UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20-F
(Mark One)
x | REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934 |
OR
¨ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended
OR
¨ | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
OR
¨ | SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Date of event requiring this shell company report
Commission file number
Prima BioMed Ltd
(Exact name of Registrant as specified in its charter
and translation of Registrants name into English)
Australia
(Jurisdiction of incorporation or organization)
Level 7, 151 Macquarie Street, Sydney 2000, New South Wales, Australia
(Address of principal executive offices)
Martin Rogers, Chief Executive Officer
Level 7, 151 Macquarie Street, Sydney, 2000 New South Wales, Australia
Phone +61 (0)2 9276 1224 Fax:+61 (0)2 9276 1284
Securities registered or to be registered pursuant to Section 12(b) of the Act.
Title of each class |
Name of each exchange on which registered |
|
Ordinary Shares |
NASDAQ Global Market (in connection with the listing for trading of American Depositary Shares representing Ordinary Shares) |
Securities registered or to be registered pursuant to Section 12(g) of the Act. None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act. None
Indicate the number of outstanding shares of each of the issuers classes of capital or common stock as of the close of the period covered by the annual report.
The number of ordinary shares, as of June 30, 2011 981,015,629
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ¨ Yes x No
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. ¨ Yes ¨ No
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. ¨ Yes ¨ No
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). ¨ Yes ¨ No
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of accelerated filer and large accelerated filer in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer ¨ | Accelerated filer ¨ | Non-accelerated filer x |
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
U.S. GAAP ¨ |
International Financial Reporting Standards as issued by the International Accounting Standards Board x |
Other ¨ |
If Other has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow. ¨ Item 17 ¨ Item 18
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). ¨ Yes ¨ No
i.
T ABLE OF C ONTENTS
C ONTINUED
P AGE | ||||||
Item 8. |
Financial Information | 63 | ||||
A. Consolidated Statements and Other Financial Information | 63 | |||||
B. Significant Changes | 63 | |||||
Item 9. |
The Offer and Listing | 64 | ||||
A. Offer and Listing Details | 64 | |||||
B. Plan of Distribution | 65 | |||||
C. Markets | 65 | |||||
65 | ||||||
65 | ||||||
65 | ||||||
Item 10. |
Additional Information | 66 | ||||
66 | ||||||
66 | ||||||
67 | ||||||
67 | ||||||
69 | ||||||
74 | ||||||
74 | ||||||
74 | ||||||
75 | ||||||
Item 11. |
Quantitative and Qualitative Disclosures About Market Risk | 76 | ||||
Item 12. |
Description of Securities Other than Equity Securities | 76 | ||||
76 | ||||||
76 | ||||||
76 | ||||||
76 | ||||||
PART II | 83 | |||||
Item 13. |
Defaults, Dividend Arrearages and Delinquencies | 83 | ||||
Item 14. |
Material Modifications to the Rights of Security Holders and Use of Proceeds | 83 | ||||
Item 15. |
Controls and Procedures | 83 | ||||
Item 15T. |
Controls and Procedures | 83 |
ii.
T ABLE OF C ONTENTS
C ONTINUED
P AGE | ||||||
Item 16. |
Reserved | 83 | ||||
Item 16A. |
Audit committee financial expert | 83 | ||||
Item 16B. |
Code of Ethics | 83 | ||||
Item 16C. |
Principal Accountant Fees and Services | 83 | ||||
Item 16D. |
Exemptions from the listing standards for Audit committees | 83 | ||||
Item 16E. |
Purchases of Equity Securities by the Issuer and Affiliated Purchasers | 83 | ||||
Item 16F. |
Change in Registrants Certifying Accountant | 83 | ||||
Item 16G. |
Corporate Governance | 83 | ||||
84 | ||||||
Item 17. |
Financial Statements | 84 | ||||
Item 18. |
Financial Statements | 84 | ||||
Item 19. |
Exhibits | 144 |
iii.
Prima BioMed Ltd was incorporated under the laws of the Commonwealth of Australia on May 21, 1987. The principal listing of our ordinary shares and listed options to purchase our ordinary shares is the Australian Securities Exchange, or ASX. We are filing this registration statement on Form 20-F in anticipation of the listing of our American Depositary Shares, or ADSs, on the NASDAQ Global Market under the symbol PBMD. The Bank of New York Mellon, acting as depositary, will register and deliver our ADSs, each of which will represent 30 of our ordinary shares. As used in this registration statement, the terms we, us, our, Prima BioMed, Prima Biomed and the Company mean Prima BioMed Ltd and its subsidiaries, unless otherwise indicated.
CVac is our trademark. Any other trademarks and trade names appearing in this registration statement on Form 20-F are owned by their respective holders.
Our consolidated financial statements appearing in this registration statement on Form 20-F are prepared in Australian dollars and in accordance with the International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board, or IASB. Our consolidated financial statements appearing in this registration statement on Form 20-F comply with both the IFRS and Australian equivalents to IFRS, or A-IFRS. Compliance with Australian Accounting Standards ensures that the financial statements and notes also comply with IFRS.
In this registration statement, all references to U.S. dollars or US$ are to the currency of the United States of America, and all references to Australian dollars or A$ are to the currency of Australia.
Statements made in this registration statement on Form 20-F concerning the contents of any contract, agreement or other document are summaries of such contracts, agreements or documents and are not complete descriptions of all of their terms. If we filed any of these documents as an exhibit to this annual report or to any registration statement or annual report that we previously filed, you may read the document itself for a complete description of its terms.
Except for the historical information contained in this registration statement on Form 20-F, the statements contained in this registration statement on Form 20-F are forward-looking statements which reflect our current view with respect to future events and financial results. We urge you to consider that statements which use the terms anticipate, believe, do not believe, expect, plan, intend, estimate, and similar expressions are intended to identify forward-looking statements. We remind investors that forward-looking statements are merely predictions and therefore inherently subject to uncertainties and other factors and involve known and unknown risks that could cause the actual results, performance, levels of activity, or our achievements, or industry results, to be materially different from any future results, performance, levels of activity, or our achievements expressed or implied by such forward-looking statements. Investors are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date hereof. Except as required by applicable law, including the securities laws of the United States, we undertake no obligation to publicly release any update or revision to any forward-looking statements to reflect new information, future events or circumstances, or otherwise after the date hereof. Please see the Risk Factors section that appears in Item 3. Key Information D. Risk Factors.
1
ITEM 1. | IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS |
A. | Directors and Senior Management |
For the names, business addresses and functions of our directors and senior management, see Item 6. Directors, Senior Management and Employees A. Directors and Senior Management and Item 6. Directors, Senior Management and Employees C. Board Practices.
B. | Advisers |
Our principal legal advisers are McCabe Terrill, Level 14, 130 Elizabeth St, Sydney New South Wales 2000, Australia; and Cooley LLP, 3175 Hanover Street, Palo Alto, CA 94304-1130, United States of America.
C. | Auditors |
Our auditors for fiscal 2009, 2010 and 2011 were MDHC Audit Assurance Pty Ltd, Level 3, 302 Burwood Road, Hawthorn, Victoria 3122, Australia.
Our auditors for fiscal 2012 are PricewaterhouseCoopers, 201 Sussex Street, SYDNEY, NSW 1171, AUSTRALIA
ITEM 2. | OFFER STATISTICS AND EXPECTED TIMETABLE |
Not applicable.
2
ITEM 3. | KEY INFORMATION |
A. | Selected Financial Data |
Our consolidated financial statements appearing in this registration statement on Form 20-F comply with both the International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board and Australian equivalents to IFRS, or A-IFRS. Compliance with Australian Accounting Standards ensures that the financial statements and notes also comply with IFRS.
The following selected consolidated financial data as of June 30, 2011 and 2010 and for the fiscal years ended June 30, 2011, 2010 and 2009 have been derived from our audited consolidated financial statements and notes thereto included elsewhere in this registration statement on Form 20-F. The selected consolidated financial data as of June 30, 2009, 2008 and 2007 and for the fiscal year ended June 30, 2008 and 2007 has been derived from our audited consolidated financial statements and notes thereto which are not included in this registration statement on Form 20-F. This data should be read together with, and is qualified in its entirety by reference to, Item 5. Operating and Financial Review and Prospects as well as our consolidated financial statements and notes thereto appearing in Item 18. Financial Statements of this registration statement on Form 20-F.
The selected financial data are presented in Australian dollars (A$) (except as otherwise noted).
Consolidated Statement of Operations Data:
Year Ended June 30, | ||||||||||||||||||||
2011 |
2010
(Restated) (1) |
2009
(Restated) (1) |
2008
(Restated) (1 ) |
2007 | ||||||||||||||||
(in A$, except share amounts) | ||||||||||||||||||||
Total revenue |
1,066,196 | 523,734 | 29,112 | 57,940 | 156,122 | |||||||||||||||
Depreciation & amortization |
(64,287 | ) | (53,039 | ) | (49,418 | ) | (52,861 | ) | (55,811 | ) | ||||||||||
Research & development and intellectual property |
(9,531,163 | ) | (5,124,522 | ) | (613,892 | ) | (213,433 | ) | (1,114,064 | ) | ||||||||||
Corporate administrative expenses* |
(5,600,988 | ) | (5,816,006 | ) | (1,571,843 | ) | (1,668,258 | ) | (1,858,053 | ) | ||||||||||
Finance expenses* |
(6,395,818 | ) | (6,946,628 | ) | (148,875 | ) | | | ||||||||||||
Impairment of assets* |
(555,107 | ) | | (471,464 | ) | (1,954,945 | ) | (267,604 | ) | |||||||||||
Net loss on financial liabilities at fair value through profit or loss |
| (528,846 | ) | (115,385 | ) | | | |||||||||||||
Other expenses* |
| (15,280 | ) | (4,677 | ) | (10,766 | ) | 376 | ||||||||||||
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Net loss* |
(21,081,167 | (17,960,587 | ) | (2,946,442 | ) | (3,842,323 | ) | (3,139,034 | ) | |||||||||||
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Loss per share basic and diluted* |
(0.0374 | ) | (0.0360 | ) | (0.0090 | ) | (0.0150 | ) | (0.0168 | ) | ||||||||||
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Weighted average number of ordinary shares outstanding basic and diluted |
563,107,660 | 499,567,326 | 326,869,863 | 256,181,783 | 187,146,193 | |||||||||||||||
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* | Restated |
(1) |
Details of the restatement of the fiscal years ended June 30, 2010 and 2009 can be found in Note 3. Restatement of comparatives to the audited financial statements. |
3
Consolidated Balance Sheet Data:
As of June 30, | ||||||||||||||||||||
2011 |
2010
(Restated) (1) |
2009 | 2008 | 2007 | ||||||||||||||||
(in A$) | ||||||||||||||||||||
Cash and cash equivalents |
45,918,552 | 5,638,342 | 939,561 | 1,098,259 | 671,780 | |||||||||||||||
Working capital* |
54,525,711 | 14,369,705 | 696,327 | 993,438 | 443,190 | |||||||||||||||
Total assets* |
57,640,661 | 18,050,291 | 2,489,620 | 2,821,250 | 4,358,277 | |||||||||||||||
Long-term debt* |
| | | | | |||||||||||||||
Total shareholders equity* |
55,099,130 | 15,839,939 | 1,812,522 | 2,633,433 | 4,080,070 |
* | Restated |
(1) |
Details of the restatement of the fiscal years ended June 30, 2010 and 2009 can be found in Note 3. Restatement of comparatives to the audited financial statements. |
4
Exchange Rate Information:
The following tables set forth, for the periods and dates indicated, certain information regarding the rates of exchange of A$1.00 into US$ based on the noon market buying rate in New York City for cable transfers in Australian dollars as certified for customs purposes by the Federal Reserve Bank of New York, or the noon buying rate.
Exchange rate as of September 30, 2011: A$1.00 is US$0.9661
Year Ended June 30, |
At Period End | Average Rate | High | Low | ||||||||||||
US$ |
US$ |
US$ |
US$ |
|||||||||||||
2007 |
0.8488 | 0.7859 | 0.8521 | 0.7377 | ||||||||||||
2008 |
0.9615 | 0.8965 | 0.9654 | 0.7672 | ||||||||||||
2009 |
0.8048 | 0.7480 | 0.9849 | 0.6005 | ||||||||||||
2010 |
0.8567 | 0.8820 | 0.9405 | 0.7723 | ||||||||||||
2011 |
1.067 | 0.9870 | 1.0958 | 0.8323 |
Month |
High | Low | ||||||
US$ |
US$ |
|||||||
July 2010 |
0.9068 | 0.8323 | ||||||
August 2010 |
0.9221 | 0.8772 | ||||||
September 2010 |
0.9726 | 0.8861 | ||||||
October 2010 |
0.9969 | 0.9610 | ||||||
November 2010 |
1.0159 | 0.9561 | ||||||
December 2010 |
1.0154 | 0.9633 | ||||||
January 2011 |
1.0131 | 0.9768 | ||||||
February 2011 |
1.0090 | 0.9821 | ||||||
March 2011 |
1.0309 | 0.9815 | ||||||
April 2011 |
1.09587 | 1.03176 | ||||||
May 2011 |
1.0940 | 1.0510 | ||||||
June 2011 |
1.0712 | 1.0452 | ||||||
July 2011 |
1.1029 | 1.0598 | ||||||
August 2011 |
1.1015 | 1.0461 | ||||||
September 2011 |
1.0725 | 0.9757 | ||||||
October 2011 |
1.0753 | 0.9388 | ||||||
November 2011 |
1.0565 | 0.9664 | ||||||
December 2011 |
1.0382 | 0.9862 | ||||||
January 2012 |
1.0685 | 1.0197 |
5
B. | Capitalization and Indebtedness |
As of June 30, 2011, we had 981,015,629 ordinary shares and no preference shares outstanding. All of our issued and outstanding ordinary shares are fully paid. We do not have a limit on our authorized share capital and do not recognize the concept of par value under Australian law. No ordinary shares are held by us on behalf of Prima BioMed.
As of June 30, 2011, our indebtedness consisted of accounts trade payable incurred in the ordinary course of business. Please see Item 5. Operating and Financial Review and Prospects B. Liquidity and Capital Resources for further information.
C. | Reasons for the Offer and Use of Proceeds |
Not applicable.
6
D. | Risk Factors |
The following risks relate specifically to our business and should be considered carefully. Our business, financial condition and results of operations could be harmed by any of the following risks. As a result, the trading price of our ordinary shares and our American Depositary Shares, or ADSs, could decline and the holders could lose part or all of their investment.
Risks Related to Our Business
We have a history of operating losses and may not achieve or maintain profitability in the future.
We are a development stage company at an early stage in the development of pharmaceutical products and our success is uncertain. Unless we are able to generate sufficient product revenue, we will continue to incur losses from operations and may not achieve or maintain profitability. As of June 30, 2011, we had an accumulated deficit of A$80 million. At this point we do not have any products that generate revenue. We will continue to incur losses from operations and we expect the costs of drug development to increase over the next years as more patients are recruited to our trials and potential commercialization draws near. In particular, we will continue to incur significant losses in carrying out clinical trials of CVac necessary for regulatory approval. Because of the numerous risks and uncertainties associated with the development, manufacturing, sales and marketing of therapeutic products, we may experience larger than expected future losses and may never become profitable. Our current or any future product candidates many not be successfully developed, and if successfully developed, may not generate sufficient revenue to enable us to be profitable.
If we fail to become and remain profitable, or if we are unable to fund our continuing losses, our business will be harmed and the holders of our ordinary shares and ADSs could lose all or part of their investment. There is a substantial risk that we may not be able to complete the development of our current product candidates or develop other pharmaceutical products. We will rely on CVac and our other product candidates to generate revenues for us in the future. It is possible that none of them will be successfully commercialized, which would prevent us from ever achieving profitability.
We will require additional financing in the future to sufficiently fund our operations and research.
We have been incurring losses and will continue to do so as we expand our drug development programs. Our actual cash requirements may vary from those now planned and will depend upon many factors, including: the continued progress of our research and development programs; the timing, costs and results of clinical trials; the cost, timing and outcome of submissions for regulatory approval; the commercial potential of our product candidates; our ability to increase manufacturing capabilities; and the status and timing of competitive developments.
We anticipate that as the trials for CVac progress and its associated costs increase we will require additional funds to achieve our long-term goals of commercialization and further development of other product candidates. In addition, we will require funds to pursue regulatory applications, defend intellectual property rights, increase manufacturing capacity, develop marketing and sales capability and fund operating expenses. We intend to seek such additional funding through public or private financings and/or through licensing of our assets or other arrangements with corporate partners. However, such financing, licensing opportunities or other arrangements may not be available from any sources on acceptable terms, or at all. Any shortfall in funding could result in our having to curtail or cease our operations including our research and development activities, which would harm our business, financial condition and results of operations.
Ongoing and future clinical trials of our product candidates may not show sufficient safety or efficacy to obtain requisite regulatory approvals for commercial sale.
Phase I and Phase II clinical trials are not primarily designed to test the efficacy of a product candidate but rather to test safety and to understand the product candidates side effects at various doses and schedules. Furthermore, success in preclinical and early clinical trials does not ensure that later large-scale trials will be successful nor does it predict final results. Acceptable results in early trials may not be repeated in later trials. Further, Phase III clinical trials may not show sufficient safety or efficacy to obtain regulatory approval for marketing. We may conduct lengthy and expensive clinical trials of our product candidates, only to learn that the product candidate is not an effective treatment or not sufficiently safe. A number of companies in the biotechnology industry have suffered significant setbacks in Phase III clinical trials, even after promising results
7
in earlier trials. In addition, clinical results are frequently susceptible to varying interpretations that may delay, limit or prevent regulatory approvals. Negative or inconclusive results or adverse medical events during a clinical trial could require that the clinical trial be redone or terminated. In addition, failure to construct appropriate clinical trial protocols could result in the test or control group experiencing a disproportionate number of adverse events and could require that a clinical trial be redone or terminated. The length of time necessary to complete clinical trials and to submit an application for marketing approval by applicable regulatory authorities may also vary significantly based on the type, complexity and novelty of the product candidate involved, as well as other factors. If we suffer any significant delays, setbacks or negative results in, or termination of, our clinical trials, we may be unable to continue the development of our products or product candidates or generate revenue and our business may be harmed.
If we do not obtain the necessary regulatory approvals we will be unable to commercialize our pharmaceutical products. Even if we receive regulatory approval for any product candidates, profitability will depend on our ability to generate revenues from the sale of our products or the licensing of our technology.
The clinical development, manufacturing, sales and marketing of our products are subject to extensive regulation by regulatory authorities in the United States, the United Kingdom, the European Union, Australia and elsewhere. These regulations vary in important, meaningful ways from country to country. Despite the substantial time and expense invested in preparation and submission of a Biologic License Application, or BLA, or equivalents in other jurisdictions, regulatory approval is never guaranteed. The U.S. Food and Drug Administration, or FDA, and other regulatory authorities in the United States, the United Kingdom, the European Union, Australia and elsewhere, exercise substantial discretion in the drug approval process. The number, size and design of preclinical studies and clinical trials that will be required will vary depending on the product, the disease or condition for which the product is intended to be used and the regulations and guidance documents applicable to any particular product. The FDA or other regulators can delay, limit or deny approval of a product for many reasons, including, but not limited to, the fact that regulators may not approve our or our third-party manufacturers processes or facilities or that new laws may be enacted or regulators may change their approval policies or adopt new regulations requiring new or different evidence of safety and efficacy for the intended use of a product.
CVac is currently undergoing clinical trials, however, successful results in the trial and in the subsequent application for marketing approval are not guaranteed. If we are unable to obtain regulatory approvals we will not be able to generate revenue from CVac, or our other product candidates. Even if we receive regulatory approval for any product candidates, our profitability will depend on our ability to generate revenues from the sale of our product candidates or the licensing of our technology that will offset the significant and continuing expenditures required for us to advance our research, protect and extend our intellectual property rights and develop, manufacture, license, market, distribute and sell our technology and product candidates successfully.
Even if our product candidates receive regulatory approval, we may still face development and regulatory difficulties that may delay or impair future sales of our product candidates and we would be subject to ongoing regulatory obligations and restrictions, which may result in significant expense and limit our ability to commercialize our product candidates.
If we receive regulatory approval to sell CVac or any other product candidate, the relevant regulatory authorities may, nevertheless, impose significant restrictions on the indicated uses, manufacturing, labeling, packaging, adverse event reporting, storage, advertising, promotion and record keeping or impose ongoing requirements for post-approval studies. In addition, regulatory agencies subject a marketed product, its manufacturer and the manufacturers facilities to continual review and periodic inspections. Potentially costly follow-up or post-marketing clinical studies may be required as a condition of approval to further substantiate safety or efficacy, or to investigate specific issues of interest to the regulatory authority. Previously unknown problems with the product candidate, including adverse events of unanticipated severity or frequency, may result in restrictions on the marketing of the product, and could include withdrawal of the product from the market. If we discover previously unknown problems with a product or our manufacturing facilities or the manufacturing facilities of a contract manufacturer, a regulatory agency may impose restrictions on that product, on us or on our third-party contract manufacturers, including requiring us to withdraw the product from the market. If we fail to comply with applicable regulatory requirements, a regulatory agency may:
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issue warning letters; |
8
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impose civil or criminal penalties; |
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suspend our regulatory approval; |
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suspend any of our ongoing clinical trials; |
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refuse to approve pending applications or supplements to approved applications filed by us; |
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impose restrictions on our operations, including closing our contract manufacturers facilities or terminating licenses to manufacture Good Manufacturing Practice grade material; or |
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seize or detain products or require a product recall. |
Any of the foregoing could harm the commercialization of our product candidates and our results and operations may be harmed. Likewise, any failure to comply with ongoing regulatory requirements may significantly and adversely affect our ability to commercialize our products. In addition, the law or regulatory policies governing pharmaceuticals may change. New statutory requirements may be enacted or additional regulations may be enacted that could prevent or delay regulatory approval of our products. We cannot predict the likelihood, nature or extent of adverse government regulation that may arise from future legislation or administrative action. If we are not able to maintain regulatory compliance, we might not be permitted to market our product candidates and our business could suffer.
We have limited manufacturing experience with our product candidates. Delays in manufacturing sufficient quantities of materials may negatively impact our business and operations.
CVac differs from many therapeutic products in that it must be manufactured on a patient-by-patient basis, using the patients own immune cells, and therefore cannot be mass produced and stockpiled. Should we obtain regulatory approval, we may not be able to manufacture sufficient quantities in a cost-effective or timely manner which would hinder the commercialization of the product, and reduce or prevent potential revenues. We may need to develop additional manufacturing resources, enter into collaborative arrangements with other parties, or have third parties manufacture our products on a contract basis. We may not have access on acceptable terms to the substantial financing that would be required to scale-up production and develop commercial manufacturing processes. We may not be able to enter into collaborative or contractual arrangements on acceptable terms with third parties that will meet our requirements for quality, quantity and timeliness. Such delays and hurdles could harm our business, financial condition and results of operations.
To the extent we rely significantly on contractors, we will be exposed to risks related to the business conditions of our contractors.
We are a small company, with few internal staff and no capital facilities. As of June 30, 2011 we only had fourteen employees. We rely on a variety of contractors to manufacture our products, to perform clinical testing, and to prepare regulatory dossiers. Adverse events that affect one or more of our contractors could adversely affect us, such as:
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a contractor is unable to retain key staff that have been working on our business; |
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a contractor is unable to sustain operations due to financial or other business issues; |
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a contractor loses its permits or licenses that may be required to manufacture our products; or |
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errors, negligence or misconduct that occur within a contractor may adversely affect our business concerns although we may not be directly responsible. |
To the extent we are able to enter into collaborative arrangements or strategic alliances, we will be exposed to risks related to those collaborations and alliances.
An important element of our strategy for developing, manufacturing and commercializing our product candidates is entering into partnerships and strategic alliances with other pharmaceutical companies or other industry participants to advance our programs and enable us to maintain our financial and operational capacity. We may not be able to negotiate alliances on acceptable terms, if at all. Although we are not currently party to any collaborative arrangement or strategic alliance that we believe is material to our business, in the future we may rely on collaborative arrangements or strategic alliances to complete the development and commercialization of some of our product candidates. Although we have no specific reason to believe that we will be at a disadvantage when negotiating such collaborative arrangements or strategic alliances, our negotiating position will be influenced by our financial capacity at the relevant time to continue the development and commercialization of the relevant product candidate, as well as the timing of any such negotiations and the stage
9
of development of the relevant product candidate. These arrangements may result in us receiving less revenue than if we sold such products directly, may place the development, sales and marketing of our products outside our control, may require us to relinquish important rights or may otherwise be on terms unfavorable to us. Collaborative arrangements or strategic alliances will subject us to a number of risks, including the risk that:
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we may not be able to control the amount and timing of resources that our strategic partner/collaborators may devote to the product candidates; |
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our strategic partner/collaborators may experience financial difficulties; |
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we may be required to relinquish important rights such as marketing and distribution rights; |
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business combinations or significant changes in a collaborators business strategy may also adversely affect a collaborators willingness or ability to complete its obligations under any arrangement; |
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a collaborator could independently move forward with a competing product developed either independently or in collaboration with others, including our competitors; and |
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collaborative arrangements are often terminated or allowed to expire, which would delay the development and may increase the cost of developing our product candidates. |
Our research and development efforts will be jeopardized if we are unable to retain key personnel and cultivate key academic and scientific collaborations.
Our future success depends to a large extent on the continued services of our senior management and key scientific personnel. We are currently in the process of obtaining key man insurance for our chief executive officer, chief operating officer and chief medical officer. We are not aware that any member of our senior management or key scientific personnel is contemplating ending their relationship with Prima BioMed. Competition among biotechnology and pharmaceutical companies for qualified employees is intense and we may not be able to attract and retain personnel critical to our success. Our success depends on our continued ability to attract, retain and motivate highly qualified management, clinical and scientific personnel, manufacturing personnel, sales and marketing personnel and on our ability to develop and maintain important relationships with clinicians, scientists and leading academic and health institutions. If we fail to identify, attract, retain and motivate these highly skilled personnel, we may be unable to continue our development and commercialization activities.
Our research and development efforts will be jeopardized if we are unable to secure critical reagents necessary for manufacture of key components of our ovarian cancer vaccine.
The initial component of CVac manufacture is common to all patients regardless of disease indication. A number of key reagents are available from reputable commercial sources, produced under the appropriate level of quality control (e.g. GMP, ISO, etc.) and supplied with appropriate specifications and batch release documentation. We have assumed that our ongoing supply of these reagents will be available during further clinical development, that no further technology transfer from us is required and that lot-to-lot reproducibility can be assured. These reagents include:
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Cytokines for cell processing: rHuGM-CSF (Global Rx) and rHuIL-4 (Gentaur); |
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Antibiotic free AIM-V media (Invitrogen) for cell processing; |
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FITC-mannan (Chemicon) for DC phenotyping; and |
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Various antibodies for DC phenotyping. |
If we are unable to secure critical reagents from our current suppliers the continued development and any future commercialization of our product candidates may be delayed if regulatory authorities require any bridging studies to be performed.
Our success depends on our ability to protect our intellectual property and our proprietary technology.
Any future success will depend in large part on whether we can obtain and maintain patents to protect our own products and technologies; obtain licenses to the patented technologies of third parties; operate without infringing on the proprietary rights of third parties. Biotechnology patent matters can involve complex legal and scientific questions, and it is impossible to predict the outcome of biotechnology and pharmaceutical patent claims. Any of our future patent applications may not be approved, or we may not develop additional products or processes that are patentable. Some countries in which we may sell our product candidates or license our
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intellectual property may fail to protect our intellectual property rights to the same extent as the protection that may be afforded in the United States or Australia. Some legal principles remain unresolved and there has not been a consistent policy regarding the breadth or interpretation of claims allowed in patents in the United States, the United Kingdom, the European Union, Australia or elsewhere. In addition, the specific content of patents and patent applications that are necessary to support and interpret patent claims is highly uncertain due to the complex nature of the relevant legal, scientific and factual issues. Changes in either patent laws or in interpretations of patent laws in the United States, the United Kingdom, the European Union or elsewhere may diminish the value of our intellectual property or narrow the scope of our patent protection.
We may have to resort to litigation to enforce any patents issued or licensed to us or to determine the scope and validity of third party proprietary rights. We may have to defend the validity of our patents in order to protect or enforce our rights against a third party, or third parties may in the future assert against us infringement claims regarding proprietary rights belonging to them. Such proceedings could result in the expenditure of significant financial and managerial resources and could negatively affect our profitability. Adverse determinations in any such proceedings could prevent us from developing and commercializing our products and could harm our business, financial condition and results of operations.
If we infringe the intellectual property rights of third parties, it may increase our costs or prevent us from the commercialization our product candidates.
There is a risk that we are or may infringe the proprietary rights of third parties of which we are unaware. There has been substantial litigation and other proceedings regarding patent and other intellectual property rights in the pharmaceutical and biotechnology industries. To date, we have not been involved in any such third-party claims and we are not aware that our product candidates infringe the intellectual property rights of third parties. As a result of intellectual property infringement claims, or to avoid potential claims, we might be:
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prohibited from selling or licensing any product candidate that we may develop unless the patent holder licenses the patent to us, which it is not required to do; |
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required to expend considerable amounts of money in defending the claim; |
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required to pay substantial royalties or grant a cross license to our patents to another patent holder; |
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required to redesign the formulation of a product so that it does not infringe, which may not be possible or could require substantial funds and time; or |
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required to pay substantial monetary damages. |
If we are unable to keep pace with technological change or with the advances of our competitors our technology and products may become non-competitive.
The biotechnology and pharmaceutical industries are subject to rapid and significant technological change. Our competitors in Australia and elsewhere are numerous and include major pharmaceutical companies, biotechnology firms, and other research institutions. These competitors may develop technologies and products that are more effective than any that we are developing, or which would render our technology and products non-competitive. Many of these competitors have greater financial and technical resources and manufacturing and marketing capabilities than we do, and have more experience in conducting clinical trials and obtaining FDA, Australias Therapeutic Goods Administration and other regulatory approvals. Our ability to further develop and commercialize our products may be adversely affected if our competitors were to succeed in obtaining regulatory approval for their products sooner than us.
Future sales of our products may suffer if they are not accepted in the marketplace by physicians, patients and the medical community.
There is a risk that CVac or our other product candidates may not gain market acceptance among physicians, patients and the medical community, even if they are approved by the regulatory authorities. The degree of market acceptance of any of our approved products will depend on a variety of factors, including:
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timing of market introduction, number and clinical profile of competitive products; |
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our ability to provide acceptable evidence of safety and efficacy and our ability to secure the support of key clinicians and physicians for our products; |
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cost-effectiveness compared to existing and new treatments; |
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availability of coverage, reimbursement and adequate payment from health maintenance organizations and other third-party payors; |
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prevalence and severity of adverse side effects; and |
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other advantages over other treatment methods. |
Physicians, patients, payors or the medical community may be unwilling to accept, use or recommend our products which would adversely affect our potential revenues and future profitability.
If healthcare insurers and other organizations do not pay for our products or impose limits on its reimbursement, our future business may suffer.
Our product candidates may be rejected by the market due to many factors, including cost. The continuing efforts of governments, insurance companies and other payers of healthcare costs to contain or reduce healthcare costs may affect our future revenues and profitability. In Australia and certain foreign markets the pricing of pharmaceutical products is already subject to government control. We expect initiatives for similar government control to continue in the United States and elsewhere. The adoption of any such legislative or regulatory proposals could harm our business and prospects.
Successful commercialization of our product candidates will depend in part on the extent to which reimbursement for the cost of our products and related treatment will be available from government health administration authorities, private health insurers and other organizations. Our product candidates may not be considered cost-effective and reimbursement may not be available to consumers or may not be sufficient to allow our products to be marketed on a competitive basis. Third-party payers are increasingly challenging the price of medical products and treatment. If third party coverage is not available for our products the market acceptance of these products will be reduced. Cost-control initiatives could decrease the price we might establish for products, which could result in product revenues lower than anticipated. If the prices for our product candidates decrease or if governmental and other third-party payors do not provide adequate coverage and reimbursement levels our potential revenue and prospects for profitability will suffer.
We may be exposed to product liability claims which could harm our business.
The testing, marketing and sale of therapeutic products entails an inherent risk of product liability. We face product liability exposure related to the testing of our product candidates in human clinical trials. If any of our products are approved for sale, we may face exposure to claims by an even greater number of persons than were involved in the clinical trials once we begin marketing, distribution and sales our products commercially. Regardless of merit or eventual outcome, liability claims may result in:
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decreased demand for our products and product candidates; |
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injury to our reputation; |
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withdrawal of clinical trial participants; |
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costs of related litigation; |
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substantial monetary awards to patients and others; |
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loss of revenues; and |
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the inability to commercialize our products and product candidates. |
If there is a claim made against us or some other problem that is attributable to our products or product candidates, our share price may be negatively affected. Even if we were ultimately successful in product liability litigation, the litigation would consume substantial amounts of our financial and managerial resources and may create adverse publicity, all of which would impair our ability to generate sales of our product candidates. We may incur substantial liabilities or be required to limit development or commercialization of our product candidates if we cannot successfully defend ourselves against product liability claims. Such coverage may not be available in the future on acceptable terms, or at all. Even if we have adequate insurance coverage, product liability claims or recalls could result in negative publicity and force us to devote significant managerial and financial resources to those matters, and the commercialization of our product candidates may be delayed or severely compromised.
