its notice or to the notice of any of the Executives
during the Engagement which may be of interest or of any
importance or use to the Company or its related bodies corporate;
and
(b) it will immediately communicate to the Company any proposals or
suggestions occurring to it or any of the Executives during the
Engagement which may be of service for the furtherance of the
business of the Company or its related bodies corporate.
10.2 INVENTIONS
The Consultant represents and warrants that:
(a) it will immediately communicate to the Company any and all
processes, inventions, improvements, innovations, modifications
and discoveries which it or any of the Executives make, either
alone or in conjunction with others, in connection with or
arising out of the Engagement and in any way connected with any
of the matters in which the Company has been or is now or
hereafter interested during the Engagement ("INVENTIONS"),
whether or not the Inventions are capable of being protected by
copyright, letters patent, registered design or other protection
("PROTECTION"), and the Inventions will be the exclusive property
of the Company; and
(b) it will immediately deliver to the Company full particulars
concerning the Inventions, and at the expense of the Company,
execute all documents and do and execute all such acts, matters
and things as may be necessary or reasonable to obtain Protection
for the Inventions, and to assign to the Company all rights which
may be acquired by it or any of the Executives in relation to
them and to vest title in them in the Company absolutely.
6
11. NON-CONPETITION
11.1 DURING THE ENGAGEMENT
The Consultant represents and warrants that it will not, and that it
will procure that the Executives will not (subject only to the contrary
obligations of the Nominated Executive owed to the University of
Melbourne as at the date hereof which remain in existence at the
relevant time), during the Engagement either directly or indirectly in
any capacity (including without limitation as principal, agent,
partner, employee, shareholder, unitholder, joint venturer, director,
trustee, beneficiary, manager, consultant or adviser) carry on, advise,
provide services to or be engaged, concerned or interested in or
associated with any business or activity which is competitive with any
business carried on by the Company or any of its related bodies
corporate, or be engaged or interested in any public or private work or
duties which in the reasonable opinion of the Board may hinder or
otherwise interfere with the performance of the Consultant of its
duties under this Agreement.
11.2 AFTER THE ENGAGEMENT
The Consultant represents and warrants that it will not, and that it
will procure that the Executives will not, during the period of 24
months after termination of the Engagement, however that termination
occurs:
(a) anywhere within Australia, the United Kingdom or the United
States of America, directly or indirectly in any capacity
(whether as principal, agent, partner, employee, shareholder,
unitholder, joint venturer, director, trustee, beneficiary,
manager, consultant or adviser) carry on, advise, provide
services to or be engaged, concerned or interested in or
associated with any business or activity which is competitive
with any business carried on by the Company or any of its related
bodies corporate at the date of termination of the Engagement;
(b) canvass, solicit or endeavour to entice away from the Company any
person who or which at any time during the Term or at the date of
termination of the Engagement was or is a client or customer of
or supplier to the Company or any related body corporate of the
Company or in the habit of dealing with the Company or any such
related body corporate;
(c) solicit, interfere with or endeavour to entice away any employee
of the Company or any of its related bodies corporate; or
(d) counsel, procure or otherwise assist any person to do any of the
acts referred to in clauses 11.2(b) and (c).
11.3 NO REPRESENTATIONS AFTER ENGAGEMENT TERMINATED
The Consultant will not represent itself, and will procure that no
Executive will represent himself or herself, as being in any way
connected with the business of the Company or any of its related bodies
corporate at any time after the termination of the Engagement.
