pSivida Limited ACN 009 232 026 Viaticus Capital Pty Ltd ACN 094 512 973
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L
A
W Y E R S
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pSivida
Limited
ACN
009
232 026
Viaticus
Capital Pty Ltd
ACN
094
512 973
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▇▇▇ ▇▇▇▇▇▇▇▇▇
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Telephone:
(▇▇) ▇▇▇▇ ▇▇▇▇
Fax:
(▇▇) ▇▇▇▇ ▇▇▇▇
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17
August 2006
Ref:
DFP STJL 09 1395 3581
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1.
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INTERPRETATION
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1
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2.
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TERM
OF AGREEMENT
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4
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3.
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PROVISION
OF SERVICES
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4
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4.
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CONTRACT
FEE
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5
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5.
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INVOICES
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5
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6.
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CONFIDENTIAL
INFORMATION
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6
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7.
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PRIVACY
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6
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8.
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INTELLECTUAL
PROPERTY
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6
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9.
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OCCUPATIONAL
HEALTH AND SAFETY
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7
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10.
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TAXATION
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7
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11.
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TERMINATION
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8
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12.
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AMENDMENT
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8
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13.
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GENERAL
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9
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DATE
August
2006
PARTIES
pSivida
Limited ACN
009 232
026 of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇
(Principal)
Viaticus
Capital Pty Ltd ACN
▇▇▇
▇▇▇ ▇▇▇ of ▇▇▇▇▇
▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Perth WA, 6000 (Contractor)
RECITALS
| A. |
▇▇
▇▇▇▇▇ ▇▇▇▇▇ (Rezos)
provided Services to the Principal on behalf of the Contractor as
managing
director of the Principal and a director of the Principal in accordance
with a consultancy agreement between the Principal, the Contractor
and
Aymon Pacific Pty Ltd (ACN ▇▇▇ ▇▇▇ ▇▇▇) (Aymon
Pacific),
a related body corporate of the Contractor (the Arrangement).
|
| B. |
The
Arrangement terminated on 31 July 2006 (the Termination).
|
| ▇. |
▇▇▇▇▇,
the Principal, Aymon Pacific and the Contractor executed a Deed of
Release
with respect to the Arrangement and the Termination (the Deed).
|
| ▇. |
▇▇▇▇▇
has intimate knowledge of the business, trade secrets, functions
and work
performed by employees of the Principal, customers and clients and
processes and operations (among other things) of the Principal. As
a
condition precedent to completion of the Deed, the Principal and
the
Contractor agreed that the Principal will engage the Contractor as
a
Contractor to provide Rezos' personal Services to the Principal in
accordance with this Agreement.
|
| E. |
The
Contractor has agreed to accept the appointment as a Contractor to
the
Principal and to provide Rezos to provide Services to the Principal
as and
when required by the Principal in accordance with this
Agreement.
|
OPERATIVE
PROVISIONS
| 1. |
INTERPRETATION
|
| 1.1 |
Definitions
|
The
following definitions apply in this Agreement.
Agreement
means
this agreement as amended from time to time in writing and signed by the
Parties.
Commencement
Date
means 1
August 2006.
Confidential
Information
means
(a) during the term, all information marked as confidential or advised in
writing as being confidential in any form or medium concerning any past, present
or future business, operations or affairs of
the Principal,
or of
any
-1-
customer
of the Principal
and (b) after the term, for so long as the Principal provides the Contractor
with the use of the Principals Perth office as described in Section 3.3, all
information described in (a) above whether or not so marked. Confidential
Information includes but is
not
limited to:
| (a) |
all
technical or non-technical data, formulae, patterns, programs, devices,
methods, techniques, plans, drawings, models and processes, source
and
object code, software and computer
records;
|
| (b) |
all
business and marketing plans and projections, details of agreements
and
arrangements with third parties, and customer and supplier information
and
lists;
|
| (c) |
all
financial information, pricing schedules and structures, product
margins,
remuneration details and investment
outlays;
|
| (d) |
all
information concerning any employee, customer, Contractor or agent
of the
Principal;
|
| (e) |
the
Principal's policies and procedures;
and
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| (f) |
all
information contained in this Agreement,
|
but
Confidential Information excludes information that has come into the public
domain other than by a breach of this Agreement.
Contract
Fee
is
defined in clause 4.
Contractor
means
Viaticus Capital Pty Ltd ACN 094 512 973.
Execution
Date
means
the date that this agreement is properly executed by both parties.
GST
means
the same as in the GST Law.
GST
Law
means
the same as "GST law" means in A
New
Tax System (Goods and Services Tax) ▇▇▇ ▇▇▇▇
(Cth).