We rely on a number of third party researchers and contractors to produce, collect, and analyse data regarding the safety and efficacy of our product candidates. We have quality control and quality assurance in
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place to mitigate these risks, as well as professional liability and clinical trial insurance to cover financial damages in the event that human testing is done incorrectly or the data is analyzed incorrectly. If a claim is made against us in conjunction with the research testing activities, our share price may be negatively affected. We may be at risk of needing to redo testing at a significant cost. We could face additional liability beyond our insurance limits if testing mistakes were to endanger any human subjects. Liability claims due to errors or omissions in human testing may result in injury to our reputation in the eyes of scientists, doctors, regulators, and patients.
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Risks Relating to Our Securities
Our stock price may be volatile and could decline significantly.
The market price of our ordinary shares historically has been, and we expect will continue to be, subject to significant fluctuations over short periods of time. These fluctuations may be due to factors specific to us, to changes in analysts recommendations and earnings estimates, to arbitrage between our Australian listed shares and our ADSs, to changes in exchange rates, or to factors affecting the biopharmaceutical industry or the securities markets in general. Market fluctuations, as well as general political and economic conditions, such as a recession, interest rate or currency fluctuations, could adversely affect the market price of our securities.
For example, during the last two fiscal years, the market price for our ordinary shares on the Australian Securities Exchange has ranged from as low as A$0.05 to a high of A$0.42. We may experience a material decline in the market price of our shares, regardless of our operating performance. Therefore, a holder of our ordinary shares or ADSs may not be able to sell those ordinary shares or ADSs at or above the price paid by such holder for such shares or ADSs. Price declines in our ordinary shares or ADSs could result from a variety of factors, including many outside our control. These factors include:
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the results of pre-clinical testing and clinical trials by us and our competitors; |
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unforeseen safety issues or adverse side effects resulting from the clinical trials or the commercial use of any of our product candidates; |
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regulatory actions in respect of any of our products or the products of any of our competitors; |
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announcements of the introduction of new products by us or our competitors; |
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market conditions, including market conditions in the pharmaceutical and biotechnology sectors; |
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increases in our costs or decreases in our revenues due to unfavorable movements in foreign currency exchange rates; |
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developments or litigation concerning patents, licenses and other intellectual property rights; |
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litigation or public concern about the safety of our potential products; |
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changes in recommendations or earnings estimates by securities analysts; |
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actual and anticipated fluctuations in our quarterly operating results; |
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deviations in our operating results from the estimates of securities analysts; |
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rumors relating to us or our competitors; |
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additions or departures of key personnel; |
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changes in third-party reimbursement policies; and |
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developments concerning current or future strategic alliances or acquisitions. |
Our ordinary shares may be considered a penny stock under SEC regulations which could adversely affect the willingness of investors to hold our ADSs.
The SEC has adopted regulations which generally define penny stock to be an equity security that has a market price of less than $5.00 per share, subject to specific exemptions. During the fiscal year ended June 30, 2011, our ordinary shares traded on the ASX from low of A$0.08 to a high of A$0.42 per share. Under ASX listing rules our shares may not trade below A$0.001 per share. The low trading price of our ordinary shares rules may adversely the willingness of investors to hold our ADSs.
We may be a passive foreign investment company (PFIC) which would subject our U.S. investors to adverse tax rules.
Holders of our ADSs who are U.S. residents face income tax risks. There is a substantial risk that we are currently a passive foreign investment company, or PFIC, which could result in a reduction in the after-tax return to a U.S. Holder of our ADRs and reduce the value of our ADSs. For U.S. federal income tax purposes, we will be classified as a PFIC for any taxable year in which (i) 75% or more of our gross income is passive income, or (ii) at least 50% of the average value of all of our assets for the taxable year produce or are held for the production of passive income. For this purpose, cash is considered to be an asset that produces passive income.
The determination of whether we are a PFIC is made on an annual basis and depends on the composition of our income and the value of our assets. Therefore, it is possible that we could be a PFIC in the current year as well
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as in future years. If we are classified as a PFIC in any year that a U.S. Holder owns ADSs, the U.S. Holder will generally continue to be treated as holding ADSs of a PFIC in all subsequent years, notwithstanding that we are not classified as a PFIC in a subsequent year. Dividends received by the U.S. Holder and gains realized from the sale of our ADSs would be taxed as ordinary income and subject to an interest charge. We urge U.S. investors to consult their own tax advisors about the application of the PFIC rules and certain elections that may help to minimize adverse U.S. federal income tax consequences in their particular circumstances.
We have never paid a dividend and we do not intend to pay dividends in the foreseeable future which means that holders of shares and ADSs may not receive any return on their investment from dividends.
To date, we have not declared or paid any cash dividends on our ordinary shares and currently intend to retain any future earnings for funding growth. We do not anticipate paying any dividends in the foreseeable future. Dividends may only be paid out of our profits. Payment of cash dividends, if any, in the future will be at the discretion of our board of directors. Our holders of shares and ADSs may not receive any return on their investment from dividends. The success of your investment will likely depend entirely upon any future appreciation of the market price of our ordinary shares, which is uncertain and unpredictable. There is no guarantee that our ordinary shares will appreciate in value or even maintain the price at which you purchased your ordinary shares.
Currency fluctuations may adversely affect the price of the ADSs relative to the price of our ordinary shares.
The price of our ordinary shares is quoted in Australian dollars and the price of our ADSs will be quoted in U.S. dollars. Movements in the Australian dollar/U.S. dollar exchange rate may adversely affect the U.S. dollar price of our ADSs and the U.S. dollar equivalent of the price of our ordinary shares. In the last two years, the Australian dollar has as a general trend appreciated against the U.S. dollar. Any continuation of this trend may positively affect the U.S. dollar price of our ADSs and the U.S. dollar equivalent of the price of our ordinary shares, even if the price of our ordinary shares in Australian dollars increases or remains unchanged. However, this trend may not continue and may be reversed. If the Australian dollar weakens against the U.S. dollar, the U.S. dollar price of the ADSs could decline, even if the price of our ordinary shares in Australian dollars increases or remains unchanged.
As a result of becoming a SEC registrant, we will be obligated to develop and maintain proper and effective internal controls over financial reporting. We may not complete our analysis of our internal controls over financial reporting in a timely manner, or these internal controls may not be determined to be effective, which may adversely affect investor confidence in our company and, as a result, the value of our common shares.
We will be required, pursuant to Section 404 of the Sarbanes-Oxley Act, to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting for the first fiscal year beginning after the effective date of this Form 20-F. This assessment will need to include disclosure of any material weaknesses identified by our management in our internal control over financial reporting, as well as, if we are an accelerated filer or a large accelerated filer as stipulated in Item 308(b) of Regulations S-K, a statement that our auditors have issued an attestation report on our managements assessment of our internal controls.
We have not begun the costly and challenging process of compiling the system and processing documentation necessary to perform the evaluation needed to comply with Section 404. We may not be able to complete our evaluation, testing and any required remediation in a timely fashion. During the evaluation and testing process, if we identify one or more material weaknesses in our internal control over financial reporting, we will be unable to assert that our internal controls are effective.
If we are unable to assert that our internal control over financial reporting is effective, or if our independent registered public accounting firm is unable to express an opinion on the effectiveness of our internal controls, we could lose investor confidence in the accuracy and completeness of our financial reports, which would cause the price of our common shares to decline.
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Risks Relating to Our Location in Australia
Currency fluctuations may expose us to increased costs and revenue decreases.
Our business may in the future be affected by fluctuations in foreign exchange rates. Currency fluctuations could, therefore, cause our costs to increase and revenues to decline. The majority of our expenses will continue to be denominated in Australian dollars although we will also be expending cash in other denominations, including U.S. dollars and European euros. In the last two years, the Australian dollar has as a general trend appreciated against the U.S. dollar. If this trend continues, this may have a positive effect on any costs which we incur in the U.S. but may have an adverse effect on our revenues sourced from the U.S. We cannot anticipate whether this trend will continue in respect of the U.S. dollar. The exchange rates of the Australian dollar to the European euro have fluctuated over the same period. In circumstances where the Australian dollar devalues against either or both of the U.S. dollar or the European euro, this may have an adverse effect on our costs incurred in either the U.S. or the European Union (as applicable) but may have a positive effect on any revenues which we source from the U.S. or the European Union (as applicable). The same principles apply in respect of our costs and revenues in other jurisdictions. In addition, we conduct clinical trials in many different countries and we have manufacturing of some of our product candidates undertaken outside of Australia, which exposes us to potential cost increases resulting from fluctuations in exchange rates. To date, we have not suffered any material foreign exchange losses as a result of currency fluctuations.
Australian takeovers laws may discourage takeover offers being made for us or may discourage the acquisition of large numbers of our shares.
We are incorporated in Australia and are subject to the takeovers laws of Australia. Amongst other things, we are subject to the Corporations Act 2001 (Commonwealth of Australia). Subject to a range of exceptions, the Corporations Act prohibits the acquisition of a direct or indirect interest in our issued voting shares (including through the acquisition of ADSs) if the acquisition of that interest will lead to a persons or someone elses voting power in us increasing from 20% or below to more than 20%, or increasing from a starting point that is above 20% and below 90%. Exceptions to the general prohibition include circumstances where the person makes a formal takeover bid for us, if the person obtains shareholder approval for the acquisition or if the person acquires less than 3% of the voting power of us in any rolling six month period. Australian takeovers laws may discourage takeover offers being made for us or may discourage the acquisition of large numbers of our shares.
Rights as a holder of ordinary shares are governed by Australian law and our Constitution and differ from the rights of shareholders under U.S. law. Holders of our ordinary shares or ADSs may have difficulty in effecting service of process in the United States or enforcing judgments obtained in the United States.
We are a public company incorporated under the laws of Australia. Therefore, the rights of holders of our ordinary shares are governed by Australian law and our Constitution. These rights differ from the typical rights of shareholders in U.S. corporations. The rights of holders of ADSs are affected by Australian law and our Constitution but are governed by U.S. law. Circumstances that under U.S. law may entitle a shareholder in a U.S. company to claim damages may also give rise to a cause of action under Australian law entitling a shareholder in an Australian company to claim damages. However, this will not always be the case. Holders of our ordinary shares or ADSs may have difficulties enforcing, in actions brought in courts in jurisdictions located outside the U.S., liabilities under U.S. securities laws. In particular, if such a holder sought to bring proceedings in Australia based on U.S. securities laws, the Australian court might consider:
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that it did not have jurisdiction; and/or |
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that it was not an appropriate forum for such proceedings; and/or |
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that, applying Australian conflict of laws rule, U.S. law (including U.S. securities laws) did not apply to the relationship between holders of our ordinary shares or ADSs and us or our directors and officers; and/or |
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that the U.S. securities laws were of a public or penal nature and should not be enforced by the Australian court. |
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Holders of our ordinary shares and ADSs may also have difficulties enforcing in courts outside the U.S. judgments obtained in the U.S. courts against any of our directors and executive officers or us, including actions under the civil liability provisions of the U.S. securities laws.
As a foreign private issuer whose shares are listed on the NASDAQ Global Market, we may follow certain home country corporate governance practices instead of certain NASDAQ requirements.
As a foreign private issuer whose shares are listed on the NASDAQ Global Market, we are permitted to follow certain home country corporate governance practices instead of certain requirements of The NASDAQ Marketplace Rules. As an Australian company listed on the NASDAQ Global Market, we may follow home country practice with regard to, among other things, the composition of the board of directors, director nomination process, compensation of officers and quorum at shareholders meetings. In addition, we may follow Australian law instead of the NASDAQ Marketplace Rules that require that we obtain shareholder approval for certain dilutive events, such as for the establishment or amendment of certain equity based compensation plans, an issuance that will result in a change of control of the company, certain transactions other than a public offering involving issuances of a 20% or more interest in the company and certain acquisitions of the stock or assets of another company. A foreign private issuer that elects to follow a home country practice instead of NASDAQ requirements, must submit to NASDAQ in advance a written statement from an independent counsel in such issuers home country certifying that the issuers practices are not prohibited by the home countrys laws. In addition, a foreign private issuer must disclose in its annual reports filed with the U.S. Securities and Exchange Commission each such requirement that it does not follow and describe the home country practice followed by the issuer instead of any such requirement. Accordingly, our shareholders may not be afforded the same protection as provided under NASDAQs corporate governance rules. Please see Item 6. Directors, Senior Management and Employees C. Board Practices for further information.
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Risks Related to an Investment in Our ADSs
Our ADS holders are not shareholders and do not have shareholder rights.
The Bank of New York Mellon, as depositary, registers and delivers our American Depositary Shares, or ADSs. Our ADS holders will not be treated as shareholders and do not have the rights of shareholders. The depositary will be the holder of the shares underlying our ADSs. Holders of our ADSs will have ADS holder rights. A deposit agreement among us, the depositary and our ADS holders, and the beneficial owners of ADSs, sets out ADS holder rights as well as the rights and obligations of the depositary. New York law governs the deposit agreement and the ADSs. For a description of ADS holder rights, see Item 12. Description of Securities Other than Equity Securities D. American Depositary Shares. Our shareholders have shareholder rights. Australian law and our constitution govern shareholder rights. For a description of our shareholders rights, see Item 10. Additional Information B. Memorandum and Articles of Association. Our ADS holders do not have the same voting rights as our shareholders. Shareholders are entitled to our notices of general meetings and to attend and vote at our general meetings of shareholders. At a general meeting, every shareholder present (in person or by proxy, attorney or representative) and entitled to vote has one vote on a show of hands. Every shareholder present (in person or by proxy, attorney or representative) and entitled to vote has one vote per fully paid ordinary share on a poll. This is subject to any other rights or restrictions which may be attached to any shares. ADS holders may exercise voting rights with respect to the underlying ordinary shares only in accordance with the provisions of the deposit agreement. Under the deposit agreement, ADS holders vote by giving voting instructions to the depositary. Upon receipt of instructions, the depositary will try to vote in accordance with those instructions. Otherwise, ADS holders will not be able to vote unless they withdraw the ordinary shares underlying their ADSs. ADS holders may not learn of ordinary shareholders meetings in time to instruct the depositary or withdraw underlying ordinary shares. If we ask for our ADS holders instructions, the depositary will notify our ADS holders of the upcoming vote and arrange to deliver our voting materials and form of notice to them. The depositary will try, as far as practical, subject to Australian law and the provisions of the depositary agreement, to vote the shares as our ADS holders instruct. The depositary will not vote or attempt to exercise the right to vote other than in accordance with the instructions of the ADS holders. We cannot assure our ADS holders that they will receive the voting materials in time to ensure that they can instruct the depositary to vote their shares. This means that there is a risk that our ADS holders may not be able to exercise voting rights and there may be nothing they can do if their shares are not voted as they requested.
Our ADS holders do not have the same rights to receive dividends or other distributions as our shareholders.
Subject to any special rights or restrictions attached to a share, the directors may determine that a dividend will be payable on a share and fix the amount, the time for payment and the method for payment (although we have never declared or paid any cash dividends on our ordinary stock and we do not anticipate paying any cash dividends in the foreseeable future). Dividends may be paid on shares of one class but not another and at different rates for different classes. Dividends and other distributions payable to our shareholders with respect to our ordinary shares generally will be payable directly to them. Any dividends or distributions payable with respect to ordinary shares will be paid to the depositary, which has agreed to pay to our ADS holders the cash dividends or other distributions it or the custodian receives on shares or other deposited securities, after deducting its fees and expenses. Our ADS holders will receive these distributions in proportion to the number of shares their ADSs represent. In addition, there may be certain circumstances in which the depositary may not pay to our ADS holders amounts distributed by us as a dividend or distribution.
There are circumstances where it may be unlawful or impractical to make distributions to the holders of our ADSs.
The deposit agreement with the depositary generally requires the depositary to convert foreign currency it receives in respect of deposited securities into U.S. dollars and distribute the U.S. dollars to ADS holders, provided the depositary can do so on a reasonable basis. If it does not convert foreign currency, the depositary may distribute the foreign currency only to those ADS holders to whom it is possible to do so. If a distribution is payable by us in Australian dollars, the depositary will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest. If the exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, our ADS holders may lose some of the value of the distribution. The depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holders. This means that our ADS holders may not receive the distributions we make on our shares or any value for them if it is illegal or impractical for us to make them available.
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ITEM 4. | INFORMATION ON THE COMPANY |
A. | History and Development of the Company |
We were incorporated under the laws of the Commonwealth of Australia on May 21, 1987 under the name Prima Resources Ltd. In May 2001, post a restructuring of the Company, divestment of assets and change of business focus, the Company was renamed Prima BioMed Ltd. The registered office is located at Level 7, 151 Macquarie Street, Sydney 2000 New South Wales, Australia and our telephone number is +61 (0)2 9276 1224. Our address on the Internet is www.PrimaBioMed.com.au . The information on, or accessible through, our website is not part of this registration statement on Form 20-F. We have included our website address in this registration statement on Form 20-F solely as an inactive textual reference.
In 2001, we entered into a strategic alliance with the Austin Research Institute, or ARI, now the Burnet Institute, and Ilexus Pty Ltd, a wholly owned subsidiary of the ARI, for the commercialization and development of biotechnological research emanating from the ARI. We established two Australian subsidiaries, Arthron Pty Ltd and Cancer Vac Pty Ltd. Each subsidiary was established to develop and commercialize specific technology from the ARI. Arthron Pty Ltd secured licenses to intellectual property and research for the development of novel therapeutics to treat autoimmune disease (primarily rheumatoid arthritis) and Cancer Vac secured licenses to cancer vaccines targeted at improving a patients immune response to the tumour antigen Mucin-1 (CVac).
Prima BioMed relisted on the Australian Securities Exchange, or ASX, in May 2001 and raised A$3.5 million through the issue of 17.5 million new shares. The fundings were applied to the conduct and completion of a Phase Ib clinical trial for Cancer Vacs lead product candidate CVac, and a research and development program for Arthron to demonstrate preclinical activity in models of rheumatoid arthritis with a panel of new chemical entities. In addition, Prima BioMed secured an Australian Federal Government grant from AusIndustry to support up to 50% of the costs of a Phase Ib clinical trial for CVac. Each subsidiary was 65% owned by Prima BioMed, with the remaining 35% held by the ARI. Our 65% was secured through the provision of finance to undertake the research and development program.
We expanded our drug development operations in 2002 and established Panvax Pty Ltd (developing prophylactic and therapeutic vaccines using a novel adjuvant system) and Oncomab Pty Ltd (developing antibody based cancer therapies). Both programs were at an early preclinical stage of development and funding was supplied to secure preclinical proof of concept. Each subsidiary held the license to the core intellectual property required for development and commercialization from the ARI. We managed the ongoing prosecution of the licensed patents and applied for new patents. Similar to Cancer Vac and Arthron, we held 65% equity in the subsidiaries as consideration for the provision of research and development funding. Management of the subsidiaries was the responsibility of Prima BioMeds management team with the ARI providing access to the research and development teams and holding board and technical review committee positions.
In 2004, we increased our holding in our subsidiaries, as result of further capital injections to fund research and development, from 65% to 85% and raised A$7.3 million before costs through a share placement plan and exercise of options. The capital raised was to progress development of the three preclinical development programs and to initiate a Phase IIa clinical trial of CVac.
In March 2004, Cancer Vac entered into an agreement with Canadian company Biomira Inc., (now known as Oncothyreon Inc.) a leading immunotherapy company. As part consideration for the agreement, Biomira became a shareholder of Cancer Vac, diluting our equity interest in Cancer Vac to 76%.
In late 2004, A$10.0 million in further funding was obtained through a placement to Australian institutions and private equity funds. Internally we decided to focus our efforts on our oncology assets and sought business development partnerships for our autoimmune disease assets.
In 2005, we secured 100% ownership of three of our four subsidiaries (Cancer Vac, Oncomab and Panvax) and 99% equity in Arthron by swapping equity and options in the subsidiaries (held by the ARI, staff and contractors) for Prima BioMed shares. Biomira converted its 10% equity in Cancer Vac to a 1.47% stake in Prima BioMed. In addition, Prima BioMed entered into a new First Rights of Refusal Agreement with the ARI to enable ongoing access to new emerging technologies within Prima BioMeds therapeutic focus. In June 2011 we secured the remaining minority interest in the fourth subsidiary (Arthron).
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In October 2005, in line with our focus on oncology, we sold Arthrons assets, including its licensed intellectual property from the ARI, its own intellectual property and its existing agreements for commercialization to Trillium Therapeutics Inc. The upfront consideration was valued at A$0.38 million cash and 1.2 million shares (representing 6% of the equity of Trillium Therapeutics). Additional milestones in both cash and equity are payable in the future giving Prima BioMed the potential to earn up to additional 5,650,000 shares, for an aggregate total of 6,850,000 shares, representing approximately 25% of the equity of Trillium Therapeutics.
In July 2009, Prima BioMed secured substantial funding for the further development and commercialization of CVac. A convertible loan facility from New York based fund SpringTree provided A$25.5 million, with up to an additional A$12.0 million available through an equity drawdown facility with Fortrend Securities Pty Ltd.
In September 2009, to further our focus on oncology, we decided to divest the vaccine adjuvant technology licensed to and developed by Panvax Pty Ltd. Together with the termination of the license agreement between the ARI (owner of the licensed patents) and Panvax, the intellectual property and know-how developed by Panvax as well as the background patents owned by the ARI were assigned to PX Biosolutions Pty Ltd for further development and commercialization. A royalty arrangement was entered into that allows us to share in potential financial returns should PX Biosolutions Pty Ltd successfully commercialise the technology in the future.
In October 2009, Prima BioMed Europe Limited, a 100% owned subsidiary of Prima BioMed Ltd was incorporated in the United Kingdom. This subsidiary is inactive.
In April 2010, Prima BioMed USA Inc, a 100% owned subsidiary of Prima BioMed Ltd, was incorporated in the United States.
In January 2011 it was agreed to terminate the above named SpringTree facility established in July 2009 and in March 2011 the facility was terminated.
In May 2011, Prima BioMed GmbH, a 100% owned subsidiary of Prima BioMed Ltd, was incorporated in Germany, and also in May 2011, Prima BioMed Middle East FZLLC, a 100% owned subsidiary of Prima BioMed Ltd, was incorporated in the United Arab Emirates. These subsidiaries were established to allow us to conduct commercial and clinical operations in Europe, the United States, and the UAE.
During May and June 2011, we raised over A$41 million by way of a private placement and Security Purchase Plan with eligible shareholders.
We have not been required to invest material amounts for capital expenditures since our research and development activities have taken place at research facilities operated by institutions with whom we have relationships. In the three fiscal years ended June 30, 2011, our capital expenditures have totaled under A$200,000. Of this, A$80,000 related to the research and development equipment, and A$68,000 related to the office and computer equipment.
In February 2012, we enrolled first patient in CANVAS (CANcer VAccine Study) a double blind placebo controlled Phase II/III study in addition to the Phase IIb trial outlined above.
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B. | Business Overview |
Background
Prima BioMed Ltd is an Australian biotechnology company committed to the development and commercialization of new medical therapies with a particular focus on oncology. Key product candidates in development include Cvac TM , an autologous dendritic cell vaccine for ovarian cancer, monoclonal antibodies for multiple tumour types, and an oral formulation for the Human Papilloma Virus, or HPV, vaccine.
Our mission is to be at the forefront of the fight against cancer by transforming the promise of science and biotechnology into therapies that have the potential power to restore health or even save lives of cancer patients. In everything we do, we aim to fulfil our mission to serve patients, from funding the next medical innovation to creatively working on patient treatments.
We have recently focused our pipeline on three projects, one clinical and two preclinical programs. We constantly monitor the competitive environment to identify new complementary product opportunities to acquire or in-license. We have also recently globalised our development strategy, moving manufacturing and clinical development of our lead product, Cvac TM into U.S. and European-based clinical trial centres. To complement this change, we expanded our Australia-based management team through the appointment of international representatives based in the United States and Europe.
Supporting all of our development initiatives is a comprehensive intellectual property portfolio of licensed granted patents and patent applications. Patents are applied for and prosecuted in all major markets of the world. Trademarks are similarly secured as required.
Our lead product candidate is Cvac TM , a dendritic cell therapy, for which we are currently conducting a Phase IIb trial for the treatment of ovarian cancer. Cvac TM is designed to target the tumour antigen mucin-1 which is expressed at high levels on many different tumour types. Dendritic cells are immune cells that form part of the human immune system. Their main function is to process antigen material and present it on the surface to other cells of the immune system, thus functioning as antigen-presenting cells. An antigen is a substance/molecule that when introduced into the body triggers the production of an antibody by the immune system which will then kill or neutralize the antigen that is recognized as a foreign and potentially harmful invader. To date, clinical trials have demonstrated that Cvac TM is well tolerated and has shown clinical effects (as measured by CA-125 levels) in approximately 19% of patients with ovarian cancer that is in remission following initial treatment with chemotherapy or radiation therapy. The technology was developed and patented by scientists at the Austin Research Institute, or ARI, now the Burnet Institute, in Melbourne, Victoria, Australia.
In March 2010, we were granted Small and Medium Sized Enterprise, or SME, status by the European Medicines Agency, or EMA. The SME program is an EMA initiative to address the needs of small and medium sized companies who are developing medicinal products in Europe. Companies with SME status can receive assistance, information and training from dedicated EMA employees. SME designated companies are also eligible for reduced or deferred fees associated with regulatory submissions, scientific advice and inspections.
In June 2010, we were granted Orphan Medicinal Product Designation for the Cvac TM ovarian cancer therapy vaccine in Europe. The European Orphan Medicinal Product designation is intended to promote the development of drugs that may provide significant benefit to patients suffering from rare diseases identified as life-threatening or very serious. Orphan Medicinal Product designation provides ten years of potential market exclusivity once the product candidate is approved for marketing for the designated indication in the European Union. Orphan Medicinal Product designation also allows for protocol assistance free of charge on clinical trials, a reduced Marketing Authorisation Application filing fee and the potential for grant funding.
We also have two preclinical product development programs. The first program targets the development of a humanized cripto-1 antibody as a potential therapeutic agent for the treatment of cancer. Preclinical development commenced in September 2010 with the goal, subject to technical success, of submitting an Investigational New Drug, or IND, or equivalent with the U.S. Food and Drug Administration, or FDA, in 2013. Cripto-1 is highly expressed by various tumour types and is considered an effective target for antibody therapy. The ARI has previously demonstrated anti-tumour activity with rodent derived cripto-1
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antibodies in xenograft tumour models in mice. The second development program is for an oral vaccine formulation for HPV, which is the leading cause of cervical cancer. The research programs goal is to produce a widely available, cost effective oral cervical cancer vaccine in tablet form, thus making administration of the vaccine (that is currently injectable only) more broadly available and in particular accessible by the developing world.
Product Development Programs
Cvac TM
Product Candidate
Cvac TM by dendritic cell therapy involves the manipulation of a patients own dendritic cells (taken from white blood cells) to create, in the case of cancer, tumour-protein expressing dendritic cells that can then be injected back into the patient to, directly or indirectly, trigger cytotoxic (killer T cell) immune response to the protein leading to tumour regression. White blood cells are taken from the cancer patient and the appropriate cells extracted and grown into dendritic cells. The dendritic cells are then treated with mannan fusion protein, or MFP, a recombinant protein to elicit an immune response to mucin-1 once administered back to the patient. A recombinant protein is a protein that is derived from recombinant DNA, which is a form of artificial DNA that is created by combining two or more sequences that would not normally occur together through the process of gene splicing. Early clinical trials have shown that this unique delivery of mucin-1, via dendritic cells helps to elicit a cytotoxic T cell response resulting in the death of the tumor cell. It is this form of immune response that has been considered potentially the optimal method for cancer vaccine development, providing targeted cells that can seek and destroy tumour cells bearing the antigen, mucin-1.
Cvac TM uses the patients own dendritic cells primed by MFP. It is currently administered to the patients by intradermal injection in four locations on the skin on a schedule of monthly injections for up to three months and then a maintenance program of injections at twelve week intervals for a one year course of therapy.
Target Product Candidate Profile
Cvac TM is an immunotherapeutic approach to the treatment of ovarian cancer. The products primary target population is ovarian cancer patients in remission post chemotherapy and surgery with the primary goal of improving the interval to relapse and overall survival. We do not anticipate that CVac will be utilized as first line therapy, but as a maintenance therapy to prevent disease progression.
Market Opportunity
We believe Cvac TM has the potential to be developed for a variety of tumour types as mucin-1 is highly expressed by many tumours including breast, lung, colon, pancreas, kidney and ovarian cancer. The first target indication for Cvac TM in development is ovarian cancer.
Ovarian cancer is the most deadly of the gynaecological cancers due to the advanced stage of disease at time of diagnosis.
Competition
The existing treatments for ovarian cancer are surgery, chemotherapy, and radiation therapy. In some cases two or even all three of these treatments are used. These approaches are designed to debulk the tumour and then eradicate any remaining tumour cells. The key chemotherapeutic drugs used are platinum-based drugs such as cisplatin or carboplatin, and taxane drugs, such as paclitaxel. These drugs are all off patent and are readily available at relatively low cost. In the event of relapse, the patient is generally subjected to subsequent courses of chemotherapy and/or radiation therapy.
There are several products in clinical development for the treatment of ovarian cancer. These include new chemotherapeutic agents and products targeting the immune system such as vaccines and antibody therapies. Antibodies are forms of passive immunotherapy and offer greatest benefit when they influence tumour growth. Avastin, an antibody already approved for the treatment of colon cancer has
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recently completed a study in ovarian cancer patients in remission. There was no survival benefit of using the drug and remission was prolonged on average just over three months. There is one competitive dendritic cell based technology under development by Dendreon that has completed a Phase I clinical trial targeting her-2/neu for breast cancer.
Several of the immunological approaches under development may compete with Cvac TM as immunological approaches are generally aimed at preventing relapse and metastases. New cytotoxic compounds are unlikely to compete with Cvac TM as they are generally used as acute first and second line therapeutic agents. These products are also likely to have significant side effects associated with them consistent with existing chemotherapeutic agents.
Potential Advantages
Cvac TM is being developed as a maintenance therapy. Maintenance therapy is a medical therapy that is designed to help a primary treatment succeed. We believe Cvac TM is most likely to be administered post surgery and chemotherapy to prevent relapse and spreading of the cancer. We believe the competitive advantage is created through two key areas, the therapeutic approach of pulsing dendritic cells to generate an immune response to an antigen on the tumour cells surface, and the lack of toxicity of Cvac TM . There are currently no marketed products for ovarian cancer patients in remission.
To date, the toxicity profile of CVac has been favourable with no dose limiting toxicity as seen with cytotoxics. Cytotoxics are drugs capable of inducing the death of tumour cells, but are highly toxic to humans and have serious adverse side effects. CVac is designed to be an active immunization approach compared to anticancer antibodies (passive immunization) and this could lead to a broader immune response which may assist a therapeutic response. Mucin-1 is expressed on over 90% of epithelial ovarian tumours and thus provides a target for the majority of ovarian cancers. Dendritic cell processing of antigens is immunostimulatory, or the active stimulation of the immune system) whereas many of the therapeutic antibodies produce an immune response to themselves, leading to tolerance and thus declining in effectiveness over time. Dendritic cell therapy is administered by intradermal injection which takes place in minutes whereas cytotoxics and antibodies are administered by intravenous infusion which is time consuming and needs nursing support. Cvac TM uses a recombinant mucin-1 that has cost advantages over therapeutic antibodies.
Clinical Development History
In 2001, a Phase Ib clinical trial in patients with advanced adenocarcinoma was initiated. Adenocarcinoma is a cancer of epithelia originating in glandular tissue. Epithelial tissue includes, but is not limited to, the surface layer of skin, glands and a variety of other tissue that lines the cavities and organs of the body. The trial was conducted at Austin Health, Melbourne, Australia. The aim of this trial was to demonstrate that the adoptive transfer of autologous antigen presenting cells that have been cultured ex vivo with mannan-MUC1 (M-FP) vaccine could increase antigen presentation resulting in a superior immune response to MUC1 in patients with advanced adenocarcinoma.
In 2003, the Phase Ib safety trial of Cvac TM was completed. The trial enrolled 14 patients with various forms of advanced cancer. There were no adverse side effects recorded in any patients and all patients exhibited the desired immune response to the vaccine, demonstrating that the therapeutic approach had been successfully translated from the preclinical to the clinical setting. The results of this trial were published in Clinical Cancer Research in February 2006.
The Phase Ib clinical trial achieved all predefined objectives. All patients demonstrated mucin-1-specific T-cell responses within a 12 week period, and those monitored at 6 and 12 months demonstrated sustained immunity in laboratory tests. Three patients continued on treatment under the Special Access Scheme and no further data was collected. The vaccination procedure, using either fresh or frozen dendritic cells cultured ex vivo with Cvac TM , was shown to induce T-cell immunity.
In July 2004, we commenced a Phase IIa trial of Cvac TM in ovarian cancer patients with progressive disease in Melbourne, Australia. The aim of this Phase IIa trial was to determine whether dendritic cell therapy with Cvac TM can lead to clinical responses or stabilization of disease, as determined by serum CA-125 in subjects with adenocarcinoma of the ovary. CA-125 is a biomarker to correlates to patient tumour burden. Cvac TM was delivered to subjects via 3 injections over a 10 week period, followed by booster injections every 10 weeks for a total of 7 treatments over 12 months.
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In 2006, the Phase IIa Cvac TM trial was completed with the results reported in March 2007. Twenty-one of the 28 enrolled late stage patients with progressive ovarian cancer, demonstrated by rising CA-125 upon trial entry, were eligible to participate in the clinical efficacy evaluation. Cvac TM demonstrated a positive clinical response or stabilization of disease in four of the twenty-one patients (19%; CI 5.4 - 41.9%) based on changes in CA-125. Overall, Cvac TM was well tolerated by subjects. There were no serious adverse events that were definitely or probably related to Cvac TM treatment. There was one patient who experienced two serious adverse events (flu-like symptoms and abdominal pain) that were assessed as possibly related to Cvac TM . There were no deaths on study that were attributed to Cvac TM .