7
12. TERMINATION
12.1 IMMEDIATE TERMINATION BY THE COMPANY
The Company may at its sole discretion terminate the Engagement by
giving notice effective immediately if at any time:
(a) the Consultant or any of the Executives is or becomes in breach
of any of the material terms of this Agreement and if it is a
breach which is capable of being remedied and it is the first
occasion on which such type of breach has occurred, the breach is
not remedied to the reasonable satisfaction of the Company within
30 days after written notice is given to the Consultant by the
Company requiring the breach to be remedied; or
(b) the Consultant or any of the Executives is or becomes charged
with any criminal offence involving criminal intent, fraud,
dishonesty or moral turpitude which in the reasonable opinion of
the Board brings the Consultant or any of the Executives or the
Company or any of its related bodies corporate into disrepute; or
(c) the Consultant or any of the Executives is or becomes bankrupt,
or goes into liquidation, or makes a composition or arrangement
with creditors generally, or takes advantage of any statute for
the relief of insolvent debtors; or
(d) any of the Executives is or becomes of unsound mind or a person
whose person or estate is liable to be dealt with under any law
relating to mental health; or
(e) the Consultant is or becomes incompetent in the performance of
its duties under this Agreement; or
(f) the Consultant is or becomes continually or significantly absent
or neglectful of its duties under this Agreement;
(g) the Nominated Executive dies; or
(h) the Consultant ceases to be a shareholder in the Company.
12.2 NOT TO PREJUDICE RIGHTS
Termination of the Engagement will not prejudice any rights or remedies
already accrued to any party under, or in respect of any breach of,
this Agreement.
13. RETURN OF MATERIALS
13.1 CONSULTANT TO RETURN MATERIALS
The Consultant will return or cause the return of all Documents and
other materials relating to or concerning any Confidential Information,
and all materials supplied to the
8
Consultant or the Executives or otherwise in their possession or
within their control and containing or pertaining to any Confidential
Information, including all copies of those Documents and materials
then in existence:
(a) immediately on demand; or
(b) without demand as soon as such Documents and other materials or
any of them are no longer required by the Consultant for the
performance of its duties; or
(c) on the termination of the Engagement.
13.2 MATERIALS TO BE PROPERTY OF THE COMPANY
All notes and memoranda of information concerning any Confidential
Information made or received by the Consultant or any of the Executives
during the course of the Engagement are the property of the Company,
and will be surrendered by the Consultant at the same time as the
Documents and other materials referred to in clause 13.1 are due to be
returned to the Company.
14. RELATIONSHIP
14.1 PARTIES' RELATIONSHIPS
The relationship between the Company and the Consultant is that of
principal and contractor. Nothing in this Agreement will be taken as
constituting the Consultant, the Executives or any other servant, agent
or contractor of the Consultant an employee or servant of the Company
or any of its related bodies corporate.
14.2 CONSULTANT INDEMNIFIES COMPANY IN CERTAIN RESPECTS
The Consultant agrees to indemnify the Company and each of its related
bodies corporate against any action, suit, claim, demand, cost or
expense arising out of or referable to:
(a) any damage, injury or loss caused by or resulting from any wilful
or negligent act or omission or misfeasance of the Consultant,
the Executives or any other servant, agent or contractor of the
Consultant; and
(b) all injury, loss or damage sustained by any of the Executives or
any officer, servant, agent or contractor of the Consultant
incurred while attending to performance of the Consultant's
duties under, or incidental or preparatory to this Agreement,
unless the injury, loss or damage was caused by any wilful or
negligent act or omission of the Company or any officer, servant
or agent of the Company.
15. FURTHER ACTS
Each party will promptly do and perform all further acts, and execute
and deliver all further instruments required by law or reasonably
requested by any other party to
9
establish, maintain and protect the respective rights and remedies of
the parties and to carry out and effect the intent and purpose of this
Agreement.
16. NOTICES
16.1 SERVICE OF NOTICE
All notices, requests, consents and other documents authorised or
required to be given by or pursuant to this Agreement shall be given in
writing and either personally served or sent by certified or registered
mail addressed or sent by facsimile transmission as follows:
The Company or the Consultant or the Nominated Executive:
To: Xx Xxx Xxxx
R.D. Larsson & Co
Address: Xxxxx 00
000 Xx Xxxxx Xxxx
Xxxxxxxxx Victoria
Facsimile: (00) 000-0000
Notices, requests, consents and other documents ("NOTICES") shall be
deemed served or given:
(a) if personally served by being left at the address of the party to
whom the Notice is given between the hours of 9:00 am and 5:00 pm
on any Business Day, then in such case at the time the Notice is
so delivered;
(b) if sent by registered or certified mail, at the certified date of
delivery;
(c) if sent by facsimile transmission, on receipt by the sender of
confirmation of successful transmission.