Intellectual
Property Rights
means
all present and future rights conferred by statute, common law or equity in
or
in relation to copyright, trade marks, designs, patents, circuit layouts, plant
varieties, business and domain names, inventions and confidential information,
and other results of intellectual activity in the industrial, commercial,
scientific, literary or artistic fields whether
or not registrable, registered or patentable.
These
rights include:
| a) |
all
rights in all applications to register these
rights;
|
| b) |
all
renewals and extensions of these rights;
and
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| c) |
all
rights in the nature of these rights, such as Moral
Rights.
|
Materials
means
works, ideas, concepts, designs, inventions, developments, improvements, systems
or other material or information, created, made or discovered by the Contractor
(either alone or with others and whether before or after the Commencement Date)
in the course of the Contractor's engagement or as a result of using the
resources of the Principal,
or in
any way relating to any business of the Principal.
-2-
Moral
Rights
means
rights of integrity of authorship, rights of attribution of authorship, rights
not to have authorship falsely attributed and rights of a similar nature, that
exist, or may come to exist, anywhere in the world in all Materials made or
to
be made by the Contractor in the course of the Contractor's engagement.
Party
means a
party to this Agreement.
Principal
means
pSivida Limited ACN 009 232 026.
Rezos
means
▇▇▇▇▇ ▇▇▇▇▇.
Services
means
the services the Principal and the Contractor agree from time to time as
relevant to the Principal's operations and that are within the scope of the
Contractor's competence.
Term
means
6
months from the Commencement Date or such other period as the Principal and
the
Contractor may agree in writing.
| 1.2 |
Rules
for interpreting this Agreement
|
Headings
are for convenience only, and do not affect interpretation. The following rules
apply in interpreting this Agreement, except where the context makes it clear
that a rule is not intended to apply.
| (a) |
A
reference to:
|
| (i) |
any
legislation (including subordinate legislation) is to that legislation
as
amended, re-enacted or replaced, and includes any subordinate legislation
issued under it;
|
| (ii) |
a
policy, document or agreement, or a provision of a policy, document
or
agreement, is to that policy, document, agreement or provision as
amended,
supplemented, replaced or novated;
|
| (iii) |
a
Party to this Agreement or to any other document or agreement includes
a
permitted substitute or a permitted assign of that Party;
|
| (iv) |
a
person includes any type of entity or body of persons, whether or
not it
is incorporated or has a separate legal identity, and any executor,
administrator or successor in law of the person;
and
|
| (v) |
anything
(including a right, obligation, or concept) includes each part of
it.
|
| (b) |
A
singular word includes the plural, and vice
versa.
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| (c) |
A
word which suggests one gender includes the other
gender.
|
| (d) |
If
a word is defined, another part of speech has a corresponding
meaning.
|
-3-
| (e) |
If
an example is given of anything (including a right, obligation or
concept), such as by saying it includes something else, the example
does
not limit the scope of that thing.
|
| (f) |
A
reference to dollars
or
$
is
to an amount in Australian
currency.
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| 2. |
TERM
OF AGREEMENT
|
This
Agreement commences on the Commencement Date and will continue for the Term
unless terminated earlier in accordance with this Agreement.
| 3. |
PROVISION
OF SERVICES
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| 3.1 |
Services
|
| (a) |
The
Contractor will ensure the Services are provided in a proper and
efficient
manner in accordance with the terms of this
Agreement.
|
| (b) |
The
Contractor will ensure that the Services are performed diligently,
competently, with care and skill in a proper and professional
manner.
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| 3.2 |
Provision
of the Services
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The
Contractor will provide the Services at such reasonable times as the Principal
and Contractor agree.
| 3.3 |
Location
and facilities
|
| (a) |
For
so long as the Principal maintains a Perth office, whether during
the Term
or after the Term:
|
| (i) |
The
Contractor will provide the Services from the Principal's Perth
office;
|
| (ii) |
The
Principal will provide the Contractor use of a laptop computer, desktop
computer, office, car space and secretarial services at the Principal's
Perth office, subject to the Principal's executives being given preference
over the Contractor in relation to the provision of secretarial
services.
|
| (b) |
If
at any time the Principal ceases to maintain a Perth office, the
Contractor will be entitled to retain the laptop computer and the
desktop
computer provided by the Principal for the Contractor's use under
clause
3.3(a), subject to the return of all Confidential Information to
the
Principal.
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| 3.4 |
Warranty
|
The
Principal does not warrant that the Contractor has preference or priority in
providing any service to the Principal.