All subjects who were assessed as having stable disease remained stable at the end of the trial. Twenty-one of the 28 patients had progressed by the end of the study: either due to progression on the basis of CA-125, clinical progression or death. The median progression-free survival was 127 days. Fourteen subjects had died by the end of the study as determined by telephone contact with the subjects family or physician.
We subsequently held a pre-IND, meeting with the FDA to discuss plans for U.S. clinical trials of Cvac TM . We were able to clarify requirements for the filing of an IND application which was subsequently submitted in July 2009 to evaluate the Cvac TM ovarian cancer therapy vaccine. The trial is to be managed by leading gynaecological oncologists, recruiting patients in the United States and Australia.
In May 2010, we entered into an agreement with a leading German institute, the Fraunhofer Institute for Cell Therapy and Immunology in Leipzig, Germany, to produce our Cvac TM cancer immunotherapy product for our European clinical trials. In July 2010, the first patient was enrolled in the Phase IIb trial for Cvac TM , completing a significant milestone for Cvac TM
In June 2010 the European Medical Agency (EMA) provided Orphan Drug Designation in the for Cvac TM in the ovarian cancer indication.
In September 2010, we received Orphan Drug Designation from the FDA for Cvac TM in the ovarian cancer indication.
While we prepare for further clinical studies of Cvac TM , selective patient treatment for ovarian cancer patients using Cvac TM continues in Australia, through the TGAs Special Access Scheme.
Clinical Development Strategy
In February 2010, we initiated under an IND application with the FDA a Phase IIb clinical trial in the United States and Australia. The study is a randomized, open-label trial evaluating the safety and efficacy of Cvac TM given as a single agent for epithelial ovarian cancer, or EOC, that is in first or second clinical complete remission.
A total of 60 patients will be recruited for the trial. As new manufacturing procedures have been developed since completion of the phase IIa clinical study the first six subjects enrolled to this study are to be treated in an open-label fashion with comparator analyses performed between clinical sites in the United States and Australia. An additional 54 subjects will be enrolled through an open-label, randomized fashion to compare efficacy and safety events of Cvac TM versus standard of care. Subjects randomized to the standard of care arm will not undergo leukopheresis but will be followed for progression and overall survival.
The rationale for this trial is based upon the observation of prolonged disease stabilization that was observed in the Phase IIa trial of Cvac TM . EOC patients who are in remission after first or second-line chemotherapy are good candidates for an immunotherapy approach such as Cvac TM which offers an opportunity for a prolonged remission status. Therefore progression free survival is an appropriate measure of efficacy in the proposed randomised study for EOC patients who are in clinical complete remission. Additionally, the impact on overall survival is also being assessed.
Primary objectives of the study are to confirm the safety of administering Cvac TM in EOC patients who are in first or second complete remission following platinum-based chemotherapy and to determine the
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effects of the vaccine on progression free survival. Secondary objectives are to determine overall survival for recurrent ovarian cancer subjects who receive Cvac TM after achieving remission in the first or second line setting and evaluation of host immunologic response to Cvac TM administration.
In February 2011, we announced that the first seven patients in the Phase IIb trial had completed the first treatment cohort with Cvac TM . In August 2011 enrolment was completed for the study.
In addition to the Phase IIb trial outlined above, a double blind placebo controlled Phase II/III CANVAS (CANcer VAccine Study) study has been designed to explore progression free survival and overall survival in patients with ovarian cancer. This study will be conducted in multiple countries in Europe and in the United States and Australia. The study commences enrolling patients in February 2012.
Cripto-1 Therapeutic Antibodies
Product Candidates
Humanized therapeutic antibodies targeting the cripto-1 protein on cancer cells.
Target Product Profile
Specific cancer targets are yet to be identified due to the early stage of product development; however, we believe the most likely market will be solid tumours.
Market Opportunity
The market leaders in therapeutic antibodies for the treatment of solid tumours are Genentech Inc.s colorectal, breast and non-small cell lung cancer treatment Avastin (bevacizumab) and the HER2+ breast cancer treatment Herceptin (trastuzumab).
Competition
We believe Biogen Inc. is our main competitor. Biogen is developing a cripto-targeting humanized monoclonal antibody with ImmunoGen Inc.s cell-killing agent, DM4, attached. According to public statements by Biogen, this product candidate is currently in Phase I clinical testing.
Preclinical Development
The antigen cripto-1 is classified in the epidermal growth factor (EGF-CFC) family of proteins and is involved in the development and progression of various human carcinomas. The over-expression of cripto-1 on cancer cells relative to normal healthy cells suggests it contributes to cancer cell growth. In particular, cripto-1 expression has been detected in 50% to 90% of carcinomas of the colon, pancreas, stomach, gallbladder, breast, lung, endometrium and cervix. Cripto-1 also appears to have a role in the metastasis or migration of cancers.
In 2003, Oncomab entered into a Collaborative Research and Development Agreement with Medarex, Inc. to develop human antibodies to the cancer target cripto-1. The agreement provided for sharing of development costs and future revenue from the program and included a development plan to complete all activities required to submit an IND for a phase I clinical trial.
The ARI produced three rat monoclonal antibodies (mAbs) to a region unique to cripto-1. Binding of the mAbs to this region results in apoptosis, or cell death, in cell-based assays and the inhibition of tumor growth or eradication of tumors in mice. A manuscript describing the development of the rat antibodies to cripto-1 was published in Cancer Research in 2004.
The mAbs inhibit cancer cell growth in vitro, and this effect was greater with cytotoxic drugs such as 5-fluorouracil, epirubicin, and cisplatin. The anti-cripto mAbs prevent tumor development in vivo and inhibit the growth of established tumors of colon xenografts (a transplantation of colon cancer in mice) in immunocompromised mice. The mechanism of inhibitory effects of the cripto mAbs includes cancer cell apoptosis.
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In August 2010, we announced the termination of the agreement with Medarex (now owned by Bristol Myer Squibb) to develop a human antibody to cripto-1 and an agreement with Bioceros, based in the Netherlands, to humanize the original rodent antibodies, previously developed by the ARI and tested by Oncomab as potential cancer therapeutics, as an alternative strategy to the development of a therapeutic candidate. A preclinical development program has been initiated with the view, if the program is successful, of filing an IND with the FDA or equivalent application in 2013.
Oral Vaccines
We embarked on a new development program late in 2009 to develop an oral delivery system for vaccines for cervical cancer. The project involves collaboration between us, The University of New South Wales under the leadership of Prof. Neil Foster and University of Queensland under the leadership of Prof. Ian Frazer.
Oral delivery of vaccines is attractive as it does not involve the fear and pain associated with parenteral injection which often leads to poor patient compliance and compromised therapeutic effects. The advantages of oral delivery include the benefits of prolonging drug action thus reducing side effects, improved patient compliance maximizing the therapeutic outcome, improved storage options making delivery to developing markets possible and potential cost effectiveness. Despite these benefits few orally administered vaccines exist. There are several reasons for the current lack of a generic technology for oral vaccine delivery including:
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harsh conditions in the gastrointestinal tract resulting in vaccine degradation and reduced half life; |
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inefficiencies in the absorption and presentation to appropriate cells of the immune system often requires administration of large doses; and |
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recognition of the vaccine antigens as food/flora resulting in oral tolerance of vaccines instead of eliciting protective immune responses. |
To eliminate or ameliorate these problems a controlled release formulation for vaccines would be desirable. The overall aim of this program is to develop novel techniques for the preparation of vaccines with controlled release characteristics in particular those suitable for oral delivery. In this program the feasibility of utilizing dense gas anti-solvent techniques for the encapsulation of vaccines with a stimulus responsive biocompatible/biodegradable polymer will be investigated. The aim is to produce a vaccine formulation that is entirely coated in a stimulus responsive biocompatible/biodegradable polymer, and to engineer the formulation such that the release of the vaccine conforms to a desired release profile.
We have initiated a three year development program to obtain proof of concept for an oral HPV vaccine. Initially multiple formulations will be created using Bovine Papilloma Virus before translating the research to HPV. Proof of concept will require equivalent immunogenicity to the parenteral HPV vaccine in animal models, prior to undertaking a human development program. We believe at this time that we will seek a development partner for the vaccine.
Regulatory Authorities
United States
Government oversight of the pharmaceutical industry is usually classified into pre-approval and post-approval categories. Most of the therapeutically significant innovative products marketed today are the subject of New Drug Applications, or NDAs, or Biologics License Applications, or BLAs. Preapproval activities, based on these detailed applications, are used to assure the product is safe and effective before marketing.
In the United States, The Centre for Biologics Evaluation and Research, or CBER, is the FDA organization responsible for vaccines, blood and biologics evaluation and approval. Before approval, the FDA may inspect and audit the development facilities, planned production facilities, clinical trials, institutional review boards, and laboratory facilities in which the product was tested in animals. After the
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product is approved and marketed, the FDA uses different mechanisms for assuring that firms adhere to the terms and conditions of approval described in the application and that the product is manufactured in a consistent and controlled manner. This is done by periodic unannounced inspections of production and quality control facilities by FDAs field investigators and analysts.
Federal Food, Drug and Cosmetic Act and Public Health Service Act
Prescription drug and biologic products are subject to extensive pre- and post-market regulation by the FDA, including regulations that govern the testing, manufacturing, safety, efficacy, labelling, storage, record keeping, advertising and promotion of such products under the Federal Food, Drug and Cosmetic Act, the Public Health Service Act, and their implementing regulations. The process of obtaining FDA approval and achieving and maintaining compliance with applicable laws and regulations requires the expenditure of substantial time and financial resources. Failure to comply with applicable FDA or other requirements may result in refusal to approve pending applications, a clinical hold, warning letters, civil or criminal penalties, recall or seizure of products, partial or total suspension of production or withdrawal of the product from the market. FDA approval is required before any new drug or biologic, including a new use of a previously approved drug, can be marketed in the United States. All applications for FDA approval must contain, among other things, information relating to safety and efficacy, stability, manufacturing, processing, packaging, labelling and quality control.
Biologic License Applications (BLAs)
The FDAs BLA approval process generally involves:
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completion of preclinical laboratory and animal testing in compliance with the FDAs good laboratory practice, or GLP, regulations; |
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submission to the FDA of an IND for human clinical testing, which must become effective before human clinical trials may begin in the United States; |
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performance of adequate and well-controlled human clinical trials to establish the safety, purity and potency of the proposed biologic product for each intended use; |
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satisfactory completion of an FDA pre-approval inspection of the facility or facilities at which the product is manufactured to assess compliance with the FDAs cGMP regulations; and |
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submission to and approval by the FDA of a BLA. |
The preclinical and clinical testing and approval process requires substantial time, effort and financial resources, and we cannot guarantee that any approvals for our product candidates will be granted on a timely basis, if at all. Preclinical tests include laboratory evaluation of toxicity and immunogenicity in animals. The results of preclinical tests, together with manufacturing information and analytical data, are submitted as part of an IND application to the FDA. The IND automatically becomes effective 30 days after receipt by the FDA, unless the FDA raises concerns or questions about the conduct of the clinical trial, including concerns that human research subjects will be exposed to unreasonable health risks. In such a case, the IND sponsor and the FDA must resolve any outstanding concerns before clinical trials can begin. Our submission of an IND may not result in FDA authorization to commence clinical trials. A separate submission to an existing IND must also be made for each successive clinical trial conducted during product development. Further, an independent institutional review board, or IRB, covering each medical centre proposing to conduct clinical trials must review and approve the plan for any clinical trial before it commences at that center and it must monitor the study until completed. The FDA, the IRB or the sponsor may suspend a clinical trial at any time on various grounds, including a finding that the subjects or patients are being exposed to an unacceptable health risk. Clinical testing also must satisfy extensive Good Clinical Practice, or GCP, regulations, which include requirements that all research subjects provide informed consent and that all clinical studies be conducted under the supervision of one or more qualified investigators.
For purposes of an NDA submission and approval, human clinical trials are typically conducted in the following sequential phases, which may overlap:
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Phase I: Trials are initially conducted in a limited population to test the product candidate for safety and dose tolerance. |
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Phase II: Trials are generally conducted in a limited patient population to identify possible adverse effects and safety risks, to determine the initial efficacy of the product for specific targeted |
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indications and to determine dose tolerance and optimal dosage. Multiple Phase II clinical trials may be conducted by the sponsor to obtain information prior to beginning larger and more extensive Phase III clinical trials. |
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Phase III: These are commonly referred to as pivotal studies. When Phase II evaluations demonstrate that a dose range of the product is effective and has an acceptable safety profile, Phase III clinical trials are undertaken in large patient populations to further evaluate dosage, to provide substantial evidence of clinical efficacy and to further test for safety in an expanded and diverse patient population at multiple, geographically-dispersed clinical trial sites. Generally, replicate evidence of safety and effectiveness needs to be demonstrated in two adequate and well-controlled Phase III clinical trials of a product candidate for a specific indication. These studies are intended to establish the overall risk/benefit ratio of the product and provide adequate basis for product labelling. |
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Phase IV: In some cases, the FDA may condition approval of a BLA on the sponsors agreement to conduct additional clinical trials to further assess the products safety, purity and potency after BLA approval. Such post-approval trials are typically referred to as Phase IV clinical trials. |
Progress reports detailing the results of the clinical studies must be submitted at least annually to the FDA and safety reports must be submitted to the FDA and the investigators for serious and unexpected adverse events. Concurrent with clinical studies, sponsors usually complete additional animal studies and must also develop additional information about the product and finalize a process for manufacturing the product in commercial quantities in accordance with cGMP requirements. The manufacturing process must be capable of consistently producing quality batches of the product candidate and, among other things, the manufacturer must develop methods for testing the identity, strength, quality and purity of the final product. Moreover, appropriate packaging must be selected and tested and stability studies must be conducted to demonstrate that the product candidate does not undergo unacceptable deterioration over its shelf life.
The results of product development, preclinical studies and clinical trials, along with the aforementioned manufacturing information, are submitted to the FDA as part of a BLA. BLAs must also contain extensive manufacturing information. Under the Prescription Drug User Fee Act, or PDUFA, the FDA agrees to specific goals for BLA review time through a two-tiered classification system, Standard Review and Priority Review. Standard Review is applied to products that offer at most, only minor improvement over existing marketed therapies. Standard Review BLAs have a goal of being completed within a ten-month timeframe, although a review can take a significantly longer amount of time. A Priority Review designation is given to products that offer major advances in treatment, or provide a treatment where no adequate therapy exists. A Priority Review means that the time it takes the FDA to review a BLA is six months. It is likely that our product candidates will be granted Standard Reviews. The review process is often significantly extended by FDA requests for additional information or clarification. The FDA may refer the application to an advisory committee for review, evaluation and recommendation as to whether the application should be approved. The FDA is not bound by the recommendation of an advisory committee, but it generally follows such recommendations.
The FDA may deny approval of a BLA if the applicable regulatory criteria are not satisfied, or it may require additional clinical data or additional pivotal Phase III clinical trials. Even if such data are submitted, the FDA may ultimately decide that the BLA does not satisfy the criteria for approval. Data from clinical trials are not always conclusive and the FDA may interpret data differently than we do. Once issued, product approval may be withdrawn by the FDA if ongoing regulatory requirements are not met or if safety problems occur after the product reaches the market. In addition, the FDA may require testing, including Phase IV clinical trials, Risk Evaluation and Mitigation Strategies, or REMS, and surveillance programs to monitor the effect of approved products that have been commercialized, and the FDA has the power to prevent or limit further marketing of a product based on the results of these post-marketing programs. Products may be marketed only for the approved indications and in accordance with the provisions of the approved label. Further, if there are any modifications to the drug, including changes in indications, labelling or manufacturing processes or facilities, approval of a new or supplemental BLA may be required, which may involve conducting additional preclinical studies and clinical trials.
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Other U.S. Regulatory Requirements
After approval, products are subject to extensive continuing regulation by the FDA, which include company obligations to manufacture products in accordance with GMP, maintain and provide to the FDA updated safety and efficacy information, report adverse experiences with the product, keep certain records and submit periodic reports, obtain FDA approval of certain manufacturing or labelling changes, and comply with FDA promotion and advertising requirements and restrictions. Failure to meet these obligations can result in various adverse consequences, both voluntary and FDA-imposed, including product recalls, withdrawal of approval, restrictions on marketing, and the imposition of civil fines and criminal penalties against the BLA holder. In addition, later discovery of previously unknown safety or efficacy issues may result in restrictions on the product, manufacturer or BLA holder.
We, and any manufacturers of our products, are required to comply with applicable FDA manufacturing requirements contained in the FDAs GMP regulations. GMP regulations require among other things, quality control and quality assurance as well as the corresponding maintenance of records and documentation. The manufacturing facilities for our products must meet GMP requirements to the satisfaction of the FDA pursuant to a pre-approval inspection before we can use them to manufacture our products. We, and any third-party manufacturers, are also subject to periodic inspections of facilities by the FDA and other authorities, including procedures and operations used in the testing and manufacture of our products to assess our compliance with applicable regulations.
With respect to post-market product advertising and promotion, the FDA imposes a number of complex regulations on entities that advertise and promote pharmaceuticals, which include, among others, standards for direct-to-consumer advertising, promoting products for uses or in patient populations that are not described in the products approved labelling (known as off-label use), industry-sponsored scientific and educational activities, and promotional activities involving the Internet. Failure to comply with FDA requirements can have negative consequences, including adverse publicity, enforcement letters from the FDA, mandated corrective advertising or communications with doctors, and civil or criminal penalties. Although physicians may prescribe legally available drugs for off-label uses, manufacturers may not market or promote such off-label uses.
Changes to some of the conditions established in an approved application, including changes in indications, labelling, or manufacturing processes or facilities, require submission and FDA approval of a new BLA or BLA supplement before the change can be implemented. A BLA supplement for a new indication typically requires clinical data similar to that in the original application, and the FDA uses the same procedures and actions in reviewing BLA supplements as it does in reviewing BLAs.
Adverse event reporting and submission of periodic reports is required following FDA approval of a BLA. The FDA also may require post-marketing testing, known as Phase IV testing, risk mitigation strategies, and surveillance to monitor the effects of an approved product or place conditions on an approval that could restrict the distribution or use of the product.
European Union
In addition to regulations in the United States, we will be subject to a variety of foreign regulations governing clinical trials and commercial sales and distribution of our products. Whether or not we obtain FDA approval for a product, we must obtain approval of a product by the comparable regulatory authorities of foreign countries before we can commence clinical trials or marketing of the product in those countries. The approval process varies from country to country and the time may be longer or shorter than that required for FDA approval. The requirements governing the conduct of clinical trials product licensing, pricing and reimbursement vary greatly from country to country.
Under European Union regulatory systems, we must submit and obtain authorization for a clinical trial application in each member state in which we intend to conduct a clinical trial. After we have completed our clinical trials, we must obtain marketing authorization before we can market our product. We may submit applications for marketing authorizations either under a centralized or decentralized procedure. The centralized procedure provides for the grant of a single marketing authorization that is valid for all European Union member states. The decentralized procedure provides for mutual recognition of national approval decisions. Under this procedure, the holder of a national marketing authorization may submit an application to the remaining member states. Within 90 days of receiving the applications and assessment report, each member state must decide whether to recognize approval. If a member state objects to the approval, an arbitration process is initiated and the final decision is made by the European Commission on the basis of an
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opinion of the Committee for Proprietary Medicinal Products, or CHMP. The mutual recognition procedure may be used more than once for subsequent applications to other member states in relation to the same product candidate.
The European Medicines Agency, or EMA, is a decentralised body of the European Union located in London. The EMA is responsible for the scientific evaluation of medicines developed by pharmaceutical companies for use in the European Union. The EMA is involved in the scientific evaluation of medicines that fall within the scope of the centralized procedure. However, other medicines that do not fall within this scope are marketed in the European Union either in individual member states, in accordance with their national authorisation procedures, or in multiple member states through the decentralised or mutual-recognition procedures. The EMA only becomes involved in the assessment of such medicines when they have been referred to the EMA due to a disagreement between two or more member states about the authorisation or use of the medicine, or due to some other issue that requires resolution in the interest of protecting public health.
Australia
In Australia, the relevant regulatory body responsible for the pharmaceutical industry is the Therapeutics Goods Administration, or TGA. Blood, blood components, plasma derivatives, tissue and cellular products, and tissue and cell based derivatives are regulated under the Therapeutic Goods Act 1989. In May 2010, the TGA began a 12month process to implement the framework for regulation of blood products. Although this framework is still being defined, it is expected to harmonize with EMA and FDA guidance.
Third-Party Payor Coverage and Reimbursement
Although none of our product candidates has been commercialized for any indication, if they are approved for marketing, commercial success of our product candidates will depend, in part, upon the availability of coverage and reimbursement from third-party payors at the federal, state and private levels.
Manufacturing and Raw Materials
Cvac TM
Manufacture of the Cvac TM vaccine requires a number of manufacturing processes to produce both raw materials and the final product. Manufacture of the Mucin-1 fusion protein conjugated to oxidised mannan, or MFP, a key starting material for Cvac TM , is done by a qualified contract manufacturer in line with the principles of current Good Manufacturing Procedures. MFP is produced using a combination of commercially available raw reagents and cells from a working cell bank generated and owned by Prima BioMed. Supply of raw materials is reliable and the standard operating procedures used to produce the fusion protein are documented in master batch records. We believe the technology and know-how for MFP production can be readily transferred to another contract manufacturing organisation to produce the novel fusion protein as we own the know-how and recombinant protein sequences. Several organisations have been approached and could provide our manufacturing requirements.
The manufacture of Cvac TM is conducted on a patient by patient process and requires the use of fresh blood cells. It is currently necessary to establish country-specific centralized manufacturing to ensure product can be transported within acceptable time frames between the patient and the manufacturing sites. These are critical operational windows from patient to site, and vice versa, of less than 24 hours. Since the process must be performed for each individual patient, it is not possible to mass produce and stockpile the product in one location. It is a core requirement to have sufficient facilities, materials and staff available regionally to provide each patient product. Thus for the clinical trials of Cvac TM , the manufacturing of the cells for injection has been contracted to Cell Therapies Pty Ltd in Australia, Fraunhofer Institute for Cell Therapy and Immunology in Germany, and Progenitor Cell Therapy LLC in the United States. We have entered into manufacturing contracts with each of these parties which are described below. We believe these three organizations have sufficient capacity and regionally based coverage to address the clinical trial requirements for patients in Australia, Europe and the United States. Standard Operating Procedures for the production of Cvac TM have been produced and are closely aligned between processing facilities (minor adjustments may be required due to variations in equipment or facilities). Comparability testing between sites is also undertaken to ensure consistency of product manufacture across the three sites.
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Currently we are undertaking a feasibility study to determine when automation of the Cvac TM manufacturing process should be implemented. Execution of this aspect of manufacturing will enable approval of the automated process by regulators and allow Prima BioMed to be ready for the potential commercialization and scale up of the Cvac TM production in a time and cost effective process.
We may not be able to secure such processes or facilities for Cvac TM in a timely manner for potential commercialization of Cvac TM . We are evaluating expansion of the facilities of existing partners and/or engagement of new manufacturing facilities within or outside of the existing territories. We may also establish our own manufacturing facilities in order to address increased manufacturing requirements or to provide product to locations not currently accessible from the existing facilities.
Cell Therapies Pty Ltd
In October 2009, Cancer Vac entered into a Manufacture Agreement with Cell Therapies Pty Ltd, the commercial manager of the Peter MacCallum Cancer Centres Centre for Blood Cell Therapies. Under this agreement, Cell Therapies will undertake all tasks required to assume manufacturing responsibility for the Australian arm of Cancer Vacs Phase IIb trial for Cvac TM , and to maintain overall support for such trial program, including support as requested for the Unites States arm of such trial. Cancer Vac is required to pay Cell Therapies a monthly facility fee (A$78,000 per month for the initial terms of the agreement) and to reimburse, on a costs plus basis, certain costs incurred by Cell Therapies in performing the services. The initial term of this agreement is twelve months and may be extended by mutual agreement of the parties. This agreement has been extended by the parties following the initial term for an additional 36 months. Either party may terminate this agreement without cause upon advance notice, or immediately if such party reasonably determines the trial is not scientifically or ethically viable, or for the uncured material breach or bankruptcy of the other party.
Fraunhofer Institute for Cell Therapy and Immunology
In March 2010, Prima BioMed entered into an Agreement on the Tasks and the Division of Responsibilities in Contract Manufacturing of Investigational Medicinal Products with Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e. V., as legal entity for Fraunhofer Institute for Cell Therapy and Immunology IZI, or FhG/FhI. Under this agreement, FhG/FhI will provide manufacture and related services in support of Cvac TM s clinical trials in Europe, including technology transfer, application for manufacturing authorisation, comparability trials, and manufacturing of Cvac TM for clinical trials in Europe. The estimated total cost under this agreement is 1,271,000. Unless terminated earlier, this agreement will expire upon the completion of all services set forth therein. Either party may terminate this agreement without cause upon advance notice, or for the other partys uncured material breach.
Progenitor Cell Therapy LLC
In May 2009, Prima BioMed entered into a Services Agreement with Progenitor Cell Therapy, LLC. Under this agreement, Progenitor Cell Therapy will provide manufacture and related services in support of Cvac TM s clinical trials in the United States. Prima BioMed is required to make monthly payments to Progenitor Cell Therapy for the services, the amount of which varies from stage to stage of the project but is estimated to be approximately A$1.7 million. In addition, Prima BioMed will make certain fixed payments to Progenitor Cell Therapy upon completion of certain tasks (up to a total of A$62,000), and will reimburse, on a costs plus basis, certain costs incurred by Progenitor Cell Therapy in performing the services. Unless terminated earlier, this agreement will expire upon the completion of all services set forth therein. Prima BioMed may terminate this agreement without cause upon advance notice, and either party may terminate this agreement for the other partys uncured material breach.
Cripto-1
The cripto-1 antibody program involves the generation of humanised antibodies for treatment of cancer. The rat antibodies utilized as the source material for the humanisation program are stored frozen at the Burnet Institute (former ARI) in Melbourne, Australia and at Bioceros facilities in the Netherlands. The project is classified as early stage research and development and there is no guarantee that commercial product will be generated.
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Intellectual Property
Pivotal to the development and commercialization of our product candidate portfolio is intellectual property protection for the underlying technology and the product candidates. We currently hold exclusive worldwide licenses to five patent families from the Burnet Institute (formerly the ARI) and exclusive license rights to three patents from Biomira. The Burnet patents are being prosecuted worldwide in major market jurisdictions to maximize market coverage and underpin future incomes from commercialization and/or licensing agreements.
In addition to patent protection, we rely on unpatented trade secrets, know-how and other confidential information as well as proprietary technological innovation and expertise that are protected in part by confidentiality and invention assignment agreements with our employees, advisors and consultants.
Patent matters in biotechnology are highly uncertain and involve complex legal and factual questions. The availability and breadth of claims allowed in biotechnology and pharmaceutical patents cannot be predicted. Statutory differences in patentable subject matter may limit the protection Prima BioMed can obtain on some or all of its licensed inventions or prevent us from obtaining patent protection either of which could harm our business, financial condition and results of operations. Since patent applications are not published until at least 18 months from their first filing date and the publication of discoveries in the scientific literature often lags behind actual discoveries, we cannot be certain that we, or any of our licensors, were the first creator of inventions covered by pending patent applications, or that we or our licensors, were the first to file patent applications for such inventions. Additionally, the grant and enforceability of a patent is dependent on a number of factors that may vary between jurisdictions. These factors may include the novelty of the invention, the requirement that the invention not be obvious in the light of prior art (including prior use or publication of the invention), the utility of the invention, and the extent to which the patent clearly describes the best method of working the invention. In short, this means that claims granted in various territories may vary and thereby influence commercial outcomes.
While we intend to seek patent protection for its therapeutic products and technologies, we cannot be certain that any of the pending or future patent applications filed by the company, or licensed to us, will be approved, or that Prima BioMed will develop additional proprietary products or processes that are patentable or that we will be able to license any other patentable products or processes. Prima BioMed cannot be certain that others will not independently develop similar products or processes, duplicate any of the products or processes developed or being developed by the company or licensed to us, or design around the patents owned or licensed by us, or that any patents owned or licensed by us will provide us with competitive advantages.
Furthermore, we cannot be certain that patents held by third parties will not prevent the commercialization of products incorporating the technology developed by us or licensed to us, or that third parties will not challenge or seek to narrow, invalidate or circumvent any of the issued, pending or future patents owned or licensed by us.
Our commercial success will also depend, in part, on our ability to avoid infringement of patents issued to others. If a court determines that we were infringing any third party patents, we could be required to pay damages, alter our products or processes, obtain licenses or cease certain activities. We cannot be certain that the licenses required under patents held by third parties would be made available on terms acceptable to us or at all. To the extent that we are unable to obtain such licenses, we could be foreclosed from the development, export, manufacture or commercialization of the product requiring such license or encounter delays in product introductions while we attempt to design around such patents, and any of these circumstances could have a material adverse effect on our business, financial condition and results of operations. We may have to resort to litigation to enforce any patents issued or licensed to us or to determine the scope and validity of third party proprietary rights. Such litigation could result in substantial costs and diversion of effort by us. We may have to participate in opposition proceedings before the Australian Patent and Trademark Office or another foreign patent office, or in interference proceedings declared by the United States Patent and Trademark Office, to determine the priority of invention for patent applications filed by competitors. Any such litigation interference or opposition proceeding, regardless of outcome, could be expensive and time consuming, and adverse determinations in any such proceedings could prevent us from developing, manufacturing or commercializing our products and could have a material adverse effect on our business, financial condition and results of operations.
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Patent Portfolio
The following table presents our portfolio of patents and patent applications, including their status (as at September 30, 2011) and a brief description of their respective inventions.
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Material Contracts Related to Intellectual Property and Commercialization Rights
Cancer Vac
ARI License Agreement
In May 2001, a License Agreement between the Burnet (then the ARI) and its wholly-owned subsidiary Ilexus Pty Ltd and Prima BioMed and Cancer Vac Pty Ltd was executed. The agreement was amended in August 2005 and the amended rights applied retroactively to May 2001. The agreement provides Cancer Vac with the exclusive worldwide rights to conduct research and development and for the commercialization of the background technology, improvements to the background technology and research results arising from Cancer Vacs own development programs in respect of the background technology for the purposes of developing and commercializing ex vivo based mannan adjuvant based therapeutics for the treatment of cancer. The rights extend for the duration of the patents/patent applications and include the right to sublicense, sell the assets or merge the company. In return, the Burnet receives a single digit royalty on any income received by Cancer Vac through the commercialization of the background technology, improvement or research results.
Unless terminated earlier, this agreement will continue in force for the duration of the patents/patent applications. Either party may terminate this agreement upon written notice to the other party for the other partys uncured material breach, bankruptcy or cessation of business.
Biomira License Agreement
In March 2004, a License and Development Agreement was executed between Prima BioMed, Cancer Vac Pty Ltd and Biomira Inc. A Deed of Variation was executed in February 2007. The 2004 agreement provided Cancer Vac with exclusive rights for the use of mucin-1 in ex vivo therapy for the treatment of cancer and provided Biomira with an option to elect to secure commercialization rights for Cvac TM . In February 2007, Biomira elected to forego their option to commercialise Cvac TM thus Cancer Vac retains full commercialization rights in respect of Cvac TM and freedom to operate in regard to mucin-1 under the existing license. The agreement is a sublicence of Cancer Research Technology Limited, or CRTL, whom has granted Biomira a licence over mucin-1 antigen technology.
The sublicense permits Cancer Vac to use, develop, market, promote, distribute and sell Cvac TM for the treatment of cancer worldwide. It was established in the interest of forming an arrangement allowing the development and commercialization of Cvac TM for delivery via ex vivo dendritic cells.
The term of the sublicense granted remains in force on a product-by-product and country-by-country basis until the later of:
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the patent claims in a given territory expire; or |
|
the expiration of exclusivity periods of a given product in a given country, where exclusivity period is defined as secured by either patent protection or extension, or a regulatory marketing exclusivity such as orphan drug status etc. |
We have certain milestone obligations (up to a total of US$8.5 million) and royalty obligations (from middle single digit to middle teens) to Biomera as Cvac TM continues development and if it is commercialized. Cancer Vac has the right to grant one or more sub-licenses outside of North America without the prior consent of Biomira and CRTL.
Unless terminated earlier, the Biomira agreement will continue in force on a product-by-product and country-by-country basis until the expiration of all relevant patents and exclusivity periods covering the product. Either party may terminate this agreement upon written notice to the other party for the other partys uncured material breach, bankruptcy or cessation of business.
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Oncomab
ARI License Agreement
In November 2002, a License Agreement between the ARI and its wholly-owned subsidiary Ilexus Pty Ltd and Prima BioMed and Oncomab Pty Ltd was executed. The agreement was amended in August 2005 and the varied rights applied retroactively to November 2002. The agreement provides Oncomab with the exclusive worldwide rights to conduct research and development and commercialization of the background technology, improvements to the background technology and research results arising from Oncomabs own development programs in respect of the background technology for the purposes of developing and commercializing cripto-1 antibodies for the diagnosis and treatment of cancer. The rights extend for the duration of the patents/patent applications and include the right to sublicense, sell the assets or merge the company. In return, the ARI receives a single digit royalty on any income received by Oncomab through the commercialization of the background technology, improvement or research results.
Unless terminated earlier, this agreement will continue in force for the duration of the patents/patent applications, and in the case of non-patented technology, until the later of the date the last patent expires or March 26, 2021. Either party may terminate this agreement upon written notice to the other party for the other partys uncured material breach, bankruptcy or cessation of business.