Any party may change its address for receipt of Notices at any time by
giving notice of such change to the other party. Any Notice given under
this Agreement may be signed on behalf of any party by the duly
authorised representative of that party and shall be sent to all other
parties to this Agreement.
17. ASSIGNMENT
17.1 BY THE COMPANY
The Company may assign the benefit of this Agreement to any related
body corporate of the Company.
17.2 BY THE CONSULTANT
The Consultant may not assign this Agreement without the prior written
consent of the Company.
10
18. NO WAIVER
Failure or omission by the Company at any time to enforce or require
strict or timely compliance with any provision of this Agreement will
not affect or impair that provision, or the right of the Company to
avail itself of the remedies it may have in respect of any breach of a
provision, in any way.
19. SEVERABILITY
Any provision of this Agreement which is or becomes illegal, void or
unenforceable will be ineffective to the extent only of such
illegality, voidness or unenforceability and will not invalidate the
remaining provisions.
20. VARIATION
This Agreement may not be changed or modified in any way after it has
been signed except in writing signed by or on behalf of all the
parties.
21. GOVERNING LAW
This Agreement is governed by, takes effect and will be construed in
accordance with the laws of the State, and the parties irrevocably and
unconditionally submit to the exclusive jurisdiction of the courts of
the State and courts entitled to hear appeals therefrom.
11
SIGNED as an agreement.
THE COMMON SEAL of STEM CELL )
SCIENCES PTY LTD ACN 063 293 130 )
was affixed by the authority of the )
Board of Directors in the presence of: )
[SIGNED BY XXXXXXX XXX XXXXXXX] [SIGNED BY XXXXX XXXXX
XXXXXXXXX]
-------------------------------------------- ---------------------------
(Signature of Secretary/Director) (Signature of Director)
[XXXXXXX XXX XXXXXXX] [XXXXX XXXXX XXXXXXXXX]
-------------------------------------------- ---------------------------
(Name of Secretary/Director in Full) (Name of Director in Full)
THE COMMON SEAL OF )
SECURE SCIENCES PTY LTD ACN )
064 139 948 was affixed by the authority of )
the Board of Directors in the presence of: )
[SIGNED BY XXXXX XXXXX XXXXXXXXX] [SIGNED BY XXXXXXXXXXX XXXX
XXXXXXXXX]
-------------------------------------------- ---------------------------
(Signature of Secretary/Director) (Signature of Director)
[XXXXX XXXXX XXXXXXXXX] [XXXXXXXXXXX XXXX XXXXXXXXX]
-------------------------------------------- ---------------------------
(Name of Secretary/Director in Full) (Name of Director in Full)
SIGNED by DR. XXXXX XXXXX ) [SIGNED BY XXXXX XXXXX
XXXXXXXXX in the presence of: ) XXXXXXXXX]
---------------------------
(Signature)
[SIGNED BY XXXXX XXXXXX]
---------------------------
(Signature of Witness)
[XXXXX XXXXXX]
---------------------------
(Name of Witness in Full)
12
DATED this day of , 1996
BETWEEN:
BIOTRANSPLANT INC.
("BTI")
-and-
CASTELLA RESEARCH PTY LTD
("Castella")
-and-
SECURE SCIENCES PTY LTD
("Secure")
-and-
STEM CELL SCIENCES PTY LTD
("SCS")
--------------------------------------------------------------------------------
AGREEMENT TO VARY SHAREHOLDERS' AGREEMENT
--------------------------------------------------------------------------------
HOLDING XXXXXXX
---------------------------------------
LAWYERS AND CONSULTANTS
000 Xxxxxxx Xxxxxx Xxxxx 00, Xxxxxxx Xxxxx
XXXXXXXXX XXX 0000 0 Xxxxxxx Xxxxxx
XXXXXX XXX 0000
Phone: (00) 0000 0000 Phone: (00) 000 0000
Fax: (00) 0000 0000 Fax: (00) 000 0000
CONTENTS
1. DEFINITIONS AND INTERPRETATION................................................2
1.1 Definitions..........................................................2
1.2 Interpretation.......................................................2
1.3 Recitals.............................................................2
2. ISSUE OF SHARES AND OPTION TO BTI.............................................3
2.1 Issue of Shares......................................................3
2.2 Payment for Shares...................................................3
2.3 Effect of Shares Being Partly Paid Until Payment Made in Full........3
2.4 Issue of Option......................................................3
3. VARIATION OF SHAREHOLDERS' AGREEMENT..........................................4
3.1 Variation............................................................4
3.2 Confirmation of Shareholders' Agreement..............................4
3.3 Acknowledgment.......................................................4
i
VARIATION dated the day of , 1996
BETWEEN:
BIOTRANSPLANT INCORPORATED a corporation organised and
existing under the laws of the State of Delaware and having
its principal office at 13 Xxxx Street, Building 96, Navy
Yard, Charlestown, MA, United States of America
("BTI")
AND: CASTELLA RESEARCH PTY LTD (ACN 000 000 000) of 000 Xxxxxxxxxx
Xxxx, Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx in its own capacity and
as trustee of the X.X. Xxxxxxx Family Trust
("CASTELLA")
AND: SECURE SCIENCES PTY LTD (ACN 064 139 948) of Xxxxx 00, 000 Xx.
Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx in its own capacity
and as trustee of the Secure Sciences Unit Trust
("SECURE")
AND: STEM CELL SCIENCES PTY LTD (ACN 063 293 130) of Xxxxx 00, 000
Xx. Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx
("THE COMPANY")
RECITALS
A. By a Shareholders' Agreement dated 5 April, 1994 between BTI, Castella,
Secure and the Company (the "SHAREHOLDERS' AGREEMENT") the Shareholders
recorded their agreement as to how the Company would be owned,
controlled and funded by them.
B. Pursuant to Clause 2.5 of the Shareholders' Agreement the Company
issued to BTI the First BTI Option and the Second BTI Option.
C. The First BTI Option was to be exercised on or before the first
anniversary of the Effective Date.
D. Pursuant to Clause 2.5(b) of the Shareholders' Agreement if the First
BTI Option was not exercised on or before the first anniversary of the
Effective Date, the Second BTI Option would lapse.
E. BTI did not exercise the First BTI Option on or before the first
anniversary of the Effective Date (that anniversary occurring on 5
April, 1995) and accordingly, the Second BTI Option has lapsed.
F. Each of Castella and Secure exercised the options granted to them
pursuant to Clause 2.5(a)(iii) and (v), respectively, prior to the
first anniversary of the Effective Date.
G. As a result of the exercise of the option by Castella and Secure and
the failure by BTI to exercise the First BTI Option, the issued capital
of the Company is owned in the following proportions:
BTI: 17.65%
CASTELLA: 17.65%
SECURE: 64.70%
H. BTI has agreed to provide an amount of equity capital to the Company
prior to 30 June, 1996.
I. The Shareholders have agreed to cause the Company to allot to BTI the
number of shares necessary for BTI to own 30% of the issued capital of
the Company.
J. The Shareholders and the Company have also agreed that the Company will
allot to BTI a fresh option on terms and conditions identical to those
attaching to the Second BTI Option except that the fresh option must be
exercised on or before 1 July, 1996.
K. Clause 18.5 of the Shareholders' Agreement provides that the
Shareholders' Agreement may not be modified, amended, added to or
otherwise varied except by a document in writing signed by each of the
parties or signed on behalf of each party by a director under hand.
L. The parties wish by this Agreement to record the matters set out in
Recitals H to J and to vary the Shareholders' Agreement to the extent
necessary to take account of those matters.
IT IS AGREED
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement (including in the Recitals), unless the contrary
intention appears, each defined word and expression has the meaning
assigned to that word or expression in the Shareholders' Agreement.
1.2 INTERPRETATION
Clauses 1.3 and 1.4 of the Shareholders' Agreement are incorporated in
and form part of this Agreement as if each reference to "THIS
AGREEMENT" in those clauses were a reference to this Agreement to vary
the Shareholders' Agreements.
1.3 RECITALS
The parties acknowledge and agree that the Recitals are true and
correct and accurately reflect the circumstances in which this
Agreement was entered into.