-4-
3.5
Services to be provided by Rezos on behalf of the
Contractor
| (a) |
Rezos
is required to provide the Services to the Principal on behalf of
the
Contractor. The Services are not to (and cannot) be provided through
any
other person (e.g. an employee, contractor or agent of the
Contractor).
|
| (b) |
Rezos
is made available by the Contractor to provide Services to the Principal
pursuant to this Agreement. Rezos is solely the employee or sub-contractor
of the Contractor and will not be construed to be the employee or
sub-contractor of the Principal. Nor will the relationship between
the
Principal and Rezos be construed as one of employer and
employee.
|
| 4. |
CONTRACT
FEE
|
| 4.1 |
Contract
Fee
|
As
full
consideration for the provision of the Services for the Term, the Principal
will
pay the Contractor a total fee of $329,000 gross (the
Contract
Fee)
due on
the Execution Date. Subject to clause 11, the Contractor agrees that the
Contract Fee may be paid in instalments of $54,833 with the first instalment
being paid on the Execution Date and thereafter 5 monthly instalments commencing
on the monthly anniversary of the Commencement Date. The Contract Fee is
exclusive of GST.
| 4.2 |
Reimbursement
of expenses
|
The
Contractor is not entitled to reimbursement by the Principal for any expenses
incurred in providing the Services
except
with the Principal's prior written approval, save for expenses related to home
broadband services and home phone and fax during the Term.
| 4.3 |
Full
payment for the Services
|
The
Contractor agrees that payment of the amounts provided for in this clause
constitute full payment for the provision of the Services, and the Principal
is
not liable to pay any other amount to the Contractor.
| 5. |
INVOICES
|
| 5.1 |
Invoice
Period
|
The
Contractor will issue an initial Invoice for the Contract Fee on the Execution
Date and a monthly additional invoices detailing any pre-approved amounts
claimed for reimbursement from the Execution Date (“Additional
Invoice”).
| 5.2 |
Payment
of invoice
|
The
Principal will pay each Additional Invoice within 7 days of receipt by the
Principal of the Additional Invoice and any supporting documentation reasonably
required by the Principal.
-5-
5.3
Withholding of Contract Fee
The
Principal may withhold any payment (or part of any payment) due to the
Contractor under any Additional Invoice until the Contractor provides any
supporting documentation reasonably required by the Principal (e.g.
documentation supporting the reimbursement for expenses incurred).
| 6. |
CONFIDENTIAL
INFORMATION
|
| 6.1 |
Confidential
Information
|
The
Contractor acknowledges that all Confidential Information of the Principal
which
has or may come into the possession of the Contractor remains the property
of
the Principal.
| 6.2 |
Non-disclosure
|
The
Contractor must not,
unless
the Principal has first agreed in writing:
| (a) |
disclose
to anyone else, or
|
| (b) |
use
for a purpose other than the provision of the
Services,
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any
of
the Confidential Information either before or after the expiration or
termination of the Term and/or this Agreement.
| 6.3 |
Return
of Confidential
Information
|
On
termination or expiry of this Agreement, the Contractor must immediately return
or cause to be returned, all originals and copies of any Confidential
Information in its possession.
| 7. |
PRIVACY
|
| 7.1 |
The
Contractor must comply with his obligations under the Privacy
▇▇▇ ▇▇▇▇ (Cth).
|
| 7.2 |
The
Contractor consents to the Principal (and its Officers Etc) and the
Company (and its Officers Etc), collecting, using and disclosing
information about the Contractor and the Services provided by the
Contractor to the extent the Principal, its Officers Etc, the Company
or
its Officers Etc are carrying out its or their legitimate business.
For
example, that collection, use or disclosure may involve the Principal,
its
Officers Etc, the Company or its Officers Etc, collecting information
from
or disclosing information to its or their accountants, lawyers, staff,
customers or suppliers, insurers and other third parties for business
reasons.
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| 8. |
INTELLECTUAL
PROPERTY
|
| 8.1 |
In
this clause Intellectual
Property
means all present and future rights whether or not conferred by statute,
common law or equity in or in relation to any copyright, trade marks
(including service marks), designs, business and domain names, circuit
layouts, trade secrets, inventions (including patents), Confidential
Information and know how and other
|
-6-
| 8.2 |
results
in the industrial, commercial, scientific, literary or artistic fields
(whether registered or not and whether protected by statute or
not).
|
| 8.3 |
The
Contractor as beneficial owner assigns to the Principal absolutely
all
Intellectual Property in any material, work, ideas, concepts, designs,
developments, improvements, systems, software, agreements or other
materials prepared or created by the Contractor in connection with
this
Agreement or the provision of the Services (the Materials).
|
| 8.4 |
The
Contractor must do all things necessary or desirable to give full
effect
to the assignment under this clause to the
Principal.