Bioceros Research and Development Partnership Agreement
In August 2010, Prima BioMed and Bioceros B.V. (the Netherlands) entered into a Research and Development Partnership Agreement for the development of cripto-1 therapeutic antibodies. Prima BioMed has provided access to its cripto-1 intellectual property to Bioceros to allow it to develop a potential therapeutic antibody to cripto-1. Bioceros has provided access to its intellectual property in respect of antibody production and manufacturing processes and techniques. Collectively the parties aim to generate a potential therapeutic antibody with certain pre-clinical research and development responsibilities undertaken by Bioceros. Prima BioMed has an option to buy out Bioceros interest in the program. If Prima BioMed timely exercises the option, we will pay Bioceros a buyout amount that is calculated based on the development costs incurred by Bioceros, and this agreement will terminate upon the exercise of the option. If Prima BioMed does not exercise the option, the parties may jointly develop and commercialize the product developed from the program pursuant to a joint venture agreement, in which case this agreement will terminate upon the execution of the joint venture agreement. The financial provisions of the joint venture agreement would allow for sharing of the development costs and commercialization returns based on pre-agreed terms and respective contributions to the overall program, with Prima Biomed bearing the majority of the development costs and receiving the majority of the commercialization returns.
This agreement will continue in force indefinitely until terminated pursuant to its terms. Either party may terminate this agreement for certain technical failure, the other partys bankruptcy or uncured material breach, or certain force majeure event affecting the other party. In addition, either party may also terminate this agreement within certain time period if Prima BioMeds option expires unexercised.
Oral Vaccines
NewSouth Innovations Collaboration Research Agreement
In December 2009, Prima BioMed entered into a Collaborative Research Agreement with NewSouth Innovations Pty Ltd, the commercial entity of the University of New South Wales. The purpose of the agreement is to conduct a research program for the development of oral vaccines and includes an option for Prima BioMed to commercialize the outcomes of the research program. NewSouth Innovations will conduct the research program with both parties providing any required background intellectual property under a non-exclusive royalty free license for the purposes of conducting research. The research program is funded by Prima BioMed and an Australian Research Council, or ARC, Linkage Grant awarded in 2009. Prima BioMed has the option during the research project term and for six months post completion of the term to secure an exclusive license to the project intellectual property for the purposes of commercializing the project intellectual property on pre-agreed terms. If we timely exercise the option, we will have certain milestone obligations (up to a total of A$10 million per application licensed) and royalty obligations (high single digit to low double digit) to NewSouth Innovations. In addition, if we grant sublicenses under our license from NewSouth Innovations, we will pay NewSouth Innovations a portion of any upfront payments we receive from any such sublicensees.
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This agreement expired on January 1, 2011, and our option expired on July 1, 2011.
C. | Organizational Structure |
We established four subsidiaries in Australia, as we initially conducted research and development activities via our subsidiaries:
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Cancer Vac Pty Ltd (wholly-owned, for the development of Cvac TM ovarian cancer therapy); |
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Oncomab Pty Ltd (wholly-owned, for the development of monoclonal antibodies); |
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Panvax Pty Ltd (wholly-owned, for the development of vaccine technology); and |
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Arthron Pty Ltd (wholly owned, for the development of anti-inflammatory therapies). |
Commencing July 2010, we no longer conduct our research and development activities via our Australian subsidiaries. As a result, all of the Australian subsidiaries are currently inactive.
In October 2009, Prima BioMed Europe Limited, a 100% owned subsidiary of Prima BioMed Ltd was incorporated in the United Kingdom. This subsidiary is inactive.
In April 2010, Prima BioMed USA Inc, a 100% owned subsidiary of Prima BioMed Ltd, was incorporated in the United States.
In May 2011, Prima BioMed GmbH, a 100% owned subsidiary of Prima BioMed Ltd, was incorporated in Germany, and also in May 2011, Prima BioMed Middle East FZLLC, a 100% owned subsidiary of Prima BioMed Ltd, was incorporated in the United Arab Emirates. These subsidiaries were established to allow us to conduct commercial and clinical operations in Europe, the United States, and the UAE.
D. | Property, Plants and Equipment |
We own computer equipment, office furniture and laboratory equipment, the major item being a Cobe Spectra that is being used for manufacturing Cvac TM .
ITEM 4A. | UNRESOLVED STAFF COMMENTS |
None.
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ITEM 5. | OPERATING AND FINANCIAL REVIEW AND PROSPECTS |
A. | Operating Results |
Background
Prima BioMed is an Australian biotechnology company committed to the development and commercialization of new medical therapies with a particular focus on oncology. Key product candidates in development include CVac, an autologous dendritic cell vaccine for ovarian cancer, monoclonal antibodies for multiple tumor types, and an oral formulation for the Human Papilloma Virus, or HPV, vaccine.
We were formed in May 2001, after entering into a strategic alliance with the Austin Research Institute, or ARI, and Ilexus Pty Ltd (a subsidiary of the ARI) for the commercialization and development of biotechnological research emanating from the ARI. The principal listing of our ordinary shares and listed options to purchase our ordinary shares is the Australian Securities Exchange, or ASX.
For a description of the milestones that we have achieved since inception and through to September 2011, see Item 4. Information on the Company A. History and Development of the Company.
Overview
We are a development stage enterprise at an early stage in the development of our product candidates. We have incurred net losses since inception and expect to incur substantial and increasing losses for the next several years as we expand our research and development activities and move our product candidates into later stages of development. The process of carrying out the development of our products to later stages of development may require significant additional research and development expenditures, including pre-clinical testing and clinical trials, as well as for obtaining regulatory approval. To date, we have funded our operations primarily through the sale of equity securities, proceeds from the exercise of options, government grants and interest income. For details of the business overview, see Item 4. Information on the Company B. Business Overview.
Critical Accounting Policies
We prepare our financial statements in accordance with IFRS as issued by IASB. As such, we are required to make certain estimates, judgments, and assumptions that management believes are reasonable based upon the information available. These estimates, judgments and assumptions affect the reported amounts of assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the periods presented. The significant accounting policies listed in Note 2 to the consolidated financial statements that management believes are the most critical to aid in fully understanding and evaluating our financial condition and results of operations under IFRS are discussed below.
Equity-Settled Compensation. Equity-settled payments are measured at fair value at the date of grant or entitlement. Fair value is measured by use of the Black-Scholes and Monte Carlo valuation models. The expected life used in the model has been adjusted, based on managements best estimate for the effects of non-transferability or exercise restrictions. The fair value determined for the equity-settled share-based payments is expensed on a straight-line basis over the vesting period, based on the consolidated entitys estimate of shares that will eventually vest.
Convertible Loan Agreement The agreement was treated as a debt facility which enables Prima periodically to drawdown on the facility, rather than one arrangement with a three-year term that should be recognised in its entirety at inception, on the basis that Prima could terminate the arrangement at any point in time at a minimal fee. Accordingly each drawdown was treated as an additional borrowing under the facility.
The substance of the agreement was assessed when determining the appropriate accounting treatment. The agreement is similar to a funded fixed return arrangement, including a right for the Lender to participate in any upside in share price. Because the debt will be settled in a variable number of shares, each drawdown has been classified as a financial liability.
Two embedded derivatives were identified and recognised separately from the host debt instrument in each drawdown, being the equity conversion feature and the floor price cash payment feature.
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Collateral shares and commitment options The purpose of the collateral shares and commitment options was to compensate SpringTree for making the commitment to provide the funding through the life of the Convertible Loan Agreement on terms that provided an acceptable level of funding certainty .
As the compensation to SpringTree for providing the service of committing to the Convertible Loan Agreement was paid in equity instruments of the Company, we applied the requirements of IFRS 2 to their measurement and recognition. Measurement inputs to the Monte-Carlo simulation option pricing model include the share price on the measurement date, the exercise price of the instruments, expected volatility (based on an evaluation of the Companys historic volatility over a period commensurate with the expected term), expected term of the instruments, expected dividends, and the risk- free interest rate (based on government bonds) .
Volatility Although implied volatility is generally considered to more accurately represent expected volatility than historical volatility, the lack of exchange-traded derivative prices for Prima BioMed required the model to use historical volatility for the purposes of these indicative valuations. The historical volatilities have been calculated based on Prima BioMeds daily share price movements for a period commensurate with the expected life of each option. The historical share price data was obtained from an independent external market data source.
Dividend Yield We have used a dividend yield of 0 % for the model based on Prima BioMeds nil dividend history.
Risk-free rate The expected risk-free rates of return used in the valuations are based on the Australian government bond rate commensurate with the tenor of the options.
Significant Costs and Expenses
Research and Development Expenses
Research and development expenses consist of costs incurred to further our research and development activities and include salaries and related employee benefits, costs associated with clinical trials and preclinical development, regulatory activities, research-related overhead expenses, costs associated with the manufacture of clinical trial material, costs for consultants and related contract research, facility costs and depreciation. Research and development costs are expensed as incurred.
Intellectual Property Expenses
Our intellectual property expenses consist of fees paid to our outside counsel for legal fees associated with patent applications and for the defense of patents and include salaries and related employee benefits.
Corporate Administrative Expenses
Corporate administrative expenses consist of directors fees, corporate advisory fees, salaries, benefits and equity-based compensation paid to employees and officers, travel expenses, fees paid to our auditors for services related to annual reports and interim reports and fees paid to other accounting firms in respect of tax and other accounting advice.
Finance Expenses
Finance expenses consist of interest and other costs incurred in connection with the borrowing of funds.
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Depreciation and Amortization
Depreciation of fixed assets is provided on a straight-line basis over the estimated useful lives of three to twenty years.
Class of Fixed Asset |
Depreciation Rate |
|
Plant and equipment |
20.0% to 33.3% | |
Furniture and Fittings |
5.0% to 33.3% |
Patents and trademarks are amortized on a straight-line basis over their useful life ranging from 15 to 20 years.
Impairment of Assets
At each reporting date, we review the carrying values of the tangible and intangible assets to determine whether there is any indication that those assets have been impaired. If such an indication exists, the recoverable amount of the asset, being the higher of the assets fair value less costs to sell and value in use, is compared to the assets carrying value. Any excess of the assets carrying value over its recoverable amount is expensed to the Statement of Comprehensive Income.
Net Loss on Financial Liabilities at Fair Value Through Profit or Loss
At each reporting date, we revalue our financial liabilities to their fair value calculated based on the available market value information.
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Results of Operations
Comparison of Year Ended June 30, 2011 to Year Ended June 30, 2010
Revenue
Revenue increased to A$1,066,000 for the year ended June 30 2011 from A$524,000 for the year ended June 30, 2010, an increase of A$542,000, or 103%. Revenue consists of interest income for both periods. The increase in revenue from continuing operations in the year ended June 30, 2011 is primarily attributable to interest income as a result of an increase in cash and cash equivalents and investment in term deposits.
Research & Development and Intellectual Property Expenses
Research & development and intellectual property expenses increased to A$9.5 million for the year ended June 30, 2011 from A$5.1 million for the comparable period, an increase of A$4.4 million, or 86%. The increase in research & development and intellectual property expenses in the period is primarily attributable to costs associated with the clinical trial being conducted in Australia, Europe and the United States.
Corporate Administrative Expenses
Corporate administrative expenses decreased to A$5.6 million for the year ended June 30, 2011 from A$5.8 million for the comparable period, a decrease of A$215,000, or 4%. The decrease in corporate administrative expenses is mainly attributable to a share-based director fee payment expensed in the previous period.
Finance Expenses
Finance expenses of A$6.4 million for the year ended June 30, 2011 are primarily the costs associated with the convertible loans provided by SpringTree Special Opportunities Fund, LP. The costs are down by A$550,000, or 8%, from A$6.94 million for the previous year ended June 30, 2010 reflecting the impact of the fair value of shares and options issued in repayment of the convertible loans, and the termination in March 2011.
Net Loss on Financial Liabilities at Fair Value Through Profit or Loss
Net Loss
Net loss increased to A$21.1 million for the year ended June 30, 2011 from A$17.960 million for the comparable year to June 30, 2010, an increase of A$3.12 million. This was due mainly to the increased research and development and intellectual property expense.
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Comparison of Year Ended June 30, 2010 and Year Ended June 30, 2009
Restatement of Account s June 30, 2010
We have restated our accounts for the year ended June 30, 2010 in connection with an error in the valuation of share based payments to directors. Previously, the valuation was based on historic pricing and Black Scholes Barrier pricing model and assumed performance risks. The appropriate value under the Australian Accounting Standard AASB 2 Share Based Payments requires the valuation to be based on the price as at the date of issue (August 5, 2009).
This adjusted valuation has increased corporate administrative expenses by A$2.6 million.
We have restated our accounts for the year ended June 30, 2010 in connection with the fair value movement of the available-for-sale financial assets. Previously, the decline in fair value of A$2.0 million was recorded in the asset revaluation reserve in 2008, and transferred from the asset revaluation reserve to the income statement in 2010. The decline in value should have been impaired in 2008. In addition, an unrealized foreign exchange gain of A$19,000 has been recognised in the financial assets valuation reserve in 2010.
This has reduced impairment of available-for-sale financial assets by A$1.9 million.
We have restated our accounts for the year ended June 30, 2010 in connection with the treatment of the SpringTree loan facility. A remeasurement of the fair value of shares and options issued to repay the loan, commitment options and collateral shares issued have been expensed over the period of the facility as finance expenses. In addition, loan transactions costs have been amortised over the period of the facility.
The excess of fair value of consideration conveyed (being shares and options issued) over the debt from each tranche has now been calculated and recorded as a finance cost in accordance with paragraph 56 of IAS 39. This has increased finance costs by A$5.9 million.
On the basis of a modification to the convertible loan agreement dated December 9, 2009 additional consideration of A$603,000 was paid in compensation for not issuing shares to the full amount calculated under the convertible loan agreement. A reduced number of shares were issued and the fair value of the shares not issued for this tranche was paid in cash by deduction from the loan received. The additional consideration was paid as a result of a modification requested by Prima to the convertible note agreement, removing the initial share price cap on repayments.
The total loan transaction costs, including the initial commencement fee and the maintenance fees, have now been amortised over the term of the SpringTree loan facility for each tranche in proportion to the total facility. This has increased finance costs by A$297,000.
Reversal of finance costs previously expensed as incurred. This has reduced finance costs by A$908,000.
The value of the commitment options have been recalculated using the Black-Scholes option pricing model for each tranche and expensed over the term of the SpringTree loan facility for each tranche in proportion to the total facility. This has increased finance costs by A$499,000.
Reversal of the commitment options previously expensed on a straight-line basis based on fair value at commencement of loan facility. This has reduced finance costs by A$243,000.
The fair value of the option to retain the collateral shares at a discount has now been calculated based on a Monte Carlo pricing model for each tranche and expensed over the term of the SpringTree loan facility for each tranche in proportion to the total facility. This has increased finance costs by A$478,000.
The charge for the modification of the option has now been calculated using a Monte Carlo pricing model based on the valuation immediately prior to and immediately after the AU$ 0.10 per share ceiling. The resulting difference of A$137,000 has now been expensed in October 2009.
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The Tranche 12 finance cost has now been apportioned to reflect the exact cost to June 30, 2010. This has reduced finance costs by A$383,000.
The overall impact of these restatements on finance costs was an increase in finance costs of A$5.2 million.
Revenue
Revenue increased to A$524,000 for the fiscal year ended June 30, 2010 from A$29,000 for the year ended June 30, 2009, an increase of A$495,000, or 1,707%. Revenue consists of A$475,000 and A$29,000 in interest income for the years ended June 30, 2010 and 2009 respectively, and includes A$49,000 research and development tax credit refund for fiscal 2010. The increase in revenue from continuing operations in fiscal 2010 is primarily attributable to higher interest income as a result of an increase in cash and cash equivalents and investment in term deposits.
Research & Development and Intellectual Property Expenses
Research & development and intellectual property expenses increased to A$5.1 million for the year ended June 30, 2010 from A$614,000 for the year ended June 30, 2009, an increase of A$4.5 million, or 735%. The increase in research and development & intellectual property expenses in fiscal 2010 is primarily attributable to costs associated with the clinical trial being conducted in Australia, Europe and the United States.
Corporate Administrative Expenses
Corporate administrative expenses increased to A$5.8 million for the year ended June 30, 2010 from A$1.6 million for the year ended June 30, 2009, an increase of A$4.2 million, or 262%. The increase in corporate administrative expenses is mainly attributable to increased directors fees and employee expenses as a result of the appointment of new independent directors to the board, appointment of senior management team, and the increased remuneration package during fiscal 2010. Travel expenses increased by A$385,000. Listing fees increased by A$98,000 as a result of the increased number of shares on issue during fiscal 2010.
Finance Expenses
Finance expenses for the year ended June 30, 2010 are primarily the costs associated with the convertible loans provided by SpringTree Special Opportunities Fund, LP. The costs were not previously incurred as the loan agreement was entered into in July 2009. Finance expenses for fiscal 2009 are primarily the costs associated with the convertible loans under the agreement with Fortrend Securities Pty Ltd.
Impairment of Assets
Impairment of assets decreased to A$0 for the year ended June 30, 2010 from A$471,000 for the year ended June 30, 2009. Each reporting period, our Board of Directors assesses the recoverable amount of all non-current assets to ensure its carrying value does not exceed its recoverable amount.
Net Loss on Financial Liabilities at Fair Value Through Profit or Loss
Net loss on financial liabilities at fair value through profit or loss increased to A$529,000 for the year ended June 30, 2010 from A$115,000 for the year ended June 30, 2009, an increase of A$413,000, or 359%.
The financial liabilities for the years ended June 30, 2010 and 2009 were A$125,000 convertible loan. The loan was converted into 4,807,692 fully paid ordinary shares at a conversion rate of A$0.026 per share on December 18, 2009. The fair value of these shares was A$769,000 based on the closing share price of A$0.16 on the repayment date. The fair value of these shares was A$240,000 based on the closing share price of A$0.05 at June 30, 2009. The increase in net loss on financial liabilities at fair value through profit or loss reflects increased fair value of these shares converted on repayment date.
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Net Loss
Net loss increased to A$18.0 million for the year ended June 30, 2010 from A$2.9 million for the year ended June 30, 2009. The significant increase in operating expenses discussed above was only partly offset by the increase in revenue from continuing operations.
Inflation and Seasonality
Management believes inflation has not had a material impact on our operations or financial condition and that our operations are not currently subject to seasonal influences.
Recently Issued International Accounting Standards and Pronouncements
Our consolidated financial statements comply with Australian accounting standards which ensure that they also comply with International Financial Reporting Standards.
Certain new Australian accounting standards and interpretations have been published that are not mandatory for June 30, 2011 reporting periods.
New Accounting Standards and Interpretations Not Yet Mandatory or Early Adopted
Australian Accounting Standards and Interpretations that have recently been issued or amended but are not yet mandatory, have not been early adopted by the consolidated entity for the annual reporting period ended June 30, 2011. The consolidated entitys assessment of the impact of these new or amended Accounting Standards and Interpretations, most relevant to the consolidated entity, are set out below.
AASB 9 Financial Instruments, 2009-11 Amendments to Australian Accounting Standards arising from AASB 9 and 2010-7 Amendments to Australian Accounting Standards arising from AASB 9
This standard and its consequential amendments are applicable to annual reporting periods beginning on or after January 1, 2013 and completes phase I of the IASBs project to replace IAS 39 (being the international equivalent to AASB 139 Financial Instruments: Recognition and Measurement). This standard introduces new classification and measurement models for financial assets, using a single approach to determine whether a financial asset is measured at amortised cost or fair value. To be classified and measured at amortised cost, assets must satisfy the business model test for managing the financial assets and have certain contractual cash flow characteristics. All other financial instrument assets are to be classified and measured at fair value. This standard allows an irrevocable election on initial recognition to present gains and losses on equity instruments (that are not held-for-trading) in other comprehensive income, with dividends as a return on these investments being recognized in profit or loss. In addition, those equity instruments measured at fair value through other comprehensive income would no longer have to apply any impairment requirements nor would there be any recycling of gains or losses through profit or loss on disposal. The accounting for financial liabilities continues to be classified and measured in accordance with AASB 139, with one exception, being that the portion of a change of fair value relating to the entitys own credit risk is to be presented in other comprehensive income unless it would create an accounting mismatch. The consolidated entity will adopt this standard from July 1, 2013 but the impact of its adoption is yet to be assessed by the consolidated entity.
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AASB 2010-4 Further Amendments to Australian Accounting Standards arising from the Annual Improvements Project
These amendments are applicable to annual reporting periods beginning on or after January 1, 2011. These amendments are a consequence of the annual improvements project and make numerous non-urgent but necessary amendments to a range of Australian Accounting Standards and Interpretations. The amendments provide clarification of disclosures in AASB 7 Financial Instruments: Disclosures, in particular emphasis of the interaction between quantitative and qualitative disclosures and the nature and extent of risks associated with financial instruments; clarifies that an entity can present an analysis of other comprehensive income for each component of equity, either in the statement of changes in equity or in the notes in accordance with AASB 101 Presentation of Financial Instruments; and provides guidance on the disclosure of significant events and transactions in AASB 134 Interim Financial Reporting. The adoption of these amendments from July 1, 2011 will not have a material impact on the consolidated entity.
AASB 2010-5 Amendments to Australian Accounting Standards
These amendments are applicable to annual reporting periods beginning on or after January 1, 2011. These amendments makes numerous editorial amendments to a range of Australian Accounting Standards and Interpretations, including amendments to reflect changes made to the text of International Financial Reporting Standards by the International Accounting Standards Board. The adoption of these amendments from July 1, 2011 will not have a material impact on the consolidated entity.
AASB 124 Related Party Disclosures (December 2009)
This revised standard is applicable to annual reporting periods beginning on or after January 1, 2011. This revised standard simplifies the definition of a related party by clarifying its intended meaning and eliminating inconsistencies from the definition. The definition now identifies a subsidiary and an associate with the same investor as related parties of each other; entities significantly influenced by one person and entities significantly influenced by a close member of the family of that person are no longer related parties of each other; and whenever a person or entity has both joint control over a second entity and joint control or significant influence over a third party, the second and third entities are related to each other. This revised standard introduces a partial exemption of disclosure requirement for government-related entities. The adoption of this standard from July 1, 2011 will not have a material impact on the consolidated entity.
AASB 2010-6 Amendments to Australian Accounting Standards - Disclosures on Transfers of Financial Assets
These amendments are applicable to annual reporting periods beginning on or after July 1, 2011. These amendments add and amend disclosure requirements in AASB 7 about transfer of financial assets, including the nature of the financial assets involved and the risks associated with them. The adoption of these amendments from July 1, 2011 will increase the disclosure requirements on the consolidated entity when an asset is transferred but is not derecognized and new disclosure required when assets are derecognized but the consolidated entity continues to have a continuing exposure to the asset after the sale.
IAS 1 (AASB 101) Presentation of Financial Statements (Revised)
This revised standard is applicable to annual reporting periods beginning on or after July 1, 2012. The amendments requires grouping together of items within other comprehensive income on the basis of whether they will eventually be recycled to the profit or loss. The change provides clarity about the nature of items presented as other comprehensive income and their future impact. The adoption of the revised standard from July 1, 2012 will impact the consolidated entitys presentation of its statement of comprehensive income.
AASB 1054 Australian Additional Disclosures
This Standard is applicable to annual reporting periods beginning on or after July 1, 2011. The standard sets out the Australian-specific disclosures, which are in addition to International Financial Reporting Standards, for entities that have adopted Australian Accounting Standards. The adoption of these amendments from July 1, 2011 will not have a material impact on the consolidated entity.
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AASB 2011-1 Amendments to Australian Accounting Standards arising from the Trans-Tasman Convergence Project and AASB 2011-2 Amendments to Australian Accounting Standards arising from the Trans-Tasman Convergence Project Reduced Disclosure Requirements
These amendments are applicable to annual reporting periods beginning on or after July 1, 2011. They make changes to a range of Australian Accounting Standards and Interpretations for the purpose of closer alignment to IFRSs and harmonization between Australian and New Zealand Standards. The amendments remove certain guidance and definitions from Australian Accounting Standards for conformity of drafting with International Financial Reporting Standards but without any intention to change requirements. The adoption of these amendments from 1 July 2011 will not have a material impact on the consolidated entity.
AASB 2011-4 Amendments to Australian Accounting Standards to Remove Individual Key Management Personnel Disclosure Requirement
These amendments are applicable to annual reporting periods beginning on or after July 1, 2013, with early adoption not permitted. They amend AASB 124 Related Party Disclosures by removing the disclosure requirements for individual key management personnel, or KMP. The adoption of these amendments from July 1, 2013 will remove the duplication of relating to individual KMP in the notes to the financial statements and the directors report. As the aggregate disclosures are still required by AASB 124 and during the transitional period the requirements may be included in the Corporations Act or other legislation, it is expected that the amendments will not have a material impact on the consolidated entity.
B. | Liquidity and Capital Resources |
Since our inception, our operations have mainly been financed through the issuance of equity securities. Additional funding has come through convertible loans, research grants and interest on investments. Through June 30, 2011, we had received net cash proceeds of A$44.7 million from the issuance of ordinary shares and A$5.4 million from convertible loans. We have incurred significant losses since our inception. We incurred losses of A$21.1 million, A$18.0 million and A$2.9 million in the fiscal years ended June 30, 2011, 2010 and 2009 respectively.
Equity Issuances
The following table summarizes our issuances of ordinary shares for cash, excluding share-based payments, executive and employee compensation in the last 5 years.
Year |
Number of
Shares |
Net Proceeds | ||||||||||
(in A$) | ||||||||||||
Ordinary Shares private placement |
2007 | 21,422,740 | 884,503 | |||||||||
Ordinary Shares private placement, share purchase plan and non-renounceable rights issue |
2008 | 107,026,640 | 1,919,999 | |||||||||
Ordinary Shares private placement, share purchase plan and exercise of options |
2009 | 115,495,026 | 2,391,378 | |||||||||
Ordinary Shares private placement, share purchase plan, repayment of convertible loans and exercise of options |
2010 | 278,662,654 | 21,430,975 | |||||||||
Ordinary Shares private placement, share purchase plan, repayment of convertible loans and exercise of options |
2011 | 280,428,034 | 54,014,351 |
Convertible Loan Agreement with SpringTree Global Opportunities Fund, LP
In July 2009, we entered into a convertible loan agreement with SpringTree Global Opportunities Fund, LP, or SpringTree, and subject to certain limitations, we are able to borrow an aggregate principal
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amount of up to A$25.5 million. Borrowings under the convertible loan agreement bear no interest and are secured by 15,000,000 ordinary shares issued to SpringTree as collateral. We also granted SpringTree five-year options to purchase 15,000,000 ordinary shares at an exercise price of A$0.0629 per share.
Under the initial arrangements, on termination of the convertible loan agreement, SpringTree was obligated to pay us an amount in lieu of cancellation of the collateral shares equal to the number of collateral shares, multiplied by 90% of the average VWAPs per share on any 5 consecutive business days (chosen by SpringTree) between the date of the closing most recently preceding the date of termination of the agreement and ending on the date that is immediately prior to the date on which termination of the agreement takes effect. Alternatively, SpringTree could have requested that the number of shares held by SpringTree be cancelled for no consideration.
Subsequently on October 21, 2009 the agreement was amended to state that SpringTree would pay us an amount in lieu of cancellation of the collateral shares equal to the lesser of (a) the collateral share holding number, multiplied by 90% of the average VWAPs per share on any 5 days on the date of the closing most recently preceding the date of termination of the Agreement and ending on the date that is immediately prior to the date on which such payment is made or (b) A$0.10. Alternatively, SpringTree could have requested that the number of shares held by SpringTree be cancelled for no consideration.
The value of SpringTrees opportunity to acquire the collateral shares at a discount from market or the Collateral shares-option, is valued at each tranche date and expensed over the 37 tranches based on the amount of each drawdown as a percentage of the total loan facility.
The options are valued at each tranche date and expensed over the 37 tranches based on the amount of each draw down as a percentage of the total loan facility.
Each loan is made in a separate tranche, and aside from certain exceptions, each tranche is repaid within 30 days of the draw down by issuing to SpringTree ordinary shares and options to purchase our ordinary shares. The number of ordinary shares issued as repayment is determined by dividing the amount of the tranche by the conversion price. The conversion price is the lesser of:
|
130% (or in certain circumstances, 150%) of the average of the closing price of our ordinary shares for 20 business days prior to the agreement (which is A$0.0743 and A$0.0858 respectively), and |
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90% of the average volume-weighted average price of our ordinary shares for a 5 consecutive business day period during a particular tranche ending on the date immediately prior to the relevant repayment date. |
We repaid each tranche by delivering ordinary shares, we also granted SpringTree a five-year option per five shares issued to it (1:5), exercisable at 150% of the average of the volume-weighted average prices of our ordinary shares for the 20 business days immediately prior to the repayment date. The fair value of the ordinary shares and options issued that was in excess of the amount of each tranche was expensed as finance expenses. During the fiscal year ended June 30, 2010, we drew down an aggregate of A$8.0 million, of which A$7.3 million was repaid by the issue of 73,377,055 ordinary shares and options to purchase 15,498,254 ordinary shares. As of June 30, 2010 A$700,000 was owed to SpringTree.
On January 10, 2011, we announced that we had reached an agreement for the early termination of the convertible loan funding facility with SpringTree, by mutual consent of Prima and SpringTree. Pursuant to the Deed of Amendment and Termination, on or before March 29, 2011, SpringTree was obligated to pay us an amount in lieu of cancellation of the shares equal to 15,000,000 multiplied by the lower of (a) 90% of the average of the volume-weighted average price per share on any five consecutive business days (chosen by SpringTree) during the period commencing on January 10, 2011 and ending on the date that is immediately prior to the date on which such payment is made, or (b) AU$0.10. On March 29, 2011, SpringTree paid us an aggregate of A$1.5 million, or A$0.10 per share, for all 15,000,000 shares.
The agreement for the early termination of the SpringTree agreement reached on January 10, 2011 resulted in a reallocation of the expenses, related to the Collateral shares-option and the value of the 15 million options, over the period subsequent to January 10, 2011 to reflect the reduced number of 20 tranches under the early termination of the agreement.
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The cost of the SpringTree finance facility in the 2010-2011 financial year was A$6.4 million. This is an accounting cost rather than a cash cost as it primarily resulted from the issue of equity to settle SpringTree related obligations. As a result of the mutual agreement to terminate the SpringTree facility, the previously agreed termination fee was waived as a result of negotiations. The acceleration of the amortisation of the finance expenses relating to the SpringTree agreement resulted in bringing forward finance expenses for the fiscal 2011 of approximately A$2.3 million.
As noted below, SpringTree undertook an additional one-off investment in the company to the value of A$2.5 million improving our financial position and liquidity. Upon termination, at March 31, 2011, the company held $16.1 million in the bank.
SpringTree also undertook an additional one-off investment of A$2.5 million in Prima. Of this A$2.5 million, A$1.25 million was by way of a subscription for shares at A$0.20 per share and on January 10, 2011 we issued SpringTree 6,209,638 shares. The other A$1.25 million was by way of a convertible note, convertible on or before March 29, 2011 (at 90% of the average of the volume weighted average price per share during a specified period prior to the date of the conversion). On February 24, 2011 we issued SpringTree 3,140,704 shares and on March 3, 2011 we issued SpringTree 3,140,704 shares upon conversion of the note, each at an issue price of A$0.1990 per share, resulting in the full conversion of the note. The discount inherent in the shares issued to SpringTree for the additional one-off investment was expensed as a finance cost totalling A$210,000.
Fortrend Securities Pty Ltd.
An additional A$12.0 million is available to us through an equity drawdown facility with Fortrend Securities Pty Ltd.
Capital Requirements
As of June 30, 2011, we had cash and cash equivalents of A$45.9 million, other financial assets, 12 month term deposit of A$10.0 million, and an equity draw down facility of A$12.0 million. We anticipate that our current cash and cash equivalents will be sufficient to fund our operations for more than 12 months. However, our forecast of the period of time through which our financial resources will be adequate to support our operations is a forward-looking statement that involves risks and uncertainties, and actual results could vary materially. If we are unable to raise additional capital when required or on acceptable terms, we may have to significantly delay, scale back or discontinue one or more of our clinical trials or our operations.
We anticipate that we will require substantial additional funds in order to achieve our long-term goals and complete the research and development of our current principal pharmaceutical product candidate. We do not expect to generate revenue until we obtain regulatory approval to market and sell our product candidate and sales of our product candidate have commenced. We expect to continue to incur substantial losses. Our future capital requirements are difficult to forecast and will depend on many factors, including:
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the costs of establishing sales, marketing and distribution capabilities; |
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the scope, results and timing of preclinical studies and clinical trials; |
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the costs and timing of regulatory approvals; and |
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the cost of filing, prosecuting, defending and enforcing any patent claims and other intellectual property rights. |
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Cash Flows
The following table summarizes our cash flows for the periods presented:
2011 | 2010 | 2009 | ||||||||||
A$ | A$ | A$ | ||||||||||
Net cash used in operating activities |
(9,755,703 | ) | (6,461,680 | ) | (1,883,470 | ) | ||||||
Net cash used in investing activities |
(44,751 | ) | (10,093,513 | ) | (1,759 | ) | ||||||
Net cash provided by financing activities |
50,080,664 | 21,253,974 | 1,726,531 | |||||||||
Net increase (decrease) in cash and cash equivalents |
40,280,210 | 4,698,781 | (158,698 | ) | ||||||||
Cash and cash equivalents at beginning of period |
5,638,342 | 939,561 | 1,098,259 | |||||||||
Cash and cash equivalents at end of period |
45,918,552 | 5,638,342 | 939,561 |
Net cash used in operating activities was A$9.8 million, A$6.5 million and A$1.9 million during the years ended June 30, 2011, 2010 and 2009, respectively. Payments to suppliers and employees during the years accounts for almost all of the amounts above. The increase in each of the years is related to an increase in research and development expenditure as the company raised additional funds to the core activities and an increase in corporate administrative expenses. During the years ended June 30, 2011, 2010 and 2009, our payments to suppliers and employees were offset by interest income of A$1.066 million, A$124,000 and A$39,000, respectively.