2
2. ISSUE OF SHARES AND OPTION TO BTI
2.1 ISSUE OF SHARES
On the date of this Agreement BTI must subscribe for, and be issued
with 300 "A" Shares in the capital of the Company issued at a price of
$2,193.00 per share (being $1.00 par and $2,192.00 premium per share)
for a total consideration of $657,900.00 payable in accordance with
Clause 2.2.
2.2 PAYMENT FOR SHARES
BTI must pay for the Shares referred to in Clause 2.1 in four equal
instalments of $164,475.00 each payable to the Company by electronic
transfer of funds into the Company's bank account on the following
dates:
first and second instalments on the date on which this Agreement is
executed by all parties
third instalment 31 March 1996
fourth instalment 30 May 1996.
2.3 EFFECT OF SHARES BEING PARTLY PAID UNTIL PAYMENT MADE IN FULL
Notwithstanding anything in the Company's Articles of Association, each
Share issued to BTI pursuant to Clause 2.1 will in respect of and for
the purposes of voting rights, entitlement to dividends and entitlement
to distribution of capital on winding up (collectively the "Share
Rights"), carry with it:
(a) unless and until the third instalment referred to in Clause 2.2
has been paid by BTI to the Company, 50% of the Share Rights
attaching to a fully paid up "A" Share in the Company; and
(b) unless and until the fourth instalment referred to in Clause 2.2
has been paid by BTI to the Company, 75% of the Share Rights
attaching to a fully paid up "A" Share in the Company.
2.4 ISSUE OF OPTION
On the date of this Agreement, the Company must issue to BTI an option
(with the Option Terms attaching) to subscribe for, fully pay up and be
issued with a further 600 "A" Shares in the capital of the Company
issued at a price of $4,685.00 per share (being $1.00 par and $4,684.00
premium per share) for a total consideration of $2,811,000.00 at any
time on or before 1 July, 1996.
3
3. VARIATION OF SHAREHOLDERS' AGREEMENT
3.1 VARIATION
In consideration of the mutual agreements made by each party under this
Agreement, the parties agree, pursuant to clause 18.5 of the
Shareholders' Agreement, to vary clause 2.5 of the Shareholders'
Agreement to the extent necessary to give effect to the provisions of
Clause 2 of this Agreement.
3.2 CONFIRMATION OF SHAREHOLDERS' AGREEMENT
The parties confirm that the terms and conditions of the Shareholders'
Agreement (as varied by this Agreement) remain in full force and
effect.
3.3 ACKNOWLEDGMENT
Without limiting Clause 3.2 but for the removal of doubt, the parties
acknowledge that:
(a) pursuant to clause 5.4(a)(i) of the Shareholders' Agreement, all
paragraphs of clause 5.3 of the Shareholders' Agreement except
paragraphs (e), (f), (p) and (v) ceased to operate on the first
anniversary of the Effective Date and nothing in this Agreement
will operate to or be construed as bring back into effect those
paragraphs of clause 5.3 of the Shareholders' Agreement which
have ceased to operate; and
(b) BTI did not exercise the First BTI Option and nothing in this
Agreement will be interpreted to mean that BTI did exercise the
First BTI Option and the Shareholders' Agreement will be
construed and operate accordingly.
4
SIGNED AS AN AGREEMENT on the date first appearing
SIGNED by BIOTRANSPLANT, INC. )
)
by its director Xxxxxx Xxxxxxxx ) /s/ Xxxxxx Xxxxxxxx
----------------------- ) ---------------------------
in the presence of: )
/s/ Xxxxx X. Xxxxx
----------------------------------
(Witness)
SIGNED by CASTELLA RESEARCH )
)
PTY LTD by its director MAL BRANDON ) /s/ Mal Brandon
) ---------------------------
in the presence of: )
[ILLEGIBLE]
---------------------------
(Witness)
SIGNED by SECURE SCIENCES PTY )
)
LTD by its director XXXXX ) ---------------------------
)
XXXXXXXXX in the presence of: )
.........
---------------------------
(Witness)
SIGNED by STEM CELL SCIENCES )
)
PTY LTD by its director Mal Brandon ) /s/ Mal Brandon
------------ ) ---------------------------
in the presence of: )
[ILLEGIBLE]
---------------------------
(Witness)
5