|
| 8.5 |
The
Contractor warrants that:
|
| (a) |
the
Materials, or the use or reproduction of the Materials, will not
infringe
the Intellectual Property Rights of any person;
and
|
| (b) |
except
as required by this clause, the Contractor will not assign, license
or
otherwise deal with the Materials.
|
| 8.6 |
On
termination or expiry of this Agreement the Contractor must immediately
deliver to the Principal all originals and copies of Materials in
its
possession or
Materials that it can otherwise reasonably
obtain.
|
| 8.7 |
Nothing
in this Agreement prevents the Contractor from using any materials,
software, formats and precedents that the Contractor owned or was
licensed
to use at the Commencement Date, whether or not the Principal has
acquired
rights under this Agreement (or otherwise) to any adaptation or
reproduction of them through the Contractor's provision of the
Services.
|
| 9. |
OCCUPATIONAL
HEALTH AND SAFETY
|
The
Contractor must comply with
occupational health and safety legislation and all occupational health and
safety policies and procedures issued by the Principal from time to
time.
| 10. |
TAXATION
|
| 10.1 |
Definitions
in this clause
|
Words
defined in the GST Law have the same meaning in this clause, unless it is clear
that a different meaning is intended.
| 10.2 |
Payment
of GST
|
In
addition to paying the Contract Fee under clause 4 or other consideration (which
is exclusive of GST) the Principal must:
| (a) |
pay
to the Contractor an amount equal to any GST payable for anything
provided
or supplied by the Contractor in connection with this Agreement;
and
|
| (b) |
make
that payment as and when the Principal must pay or provide the Contract
Fee or other consideration.
|
-7-
| 10.3 |
Tax
invoice
|
The
Contractor must issue a tax invoice (or an adjustment note) to the Principal
for
any supply for which the Contractor may recover GST from the Principal under
this Agreement.
| 10.4 |
Overpayment
|
The
Contractor must refund to the Principal any overpayment by the Principal for
GST
within 14 days of the Contractor becoming aware of the overpayment.
| 10.5 |
Claim
for a cost
|
If
a
Party has a claim for a cost on which the Party must pay GST, the claim is
for
the cost plus all GST (except any GST for which that Party is entitled to an
input tax credit).
| 10.6 |
Contractor
must be registered for GST
|
The
Contractor must be registered for GST purposes. If the Contractor is not
registered for GST the Principal will have no obligation under this clause
to
pay GST to the Contractor.
| 11. |
TERMINATION
|
| 11.1 |
Expiry
of Term
|
Save
for
the provisions of this Agreement which specify that they survive the termination
of this Agreement, including clause 3.3 of this Agreement subject to its terms,
this Agreement automatically ends on expiry of the Term.
| 11.2 |
Early
termination
|
At
any
time prior to the expiry of the Term:
| (a) |
the
Principal may terminate this Agreement on payment to the Contractor
of the
outstanding balance, if any, of the Contract Fee;
|
| (b) |
the
Contractor may terminate this Agreement by giving the Principal two
month's written notice. If the Contractor terminates this Agreement
in
accordance with this paragraph (b), the Principal will pay to the
Contractor the outstanding balance, if any, of the Contract
Fee.
|
| 11.3 |
No
additional payment
|
The
Contractor acknowledges that termination of this Agreement does not entitle
it
to any form of payment or compensation by the Principal, except for payment
of
any outstanding balance of the Contract Fee.
-8-
12.
AMENDMENT
This
document can only be amended, supplemented or replaced by another document
signed by the parties.
| 13. |
GENERAL
|
| 13.1 |
Governing
law
|
This
document is governed by the law in force in Western Australia.
| 13.2 |
Operation
of this document
|
| (a) |
This
Agreement contains the entire agreement between the parties about
its
subject matter. Any previous understanding, agreement, representation
or
warranty relating to that subject matter is replaced by this document
and
has no further effect.
|
| (b) |
Any
provision of this Agreement which is unenforceable or partly unenforceable
is, where possible, to be severed to the extent necessary to make
this
Agreement enforceable, unless this would materially change the intended
effect of this Agreement.
|
| 13.3 |
Inconsistency
with other documents
|
If
this
Agreement is inconsistent with any other document or agreement between the
parties, to the fullest extent permitted by law this Agreement prevails to
the
extent of the inconsistency.
| 13.4 |
Counterparts
|
This
document may be executed in counterparts.
-9-
EXECUTED
as an
agreement
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EXECUTED
by
pSivida Limited
ACN
009 232 026:
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| /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ | ||
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Signature
of director
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Signature
of director/secretary
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Name
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Name
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EXECUTED
by
Viaticus
Capital Pty Ltd, by
its sole director and sole company secretary:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇
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Signature
of sole director and sole company secretary
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▇▇.
▇▇▇▇▇ ▇▇▇▇▇
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Name
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-10-