Net cash used in investing activities was A$45,000, A$10.1 million and A$2,000 during the years ended June 30, 2011, 2010 and 2009, respectively. Cash flows used for investing activities for the year ended June 30, 2010 was primarily attributable to payment for acquisition of term deposit (not less than 3 months). For the years ended June 30, 2011 and 2009 cash flows used for investing activities was primarily attributable to payments for the purchase of property and equipment.
Net cash provided by financing activities was A$50.1 million, A$21.3 million and A$1.7 million for the years ended June 30, 2011, 2010 and 2009.
Cash flows provided by financing activities during the year ended June 30, 2011 are attributable to a share purchase plan (A$20.3 million), placement with institutional investors (A$21.0 million) exercise of options (A$4.8 million) and A$2.5 million from SpringTree. In 2010, financing activities are attributable to shares issued on exercise of options, a share purchase plan and convertible loans of A$6.3 million in the aggregate, before finance costs. Cash flows provided by financing activities during the year ended June 30, 2009 are attributable to shares issued on exercise of options, share placements of 57 million shares in June 2009 at a price of A$0.026 per ordinary share and two share purchase plans from which we raised A$360,000.
At June 30, 2011, we had A$45.9 million in cash and cash equivalents plus A$10.0 million on a term deposit. At June 30, 2010, we had cash and cash equivalents of A$5.6 million as compared to A$0.9 million at June 30, 2009. In addition, we invested A$10.0 million in a term deposit maturing in December 2011. This overall increase in available funds was primarily due to the receipt of net proceeds of A$14.9 million related to the issue and sale of our ordinary shares in a share purchase plan, and the receipt of net proceeds of A$9.8 million convertible loans in aggregate.
C. | Research and Development, Patents and Licenses |
For a description of the amount spent during each of the last four fiscal years on company-sponsored research and development activities, as well as the four components of research and development expenses, see Item 5. Operating and Financial Review and Prospects A. Operating Results Results of Operations.
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D. | Trend Information |
We are a development stage company and it is not possible for us to predict with any degree of accuracy the outcome of our research or commercialization efforts.
Our research and development expenditure is our primary expenditure. Increases or decreases in research and development expenditure are attributable to the level of clinical trial activity and the amount of expenditure on those trials.
E. | Off-Balance Sheet Arrangements |
During fiscal 2009, 2010 and 2011, we did not have any relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.
F. | Tabular Disclosure of Contractual Obligations |
As of June 30, 2011 our contractual obligations were as set forth below:
Payments Due by Period | ||||||||||||||||||||
Total |
Less than
1 year |
1-3 years | 3-5 years |
More
than 5 years |
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Contractual Obligations |
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Short-Term Debt Obligations |
nil | | | | | |||||||||||||||
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|
|
|
|
|
|
|
|
|
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Total |
nil | | | | | |||||||||||||||
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|
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|
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We have agreements with clinical sites and contract research organizations. We make payments to these sites and organizations based upon the number of patients enrolled and the period of follow-up in the trial.
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ITEM 6. | DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES |
A. | Directors and Senior Management |
The following table sets forth our directors and senior management, their age and the positions they held as of the date of this registration statement on Form 20-F. All of our directors and senior management may be contacted at our principal executive offices located at level 7, 151 Macquarie Street Sydney 2000 New South Wales, Australia.
Name |
Age |
Position |
||||
Lucy Turnbull |
53 | Non-Executive Chairman | ||||
Albert Yue-Ling Wong (1) (2) |
53 | Non-Executive Deputy Chairman | ||||
Martin Rogers |
31 | Chief Executive Officer | ||||
Neil Frazer |
55 | Director and Chief Medical Officer | ||||
Richard Hammel (1) (2) |
68 | Non-Executive Director | ||||
Matthew Lehman |
34 | Chief Operating Officer | ||||
Sharron Gargosky |
47 | Senior Vice President for the CVac Clinical Programs | ||||
Ian Bangs |
57 | Chief Financial Officer and Company Secretary |
(1) |
Member of the Audit Committee |
(2) |
Member of the Remuneration Committee |
Ms. Lucy Turnbull. Ms. Turnbull has served as Chairman of Prima BioMed since October 2010. From 2001 to 2002, Ms. Turnbull was the Chairman of the New South Wales Governments Ministerial Advisory Committee on Biotechnology, from 2002 to 2006 she was a Director of the Sydney Cancer Foundation and from 1993 to 2000 she was Director and Chair of the Sydney Childrens Hospital Foundation. She is currently on the Board of the Cancer Institute NSW. Ms. Turnbull also has a strong depth of experience in commercial legal practice and investment banking. During her career Ms. Turnbull has held a number of high profile positions, which have included Lord Mayor of the City of Sydney from 2003 to 2004 and, prior to that, Deputy Lord Mayor of Sydney from 1999 to 2003. Ms. Turnbull is currently a Board member of Urban Renewal Organisation, the Waterloo Redfern Authority and the Sydney Metropolitan Development Authority. Ms. Turnbull is active in the not for profit sector and currently holds a number of positions including as Deputy Chairman of the Committee for Sydney, board membership of the U.S. Studies Centre at Sydney University and the Centre for Independent Studies. She is also a board member of the Biennale of Sydney and the Redfern Foundation.
Mr. Albert Yue-Ling Wong. Mr. Wong has served as a Director of Prima BioMed since April 2010. He became Non-Executive acting Chairman of our Board of Directors in July 2010 and served in that position until being appointed to his current position in October 2010. Mr. Wong is a corporate adviser and investment banker with more than 28 years in the finance industry and brings his experience and expertise to the Board of Prima BioMed. Formerly a stockbroker for 21 years, Mr. Wong was admitted as a Member of the Australian Securities Exchange in 1988 and was the principal of Intersuisse Limited until 1995 when he established and listed on ASX the Barton Capital group of companies including eStar Online. Mr. Wong was also a founding Director of both Pluton Resources Limited and Gujarat NRE Resources NL. Mr. Wong is also involved in a number of philanthropic activities, including current directorships on UNSW Foundation Limited, Ian Thorpes Fountain for Youth Foundation, Honorary Life Governor of the Science Foundation for Physics at the University of Sydney. Mr. Wong remains a Fellow of the Financial Services Institute of Australasia, he is a Practitioner Member (Master Stockbroking) of the Stockbrokers Association of Australia and a Fellow of the Australian Institute of Company Directors.
Mr. Martin Rogers. Mr. Rogers has served as our Chief Executive Officer since October 2007, and was appointed Managing Director in July 2010. Mr. Rogers was appointed a director in October 2007.
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Mr. Rogers has a science and corporate consultancy background with his focus being on the incubation of business ideas and the establishment of both internal ventures and external partnerships, including finance concept origination for the likes of Macquarie Bank.
Dr. Richard Hammel, Ph.D, Dr. Hammel has served as a director of Prima BioMed since January 2005. Dr. Hammel is a partner with ProPharma International Partners, a pharmaceutical/biotechnology consulting firm providing a range of business, financial and product development services. He has previously held senior management positions with Glaxo Smith Kline, Connetics Corporation (Vice President for Commercial Development), Matrix Pharmaceuticals Inc. (Vice President Business Development, Sales and Marketing) and has also held several positions at Glaxo Inc, where he has been Director, Professional Affairs; Director, New Business Development; and Director, Marketing Services.
Dr. Neil Frazer. Dr. Frazer has served as our Chief Medical Officer since November 2009, and was appointed a director in July 2010. Dr. Frazer has more than 23 years of drug development experience in multiple therapeutic areas, including more than six years of oncology drug development experience. Dr. Frazer commenced his medical career as a UK-based anaesthetist working in the UK National Health Service and has worked in Europe and in the U.S. conducting Phase I-IV studies, which have led to product registrations in Europe and the U.S. Prior to joining Prima BioMed, Dr. Frazer held senior management roles with Glaxo and Glaxo-Wellcome and Clintrials Research, and had also held executive medical roles with PharmaLinkFHI (eCRO), Shire Pharmaceuticals, Erimos Pharmaceuticals and Chimerix, Inc.
Mr. Matthew Lehman. Mr. Lehman has served as our Chief Operating Officer since February 2010. Mr. Lehman has experience in clinical research, development programs and obtaining drug approval. He has specific expertise in clinical development strategies, operations and in-outsourcing. From 2000 until 2010, Mr. Lehman was chief operating officer for SPRI Clinical Trials in the U.S. and Europe, where he managed teams in all areas of clinical operations. Mr. Lehman is based in Berlin, Germany and plays a key role in leading our research and development plans, and clinical trials for its CVac ovarian cancer therapy vaccine. Mr. Lehman has a Master of Science from Columbia University in New York, and a Bachelor of Arts from the University of Louisville, Kentucky. He is also a member of the European Business Association and Association for Clinical Research Professionals.
Dr. Sharron Gargosky, Ph.D. Dr. Gargosky has served as our Senior Vice President for CVac since August 2010. Dr. Gargosky has 18 years experience in the biotechnology and pharmaceutical industries, and has worked in senior positions for three different companies which have successfully received FDA approval for orphan drugs. Dr. Gargosky is responsible for managing the clinical team working on CVac. Starting in 2010, Dr. Gargosky was a member of Member of ILMU Consulting LLC, where she provided project management and operational expertise in the area of pharmaceutical drug and biologic development from the early research phase through to Phase IV Trials and the FDA approval process. Dr. Gargosky has also previously held the positions of: Chief Scientific Officer at Pulse Health LLC in Portland, Oregon, Chief Scientific Officer and Senior Vice President of Corporate Development at Hyperion Therapeutics Inc. in San Francisco, California, and Executive Director of Research and Development at Medicis/Ucyclyd Pharma, Arizona, among other senior roles. Dr. Gargosky has a Postdoctoral Fellowship in Pediatric Endocrinology from Stanford University in California, a Ph.D. in Biochemistry from University of Adelaide in Australia (in collaboration with CSIRO, Divisions of Human Nutrition, South Australia), First Class Honors in Biochemistry from University of Adelaide, and a Bachelor of Science, Biochemistry (Distinction), Microbiology, Immunology & Virology (Distinction) from University of Adelaide.
Mr. Ian E. Bangs. Mr. Bangs has served as our Chief Financial Officer since February 2011 and Company Secretary since May 2011. Mr. Bangs has over 25 years experience working in senior finance positions with companies involved in a range of diversified industries. Mr. Bangs has worked as Chief Financial Officer and Company Secretary for a number of public companies listed on the ASX including LandMark White Limited, IFC Capital Limited and 10 years as the CFO of the Regent Hotel in Sydney. He has been responsible for the day to day financial and administrative operations together with the statutory reporting and compliance obligations of these organisations. He has a Bachelor of Commerce degree and is a Fellow CPA.
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B. | Compensation |
Remuneration Principles
Remuneration of all executive and non-executive directors and officers is determined by the Remuneration Committee.
We are committed to remunerating senior executives and executive directors in a manner that is market-competitive and consistent with Best Practice including the interests of shareholders. Remuneration packages are based on fixed and variable components, determined by the executives position, experience and performance, and may be satisfied via cash or equity.
Non-executive directors are remunerated out of the aggregate amount approved by shareholders and at a level that is consistent with industry standards. Non-executive directors do not receive performance based bonuses and prior shareholder approval is required to participate in any issue of equity. No retirement benefits are payable other than statutory superannuation, if applicable.
Our remuneration policy is not directly based on our financial performance, rather on industry practice, given we operate in the biotechnology sector and our primary focus is research activities with a long term objective of developing and commercialising the research and development results.
We envisage our performance in terms of earnings will remain negative while we continue in the research and development phase. Shareholder wealth reflects this speculative and volatile market sector.
The purpose of a performance bonus is to reward individual performance in line with our objectives. Consequently, performance based remuneration is paid to an individual where the individuals performance clearly contributes to a successful outcome. This is regularly measured in respect of performance against key performance indicators.
We use a variety of key performance indicators to determine achievement, depending on the role of the executive being assessed. These include:
|
Successful contract negotiations. |
|
Achievement of research project milestones within scheduled time and/or budget. |
|
Our share price reaching a targeted level on the ASX over a period of time. |
Executive Compensation
The following table sets forth all of the compensation awarded to, earned by or paid to each individual who served as directors and executive officers in fiscal 2011.
.
52
Short-term Benefits |
Post Employment
Benefits |
Share-based Payments |
Total | |||||||||||||||||||||||||
Salary &
Fees |
Other |
Super-
annuation |
Retirement
Benefits |
Shares | Options | |||||||||||||||||||||||
A$ | A$ | A$ | A$ | A$ | A$ | A$ | ||||||||||||||||||||||
Ms. L. Turnbull |
81,016 | | 7,291 | | | 324,000 | 412,307 | |||||||||||||||||||||
Mr. A. Wong 1 |
68,930 | | 6,203 | | 125,000 | 243,000 | 443,133 | |||||||||||||||||||||
Mr. M. Rogers |
348,703 | 50,000 | 22,000 | | | 324,000 | 744,703 | |||||||||||||||||||||
Dr. R. Hammel |
60,516 | | | | | 162,000 | 222,516 | |||||||||||||||||||||
Mr. A. Gokyildirim |
37,500 | | | | | | 37,500 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Subtotal Directors |
596,665 | 50,000 | 35,494 | | 125,000 | 1,053,000 | 1,860,159 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Dr. N. Frazer 2 |
261,215 | 7,500 | | | | 40,515 | 309,230 | |||||||||||||||||||||
Mr. M. Lehman 3 |
229,338 | 7,500 | | | | 5,299 | 242,137 | |||||||||||||||||||||
Mr. I. Bangs 4 |
78,974 | | 7,108 | | | | 86,082 | |||||||||||||||||||||
Mr. P. Hains 5 |
270,589 | | | | 84,000 | | 354,589 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Subtotal Other KMP |
840,116 | 15,000 | 7,108 | | 84,000 | 45,814 | 992,038 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
1,436,781 | 65,000 | 42,602 | | 209,000 | 1,098,814 | 2,852,197 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 |
Mr. Wong was appointed a member of our Board of Directors on April 28, 2010. |
2 |
Dr. Frazer was appointed a member of our Board of Directors on July 23, 2010 and our Chief Medical Officer on November 23, 2009. |
3 |
Mr. Lehman was appointed our Chief Operating Officer on February 1, 2010. |
4 |
Mr. Bangs was appointed Chief Financial Officer in February 2011. |
5 |
The fees for Mr. Hains were paid to The CFO Solution. |
53
Service Agreements
The following members of senior managers have service agreements as follows:
Martin Rogers, Managing Director & Chief Executive Officer
|
Term of agreement expires December 31, 2012 |
|
Effective January 1, 2011 |
|
Compensation is A$340,000 plus a performance bonus at the discretion of the board |
|
The employment can be terminated immediately for serious misconduct, with six months notice if the executive becomes physically or mentally disabled, or by making a payment of base salary to the employee in lieu of notice of termination for all or part of the notice period. |
Neil Frazer, Director & Chief Medical Officer
|
Term of agreement expires February 28, 2014 |
|
Effective March 1, 2010 |
|
Base salary of US$250,000 and number of performance options of 2 million. Subject to the employee exceeding agreed performance targets and remaining employed with the company, on February 1 of each year, a cash bonus of US$15,000 may be paid to the employee and 500,000 performance options may be vested as determined by the board in its absolute discretion. The base salary is reviewed on an annual basis. |
|
The employment can be terminated immediately for serious misconduct, with three months notice without cause, or by making a payment of base salary to the employee in lieu of notice of termination for all or part of the notice period. |
Matthew Lehman, Chief Operating Officer
|
Term of agreement expires January 31, 2014 |
|
Effective February 1, 2010 |
|
Base salary of EUR180,000. Subject to the employee exceeding agreed performance targets, on February 1 of each year, a cash bonus of up to EUR15,000 and 600,000 performance options may be paid or granted to the employee as determined by the board in its absolute discretion. The base salary is reviewed on an annual basis. |
|
The employment can be terminated immediately for serious misconduct, with three months notice without cause, or by making a payment of base salary to the employee in lieu of notice of termination for all or part of the notice period. |
Ian Bangs, Chief Financial Officer
|
Term of agreement expires February 10, 2013 |
|
Effective February 11, 2011 |
|
Compensation is A$200,000 plus up to A$50,000 performance bonus |
|
The employment can be terminated immediately for serious misconduct, with three months notice if the executive becomes physically or mentally disabled, or by making a payment of base salary to the employee in lieu of notice of termination for all or part of the notice period. |
Employee Share Option Plan
Any person considered to be an employee by our board of directors including full time or part time employee, consultant or officer or any other person determined by the Board from time to time, is eligible to participate in our Employee Share Option Plan, each an Eligible Employee. Under the Employee Share Option Plan, or ESOP, the Board of Directors may issue options over our ordinary shares on such terms including the exercise price, performance conditions and period to price, as it determines.
54
The maximum number of options available to be issued under the ESOP is 15,000,000. Subject to certain exceptions, the total number of shares issued as a result of exercise of ESOP Options issued under the ESOP must not exceed 5% of our issued share capital.
Any vesting conditions determined by our board of directors must be satisfied before the employee options vest and become exercisable. Options are generally granted for no consideration. When exercisable, each option issued under the ESOP entitles the holder to subscribe for one fully paid ordinary share in us. Each ordinary share issued on exercise of an option will rank equally with all other ordinary shares then on issue.
The exercise price of each ESOP Option will be lower of the following:
|
A$0.10; or |
|
The price equal to the volume weighted average price of Shares traded on ASX during the 30 trading days immediately prior to the date of grant of ESOP Options. |
Unless otherwise determined by the Board, ESOP Options will immediately lapse on the first to occur of:
|
the last day of the relevant exercise period; |
|
if the Eligible Employee resigns or retires, 30 days after the date of cessation of employment (or such longer period as the board determines); |
|
if the Eligible Employee is retrenched, or dies, becomes permanently ill or physically or mentally incapacitated, six months after the date of cessation of employment (or such longer period as the board determines); |
|
if the Eligible Employee ceases to be employed for any other reason, 30 days after the date of cessation of employment (or such longer period as the board determines); or |
|
if the Board determines that the Eligible Employee has been dismissed without notice or acted fraudulently, dishonestly or in breach of his or her obligations to the Company, the date of cessation of employment (or such longer period as the board determines). |
The ESOP Options do not confer a right to notices of general meetings (except as may be required by law) or a right to attend, speak or vote at general meeting. A holder of employee options may only participate in new issues of securities in respect of options which have been exercised and ordinary shares issued prior to the record date for the entitlements to the new issue.
In the event that, prior to the vesting of any ESOP Options, there is a reorganisation (including a consolidation, subdivision, reduction or return) of the issued capital of the Company, then the number of ESOP Options and shares to which each Eligible Employee is entitled will be reorganised in the manner permitted by the ASX Listing Rules.
Subject to the Eligible Employees employment contract with us, the Board (before a change of control) will have the discretion to determine whether and when Options will vest and become exercisable on the change of control or demerger of Prima BioMed (or as a result of a proposed change in control or demerger of Prima BioMed).
Each ESOP Option is personal to the Eligible Employee and is not transferable, transmissible or assignable other than to the legal personal representative of a deceased Eligible Employee.
The Board will be able to amend the ESOP rules subject to the requirements of the ASX Listing Rules. The Employee Share Option Plan is administered by the Board of Directors.
55
Set out below are summaries of options granted under the ESOP up to June 30, 2011.
Grant Date |
Expiry Date |
Exercise Price |
Balance at
Start of the Period |
Issued
During the Period |
Exercised
During the Period |
Lapsed
During the Period |
Balance at
End of the Period |
|||||||||||||||||||
May 6, 2010 | February 1, 2011 |
lower of A$0.10 or the price equal to the volume weighted average price of Shares traded on ASX during the 30 trading days immediately prior to the date of grant of the ESOP Options. |
| 100,000 | 1 | | | 100,000 |
1 |
Granted to Matthew Lehman, our Chief Operating Officer. |
C. | Board Practices |
Introduction
Our Board of Directors is elected by and accountable to our shareholders. It currently consists of five directors, including three non-executive directors, of which one is non-executive chairman. The Chairman of our Board of Directors is responsible for the management of the Board of Directors and its functions.
Election of Directors
Directors are elected at our annual general meeting of shareholders. Under our Constitution, a director, other than a managing director, must not hold office for more than three years or beyond the third annual general meeting following his appointment (whichever is the longer period) without submitting himself for re-election. Our Board of Directors has the power to appoint any person to be a director, either to fill a vacancy or as an additional director (provided that the total number of directors does not exceed the maximum allowed by law), and any director so appointed may hold office only until the next annual general meeting when he or she shall be eligible for election.
Corporate Governance
ASX Corporate Governance Principles
In Australia there are no defined corporate governance structures and practices that must be observed by a company listed on the ASX. Instead, the ASX Corporate Governance Council has published the ASX Best Practice Guide, which contains what are called the Recommendations which articulate eight core principles which are intended to provide a reference point for companies about their corporate governance structures and practices. Under ASX listing Rule 4.10.3, companies are required to provide a statement in their annual report to shareholders disclosing the extent to which they have followed the Recommendations in the reporting period and where they have not followed all the Recommendations, identify the Recommendations that have not been followed and the reasons for not following them. It is not mandatory to follow the Recommendations. We believe we are in material compliance with the ASX Corporate Governance Principles. Set forth below are the material provisions of the ASX Corporate Governance Principles together with the reasons, where applicable, for variations therefrom.
1. | Lay solid foundations for management and oversight. Companies should establish and disclose the respective roles and responsibilities of board and management. |
56
2. | Structure the Board to add value. Companies should have a board of an effective composition, size, and commitment to adequately discharge its responsibilities and duties. During the year ended June 30, 2011, we varied from the Recommendations in the following areas: |
a) | No formal performance evaluation of the Board was conducted for the year ended June 30, 2011 as the Board believes that we are not of a size, nor are our financial affairs of such complexity, to warrant such an exercise. The Board recognizes the importance of performance evaluations and will continually assess the necessity and timing of future performance evaluation. |
b) | The Board believes that we are not of a size, nor are our financial affairs of such complexity, to justify the establishment of a Nomination Committee of the Board of Directors. All matters which might be properly dealt with by a Nomination Committee are considered by the full Board of Directors. The Board considers the necessity to establish a Nomination Committee annually. |
3. | Promote ethical and responsible decision-making . Companies should actively promote ethical and responsible decision-making. |
4. | Safeguard integrity in financial reporting. Companies should have a structure to independently verify and safeguard the integrity of their financial reporting. |
5. | Make timely and balanced disclosure. Companies should promote timely and balanced disclosure of all material matters concerning the compliance. |
a) | Due to the size of our company, we do not have written policies designed to ensure compliance with ASX Listing Rule disclosure requirements. Our executive officers and members of our Board of Directors are aware of the obligations for continuous disclosure under the ASX Listing Rules, and meet on a regular basis to ensure compliance. |
6. | Respect the rights of shareholders. Companies should respect the rights of shareholders and facilitate the effective exercise of those rights. |
7. | Recognise and manage risk. Companies should establish a sound system of risk oversight and management and internal control. |
8. | Remunerate fairly and responsibly. Companies should ensure that the level and composition of remuneration is sufficient and reasonable and that its relationship to performance is clear. |
Non-Executive and Independent Directors
Australian law does not require a company to appoint a certain number of independent directors to its board of directors or audit committee. However, under the ASX Best Practice Guide, the ASX recommends, but does not require, that a ASX-listed company have a majority of independent directors on its board of directors and that the audit committee be comprised of independent directors, within the meaning of the rules of the ASX. Our Board of Directors currently has five directors, of which three are non-executive directors within the meaning of the ASX Best Practice Guide, and our audit committee consists of such two non-executive directors. Accordingly, we currently comply with the Recommendations.
Under NASDAQ Marketplace Rules, in general a majority of our Board of Directors must qualify as independent directors within the meaning of the NASDAQ Marketplace Rules and our audit committee must have at least three members and be comprised only of independent directors, each of whom satisfies the respective independence requirements of NASDAQ and the U.S. Securities and Exchange Commission.
The Board of Directors does not have regularly scheduled meetings at which only independent directors are present. The Board of Directors does meet regularly and independent directors are expected to attend all such meetings. Our practices are consistent with the Recommendations, in that the Recommendations do not provide that independent directors should meet separately from the Board of Directors.
57
Our Board of Directors has determined that each of Lucy Turnbull, Albert Yue-Ling Wong and Richard Hammel qualifies as an independent director under the requirements of the ASX, NASDAQ Marketplace Rules and U.S. Securities and Exchange Commission.
Committees of the Board of Directors
Audit Committee . NASDAQ Marketplace Rules require us to establish an audit committee comprised of at least three members, each of whom is financially literate and satisfies the respective independence requirements of the U.S. Securities and Exchange Commission and NASDAQ and one of whom has accounting or related financial management expertise at senior levels within a company.
Our Audit Committee assists our Board of Directors in overseeing the accounting and financial reporting processes of our company and audits of our financial statements, including the integrity of our financial statements, compliance with legal and regulatory requirements, our independent public accountants qualifications and independence, the performance of our internal audit function and independent public accountants, and such other duties as may be directed by our Board of Directors. The Audit Committee is also required to assess risk management.
Our Audit Committee currently consists of two board members, each of whom satisfies the independence requirements of the U.S. Securities and Exchange Commission, NASDAQ Marketplace Rules and ASX Rules. Our Audit Committee is currently composed of Albert Wong and Richard Hammel. The audit committee meets at least two times per year. We are currently considering the appointment of a third independent director to the Audit Committee.
Remuneration Committee. Our Board of Directors has established a Remuneration Committee, which is comprised solely of independent directors, within the meaning of NASDAQ Marketplace Rules. The Remuneration Committee is responsible for reviewing the salary, incentives and other benefits of our directors, senior executive officers and employees, and to make recommendations on such matters for approval by our Board of Directors. The Remuneration Committee is also responsible for overseeing and advising our Board of Directors with regard to the adoption of policies that govern our compensation programs. Albert Wong and Richard Hammel are the current members of the Remuneration Committee, each of whom qualifies as an independent director within the meaning of NASDAQ Marketplace Rules.
Nominations Committee. Our Board of Directors has not established a Nominations Committee. The Recommendations provide that the Nominations Committee of a company should have a charter that clearly sets out its roles and responsibilities, composition, structure, membership requirements and the procedures for inviting non-committee members to attend meetings. We have not established a Nominations Committee as we do not believe the size of our financial affairs justify the establishment of a separate committee at this time.
Corporate Governance Requirements Arising from Our U.S. Listing the Sarbanes-Oxley Act of 2002, SEC Rules and the Nasdaq Global Market Marketplace Rules.
Our shares in the form of ADRs are will quoted on the Nasdaq Global Market. The Sarbanes-Oxley Act of 2002, as well as related new rules subsequently implemented by the SEC, require companies which are considered to be foreign private issuers in the U.S, such as us, to comply with various corporate governance practices. In addition, Nasdaq has made certain changes to its corporate governance requirements for companies that are listed on the Nasdaq Global Market. These changes allow us to follow Australian home country corporate governance practices in lieu of the otherwise applicable Nasdaq corporate governance standards, as long as we disclose each requirement of Rule 5600 that we do not follow and describe the home country practice we follow in lieu of the relevant Nasdaq corporate governance standards. We intend to take all actions necessary to maintain compliance with applicable corporate governance requirements of the Sarbanes-Oxley Act of 2002, rules adopted by the SEC and listing standards of Nasdaq. We follow Australian corporate governance practices in lieu of the corporate governance requirements of the Nasdaq Marketplace Rules in respect of:
|
Nasdaq requirement under Rule 5620(c) that a quorum consist of holders of 33 1/3% of the outstanding ordinary shares The ASX Listing Rules do not have an express requirement that each issuer listed on ASX have a quorum of any particular number of the outstanding ordinary shares, but instead allow a listed issuer to establish its own quorum requirements. Our quorum |
58
is currently two persons who are entitled to vote. We believe this quorum requirement is consistent with the requirements of the ASX and is appropriate and typical of generally accepted business practices in Australia. |
|
The Nasdaq requirements under Rules 5605(b)(1) and (2) relating to director independence, including the requirements that a majority of the board of directors must be comprised of independent directors and that independent directors must have regularly scheduled meetings at which only independent directors are present The Nasdaq and ASX definitions of what constitute an independent director are not identical and the requirements relating to the roles and obligations of independent directors are not identical. The ASX, unlike Nasdaq, permits an issuer to establish its own materiality threshold for determining whether a transaction between a director and an issuer affects the directors status as independent and it does not require that a majority of the issuers board of directors be independent, as long as the issuer publicly discloses this fact. In addition, the ASX does not require that the independent directors have regularly scheduled meeting at which only independent directors are present. We believe that our Board composition is consistent with the requirements of the ASX and that it is appropriate and typical of generally accepted business practices in Australia. |
|
The Nasdaq requirements under Rule 5605(c)(1) and (2) relating to the composition of the audit committee and the audit committee charter The Nasdaq and ASX audit committee requirements are not identical. Moreover, differences in the requirements of Nasdaq and ASX also arise because of the differences in the definitions of who constitutes an independent director, as discussed above. We have an audit committee and audit committee charter that are consistent with the requirements of the ASX Listing Rules and which we believe are appropriate and typical of generally accepted business practices in Australia. |
|
The Nasdaq requirements under Rules 5605(d) that compensation of an issuers officers must be determined, or recommended to the Board for determination, either by a majority of the independent directors, or a compensation committee comprised solely of independent directors, and that director nominees must either be selected, or recommended for the Boards selection, either by a majority of the independent directors, or a nominations committee comprised solely of independent directors. The Nasdaq compensation committee requirements are not identical to the ASX remuneration and nomination committee requirements. Issuers listed on the ASX are recommended under applicable listing standards to establish a remuneration committee consisting of a majority of independent directors and an independent chairperson, or publicly disclose that it has not done so. We have a Remuneration Committee that is consistent with the requirements of the ASX and which we believe is appropriate and typical of generally accepted business practices in Australia. |
Directors Service Contracts
For details of directors service contracts providing for benefits upon termination of employment, see Item 6. Directors, Senior Management and Employees B. Compensation Service Agreements.
Indemnification of Directors and Officers
Our Constitution provides that, we may indemnify a person who is, or has been, an officer of our company, to the full extent permissible by law, out of our property against any liability incurred by such person as a officer in defending proceedings, whether civil or criminal, and whatever their outcome.
In addition, our Constitution provides that to the extent permitted by law, we may pay, or agree to pay, a premium in respect of a contract insuring a person who is or has been an officer of our company or one of our subsidiaries against any liability:
|
incurred by the person in his or her capacity as an officer of our company or a subsidiary of our company, and |
|
for costs and expenses incurred by that person in defending proceedings relating to that person acting as an officer of Prima BioMed, whether civil or criminal, and whatever their outcome. |
59
We maintain a directors and officers liability insurance policy. We have established a policy for the indemnification of our directors and officers against certain liabilities incurred as a director or officer, including costs and expenses associated in successfully defending legal proceedings.
D. | Employees |
As of June 30, 2009, we had one employee, who was employed in intellectual property management located in Australia.
As of June 30, 2010, we had four employees. Of such employees, two were employed in research and development located in the United States of America, one in intellectual property management located in Australia, one in management and administration located in Australia and one in operations located in Germany.
As of June 30, 2011, we had 14 employees. Of such employees, two were employed in research and development, two in intellectual property management and ten in general management and administration. Of these 14 employees, three are located in the United States of America, seven are located in Australia, one in Germany and one in the United Arab Emeritus.
Each of our full-time employees enters into an agreement with a term of employment of between one to four years. We also engage part-time employees from time to time. We may only terminate the employment of any of our employees in accordance with the relevant employees contract of employment.
Our standard contract of employment for full time and part-time employees provides that we can terminate the employment of an employee without notice for serious misconduct or with between one to three months notice without cause (as set out in the relevant employees contract of employment). We can terminate the employment of a casual employee without notice. For a summary of the key terms of employment of each of our senior management, see Item 6. Directors, Senior Management and Employees B. Compensation Service Agreements.
60
E. | Share Ownership |
Beneficial Ownership of Senior Management and Directors
Beneficial ownership is determined in accordance with the rules of the U.S. Securities and Exchange Commission, and generally includes voting or investment power with respect to securities. Ordinary shares relating to options currently exercisable or exercisable within 60 days of the date of the above table are deemed outstanding for computing the percentage of the person holding such securities but are not deemed outstanding for computing the percentage of any other person. Except as indicated by footnote, and subject to community property laws where applicable, the persons named in the table below have sole voting and investment power with respect to all shares shown as beneficially owned by them.
The following table sets forth certain information as of June 30, 2011 regarding the beneficial ownership of our ordinary shares by each of our directors and senior management and by all of our directors and senior management as a group. The percentages shown are based on 981,015,629 ordinary shares issued and outstanding as of June 30, 2011.
Name |
Number of Ordinary
Shares Beneficially Owned |
Percentage of
Ownership |
||||||
Lucy Turnbull |
4,347,076 | * | ||||||
Albert Wong |
3,250,000 | * | ||||||
Martin Rogers |
20,821,500 | 2.12 | % | |||||
Neil Frazer |
| * | ||||||
Richard Hammel |
5,000,000 | * | ||||||
Matthew Lehman |
100,000 | * | ||||||
Ian Bangs |
| * | ||||||
Sharron Gargosky |
| * | ||||||
All directors and executive officers as a group (9 persons) |
3.42 | % |
* | Less than 1% |
The shares are beneficially owned, held directly or via an entity related to the individual.
61
ITEM 7. | MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS |
A. | Major Shareholders |
No shareholder known to us owned beneficially more than 5% of our ordinary shares as of June 30, 2011.
B. | Record Holders |
As of June 30, 2011, 1.1% of our ordinary shares were held in the United States by thirteen holders of record, and 97.3% of our ordinary shares were held in Australia by 14,246 holders of record.
C. | Related Party Transactions |
We operate inter-company loan accounts with controlled entities. The net amount of such intercompany loans at June 30, 2011 was A$9.478 million and the interest charged on the inter-company loans was A$0.645 million during the fiscal year ended June 30, 2011.
We follow the Recommendations and have established a code of conduct applicable to all our directors, executive officers and employees. The Recommendations require shareholder approval of transactions involving a company and persons in a position to influence such company, and include acquisitions and dispositions of substantial assets by the company, acquiring securities in a company and payments to directors.
During the fiscal year ended June 30, 2011, there were no related party transactions, other than employment matters and indemnification agreements between our directors and executive officers on the one hand and Prima BioMed on the other.
D. | Interests of Experts and Counsel |
Not applicable.
62
ITEM 8. | FINANCIAL INFORMATION |
A. | Consolidated Statements and Other Financial Information |
Our financial statements are included as Item 18 of this registration statement on Form 20-F.
Legal Proceedings
We are not involved in any significant legal, arbitration or governmental proceedings. We are not aware of any pending significant legal, arbitration or governmental proceedings with respect to Prima BioMed.
Dividend Distribution Policy
We have never paid cash dividends to our shareholders. We intend to retain future earnings for use in our business and do not anticipate paying cash dividends on our ordinary shares in the foreseeable future. Any future dividend policy will be determined by the Board of Directors and will be based upon various factors, including our results of operations, financial condition, current and anticipated cash needs, future prospects, contractual restrictions and other factors as the Board of Directors may deem relevant.
Recent Developments
Not applicable.
B. | Significant Changes |
Not applicable.
63
ITEM 9. | THE OFFER AND LISTING |
A. | Offer and Listing Details |
Australian Securities Exchange
Our ordinary shares have traded on the ASX since our initial public offering on July 9, 2001. The following table sets forth, for the periods indicated, the high and low market quotations for our ordinary shares as quoted on the ASX.
Per Ordinary Share (A$) | ||||||||
High | Low | |||||||
Fiscal Year Ended June 30, |
A$ | A$ | ||||||
2002 |
0.72 | 0.10 | ||||||
2003 |
0.52 | 0.21 | ||||||
2004 |
0.50 | 0.17 | ||||||
2005 |
0.23 | 0.09 | ||||||
2006 |
0.13 | 0.06 | ||||||
2007 |
0.08 | 0.02 | ||||||
2008 |
0.09 | 0.01 | ||||||
2009 |
0.11 | 0.01 | ||||||
2010 |
0.28 | 0.05 | ||||||
2011 |
0.42 | 0.08 | ||||||
Fiscal Year Ended June 30, 2010: |
||||||||
First Quarter |
0.19 | 0.05 | ||||||
Second Quarter |
0.28 | 0.14 | ||||||
Third Quarter |
0.19 | 0.13 | ||||||
Fourth Quarter |
0.19 | 0.10 | ||||||
Fiscal Year Ended June 30, 2011: |
||||||||
First Quarter |
0.13 | 0.08 | ||||||
Second Quarter |
0.17 | 0.10 | ||||||
Third Quarter |
0.28 | 0.19 | ||||||
Fourth Quarter |
0.42 | 0.28 | ||||||
Month Ended: |
||||||||
July 2010 |
0.13 | 0.08 | ||||||
August 2010 |
0.10 | 0.09 | ||||||
September 2010 |
0.12 | 0.09 | ||||||
October 2010 |
0.16 | 0.10 | ||||||
November 2010 |
0.14 | 0.11 | ||||||
December 2010 |
0.17 | 0.10 | ||||||
January 2011 |
0.27 | 0.19 | ||||||
February 2011 |
0.26 | 0.21 | ||||||
March 2011 |
0.28 | 0.20 | ||||||
April 2011 |
0.42 | 0.28 | ||||||
May 2011 |
0.37 | 0.28 | ||||||
June 2011 |
0.33 | 0.28 | ||||||
July 2011 |
0.32 | 0.24 | ||||||
August 2011 |
0.28 | 0.17 | ||||||
September 2011 |
0.22 | 0.16 | ||||||
October 2011 |
0.21 | 0.15 | ||||||
November 2011 |
0.19 | 0.16 | ||||||
December 2011 |
0.17 | 0.14 | ||||||
January 2012 |
0.18 | 0.16 |
64
For a description of the rights of our ADSs, see Item 12. Description of Securities Other Than Equity Securities D. American Depositary Shares.
B. | Plan of Distribution |
Not applicable.
C. | Markets |
Our ordinary shares are listed and traded on the Australian Securities Exchange Ltd., or ASX. We intend to apply with the NASDAQ Global Market to have our ordinary shares in the form of ADSs traded on the NASDAQ Global Market.
D. | Selling Shareholders |
Not applicable.
E. | Dilution |
Not applicable.
F. | Expenses of the Issue |
Not applicable.
65
ITEM 10. | ADDITIONAL INFORMATION |
A. | Share Capital |
Not applicable.
B. | Memorandum and Articles of Association |
General
Our constituent document is a Constitution. The Constitution is subject to the terms of the Listing Rules of ASX Limited and the Corporations Act 2001. The Constitution may be amended or repealed and replaced by special resolution of shareholders, which is a resolution of which notice has been given and that has been passed by at least 75% of the votes cast by shareholders entitled to vote on the resolution.
Purposes and Objects
As a public company we have all the rights, powers and privileges of a natural person. Our Constitution does not provide for or prescribe any specific objects or purposes.
The Powers of the Directors
Under the provision of our Constitution our directors may exercise all the powers of our company in relation to:
Management of Company
The business is managed by the directors who may exercise all the powers of our company that are not by the Corporations Act or by this constitution required to be exercised by shareholders in general meeting subject nevertheless to any provision of this constitution and to the provisions of the Corporations Act.
Members Approval to Significant Changes
The directors must not make a significant change (either directly or indirectly) to the nature and scale of its activities except after having disclosed full details to ASX in accordance with the requirements of the Listing Rules of the ASX and the directors must not sell or otherwise dispose of the main undertaking of our company without the approval of shareholders in general meeting in accordance with the requirements of the Listing Rules.
Rights Attached to Our Ordinary Shares
The concept of authorized share capital no longer exists in Australia and as a result, our authorized share capital is unlimited. All our outstanding ordinary shares are validly issued, fully paid and non-assessable. The rights attached to our ordinary shares are as follows:
Dividend Rights. The directors may declare that a dividend be paid to the members according to the shareholders pro rata shareholdings and the directors may fix the amount, the time for payment and the method of payment. No dividend is payable except in accordance with the Corporations Act as amended from time to time and no dividend carries interest as against the Company.
Voting Rights. Holders of ordinary shares have one vote for each ordinary share held on all matters submitted to a vote of shareholders. Such voting rights may be affected by the grant of any special voting rights to the holders of a class of shares with preferential rights that may be authorized in the future.
The quorum required for an ordinary meeting of shareholders consists of at least two shareholders present in person, or by proxy, attorney or representative appointed pursuant to our Constitution. A meeting adjourned for lack of a quorum generally is adjourned to the same day in the following week at the same time and place. At the reconvened meeting, the required quorum consists of any two members present in person, or by proxy, attorney or representative appointed pursuant to our Constitution. The meeting is dissolved if a quorum is not present within 15 minutes from the time appointed for the meeting.
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An ordinary resolution, such as a resolution for the declaration of dividends, requires approval by the holders of a majority of the voting rights represented at the meeting, in person, by proxy, or by written ballot and voting thereon. Under our Constitution, a special resolution, such as amending our Constitution, approving any change in capitalization, winding-up, authorization of a class of shares with special rights, or other changes as specified in our Constitution, requires approval of a special majority, representing the holders of no less than 75% of the voting rights represented at the meeting in person, by proxy or by written ballet, and voting thereon.
Rights in Our Profits. Our shareholders have the right to share in our profits distributed as a dividend and any other permitted distribution.
Rights in the Event of Liquidation. In the event of our liquidation, after satisfaction of liabilities to creditors, our assets will be distributed to the holders of ordinary shares in proportion to the capital at the commencement of the liquidation paid up or which ought to have been paid up on the shares held by them respectively. This right may be affected by the grant of preferential dividend or distribution rights to the holders of a class of shares with preferential rights, such as the right in winding up to payment in cash of the amount then paid up on the share, and any arrears of dividend in respect of that share, in priority to any other class of shares.
Changing Rights Attached to Shares
According to our Constitution, the rights attached to any class of shares, unless otherwise provided by the terms of the class, may be varied with either the written consent of the holders of not less than 75% of the issued shares of that class or the sanction of a special resolution passed at a separate general meeting of the shares of that class.
Annual and Extraordinary Meetings
Our directors must convene an annual meeting of shareholders at least once every calendar year, within five months of our last fiscal year-end balance sheet data. Notice of at least 28 days prior to the date of the meeting is required. A general meeting may be convened by any director, or one or more shareholders holding in the aggregate at least 5% of our issued capital. A general meeting must be called not more than 21 days after the request is made. The meeting must be held not later than two months after the request is given.
Limitations on the Rights to Own Securities in Our Company
Subject to certain limitations on the percentage of shares a person may hold in our company, neither our Constitution nor the laws of the Commonwealth of Australia restrict in any way the ownership or voting of shares in our company.
Changes in Our Capital
Pursuant to the Listing Rules, our directors may in their discretion issue securities to persons who are not related parties of our company, without the approval of shareholders, if such issue, when aggregate with securities issued by our company during the previous 12 month period would be an amount that would not exceed 15% of our issued capital at the commencement of the 12 month period. Other allotments of securities require approval by an ordinary resolution of shareholders.
C. | Material Contracts |
Please see Item 4. Information on the Company B. Business Overview Material Contracts Related to Intellectual Property and Commercialization Rights.
D. | Exchange Controls |
Australia has largely abolished exchange controls on investment transactions. The Australian dollar is freely convertible into U.S. dollars. In addition, there are currently no specific rules or limitations
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regarding the export from Australia of profits, dividends, capital or similar funds belonging to foreign investors, except that certain payments to non-residents must be reported to the Australian Cash Transaction Reports Agency, which monitors such transaction, and amounts on account of potential Australian tax liabilities may be required to be withheld unless a relevant taxation treaty can be shown to apply.
The Foreign Acquisitions and Takeovers Act 1975
Under Australian law, in certain circumstances foreign persons are prohibited from acquiring more than a limited percentage of the shares in an Australian company without approval from the Australian Treasurer. These limitations are set forth in the Australian Foreign Acquisitions and Takeovers Act, or the Takeovers Act.
Under the Takeovers Act, as currently in effect, any foreign person, together with associates, or parties acting in concert, is prohibited from acquiring 15% or more of the shares in any company having total assets of A$231 million or more (or A$1,004 million or more in case of U.S. investors). Associates is a broadly defined term under the Takeovers Act 1975 and includes:
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spouses, lineal ancestors and descendants, and siblings; |
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partners, officers of companies, the company, employers and employees, and corporations; |
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their shareholders related through substantial shareholdings or voting power; |
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corporations whose directors are controlled by the person, or who control a person; and |
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associations between trustees and substantial beneficiaries of trust estates. |
In addition, a foreign person may not acquire shares in a company having total assets of A$231 million or more (or A$1,004 million or more in case of U.S. investors) if, as a result of that acquisition, the total holdings of all foreign persons and their associates will exceed 40% in aggregate without the approval of the Australian Treasurer. If the necessary approvals are not obtained, the Treasurer may make an order requiring the acquirer to dispose of the shares it has acquired within a specified period of time. The same rule applies if the total holdings of all foreign persons and their associates already exceeds 40% and a foreign person (or its associate) acquires any further shares, including in the course of trading in the secondary market of the ADSs. At present, we do not have total assets of A$231 million or more. At this time, our total assets do not exceed any of the above thresholds and therefore no approval would be required from the Australian Treasurer. Nonetheless, should our total assets exceed the threshold in the future, we would will be mindful of the number of ADS that can be made available, and monitor the 40% aggregate shareholding threshold for foreign persons (together with the associates) to ensure that it will not be exceeded subject to the Australian Treasurers approval.
Each foreign person seeking to acquire holdings in excess of the above caps (including their associates, as the case may be) would need to complete an application form setting out the proposal and relevant particulars of the acquisition/shareholding. The Australian Treasurer then has 30 days to consider the application and make a decision. However, the Australian Treasurer may extend the period by up to a further 90 days by publishing an interim order. The Australian Treasurer has issued a guideline titled Australias Foreign Investment Policy which provides an outline of the policy. As for the risk associated with seeking approval, the policy provides that the Treasurer will reject an application if it is contrary to the national interest.
If the level of foreign ownership exceeds 40% at any time, we would be considered a foreign person under the Takeovers Act. In such event, we would be required to obtain the approval of the Australian Treasurer for our company, together with our associates, to acquire (i) more than 15% of an Australian company or business with assets totaling over A$231 million; or (ii) any direct or indirect ownership in Australian residential real estate and certain non-residential real estate.
The percentage of foreign ownership in our company would also be included determining the foreign ownership of any Australian company or business in which it may choose to invest. Since we have no current plans for any such acquisition and do not own any property, any such approvals required to be obtained by us as a foreign person under the Takeovers Act will not affect our current or future ownership or lease of property in Australia.
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Our Constitution does not contain any additional limitations on a non-residents right to hold or vote our securities.
Australian law requires the transfer of shares in our company to be made in writing. No stamp duty will be payable in Australia on the transfer of ADSs.
E. | Taxation |
The following is a discussion of Australian and United States tax consequences material to our shareholders. To the extent that the discussion is based on tax legislation which has not been subject to judicial or administrative interpretation, the views expressed in the discussion might not be accepted by the tax authorities in question or by court. The discussion is not intended, and should not be construed, as legal or professional tax advice and does not exhaust all possible tax considerations.
Holders of our ADSs should consult their own tax advisors as to the United States, Australian or other tax consequences of the purchase, ownership and disposition of ADSs, including, in particular, the effect of any foreign, state or local taxes.
E.1. | AUSTRALIAN TAX CONSEQUENCES |
In this section we discuss the material Australian tax considerations that apply to non-Australian tax residents with respect to the acquisition, ownership and disposal of the absolute beneficial ownership of ADSs, which are evidenced by ADSs. This discussion is based upon existing Australian tax law as of the date of this annual report, which is subject to change, possibly retrospectively. This discussion does not address all aspects of Australian income tax law which may be important to particular investors in light of their individual investment circumstances, such as ADSs or shares held by investors subject to special tax rules (for example, financial institutions, insurance companies or tax exempt organizations). In addition, this summary does not discuss any foreign or state tax considerations, other than stamp duty. Prospective investors are urged to consult their tax advisors regarding the Australian and foreign income and other tax considerations of the purchase, ownership and disposition of the ADSs or shares.
Nature of ADSs for Australian Taxation Purposes
Holders of our ADSs are treated as the owners of the underlying ordinary shares for Australian income tax and capital gains tax purposes. Therefore, dividends paid on the underlying ordinary shares will be treated for Australian tax purposes as if they were paid directly to the owners of ADSs, and the disposal of ADSs will be treated for Australian tax purposes as the disposal of the underlying ordinary shares. In the following analysis we discuss the application of the Australian income tax and capital gains tax rules to non-Australian resident holders of ADSs.
Taxation of Dividends
Australia operates a dividend imputation system under which dividends may be declared to be franked to the extent of tax paid on company profits. Fully franked dividends are not subject to dividend withholding tax. Dividends that are not franked or are partly franked and are paid to non-Australian resident stockholders are subject to dividend withholding tax, but only to the extent the dividends are not franked.
Dividends paid to a non-resident stockholder are subject to withholding tax at 30%, unless the stockholder is a resident of a country with which Australia has a double taxation agreement. In accordance with the provisions of the Double Taxation Convention between Australia and the United States, the maximum rate of Australian tax on unfranked dividends to which a resident of the United States is beneficially entitled is 15%, where the U.S. resident holds less than 10% of the voting rights in our company, or 5% where the U.S. resident holds 10% or more of the voting rights in our company. The Double Taxation Convention between Australia and the United States does not apply to limit the tax rate on dividends where the ADSs are effectively connected to a permanent establishment or a fixed base carried on by the owner of the ADSs in Australia through which the stockholder carries on business or provides independent personal services, respectively.
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Tax on Sales or other Dispositions of Shares - Capital Gains Tax
Australian capital gains derived by non-Australian residents in respect of the disposal of capital assets that are not taxable Australian property will be disregarded. Non-Australian resident stockholders will not be subject to Australian capital gains tax on the capital gain made on a disposal of our shares, unless they, together with associates, hold 10% or more of our issued capital, tested either at the time of disposal or over any continuous 12 month period in the 24 months prior to disposal, and the value of our shares at the time of disposal are wholly or principally attributable to Australian real property assets.
Australian capital gains tax applies to net capital gains at a taxpayers marginal tax rate but for certain stockholders a discount of the capital gain may apply if the shares have been held for 12 months or more. For individuals, this discount is 50%. Net capital gains are calculated after reduction for capital losses, which may only be offset against capital gains.
Tax on Sales or other Dispositions of Shares - Stockholders Holding Shares on Revenue Account
Some non-Australian resident stockholders may hold shares on revenue rather than on capital account, for example, share traders. These stockholders may have the gains made on the sale or other disposal of the shares included in their assessable income under the ordinary income provisions of the income tax law, if the gains are sourced in Australia.
Non-Australian resident stockholders assessable under these ordinary income provisions in respect of gains made on shares held on revenue account would be assessed for such gains at the Australian tax rates for non-Australian residents, which start at a marginal rate of 29% for non-Australian resident individuals. Some relief from the Australian income tax may be available to such non-Australian resident stockholders under the Double Taxation Convention between the United States and Australia, for example, because the stockholder does not have a permanent establishment in Australia.
To the extent an amount would be included in a non-Australian resident stockholders assessable income under both the capital gains tax provisions and the ordinary income provisions, the capital gain amount would generally be reduced, so that the stockholder would not be subject to double tax on any part of the income gain or capital gain.
Dual Residency
If a stockholder were a resident of both Australia and the United States under those countries domestic taxation laws, that stockholder may be subject to tax as an Australian resident. If, however, the stockholder is determined to be a U.S. resident for the purposes of the Double Taxation Convention between the United States and Australia, the Australian tax applicable would be limited by the Double Taxation Convention. Stockholders should obtain specialist taxation advice in these circumstances.
Stamp Duty
A transfer of shares of a company listed on the Australian Stock Exchange is not subject to Australian stamp duty except in some circumstances where one person, or associated persons, acquires 90% or more of the shares.
Australian Death Duty
Australia does not have estate or death duties. No capital gains tax liability is realized upon the inheritance of a deceased persons shares. The disposal of inherited shares by beneficiaries, may, however, give rise to a capital gains tax liability.
Goods and Services Tax
The issue or transfer of shares will not incur Australian goods and services tax and does not require a stockholder to register for Australian goods and services tax purposes.
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E.2 | UNITED STATES FEDERAL INCOME TAX CONSEQUENCES |
The following is a summary of material U.S. federal income tax consequences that generally apply to U.S. Holders (as defined below) who hold ADSs as capital assets. This summary is based on the United States Internal Revenue Code of 1986, as amended, or the Code, Treasury regulations promulgated thereunder, judicial and administrative interpretations thereof, and the bilateral taxation convention between Australia and the United States, or the Tax Treaty, all as in effect on the date hereof and all of which are subject to change either prospectively or retroactively. If you are a U.S. Holder and subject to special rules, including broker-dealers, financial institutions, certain insurance companies, investors liable for alternative minimum tax, tax-exempt organizations, regulated investment companies, non-resident aliens of the United States or taxpayers whose functional currency is not the U.S. dollar, persons who hold the ADSs through partnerships or other pass-through entities, persons who acquired their ADSs through the exercise or cancellation of any employee stock options or otherwise as compensation for their services, investors that actually or constructively own 10% or more of our voting shares, and investors holding ADSs as part of a straddle or appreciated financial position or as part of a hedging or conversion transaction you are strongly advised to consult your personal tax advisor. This summary does not address any state, local and foreign tax considerations or any U.S. federal estate, gift or alternative minimum tax considerations relevant to the purchase, ownership and disposition of our ADSs.
If a partnership or an entity treated as a partnership for U.S. federal income tax purposes owns ADSs, the U.S. federal income tax treatment of its partners will generally depend upon the status of the partner and the activities of the partnership. A partnership should consult its tax advisors regarding the U.S. federal income tax consequences applicable to it and its partners of the purchase, ownership and disposition of ADSs.
For purposes of this summary, the term U.S. Holder means an individual who is a citizen or, for U.S. federal income tax purposes, a resident of the United States; a corporation or other entity taxable as a corporation that is created or organized in or under the laws of the United States or any political subdivision thereof; an estate whose income is subject to U.S. federal income tax regardless of its source; or a trust if (a) a court within the United States is able to exercise primary supervision over administration of the trust, and one or more U.S. persons have the authority to control all substantial decisions of the trust or (b) it has a valid election in effect under applicable U.S. Treasury regulations to be treated as a U.S. person.
Distributions
For U.S. federal income tax purposes, a U.S. Holders of ADSs will be treated as owning the underlying ordinary shares, or ADSs. Subject to the passive foreign investment company rules discussed below, the gross amount of any distribution received by a U.S. Holder with respect to the underlying ordinary shares, including the amount of any Australian taxes withheld there from, will be included in gross income as a dividend to the extent the distribution is paid out of our current or accumulated earnings and profits (as determined under U.S. federal income tax principles). Distributions in excess of our earnings and profits will be treated first as a non-taxable return of capital to the extent of a U.S. Holders tax basis in the ADSs and thereafter will be treated as gain from the sale or exchange of the ADSs. We have not maintained and do not plan to maintain calculations of earnings and profits for U.S. federal income tax purposes. As a result, a U.S. Holder may need to include the entire amount of any such distribution in income as a dividend.
The U.S. dollar value of any distribution on the ADSs made in Australian dollars generally should be calculated by reference to the exchange rate between the U.S. dollar and the Australian dollar in effect on the date of receipt of such distribution by the U.S. Holder regardless of whether the Australian dollars so received are in fact converted into U.S. dollars. A U.S. Holder who receives payment in Australian dollars and converts those Australian dollars into U.S. dollars at an exchange rate other than the rate in effect on such day may have a foreign currency exchange gain or loss, which would generally be treated as ordinary income or loss from sources within the United States for U.S. foreign tax credit purposes.
Subject to complex limitations and certain holding period requirements, a U.S. Holder may elect to claim a credit for Australian tax withheld from distributions against its U.S. federal income tax liability. The limitations set out in the Code include computational rules under which foreign tax credits allowable with respect to specific classes of income cannot exceed the U.S. federal income taxes otherwise payable with
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respect to each such class of income. Dividends generally will be treated as foreign-source passive category income for U.S. foreign tax credit purposes. A U.S. Holder that does not elect to claim a U.S. foreign tax credit may instead claim a deduction for Australian tax withheld. Dividends will not however be eligible for the dividends received deduction generally allowed to corporate shareholders with respect to dividends received from U.S. corporations.
Subject to certain limitations, dividends received by a non-corporate U.S. Holder in tax years beginning on or before December 31, 2010 are subject to tax at a reduced maximum tax rate of 15 percent. Distributions taxable as dividends generally qualify for the 15 percent rate provided that: (i) the issuer is entitled to benefits under the Tax Treaty or (ii) the shares are readily tradable on an established securities market in the United States and certain other requirements are met. We believe that we are entitled to benefits under the Tax Treaty and that the ADSs currently are readily tradable on an established securities market in the United States. However, no assurance can be given that the ADSs will remain readily tradable. However, the reduced rate does not apply to dividends received from PFICs. As noted below, we believe there is a material risk that we are a PFIC.
The U.S. Treasury has expressed concerns that intermediaries in the chain of ownership between the holder of an ADS and the issuer of the security underlying the ADS may be taking actions (including pre-release transactions that may be undertaken by the depositary as described in Description of American Depositary Shares Pre-release of ADSs) that are inconsistent with the claiming of foreign tax credits for U.S. holders of ADSs. Such actions would also be inconsistent with the claiming of the reduced rated of tax, described below, applicable to dividends received by certain non-corporate holders. Accordingly, the analysis of the creditability of Australian taxes and the availability of the reduced tax rate for dividends received by certain non-corporate holders, each described below, could be affected by actions taken by intermediaries in the chain of ownership between the holder of an ADS and our Company.
Disposition of ADSs
If you sell or otherwise dispose of ADSs, you will recognize gain or loss for U.S. federal income tax purposes in an amount equal to the difference between the amount realized on the sale or other disposition and your adjusted tax basis in the ADSs. Subject to the passive foreign investment company rules discussed below, such gain or loss generally will be capital gain or loss and will be long-term capital gain or loss if you have held the ADSs for more than one year at the time of the sale or other disposition. In general, any gain that you recognize on the sale or other disposition of ADSs will be gain from U.S. sources for purposes of the foreign tax credit limitation; losses will generally be allocated against U.S. source income. The deduction of capital losses is subject to certain limitations under the Code.
In the case of a cash basis U.S. Holder who receives Australian dollars in connection with the sale or other disposition of ADSs, the amount realized will be calculated based on the U.S. dollar value of the Australian dollars received as determined on the settlement date of such exchange. A U.S. Holder who receives payment in Australian dollars and converts Australian dollars into U.S. dollars at a conversion rate other than the rate in effect on the settlement date may have a foreign currency exchange gain or loss that would be treated as ordinary income or loss from sources within the United States for U.S. foreign tax credit purposes.
An accrual basis U.S. Holder may elect the same treatment required of cash basis taxpayers with respect to a sale or disposition of ADSs, provided that the election is applied consistently from year to year. Such election may not be changed without the consent of the Internal Revenue Service, or the IRS. In the event that an accrual basis U.S. Holder does not elect to be treated as a cash basis taxpayer (pursuant to the Treasury regulations applicable to foreign currency transactions), such U.S. Holder may have a foreign currency gain or loss for U.S. federal income tax purposes because of differences between the U.S. dollar value of the currency received prevailing on the trade date and the settlement date. Any such currency gain or loss would be treated as ordinary income or loss from sources within the United States for U.S. foreign tax credit purposes.
Passive Foreign Investment Companies
There is a substantial risk that we are a passive foreign investment company, or PFIC, for U.S. federal income tax purposes. Our treatment as a PFIC could result in a reduction in the after-tax return to the U.S. Holders of our ADSs and may cause a reduction in the value of such securities.
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For U.S. federal income tax purposes, we will be classified as a PFIC for any taxable year in which (i) 75% or more of our gross income is passive income, or (ii) at least 50% of the average value of all of our assets for the taxable year produce or are held for the production of passive income. For this purpose, cash is considered to be an asset which produces passive income. Passive income generally includes dividends, interest, royalties, rents, annuities and the excess of gains over losses from the disposition of assets which produce passive income. As a result of our substantial cash position, the decline in the value of our stock and the current composition of our gross income, we believe that there is a material risk that we are currently a PFIC and that may be a PFIC in the future.
If we are a PFIC in any taxable year during which a U.S. Holder owns ADSs, such U.S. Holder could be liable for additional taxes and interest charges upon (i) certain distributions by us (generally any distribution paid during a taxable year that is greater than 125 percent of the average annual distributions paid in the three preceding taxable years, or, if shorter, the U.S. Holders holding period for the ADSs), and (ii) any gain realized on a sale, exchange or other disposition, including a pledge, of the ADSs, whether or not we continue to be a PFIC. In these circumstances, the tax will be determined by allocating such distributions or gain ratably over the U.S. Holders holding period for the ADSs. The amount allocated to the current taxable year and any year prior to the first taxable year in which we are a PFIC will be taxed as ordinary income (rather than capital gain) earned in the current taxable year. The amount allocated to other taxable years will be taxed at the highest marginal rates applicable to ordinary income for each such taxable year, and an interest charge, generally that applicable to underpayments of tax, will also be imposed on the amount of taxes so derived for each such taxable year.
The PFIC provisions discussed above apply to U.S. persons who directly or indirectly hold stock in a PFIC. Both direct and indirect shareholders of PFICs are subject to the rules described above. Generally, a U.S. person is considered an indirect shareholder of a PFIC if it is:
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A direct or indirect owner of a pass-through entity, including a trust or estate, that is a direct or indirect shareholder of a PFIC; |
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A shareholder of a PFIC that is a shareholder of another PFIC; or |
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A 50%-or-more shareholder of a foreign corporation that is not a PFIC and that directly or indirectly owns stock of a PFIC. |
An indirect shareholder may be taxed on a distribution paid to the direct owner of the PFIC and on a disposition of the stock indirectly owned. Indirect shareholders are strongly urged to consult their tax advisors regarding the application of these rules.
If we cease to be a PFIC in a future year, a U.S. Holder may avoid the continued application of the tax treatment described above by electing to be treated as if it sold its ADSs on the last day of the last taxable year in which we were a PFIC. Any gain would be recognized and subject to tax under the rules described above. Loss would not be not recognized. A U.S. Holders basis in its ADSs would be increased by the amount of gain, if any, recognized on the sale. A U.S. Holder would be required to treat its holding period for its ADSs as beginning on the day following the last day of the last taxable year in which we were a PFIC.
If the ADSs are considered marketable stock and if a U.S. Holder elects to mark-to-market its ADSs, the U.S. Holder would not be subject to tax under the excess distribution regime described above. Instead, the U.S. Holder would generally include in income any excess of the fair market value of the ADSs at the close of each tax year over the adjusted tax basis of the ADSs. If the fair market value of the ADSs had depreciated below the adjusted basis at the close of the tax year, the U.S. Holder would be entitled to deduct the excess of the adjusted basis of the ADSs over their fair market value at that time. However, such deductions generally would be limited to the net mark-to-market gains, if any, the U.S. Holder included in income with respect to such ADSs in prior years. Income recognized and deductions allowed under the mark-to-market provisions, as well as any gain or loss on the disposition of ADSs with respect to which the mark-to-market election is made, is treated as ordinary income or loss (except that loss is treated as capital loss to the extent the loss exceeds the net mark-to-market gains, if any, that a U.S. Holder included in income with respect to such ordinary shares in prior years). However, gain or loss from the disposition of ADSs (as to which a mark-to-market election was made) in a year in which we are no longer a PFIC, will be capital gain or loss. Our ADSs should be considered marketable stock if they traded at least 15 days during each calendar quarter of the relevant calendar year in more than de minimis quantities.
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A U.S. Holder of ADSs will not be able to avoid the tax consequences described above by electing to treat us as a qualified electing fund. In general, a qualified electing fund is, with respect to a U.S. person, a passive foreign investment company if the U.S. person has elected to include its proportionate share of a companys ordinary earnings and net capital gains in U.S. income on an annual basis. A qualified electing fund election can only be made with respect to us if we provide U.S. Holders with certain information on an annual basis and we do not intend to prepare the information that U.S. Holders would need to make the qualified electing fund election.
Backup Withholding and Information Reporting
Payments in respect of ADSs may be subject to information reporting to the U.S. Internal Revenue Service and to U.S. backup withholding tax at a rate equal to the fourth lowest income tax rate applicable to individuals (which, under current law, is 28%). Backup withholding will not apply, however, if a U.S. Holder (i) is a corporation, (ii) satisfies an applicable exemption, or (ii) furnishes a correct taxpayer identification.
Backup withholding is not an additional tax. Amounts withheld under the backup withholding rules may be credited against a U.S. Holders U.S. tax liability, and a U.S. Holder may obtain a refund of any excess amounts withheld under the backup withholding rules by filing the appropriate claim for refund with the IRS.
F. | Dividends and Paying Agents |
Not applicable.
G. | Statement by Experts |
Not applicable.
H. | Documents on Display |
We are subject to the reporting requirements of the United States Securities and Exchange Act of 1934, as amended, or the Exchange Act, as applicable to foreign private issuers as defined in Rule 3b-4 under the Exchange Act. As a foreign private issuer, we are exempt from certain provisions of the Exchange Act. Accordingly, our proxy solicitations are not subject to the disclosure and procedural requirements of regulation 14A under the Exchange Act, transactions in our equity securities by our officers and directors are exempt from reporting and the short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and financial statements as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act. However, we will file with the U.S. Securities and Exchange Commission an annual report on Form 20-F containing financial statements that have been examined and reported on, with and opinion expressed by an independent registered public accounting firm, and we will submit reports to the U.S. Securities and Exchange Commission on Form 6-K containing (among other things) press releases and unaudited financial information for the first six months of each fiscal year. We post our annual report on Form 20-F on our website promptly following the filing of our annual report with the U.S. Securities and Exchange Commission. The information on our website is not incorporated by reference into this annual report.
This document and the exhibits thereto and any other document we file pursuant to the Exchange Act may be inspected without charge and copied at prescribed rates at the U.S. Securities and Exchange Commission public reference room at 100 F Street, N.E., Room 1580, Washington D.C. 20549. You may obtain information on the operation of the Securities and Exchange Commissions public reference room in Washington, D.C. by calling the U.S. Securities and Exchange Commission at 1-800-SEC-0330.
The U.S. Securities and Exchange Commission maintains a website at www.sec.gov that contains reports, proxy and information statements and other information regarding registrants that make electronic filings with the U.S. Securities and Exchange Commission using its EDGAR (Electronic Data Gathering, Analysis, and Retrieval) system.
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The documents concerning our company which are referred to in this document may also be inspected at the offices of our legal counsel located at McCabe Terrill, Level 14, 130 Elizabeth St, Sydney New South Wales 2000, Australia.
I. | Subsidiary Information |
We have four subsidiaries incorporated in Australia. In October 2009, Prima BioMed Europe Limited, a 100% owned subsidiary of Prima BioMed Ltd was incorporated in the United Kingdom. This subsidiary is inactive. In April 2010, Prima BioMed USA Inc, a 100% owned subsidiary of Prima BioMed Ltd, was incorporated in the United States. In May 2011, Prima BioMed GmbH, a 100% owned subsidiary of Prima BioMed Ltd, was incorporated in Germany, and also in May 2011, Prima BioMed Middle East FZLLC, a 100% owned subsidiary of Prima BioMed Ltd, was incorporated in the United Arab Emirates. These subsidiaries were established to allow us to conduct commercial and clinical operations in Europe, the United States, and the UAE.
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ITEM 11. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK |
Our cash and cash equivalents consist primarily of cash and money market funds. We invest our excess cash and cash equivalents in interest-bearing accounts and term deposits with banks in Australia. Our primary exposure to market risk is interest income sensitivity, which is affected by changes in the general level of Australian interest rates. However, because of the short-term nature of the instruments in our portfolio, a sudden change in market interest rates would not be expected to have a material impact on our financial condition and/or results of operation. We do not have any foreign currency or other derivative financial instruments.
We conduct our activities predominantly in Australia. However we are exposed to foreign currency risk via an investment in a Canadian unlisted company and trade and other payables we hold. We are required to make certain payments in U.S. dollars, Swiss Franc and other currencies. An adverse movement in end-of-period exchange rates would not have a material impact on our operating results.
ITEM 12. | DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES |
A. | Debt Securities |
Not applicable.
B. | Warrants and Rights |
Not applicable.
C. | Other Securities |
Not applicable.
D. | American Depositary Shares |
The Bank of New York Mellon, as depositary, will register and deliver American Depositary Shares, also referred to as ADSs. Each ADS will represent 30 ordinary shares (or a right to receive 30 ordinary shares) deposited with the principal Melbourne office of National Australia Bank Ltd., as custodian for the depositary. Each ADS will also represent any other securities, cash or other property which may be held by the depositary. The depositarys corporate trust office at which the ADSs will be administered is located at 101 Barclay Street, New York, New York 10286. The Bank of New York Mellons principal executive office is located at One Wall Street, New York, New York 10286.
You may hold ADSs either (A) directly (i) by having an American Depositary Receipt, also referred to as an ADR, which is a certificate evidencing a specific number of ADSs, registered in your name, or (ii) by having ADSs registered in your name in the Direct Registration System, or (B) indirectly by holding a security entitlement in ADSs through your broker or other financial institution. If you hold ADSs directly, you are a registered ADS holder, also referred to as an ADS holder. This description assumes you are an ADS holder. If you hold the ADSs indirectly, you must rely on the procedures of your broker or other financial institution to assert the rights of ADS holders described in this section. You should consult with your broker or financial institution to find out what those procedures are.
The Direct Registration System, or DRS, is a system administered by The Depository Trust Company, also referred to as DTC, pursuant to which the depositary may register the ownership of uncertificated ADSs, which ownership is confirmed by periodic statements sent by the depositary to the registered holders of uncertificated ADSs.
As an ADS holder, we will not treat you as one of our ordinary shareholders and you will not have ordinary shareholder rights. Australian law governs ordinary shareholder rights. The depositary will be the holder of the ordinary shares underlying your ADSs. As a registered holder of ADSs, you will have ADS holder rights. A deposit agreement among us, the depositary and you, as an ADS holder, and all other persons indirectly holding ADSs sets out ADS holder rights as well as the rights and obligations of the depositary. New York law governs the deposit agreement and the ADSs.
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The following is a summary of the material provisions of the deposit agreement. For more complete information, you should read the entire deposit agreement and the form of ADR which are filed as exhibit 2.1 to this Form 20-F.
Dividends and Other Distributions
How will you receive dividends and other distributions on the ordinary shares?
The depositary has agreed to pay to ADS holders the cash dividends or other distributions it or the custodian receives on ordinary shares or other deposited securities, after deducting its fees and expenses. You will receive these distributions in proportion to the number of ordinary shares your ADSs represent.
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Cash . The depositary will convert any cash dividend or other cash distribution we pay on the ordinary shares into U.S. dollars, if it can do so on a reasonable basis and can transfer the U.S. dollars to the United States. If that is not possible or if any government approval is needed and can not be obtained, the deposit agreement allows the depositary to distribute the foreign currency only to those ADS holders to whom it is possible to do so. It will hold the foreign currency it cannot convert for the account of the ADS holders who have not been paid. It will not invest the foreign currency and it will not be liable for any interest. |
Before making a distribution, any withholding taxes, or other governmental charges that must be paid will be deducted. See Item 10. Additional Information E. Taxation. It will distribute only whole U.S. dollars and cents and will round fractional cents to the nearest whole cent. If the exchange rates fluctuate during a time when the depositary cannot convert the foreign currency, you may lose some or all of the value of the distribution.
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Ordinary shares . The depositary may distribute additional ADSs representing any ordinary shares we distribute as a dividend or free distribution. The depositary will only distribute whole ADSs. It will sell ordinary shares which would require it to deliver a fractional ADS and distribute the net proceeds in the same way as it does with cash. If the depositary does not distribute additional ADSs, the outstanding ADSs will also represent the new ordinary shares. The depositary may sell a portion of the distributed ordinary shares sufficient to pay its fees and expenses in connection with that distribution. |
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Rights to purchase additional ordinary shares . If we offer holders of our securities any rights to subscribe for additional ordinary shares or any other rights, the depositary may make these rights available to ADS holders. If the depositary decides it is not legal and practical to make the rights available but that it is practical to sell the rights, the depositary will use reasonable efforts to sell the rights and distribute the proceeds in the same way as it does with cash. The depositary will allow rights that are not distributed or sold to lapse. In that case, you will receive no value for them. |
If the depositary makes rights available to ADS holders, it will exercise the rights and purchase the ordinary shares on your behalf. The depositary will then deposit the ordinary shares and deliver ADSs to the persons entitled to them. It will only exercise rights if you pay it the exercise price and any other charges the rights require you to pay.
U.S. securities laws may restrict transfers and cancellation of the ADSs represented by ordinary shares purchased upon exercise of rights. For example, you may not be able to trade these ADSs freely in the United States. In this case, the depositary may deliver restricted depositary ordinary shares that have the same terms as the ADSs described in this section except for changes needed to put the necessary restrictions in place.
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Other Distributions . The depositary will send to ADS holders anything else we distribute on deposited securities by any means it thinks is legal, fair and practical. If it cannot make the distribution in that way, the depositary has a choice. It may decide to sell what we distributed and distribute the net proceeds, in the same way as it does with cash. Or, it may decide to hold what we distributed, in which case ADSs will also represent the newly distributed property. However, the depositary is not required to distribute any securities (other than ADSs) to ADS holders unless it receives satisfactory evidence from us that it is legal to make that distribution. The depositary may sell a portion of the distributed securities or property sufficient to pay its fees and expenses in connection with that distribution. |
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The depositary is not responsible if it decides that it is unlawful or impractical to make a distribution available to any ADS holders. We have no obligation to register ADSs, ordinary shares, rights or other securities under the Securities Act. We also have no obligation to take any other action to permit the distribution of ADSs, ordinary shares, rights or anything else to ADS holders. This means that you may not receive the distributions we make on our ordinary shares or any value for them if it is illegal or impractical for us to make them available to you .
The depositary would continue to hold any property received in respect of deposited shares that is not distributed as deposited securities under the deposit agreement, in its account with the custodian or in another place it determines, for the benefit of ADS holders until that property can be distributed to ADS holders or otherwise disposed of for their benefit.
Deposit, Withdrawal and Cancellation
How are ADSs issued?
The depositary will deliver ADSs if you or your broker deposit ordinary shares or evidence of rights to receive ordinary shares with the custodian. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will register the appropriate number of ADSs in the names you request and will deliver the ADSs to or upon the order of the person or persons that made the deposit.
How can ADS holders withdraw the deposited securities?
You may surrender your ADSs at the depositarys corporate trust office. Upon payment of its fees and expenses and of any taxes or charges, such as stamp taxes or stock transfer taxes or fees, the depositary will deliver the ordinary shares and any other deposited securities underlying the ADSs to the ADS holder or a person the ADS holder designates at the office of the custodian. Or, at your request, risk and expense, the depositary will deliver the deposited securities at its corporate trust office, if feasible.
How do ADS holders interchange between certificated ADSs and uncertificated ADSs?
You may surrender your ADR to the depositary for the purpose of exchanging your ADR for uncertificated ADSs. The depositary will cancel that ADR and will send to the ADS holder a statement confirming that the ADS holder is the registered holder of uncertificated ADSs. Alternatively, upon receipt by the depositary of a proper instruction from a registered holder of uncertificated ADSs requesting the exchange of uncertificated ADSs for certificated ADSs, the depositary will execute and deliver to the ADS holder an ADR evidencing those ADSs.
Voting Rights
How do you vote?
ADS holders may instruct the depositary to vote the number of deposited ordinary shares their ADSs represent. The depositary will notify ADS holders of ordinary shareholders meetings and arrange to deliver our voting materials to them if we ask it to. Those materials will describe the matters to be voted on and explain how ADS holders may instruct the depositary how to vote. For instructions to be valid, they much reach the depositary by a date set by the depositary.
Otherwise, you will not be able to exercise your right to vote unless you withdraw the ordinary shares. However, you may not know about the meeting enough in advance to withdraw the ordinary shares.
The depositary will try, as far as practical, subject to the laws of Australia and of our articles of association or similar documents, to vote or to have its agents vote the ordinary shares or other deposited securities as instructed by ADS holders. The depositary will only vote or attempt to vote as instructed.
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We cannot assure you that you will receive the voting materials in time to ensure that you can instruct the depositary to vote your ordinary shares. In addition, the depositary and its agents are not responsible for failing to carry out voting instructions or for the manner of carrying out voting instructions. This means that you may not be able to exercise your right to vote and there may be nothing you can do if your ordinary shares are not voted as you requested.
In order to give you a reasonable opportunity to instruct the depositary as to the exercise of voting rights relating to deposited securities, if we request the depositary to act, we have agreed in the deposit amount to give the depositary notice of any such meeting and details concerning the matters to be voted upon at least 45 days in advance of the meeting date. The depositary intends to use the U.S. mail to deliver all notices and any other reports and communications to the holders of ADSs. We will timely provide the depositary with such quantities of such notices, reports and communications as necessary to forward to the holders of ADSs.
Fees and Expenses
Persons depositing or withdrawing ordinary shares or ADS holders must pay: | For: | |
US$5.00 (or less) per 100 ADSs (or portion of 100 ADSs) |
Issuance of ADSs, including issuances resulting from a distribution of ordinary shares or rights or other property
Cancellation of ADSs for the purpose of withdrawal, including if the deposit agreement terminates |
|
US$0.05 (or less) per ADS |
Any cash distribution to ADS holders |
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A fee equivalent to the fee that would be payable if securities distributed to you had been ordinary shares and the ordinary shares had been deposited for issuance of ADSs, i.e., US$5.00 or less per 100 ADSs (or portion of 100 ADSs) |
Distribution of securities distributed to holders of deposited securities which are distributed by the depositary to ADS holders |
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US$.05 (or less) per ADSs per calendar year |
Depositary services |
|
Registration or transfer fees |
Transfer and registration of ordinary shares on our ordinary share register to or from the name of the depositary or its agent when you deposit or withdraw ordinary shares |
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Expenses of the depositary |
Cable, telex and facsimile transmissions (when expressly provided in the deposit agreement)
converting foreign currency to U.S. dollars |
|
Taxes and other governmental charges the depositary or the custodian have to pay on any ADS or ordinary share underlying an ADS, for example, stock transfer taxes, stamp duty or withholding taxes |
As necessary |
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Any charges incurred by the depositary or its agents for servicing the deposited securities |
As necessary |
The Bank of New York Mellon, as depositary, has agreed to reimburse us for expenses we incur that are related to establishment and maintenance of the ADS program, including investor relations expenses and
79
stock market application and listing fees. There are limits on the amount of expenses for which the depositary will reimburse us, but the amount of reimbursement available to us is not related to the amount of fees the depositary collects from investors.
The depositary collects its fees for delivery and surrender of ADSs directly from investors depositing ordinary shares or surrendering ADSs for the purpose of withdrawal or from intermediaries acting for them. The depositary collects fees for making distributions to investors by deducting those fees from the amounts distributed or by selling a portion of distributable property to pay the fees. The depositary may collect its annual fee for depositary services by deduction from cash distributions or by directly billing investors or by charging the book-entry system accounts of participants acting for them. The depositary may generally refuse to provide fee-attracting services until its fees for those services are paid.
Payment of Taxes
You will be responsible for any taxes or other governmental charges payable on your ADSs or on the deposited securities represented by any of your ADSs. The depositary may refuse to register any transfer of your ADSs or allow you to withdraw the deposited securities represented by your ADSs until such taxes or other charges are paid. It may apply payments owed to you or sell deposited securities represented by your ADSs to pay any taxes owed and you will remain liable for any deficiency. If the depositary sells deposited securities, it will, if appropriate, reduce the number of ADSs to reflect the sale and pay to the holders of ADSs holder any proceeds, or send to the holders of ADSs any property, remaining after it has paid the taxes.
Reclassifications, Recapitalizations and Mergers
If we: |
Then: | |
Change the nominal or par value of our ordinary shares
Reclassify, split up or consolidate any of the deposited securities
|
The cash, ordinary shares or other securities received by the depositary will become deposited securities. Each ADS will automatically represent its equal ordinary share of the new deposited securities. |
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Distribute securities on the ordinary shares that are not distributed to you
Recapitalize, reorganize, merge, liquidate, sell all or substantially all of our assets, or take any similar action |
The depositary may, and will if we ask it to, distribute some or all of the cash, ordinary shares or other securities it received. It may also deliver new ADRs or ask you to surrender your outstanding ADRs in exchange for new ADRs identifying the new deposited securities. |
Amendment and Termination
How may the deposit agreement be amended?
We may agree with the depositary to amend the deposit agreement and the ADRs without your consent for any reason. If an amendment adds or increases fees or charges, except for taxes and other governmental charges or expenses of the depositary for registration fees, facsimile costs, delivery charges or similar items, or prejudices a substantial right of ADS holders, it will not become effective for outstanding ADSs until 30 days after the depositary notifies ADS holders of the amendment. At the time an amendment becomes effective, you are considered, by continuing to hold your ADSs, to agree to the amendment and to be bound by the ADRs and the deposit agreement as amended .
How may the deposit agreement be terminated?
The depositary will terminate the deposit agreement at our direction by mailing notice of termination to the ADS holders then outstanding at least 30 days prior to the date fixed in such notice for such termination. The depositary may also terminate the deposit agreement by mailing notice of termination to us and the ADS holders if 60 days have passed since the depositary told us it wants to resign but a successor depositary has not been appointed and accepted its appointment.
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After termination, the depositary and its agents will do the following under the deposit agreement but nothing else: collect distributions on the deposited securities, sell rights and other property, and deliver ordinary shares and other deposited securities upon cancellation of ADSs. Four months after termination, the depositary may sell any remaining deposited securities by public or private sale. After that, the depositary will hold the money it received on the sale, as well as any other cash it is holding under the deposit agreement for the pro rata benefit of the ADS holders that have not surrendered their ADSs. It will not invest the money and has no liability for interest. The depositarys only obligations will be to account for the money and other cash. After termination our only obligations will be to indemnify the depositary and to pay fees and expenses of the depositary that we agreed to pay.
Limitations on Obligations and Liability
Limits on our Obligations and the Obligations of the Depositary; Limits on Liability to Holders of ADSs
The deposit agreement expressly limits our obligations and the obligations of the depositary. It also limits our liability and the liability of the depositary. We and the depositary:
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are only obligated to take the actions specifically set forth in the deposit agreement without negligence or bad faith; |
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are not liable if we are or it is prevented or delayed by law or circumstances beyond our control from performing our or its obligations under the deposit agreement; |
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are not liable if we or it exercises discretion permitted under the deposit agreement; |
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are not liable for the inability of any holder of ADSs to benefit from any distribution on deposited securities that is not made available to holders of ADSs under the terms of the deposit agreement, or for any special, consequential or punitive damages for any breach of the terms of the deposit agreement; |
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have no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the deposit agreement on your behalf or on behalf of any other person; and |
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may rely upon any documents we believe or it believes in good faith to be genuine and to have been signed or presented by the proper person. |
In the deposit agreement, we and the depositary agree to indemnify each other under certain circumstances.
Requirements for Depositary Actions
Before the depositary will deliver or register a transfer of an ADS, make a distribution on an ADS, or permit withdrawal of ordinary shares, the depositary may require:
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payment of stock transfer or other taxes or other governmental charges and transfer or registration fees charged by third parties for the transfer of any ordinary shares or other deposited securities; |
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satisfactory proof of the identity and genuineness of any signature or other information it deems necessary; and |
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compliance with regulations it may establish, from time to time, consistent with the deposit agreement, including presentation of transfer documents. |
The depositary may refuse to deliver ADSs or register transfers of ADSs generally when the transfer books of the depositary or our transfer books are closed or at any time if the depositary or we think it advisable to do so.
Your Right to Receive the Ordinary Shares Underlying your ADRs
ADS holders have the right to cancel their ADSs and withdraw the underlying ordinary shares at any time except:
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When temporary delays arise because: (i) the depositary has closed its transfer books or we have closed our transfer books; (ii) the transfer of ordinary shares is blocked to permit voting at an ordinary shareholders meeting; or (iii) we are paying a dividend on our ordinary shares. |
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When you owe money to pay fees, taxes and similar charges. |
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When it is necessary to prohibit withdrawals in order to comply with any laws or governmental regulations that apply to ADSs or to the withdrawal of ordinary shares or other deposited securities. |
This right of withdrawal may not be limited by any other provision of the deposit agreement.
Pre-release of ADSs
The deposit agreement permits the depositary to deliver ADSs before deposit of the underlying ordinary shares. This is called a pre-release of the ADSs. The depositary may also deliver ordinary shares upon cancellation of pre-released ADSs (even if the ADSs are canceled before the pre-release transaction has been closed out). A pre-release is closed out as soon as the underlying ordinary shares are delivered to the depositary. The depositary may receive ADSs instead of ordinary shares to close out a pre-release. The depositary may pre-release ADSs only under the following conditions: (1) before or at the time of the pre-release, the person to whom the pre-release is being made represents to the depositary in writing that it or its customer owns the ordinary shares or ADSs to be deposited; (2) the pre-release is fully collateralized with cash or other collateral that the depositary considers appropriate; and (3) the depositary must be able to close out the pre-release on not more than five business days notice. In addition, the depositary will limit the number of ADSs that may be outstanding at any time as a result of pre-release generally to a number that represents not more than 30% of the ordinary shares deposited under the deposit agreement, although the depositary may disregard the limit from time to time, if it thinks it is appropriate to do so.
Direct Registration System
In the deposit agreement, all parties to the deposit agreement acknowledge that the DRS and Profile Modification System, or Profile, will apply to uncertificated ADSs upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC pursuant to which the depositary may register the ownership of uncertificated ADSs, which ownership shall be evidenced by periodic statements sent by the depositary to the registered holders of uncertificated ADSs. Profile is a required feature of DRS which allows a DTC participant, claiming to act on behalf of a registered holder of ADSs, to direct the depositary to register a transfer of those ADSs to DTC or its nominee and to deliver those ADSs to the DTC account of that DTC participant without receipt by the depositary of prior authorization from the ADS holder to register that transfer.
In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties to the deposit agreement understand that the depositary will not verify, determine or otherwise ascertain that the DTC participant which is claiming to be acting on behalf of an ADS holder in requesting registration of transfer and delivery described in the paragraph above has the actual authority to act on behalf of the ADS holder (notwithstanding any requirements under the Uniform Commercial Code). In the deposit agreement, the parties agree that the depositarys reliance on and compliance with instructions received by the depositary through the DRS/Profile System and in accordance with the deposit agreement shall not constitute negligence or bad faith on the part of the depositary.
Ordinary Shareholder Communications; Inspection of Register of Holders of ADSs
The depositary will make available for your inspection at its office all communications that it receives from us as a holder of deposited securities that we make generally available to holders of deposited securities. The depositary will send you copies of those communications if we ask it to. You have a right to inspect the register of holders of ADSs, but not for the purpose of contacting those holders about a matter unrelated to our business or the ADSs.
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ITEM 13. | DEFAULTS, DIVIDEND ARREARAGES AND DELINQUENCIES |
Not applicable.
ITEM 14. | MATERIAL MODIFICATIONS TO THE RIGHTS OF SECURITY HOLDERS AND USE OF PROCEEDS |
Not applicable.
ITEM 15. | CONTROLS AND PROCEDURES |
Not applicable.
ITEM 15T. | CONTROLS AND PROCEDURES |
Not applicable.
ITEM 16. | RESERVED |
Not applicable.
ITEM 16A. | AUDIT COMMITTEE FINANCIAL EXPERT |
Not applicable.
ITEM 16B. | CODE OF ETHICS |
Not applicable.
ITEM 16C. | PRINCIPAL ACCOUNTANT FEES AND SERVICES |
Not applicable.
ITEM 16D. | EXEMPTIONS FROM THE LISTING STANDARDS FOR AUDIT COMMITTEES |
Not applicable.
ITEM 16E. | PURCHASES OF EQUITY SECURITIES BY THE ISSUER AND AFFILIATED PURCHASERS |
Not applicable.
ITEM 16F. | CHANGE IN REGISTRANTS CERTIFYING ACCOUNTANT |
Not applicable.
ITEM 16G. | CORPORATE GOVERNANCE |
Not applicable.
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ITEM 17. | FINANCIAL STATEMENTS |
We have elected to furnish financial statements and related information specified in Item 18.
ITEM 18. | FINANCIAL STATEMENTS |
Prima BioMed Ltd
Index to Consolidated Financial Statements
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Report of Independent Registered Public Accounting Firm
To the board of directors and shareholders of Prima BioMed Ltd
In our opinion, the accompanying restated financial statements present fairly, in all material respects, the consolidated statements of financial position of Prima BioMed Ltd (the company) as at June 30, 2011, and 2010, and the consolidated statements of comprehensive income, cash flow and changes in equity for each of the 3 years to June 30, 2011, and notes to the financial statements, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board.
The companys management is responsible for these financial statements and for maintaining effective internal control over financial reporting. Our responsibility is to express our opinion on these financial statements based on our audits. We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement and whether effective internal control over financial reporting was maintained in all material respects. Our audits involved examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and the significant estimates made by management and evaluating the overall financial statement presentation. Our audits included a review of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on our assessed risk, but not for the purpose of expressing an opinion on the effectiveness of the companys internal control. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinion.
MDHC Audit Assurance Pty Ltd |
Hawthorn, Australia November 15, 2011 |
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/ S / K EVIN A DAMS |
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Director |
F-1
PRIMA BIOMED LTD
CONSOLIDATED STATEMENT OF FINANCIAL POSITION
(in Australian dollars, except number of shares)
June 30, | ||||||||||||
2011 | 2010 | |||||||||||
A$ | A$ | |||||||||||
Note | (restated) | |||||||||||
ASSETS |
||||||||||||
Current Assets |
||||||||||||
Cash and Cash Equivalents |
9 | 45,918,552 | 5,638,342 | |||||||||
Trade and Other Receivables |
10 | 35,899 | 76,894 | |||||||||
Inventories |
11 | 214,346 | | |||||||||
Other Financial Assets |
12 | 10,000,000 | 10,000,000 | |||||||||
Other |
13 | 894,005 | 863,934 | |||||||||
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|
|
|||||||||
Total Current Assets |
57,062,802 | 16,579,170 | ||||||||||
|
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|
|
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Non-Current Assets |
||||||||||||
Available-for-Sale Financial Assets |
14 | | 574,504 | |||||||||
Property, Plant and Equipment |
15 | 119,953 | 97,487 | |||||||||
Intangibles |
16 | 457,906 | 499,841 | |||||||||
Other |
17 | | 299,289 | |||||||||
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|
|
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Total Non-Current Assets |
577,859 | 1,471,121 | ||||||||||
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|
|
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TOTAL ASSETS |
57,640,661 | 18,050,291 | ||||||||||
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Current Liabilities |
||||||||||||
Trade and Other Payables |
18 | 2,471,212 | 1,499,091 | |||||||||
Borrowings |
19 | | 603,062 | |||||||||
Derivative Financial Instruments |
20 | | 83,620 | |||||||||
Employee Benefits |
21 | 65,879 | 23,692 | |||||||||
|
|
|
|
|||||||||
Total Current Liabilities |
2,537,091 | 2,209,465 | ||||||||||
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|
|
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Non-Current Liabilities |
||||||||||||
Employee Benefits |
22 | 4,440 | 887 | |||||||||
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|
|
|||||||||
Total Non-Current Liabilities |
4,440 | 887 | ||||||||||
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|
|
|||||||||
TOTAL LIABILITIES |
2,541,531 | 2,210,352 | ||||||||||
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|
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NET ASSETS |
55,099,130 | 15,839,939 | ||||||||||
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EQUITY |
||||||||||||
Contributed Equity |
23 | 134,895,001 | 74,534,413 | |||||||||
Reserves |
24 | (1,157 | ) | 19,397 | ||||||||
Accumulated Losses |
(79,794,714 | ) | (58,713,617 | ) | ||||||||
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|
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Equity attributable to the owners of Prima BioMed Ltd |
55,099,130 | 15,840,193 | ||||||||||
Non-controlling interests |
25 | | (254 | ) | ||||||||
|
|
|
|
|||||||||
TOTAL EQUITY |
55,099,130 | 15,839,939 | ||||||||||
|
|
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Refer to note 3 for detailed information on restatement of comparatives. The above statement of financial position should be read in conjunction with the accompanying notes
F-2
PRIMA BIOMED LTD
CONSOLIDATED STATEMENT OF COMPREHENSIVE INCOME
(in Australian dollars, except number of shares)
Refer to note 3 for detailed information on restatement of comparatives.
The above statement of comprehensive income should be read in conjunction with the accompanying notes
F-3
PRIMA BIOMED LTD
CONSOLIDATED STATEMENT OF CASH FLOWS
(in Australian dollars, except number of shares)
Years Ended June 30, | ||||||||||||||||
2011 | 2010 | 2009 | ||||||||||||||
Note | A$ | A$ | A$ | |||||||||||||
Cash flows related to operating activities |
||||||||||||||||
Payments to suppliers (inclusive of GST) |
(9,966,609 | ) | (6,634,692 | ) | (1,922,018 | ) | ||||||||||
Interest received |
210,906 | 124,315 | 38,548 | |||||||||||||
Grant income |
| 48,697 | | |||||||||||||
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|||||||||||
Net cash flows used in operating activities |
36 | (9,755,703 | ) | (6,461,680 | ) | (1,883,470 | ) | |||||||||
|
|
|
|
|
|
|||||||||||
Cash flows related to investing activities |
||||||||||||||||
Proceeds from sale of plant and equipment |
| 1,814 | 901 | |||||||||||||
Payments for plant and equipment |
(44,751 | ) | (95,327 | ) | (2,660 | ) | ||||||||||
Payment for acquisition of term deposit (> 3 months) |
| (10,000,000 | ) | | ||||||||||||
|
|
|
|
|
|
|||||||||||
Net cash flows used in investing activities |
(44,751 | ) | (10,093,513 | ) | (1,759 | ) | ||||||||||
|
|
|
|
|
|
|||||||||||
Cash flows related to financing activities |
||||||||||||||||
Proceeds from issue of shares |
48,602,601 | 15,096,258 | 1,688,898 | |||||||||||||
Share issue transaction costs |
(3,933,687 | ) | (177,001 | ) | (87,367 | ) | ||||||||||
Proceeds from borrowings |
5,411,750 | 6,334,717 | 125,000 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Net cash flows provided by financing activities |
50,080,664 | 21,253,974 | 1,726,531 | |||||||||||||
|
|
|
|
|
|
|||||||||||
Net increase in cash and cash equivalents |
40,280,210 | 4,698,781 | (158,698 | ) | ||||||||||||
Cash and cash equivalents at the beginning of the year |
|
5,638,342 | 939,561 | 1,098,259 | ||||||||||||
|
|
|
|
|
|
|||||||||||
Cash and cash equivalents at the end of the year |
9 | 45,918,552 | 5,638,342 | 939,561 | ||||||||||||
|
|
|
|
|
|
The above statement of cash flows should be read in conjunction with the accompanying notes.
F-4
PRIMA BIOMED LTD
CONSOLIDATED STATEMENT OF CHANGES IN EQUITY
(in Australian dollars, except number of shares)
Contributed
Equity |
Reserves |
Accumulated
Losses |
Non-controlling
interests |
Total | ||||||||||||||||
Consolidated | A$ | A$ | A$ | A$ | A$ | |||||||||||||||
Balance at 1 July 2008 |
40,440,275 | | (37,806,692 | ) | (150 | ) | 2,633,433 | |||||||||||||
Other comprehensive income for the year, net of tax |
| | | (86 | ) | (86 | ) | |||||||||||||
Loss after income tax expense for the year |
| | (2,946,356 | ) | | (2,946,356 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total comprehensive income for the year |
| | (2,946,356 | ) | (86 | ) | (2,946,442 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Transactions with owners in their capacity as owners: |
||||||||||||||||||||
Contributions of equity, net of transactions costs |
2,125,531 | | | | 2,125,531 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Balance at 30 June 2009 |
42,565,806 | | (40,753,048 | ) | (236 | ) | 1,812,522 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Contributed
Equity |
Reserves |
Accumulated
Losses |
Non-controlling
interests |
Total | ||||||||||||||||
Consolidated | A$ | A$ | A$ | A$ | A$ | |||||||||||||||
Balance at 1 July 2009 |
42,565,806 | | (40,753,048 | ) | (236 | ) | 1,812,522 | |||||||||||||
Other comprehensive income for the year, net of tax |
| 19,397 | | (18 | ) | 19,379 | ||||||||||||||
Loss after income tax expense for the year |
| | (17,960,569 | ) | | (17,960,569 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total comprehensive income for the year |
| 19,397 | (17,960,569 | ) | (18 | ) | (17,941,190 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Transactions with owners in their capacity as owners: |
||||||||||||||||||||
Contributions of equity, net of transactions costs |
31,968,607 | | | | 31,968,607 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Balance at 30 June 2010 |
74,534,413 | 19,397 | (58,713,617 | ) | (254 | ) | (15,839,939 | ) | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Contributed
Equity |
Reserves |
Accumulated
Losses |
Non-controlling
interests |
Total | ||||||||||||||||
Consolidated | A$ | A$ | A$ | A$ | A$ | |||||||||||||||
Balance at 1 July 2010 |
74,534,413 | 19,397 | (58,713,617 | ) | (254 | ) | 15,839,939 | |||||||||||||
Other comprehensive income for the year, net of tax |
| (19,630 | ) | | (70 | ) | (19,700 | ) | ||||||||||||
Loss after income tax expense for the year |
| | (21,081,097 | ) | | (21,081,097 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total comprehensive income for the year |
| (19,630 | ) | (21,081,097 | ) | (70 | ) | (21,100,797 | ) | |||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Transactions with owners in their capacity as owners: |
||||||||||||||||||||
Contributions of equity, net of transactions costs |
60,360,588 | | | | 60,360,588 | |||||||||||||||
Transactions with non-controlling interests |
| (924 | ) | | 324 | (600 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Balance at 30 June 2011 |
134,895,001 | (1,157 | ) | (79,794,714 | ) | | 55,099,130 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
The above statement of changes in equity should be read in conjunction with the accompanying notes.
F-5
PRIMA BIOMED LTD
NOTES TO THE FINANCIAL STATEMENTS
(in Australian dollars, unless otherwise noted)
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The principal accounting policies adopted in the preparation of the financial statements are set out below. These policies have been consistently applied to all the years presented, unless otherwise stated.
New, revised or amending Accounting Standards and Interpretations adopted
The consolidated entity has adopted all of the new, revised or amending Accounting Standards and Interpretations issued by the Australian Accounting Standards Board (AASB) that are mandatory for the current reporting period.
Any new, revised or amending Accounting Standards or Interpretations that are not yet mandatory have not been early adopted.
Any significant impact on the accounting policies of the consolidated entity from the adoption of these Accounting Standards and Interpretations are disclosed in the relevant accounting policy.
The adoption of these Accounting Standards and Interpretations did not have any impact on the financial performance or position of the consolidated entity. The following Accounting Standards and Interpretations are most relevant to the consolidated entity:
AASB 2 Share-based Payment Transactions amendments for Group Cash-settled Share-based Payment Transactions
The consolidated entity has applied the amendments to AASB 2 from 1 July 2010. The amendments clarified the scope of AASB 2 by requiring an entity that receives goods or services in a share-based payment arrangement to account for those goods or services no matter which entity in the consolidated entity settles the transaction, and no matter whether the transaction is settled in shares or cash.
SpringTree convertible loan
The host debt instrument is carried at amortised cost using the effective interest rate method. The embedded derivatives are measured at fair value at inception and remeasured at fair value through profit and loss until the drawdown amount is settled through the issuance of Prima BioMed equity.
The issuance of an option to purchase the collateral shares and the commitment options at the outset of the arrangement were considered to be similar to a non-refundable commitment fee to a lender at the inception of a line of credit arrangement or a revolving loan arrangement. These were accounted for as a share-based transaction under AASB 2.
The services are measured and recognized as an expense with a corresponding increase in equity on each drawdown date at the fair value of the collateral shares and the commitment options, based on the amount drawn down in proportion to the total expected financing. The fair value of the collateral shares is measured using a Monte-Carlo simulation option pricing model. The fair value of the commitment options is measured using a Black-Scholes option pricing model.
AASB 2009-5 Amendments to Australian Accounting Standards arising from the Annual Improvements Project
The consolidated entity has applied AASB 2009-5 amendments from 1 July 2010. The amendments result in some accounting changes for presentation, recognition or measurement purposes, while some amendments that relate to terminology and editorial changes had no or minimal effect on accounting.
F-6
The main changes were:
AASB 101 Presentation of Financial Statements classification is not affected by the terms of a liability that could be settled by the issuance of equity instruments at the option of the counterparty;
AASB 107 Statement of Cash Flows only expenditure that results in a recognised asset can be classified as a cash flow from investing activities;
AASB 117 Leases removal of specific guidance on classifying land as a lease;
AASB 118 Revenue provides additional guidance to determine whether an entity is acting as a principal or agent;
and
AASB 136 Impairment of Assets clarifies that the largest unit permitted for allocating goodwill, acquired in a business combination, is the operating segment as defined in AASB 8 Operating Segments before aggregation for reporting purposes .
AASB 2009-10 Amendments to AASB 132 Classification of Rights Issues
The consolidated entity has applied AASB 2009-10 from 1 July 2010. The amendments clarified that rights, options or warrants to acquire a fixed number of an entitys own equity instruments for a fixed amount in any currency are equity instruments if the entity offers the rights, options or warrants pro-rata to all existing owners of the same class of its own non-derivative equity instruments. The amendment therefore provides relief to entities that issue rights in a currency other than their functional currency from treating the rights as derivatives with fair value changes recorded in profit or loss.
Basis of preparation
These general purpose financial statements have been prepared in accordance with Australian Accounting Standards and Interpretations issued by the Australian Accounting Standards Board (AASB) and the Corporations Act 2001. These financial statements also comply with International Financial Reporting Standards as issued by the International Accounting Standards Board (IASB).
Historical cost convention
The financial statements have been prepared under the historical cost convention, except for, where applicable, the revaluation of available-for-sale financial assets, financial assets and liabilities at fair value through profit or loss, investment properties, certain classes of property, plant and equipment and derivative financial instruments.
Critical accounting estimates
The preparation of the financial statements requires the use of certain critical accounting estimates. It also requires management to exercise its judgement in the process of applying the consolidated entitys accounting policies. The areas involving a higher degree of judgement or complexity, or areas where assumptions and estimates are significant to the financial statements, are disclosed in note 2.
Parent entity information
In accordance with the Corporations Act 2001, these financial statements present the results of the consolidated entity only. Supplementary information about the parent entity is disclosed in note 33.
Principles of consolidation
The consolidated financial statements incorporate the assets and liabilities of all subsidiaries of Prima BioMed Ltd (company or parent entity) as at 30 June 2011 and the results of all subsidiaries for the year then ended.
F-7
Prima BioMed Ltd and its subsidiaries together are referred to in these financial statements as the consolidated entity.
Subsidiaries are all those entities over which the consolidated entity has the power to govern the financial and operating policies, generally accompanying a shareholding of more than one-half of the voting rights. The effects of potential exercisable voting rights are considered when assessing whether control exists. Subsidiaries are fully consolidated from the date on which control is transferred to the consolidated entity. They are de-consolidated from the date that control ceases.
Intercompany transactions, balances and unrealised gains on transactions between entities in the consolidated entity are eliminated. Unrealised losses are also eliminated unless the transaction provides evidence of the impairment of the asset transferred. Accounting policies of subsidiaries have been changed where necessary to ensure consistency with the policies adopted by the consolidated entity.
The acquisition of subsidiaries is accounted for using the acquisition method of accounting. Refer to the business combinations accounting policy for further details. A change in ownership interest, without the loss of control, is accounted for as an equity transaction, where the difference between the consideration transferred and the book value of the share of the non-controlling interest acquired is recognised directly in equity attributable to the parent.
Non-controlling interest in the results and equity of subsidiaries are shown separately in the statement of comprehensive income and statement of financial position of the consolidated entity. Losses incurred by the consolidated entity are attributed to the non-controlling interest in full, even if that results in a deficit balance.
Where the consolidated entity loses control over a subsidiary, it derecognises the assets including goodwill, liabilities and non-controlling interest in the subsidiary together with any cumulative translation differences recognised in equity. The consolidated entity recognises the fair value of the consideration received and the fair value of any investment retained together with any gain or loss in profit or loss.
Operating segments
Operating segments are presented using the management approach, where the information presented is on the same basis as the internal reports provided to the Chief Operating Decision Makers (CODM). The CODM is responsible for the allocation of resources to operating segments and assessing their performance.
Foreign currency translation
The financial report is presented in Australian dollars, which is Prima BioMed Ltds functional and presentation currency.
Foreign currency transactions
Foreign currency transactions are translated into Australian dollars using the exchange rates prevailing at the dates of the transactions. Foreign exchange gains and losses resulting from the settlement of such transactions and from the translation at financial year-end exchange rates of monetary assets and liabilities denominated in foreign currencies are recognised in profit or loss.
Foreign operations
The assets and liabilities of foreign operations are translated into Australian dollars using the exchange rates at the reporting date. The revenues and expenses of foreign operations are translated into Australian dollars using the average exchange rates, which approximates the rate at the date of the transaction, for the period. All resulting foreign exchange differences are recognised in the foreign currency reserve in equity.
The foreign currency reserve is recognised in profit or loss when the foreign operation or net investment is disposed of.
F-8
Revenue recognition
Revenue is recognised when it is probable that the economic benefit will flow to the consolidated entity and the revenue can be reliably measured. Revenue is measured at the fair value of the consideration received or receivable.
Interest
Interest revenue is recognised as interest accrues using the effective interest method. This is a method of calculating the amortised cost of a financial asset and allocating the interest income over the relevant period using the effective interest rate, which is the rate that exactly discounts estimated future cash receipts through the expected life of the financial asset to the net carrying amount of the financial asset.
Other revenue
Other revenue is recognised when it is received or when the right to receive payment is established.
Income tax
The income tax expense or benefit for the period is the tax payable on that periods taxable income based on the applicable income tax rate for each jurisdiction adjusted by changes in deferred tax assets and liabilities attributable to temporary differences and unused tax losses and under and over provision in prior periods, where applicable.
Deferred tax assets and liabilities are recognised for temporary differences at the tax rates expected to apply when the assets are recovered or liabilities are settled, based on those tax rates that are enacted or substantively enacted, except for:
When the deferred income tax asset or liability arises from the initial recognition of goodwill or an asset or liability in a transaction that is not a business combination and that, at the time of the transaction, affects neither the accounting nor taxable profits; or
When the taxable temporary difference is associated with investments in subsidiaries, associates or interests in joint ventures, and the timing of the reversal can be controlled and it is probable that the temporary difference will not reverse in the foreseeable future.
Deferred tax assets are recognised for deductible temporary differences and unused tax losses only if it is probable that future taxable amounts will be available to utilise those temporary differences and losses.
The carrying amount of recognised and unrecognised deferred tax assets are reviewed each reporting date. Deferred tax assets recognised are reduced to the extent that it is no longer probable that future taxable profits will be available for the carrying amount to be recovered. Previously unrecognised deferred tax assets are recognised to the extent that it is probable that there are future taxable profits available to recover the asset.
Deferred tax assets and liabilities are offset only where there is a legally enforceable right to offset current tax assets against current tax liabilities and deferred tax assets against deferred tax liabilities; and they relate to the same taxable authority on either the same taxable entity or different taxable entitys which intend to settle simultaneously .
Cash and cash equivalents
Cash and cash equivalents includes cash on hand, deposits held at call with financial institutions, other short-term, highly liquid investments with original maturities of three months or less that are readily convertible to known amounts of cash and which are subject to an insignificant risk of changes in value.
F-9
Trade and other receivables
Trade receivables are initially recognised at fair value and subsequently measured at amortised cost using the effective interest method, less any provision for impairment. Trade receivables are generally due for settlement within 30 days.
Collectability of trade receivables is reviewed on an ongoing basis. Debts which are known to be uncollectable are written off by reducing the carrying amount directly. A provision for impairment of trade receivables is raised when there is objective evidence that the consolidated entity will not be able to collect all amounts due according to the original terms of the receivables. Significant financial difficulties of the debtor, probability that the debtor will enter bankruptcy or financial reorganisation and default or delinquency in payments (more than 60 days overdue) are considered indicators that the trade receivable may be impaired. The amount of the impairment allowance is the difference between the assets carrying amount and the present value of estimated future cash flows, discounted at the original effective interest rate. Cash flows relating to short-term receivables are not discounted if the effect of discounting is immaterial.
Other receivables are recognised at amortised cost, less any provision for impairment.
Inventories
Stock on hand is stated at the lower of cost and net realisable value. Cost comprises purchase and delivery costs, net of rebates and discounts received or receivable.
Net realisable value is the estimated selling price in the ordinary course of business less the estimated costs of completion and the estimated costs necessary to make the sale.
Derivative financial instruments
Derivatives are initially recognised at fair value on the date a derivative contract is entered into and are subsequently remeasured to their fair value at each reporting date. The accounting for subsequent changes in fair value depends on whether the derivative is designated as a hedging instrument, and if so, the nature of the item being hedged.
Derivatives are classified as current or non-current depending on the expected period of realisation.
Investments and other financial assets
Investments and other financial assets are measured at either amortised cost or fair value depending on their classification. Classification is determined based on the purpose of the acquisition and subsequent reclassification to other categories is restricted. The fair values of quoted investments are based on current bid prices. For unlisted investments, the consolidated entity establishes fair value by using valuation techniques. These include the use of recent arms-length transactions, reference to other instruments that are substantially the same, discounted cash flow analysis, and option pricing models.
Financial assets are derecognised when the rights to receive cash flows from the financial assets have expired or have been transferred and the consolidated entity has transferred substantially all the risks and rewards of ownership.
Available-for-sale financial assets
Available-for-sale financial assets are non-derivative financial assets, principally equity securities, that are either designated as available-for-sale or not classified as any other category. After initial recognition, fair value movements are recognised directly in the available-for-sale reserve in equity. Cumulative gain or loss previously reported in the available-for-sale reserve is recognised in profit or loss when the asset is derecognised or impaired.
F-10
Impairment of financial assets
The consolidated entity assesses at the end of each reporting period whether there is any objective evidence that a financial asset or group of financial assets is impaired. Objective evidence includes significant financial difficulty of the issuer or obligor; a breach of contract such as default or delinquency in payments; the lender granting to a borrower concessions due to economic or legal reasons that the lender would not otherwise do; it becomes probable that the borrower will enter bankruptcy or other financial reorganisation; the disappearance of an active market for the financial asset; or observable data indicating that there is a measurable decrease in estimated future cash flows.
Available-for-sale financial assets are considered impaired when there has been a significant or pro- longed decline in value below initial cost. Subsequent increments in value are recognised directly in the available-for-sale reserve.
Property, plant and equipment
Plant and equipment is stated at historical cost less accumulated depreciation and impairment. Historical cost includes expenditure that is directly attributable to the acquisition of the items.
Depreciation is calculated on a straight-line basis to write off the net cost of each item of property, plant and equipment (excluding land) over their expected useful lives as follows:
Furniture and Fittings 3-20 years
Plant and equipment 3-5 years
The residual values, useful lives and depreciation methods are reviewed, and adjusted if appropriate, at each reporting date.
An item of property, plant and equipment is derecognised upon disposal or when there is no future economic benefit to the consolidated entity. Gains and losses between the carrying amount and the disposal proceeds are taken to profit or loss. Any revaluation surplus reserve relating to the item disposed of is transferred directly to retained profits.
Intangible assets
Intangible assets acquired as part of a business combination, other than goodwill, are initially measured at their fair value at the date of the acquisition. Intangible assets acquired separately are initially recognised at cost. Intangible assets are subsequently measured at cost less amortisation and any impairment. The gains or losses recognised in profit or loss arising from the derecognition of intangible assets are measured as the difference between net disposal proceeds and the carrying amount of the intangible asset. The method and useful lives of finite life intangibles are reviewed annually. Changes in the expected pattern of consumption or useful life are accounted for prospectively by changing the amortisation method or period.
Patents and trademarks
Significant costs associated with patents and trademarks are deferred and amortised on a straight-line basis over the period of their expected benefit, being their finite life of 2025 years.
Impairment of non-financial assets
Goodwill and other intangible assets that have an indefinite useful life are not subject to amortisation and are tested annually for impairment, or more frequently if events or changes in circumstances indicate that they might be impaired. Other non-financial assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount may not be recoverable. An impairment loss is recognised for the amount by which the assets carrying amount exceeds its recoverable amount.
F-11
Recoverable amount is the higher of an assets fair value less costs to sell and value-in-use. The value-in-use is the present value of the estimated future cash flows relating to the asset using a pre- tax discount rate specific to the asset or cash-generating unit to which the asset belongs. Assets that do not have independent cash flows are grouped together to form a cash-generating unit.
Trade and other payables
These amounts represent liabilities for goods and services provided to the consolidated entity prior to the end of the financial year and which are unpaid. Due to their short-term nature they are measured at amortised cost and not discounted. The amounts are unsecured and are usually paid within 30 days of recognition.
Borrowings
Loans and borrowings are initially recognised at the fair value of the consideration received, net of transaction costs. They are subsequently measured at amortised cost using the effective interest method.
Where there is an unconditional right to defer settlement of the liability for at least 12 months after the reporting date, the loans or borrowings are classified as non-current.
Finance costs
Finance costs attributable to qualifying assets are capitalised as part of the asset. All other finance costs are expensed in the period in which they are incurred, including:
interest on short-term and long-term borrowings
Employee benefits
Wages and salaries, annual leave and sick leave
Liabilities for wages and salaries, including non-monetary benefits, annual leave and accumulating sick leave expected to be settled within 12 months of the reporting date are recognised in current liabilities in respect of employees services up to the reporting date and are measured at the amounts expected to be paid when the liabilities are settled. Non-accumulating sick leave is expensed to profit or loss when incurred.
Long service leave
The liability for long service leave is recognised in current and non-current liabilities, depending on the unconditional right to defer settlement of the liability for at least 12 months after the reporting date. The liability is measured as the present value of expected future payments to be made in respect of services provided by employees up to the reporting date using the projected unit credit method. Consideration is given to expected future wage and salary levels, experience of employee departures and periods of service. Expected future payments are discounted using market yields at the reporting date on national government bonds with terms to maturity and currency that match, as closely as possible, the estimated future cash outflows.
Contributed equity
Ordinary shares are classified as equity.
Incremental costs directly attributable to the issue of new shares or options are shown in equity as a deduction, net of tax, from the proceeds.
Business combinations
The acquisition method of accounting is used to account for business combinations regardless of whether equity instruments or other assets are acquired.
F-12
The consideration transferred is the sum of the acquisition-date fair values of the assets transferred, equity instruments issued or liabilities incurred by the acquirer to former owners of the acquiree and the amount of any non-controlling interest in the acquiree. For each business combination, the non-controlling interest in the acquiree is measured at either fair value or at the proportionate share of the acquirees identifiable net assets. All acquisition costs are expensed as incurred to profit or loss.
On the acquisition of a business, the consolidated entity assesses the financial assets acquired and liabilities assumed for appropriate classification and designation in accordance with the contractual terms, economic conditions, the consolidated entitys operating or accounting policies and other pertinent conditions in existence at the acquisition date.
Where the business combination is achieved in stages, the consolidated entity remeasures its previously held equity interest in the acquiree at the acquisition-date fair value and the difference between the fair value and the previous carrying amount is recognised in profit or loss.
Contingent consideration to be transferred by the acquirer is recognised at the acquisition-date fair value. Subsequent changes in the fair value of contingent consideration classified as an asset or liability is recognised in profit or loss. Contingent consideration classified as equity is not remeasured and its subsequent settlement is accounted for within equity.
The difference between the acquisition-date fair value of assets acquired, liabilities assumed and any non-controlling interest in the acquiree and the fair value of the consideration transferred and the fair value of any pre-existing investment in the acquiree is recognised as goodwill. If the consideration transferred and the pre-existing fair value is less than the fair value of the identifiable net assets acquired, being a bargain purchase to the acquirer, the difference is recognised as a gain directly in profit or loss by the acquirer on the acquisition-date, but only after a reassessment of the identification and measurement of the net assets acquired, the non-controlling interest in the acquiree, if any, the consideration transferred and the acquirers previously held equity interest in the acquirer.
Business combinations are initially accounted for on a provisional basis. The acquirer retrospectively adjusts the provisional amounts recognised and also recognises additional assets or liabilities during the measurement period, based on new information obtained about the facts and circumstances that existed at the acquisition-date. The measurement period ends on either the earlier of (i) 12 months from the date of the acquisition or (ii) when the acquirer receives all the information possible to deter- mine fair value.
Earnings per share
Basic earnings per share
Basic earnings per share is calculated by dividing the profit attributable to the owners of Prima BioMed Ltd, excluding any costs of servicing equity other than ordinary shares, by the weighted average number of ordinary shares outstanding during the financial year, adjusted for bonus elements in ordinary shares issued during the financial year.
Diluted earnings per share
Diluted earnings per share adjusts the figures used in the determination of basic earnings per share to take into account the after income tax effect of interest and other financing costs associated with dilutive potential ordinary shares and the weighted average number of shares assumed to have been issued for no consideration in relation to dilutive potential ordinary shares.
Goods and Services Tax (GST) and other similar taxes
Revenues, expenses and assets are recognised net of the amount of associated GST, unless the GST incurred is not recoverable from the tax authority. In this case it is recognised as part of the cost of the acquisition of the asset or as part of the expense.
F-13
Receivables and payables are stated inclusive of the amount of GST receivable or payable. The net amount of GST recoverable from, or payable to, the tax authority is included in other receivables or other payables in the statement of financial position.
Cash flows are presented on a gross basis. The GST components of cash flows arising from investing or financing activities which are recoverable from, or payable to the tax authority, are presented as operating cash flows.
Commitments and contingencies are disclosed net of the amount of GST recoverable from, or payable to, the tax authority.
New Accounting Standards and Interpretations Not Yet Mandatory or Early Adopted
Australian Accounting Standards and Interpretations that have recently been issued or amended but are not yet mandatory, have not been early adopted by the consolidated entity for the annual reporting period ended 30 June 2011. The consolidated entitys assessment of the impact of these new or amended Accounting Standards and Interpretations, most relevant to the consolidated entity, are set out below.
AASB 9 Financial Instruments, 2009-11 Amendments to Australian Accounting Standards arising from AASB 9 and 2010-7 Amendments to Australian Accounting Standards arising from AASB 9
This standard and its consequential amendments are applicable to annual reporting periods beginning on or after 1 January 2013 and completes phase I of the IASBs project to replace IAS 39 (being the international equivalent to AASB 139 Financial Instruments: Recognition and Measurement) . This standard introduces new classification and measurement models for financial assets, using a single approach to determine whether a financial asset is measured at amortised cost or fair value. To be classified and measured at amortised cost, assets must satisfy the business model test for managing the financial assets and have certain contractual cash flow characteristics. All other financial instrument assets are to be classified and measured at fair value. This standard allows an irrevocable election on initial recognition to present gains and losses on equity instruments (that are not held-for-trading) in other comprehensive income, with dividends as a return on these investments being recognised in profit or loss. In addition, those equity instruments measured at fair value through other comprehensive income would no longer have to apply any impairment requirements nor would there be any recycling of gains or losses through profit or loss on disposal. The accounting for financial liabilities continues to be classified and measured in accordance with AASB 139, with one exception, being that the portion of a change of fair value relating to the entitys own credit risk is to be presented in other comprehensive income unless it would create an accounting mis-match . The consolidated entity will adopt this standard from 1 July 2013 but the impact of its adoption is yet to be assessed by the consolidated entity.
AASB 2010-4 Further Amendments to Australian Accounting Standards arising from the Annual Improvements Project
These amendments are applicable to annual reporting periods beginning on or after 1 January 2011. These amendments are a consequence of the annual improvements project and make numerous non- urgent but necessary amendments to a range of Australian Accounting Standards and Interpretations. The amendments provide clarification of disclosures in AASB 7 Financial Instruments: Disclosures, in particular emphasis of the interaction between quantitative and qualitative disclosures and the nature and extent of risks associated with financial instruments; clarifies that an entity can present an analysis of other comprehensive income for each component of equity, either in the statement of changes in equity or in the notes in accordance with AASB 101 Presentation of Financial Instruments; and pro- vides guidance on the disclosure of significant events and transactions in AASB 134 Interim Financial Reporting. The adoption of these amendments from 1 July 2011 will not have a material impact on the consolidated entity.
AASB 2010-5 Amendments to Australian Accounting Standards
These amendments are applicable to annual reporting periods beginning on or after 1 January 2011. These amendments makes numerous editorial amendments to a range of Australian Accounting Standards and Interpretations, including amendments to reflect changes made to the text of International Financial Reporting Standards by the International Accounting Standards Board . The adoption of these amendments from 1 July 2011 will not have a material impact on the consolidated entity.
F-14
AASB 124 Related Party Disclosures (December 2009)
This revised standard is applicable to annual reporting periods beginning on or after 1 January 2011. This revised standard simplifies the definition of a related party by clarifying its intended meaning and eliminating inconsistencies from the definition. The definition now identifies a subsidiary and an associate with the same investor as related parties of each other; entities significantly influenced by one person and entities significantly influenced by a close member of the family of that person are no longer related parties of each other; and whenever a person or entity has both joint control over a second entity and joint control or significant influence over a third party, the second and third entities are related to each other. This revised standard introduces a partial exemption of disclosure requirement for government-related entities. The adoption of this standard from 1 July 2011 will not have a material impact on the consolidated entity.
AASB 2010-6 Amendments to Australian Accounting Standards Disclosures on Transfers of Financial Assets
These amendments are applicable to annual reporting periods beginning on or after 1 July 2011. These amendments add and amend disclosure requirements in AASB 7 about transfer of financial assets, including the nature of the financial assets involved and the risks associated with them. The adoption of these amendments from 1 July 2011 will increase the disclosure requirements on the consolidated entity when an asset is transferred but is not derecognised and new disclosure required when assets are derecognised but the consolidated entity continues to have a continuing exposure to the asset after the sale.
IAS 1 (AASB 101) Presentation of Financial Statements (Revised)
This revised standard is applicable to annual reporting periods beginning on or after 1 July 2012. The amendments requires grouping together of items within other comprehensive income on the basis of whether they will eventually be recycled to the profit or loss. The change provides clarity about the nature of items presented as other comprehensive income and their future impact. The adoption of the revised standard from 1 July 2012 will impact the consolidated entitys presentation of its statement of comprehensive income.
AASB 1054 Australian Additional Disclosures
This Standard is applicable to annual reporting periods beginning on or after 1 July 2011. The standard sets out the Australian-specific disclosures, which are in addition to International Financial Reporting Standards, for entities that have adopted Australian Accounting Standards. The adoption of these amendments from 1 July 2011 will not have a material impact on the consolidated entity.
AASB 2011-1 Amendments to Australian Accounting Standards arising from the Trans-Tasman Convergence Project and AASB 2011-2 Amendments to Australian Accounting Standards arising from the Trans-Tasman Convergence Project Reduced Disclosure Requirements
These amendments are applicable to annual reporting periods beginning on or after 1 July 2011. They make changes to a range of Australian Accounting Standards and Interpretations for the purpose of closer alignment to IFRSs and harmonisation between Australian and New Zealand Standards. The amendments remove certain guidance and definitions from Australian Accounting Standards for conformity of drafting with International Financial Reporting Standards but without any intention to change requirements. The adoption of these amendments from 1 July 2011 will not have a material impact on the consolidated entity.
AASB 2011-4 Amendments to Australian Accounting Standards to Remove Individual Key Management Personnel Disclosure Requirement
These amendments are applicable to annual reporting periods beginning on or after 1 July 2013, with early adoption not permitted. They amend AASB 124 Related Party Disclosures by removing the disclosure requirements for individual key management personnel (KMP). The adoption of these amendments from 1 July 2013 will remove the duplication of relating to individual KMP in the notes to the financial statements and the
F-15
directors report. As the aggregate disclosures are still required by AASB 124 and during the transitional period the requirements may be included in the Corporations Act or other legislation, it is expected that the amendments will not have a material impact on the consolidated entity.
NOTE 2. CRITICAL ACCOUNTING JUDGEMENTS, ESTIMATES AND ASSUMPTIONS
The preparation of the financial statements requires management to make judgements, estimates and assumptions that affect the reported amounts in the financial statements. Management continually evaluates its judgements and estimates in relation to assets, liabilities, contingent liabilities, revenue and expenses. Management bases its judgements, estimates and assumptions on historical experience and on other various factors, including expectations of future events, management believes to be reasonable under the circumstances. The resulting accounting judgements and estimates will seldom equal the related actual results. The judgements, estimates and assumptions that have a significant risk of causing a material adjustment to the carrying amounts of assets and liabilities within the next financial year are discussed below.
The Directors evaluate estimates and judgments incorporated into the financial report based on historical knowledge and best available current information. Estimates assume a reasonable expectation of future events and are based on current trends and economic data, obtained both externally and within the Group.
Share-based payment transactions
The consolidated entity measures the cost of equity-settled transactions with employees by reference to the fair value of the equity instruments at the date at which they are granted. The fair value is determined by using either the Monte-Carlo simulation option pricing model or the Black-Scholes option pricing model taking into account the terms and conditions upon which the instruments were granted . The accounting estimates and assumptions relating to equity-settled share-based payments would have no impact on the carrying amounts of assets and liabilities within the next annual reporting period but may impact profit or loss and equity.
Provision for impairment of receivables
The provision for impairment of receivables assessment requires a degree of estimation and judgement. The level of provision is assessed by taking into account the recent sales experience, the ageing of receivables, historical collection rates and specific knowledge of the individual debtors financial position.
Fair value and hierarchy of financial instruments
The consolidated entity is required to classify financial instruments, measured at fair value, using a three level hierarchy, being: Level 1: Quoted prices (unadjusted) in active markets for identical assets or liabilities; Level 2: Inputs other than quoted prices included within level 1 that are observable for the asset or liability, either directly (as prices) or indirectly (derived from prices); and Level 3: Inputs for the asset or liability that are not based on observable market data (unobservable inputs). An instrument is required to be classified in its entirety on the basis of the lowest level of valuation inputs that is significant to fair value. Considerable judgement is required to determine what is significant to fair value and therefore which category the financial instrument is placed in can be subjective.
The fair value of financial instruments classified as level 3 is determined by the use of valuation models. These include discounted cash flow analysis or the use of observable inputs that require significant adjustments based on unobservable inputs.
Estimation of useful lives of assets
The consolidated entity determines the estimated useful lives and related depreciation and amortisation charges for its property, plant and equipment and definite life intangible assets. The useful lives could change significantly as a result of technical innovations or some other event. The depreciation and amortisation charge will increase where the useful lives are less than previously estimated lives, or technically obsolete or non-strategic assets that have been abandoned or sold will be written off or written down.
F-16
Impairment of non-financial assets other than goodwill and other indefinite life intangible assets
The consolidated entity assesses impairment of non-financial assets other than goodwill and other indefinite life intangible assets at each reporting date by evaluating conditions specific to the consoli- dated entity and to the particular asset that may lead to impairment. If an impairment trigger exists, the recoverable amount of the asset is determined .This involves fair value less costs to sell or value- in-use calculations, which incorporate a number of key estimates and assumptions.
Income tax
The consolidated entity is subject to income taxes in the jurisdictions in which it operates. Significant judgement is required in determining the provision for income tax. There are many transactions and calculations undertaken during the ordinary course of business for which the ultimate tax determina- tion is uncertain. The consolidated entity recognises liabilities for anticipated tax audit issues based on the consolidated entitys current understanding of the tax law. Where the final tax outcome of these matters is different from the carrying amounts, such differences will impact the current and deferred tax provisions in the period in which such determination is made.
Recovery of deferred tax assets
Deferred tax assets are recognised for deductible temporary differences only if the consolidated entity considers it is probable that future taxable amounts will be available to utilise those temporary differences and losses.
Long service leave provision
As discussed in note 1, the liability for long service leave is recognised and measured at the present value of the estimated future cash flows to be made in respect of all employees at the reporting date. In determining the present value of the liability, estimates of attrition rates and pay increases through promotion and inflation have been taken into account.
Business combinations
As discussed in note 1, business combinations are initially accounted for on a provisional basis. The fair value of assets acquired, liabilities and contingent liabilities assumed are initially estimated by the consolidated entity taking into consideration all available information at the reporting date. Fair
value adjustments on the finalisation of the business combination accounting is retrospective, where
applicable, to the period the combination occurred and may have an impact on the assets and liabili- ties, depreciation and amortisation reported.
Convertible Loan Agreement
The agreement was treated as a debt facility which enables Prima periodically to drawdown on the facility, rather than one arrangement with a three-year term that should be recognised in its entirety at inception, on the basis that Prima could terminate the arrangement at any point in time at a minimal fee. Accordingly each drawdown was treated as an additional borrowing under the facility.
The substance of the agreement was assessed when determining the appropriate accounting treatment. The agreement is similar to a funded fixed return arrangement, including a right for the Lender to participate in any upside in share price. Because the debt will be settled in a variable number of shares, each drawdown has been classified as a financial liability.
Two embedded derivatives were identified and recognised separately from the host debt instrument in each drawdown, being the equity conversion feature and the floor price cash payment feature.
F-17
Collateral shares and commitment options
The purpose of the collateral shares and commitment options was to compensate SpringTree for making the commitment to provide the funding through the life of the Convertible Loan Agreement on terms that provided an acceptable level of funding certainty.
As the compensation to SpringTree for providing the service of committing to the Convertible Loan Agreement was paid in equity instruments of the Company, we applied the requirements of IFRS 2 to their measurement and recognition. The commitment options were valued using the Black-Scholes option pricing model. The collateral shares were valued using the Monte-Carlo simulation option pricing model. Measurement inputs to the Black-Scholes option pricing model and the Monte-Carlo simulation option pricing model include the share price on the measurement date, the exercise price of the instruments, expected volatility (based on an evaluation of the Companys historic volatility over a period commensurate with the expected term), expected term of the instruments, expected dividends, and the risk- free interest rate (based on government bonds).
Volatility
Although implied volatility is generally considered to more accurately represent expected volatility than historical volatility, the lack of exchange-traded derivative prices for Prima BioMed required the model to use historical volatility for the purposes of these indicative valuations. The historical volatilities have been calculated based on Prima BioMeds daily share price movements for a period commensurate with the expected life of each option. The historical share price data was obtained from an independent external market data source.
Dividend Yield
We have used a dividend yield of 0 % for the model based on Prima BioMeds nil dividend history.
Risk-free rate
The expected risk-free rates of return used in the valuations are based on the Australian government bond rate commensurate with the tenor of the options.
F-18
NOTE 3. RESTATEMENT OF COMPARATIVES
Statement of Comprehensive Income
Statement of financial position at the beginning of the earliest comparative period.
Consolidated | ||||||||||||||
Extract | Note |
1 July
2009 $A Reported |
$A
Adjustment |
1 July
2009 $A Restated |
||||||||||
Equity |
||||||||||||||
Reserves |
(ii) | (1,954,694 | ) | 1,954,694 | | |||||||||
Accumulated losses |
(ii) | (38,798,354 | ) | 1,954,694 | (40,753,048 | ) | ||||||||
|
|
|
|
|
|
|||||||||
Total equity |
1,812,522 | | 1,812,522 | |||||||||||
|
|
|
|
|
|
F-19
Statement of financial position at the end of the earliest comparative period.
Statement of Comprehensive Income
Consolidated | ||||||||||||||
Extract | Note |
30 June
2009 $A Reported |
$A
Adjustment |
30 June 2009
$A Restated |
||||||||||
Other Comprehensive Income |
||||||||||||||
-Unrealised foreign exchange gain on available-for-sale financial assets |
(ii) | | 8,536 | 8,536 | ||||||||||
-Impairment of available-for-sale financial assets |
(ii) | | (8,536 | ) | (8,536 | ) |
F-20
NOTES
(i) | The Company has restated its 2010 Annual Accounts in connection with an error in the valuation of Share Based Payments to directors. Previously, the valuation was based on historic pricing and Black-Scholes Barrier pricing model and assumed performance risks. The appropriate value under the Australian Accounting Standard AASB 2 Share Based Payments requires the valuation to be based on the price as at the date of issue (August 5, 2009). This adjusted valuation has increased corporate administrative expenses by $ 2,579,500. |
(ii) | The Company has restated its 2010, 2009 and 2008 Annual Accounts in connection with the fair value movement of the available-for-sale financial assets. Previously, the decline in fair value of $1,954,945, which was based on adjusting the price of the most recently issued shares, being convertible preference shares, using an option pricing model to determine the value of ordinary shares, was recorded in the asset revaluation reserve in 2008, and transferred from the asset revaluation reserve to the income statement in 2010. The decline in value should have been impaired in 2008. In addition, an unrealised foreign exchange gain of $ 19,397 has been recognized in the financial assets valuation reserve in 2010. Additional disclosures have been included in the statement of comprehensive income in 2009 to reflect exchange rate movements and related impairments of A$8,536. |
The net impact on Impairment of available of sale financial assets in June 2010 is $ 1,935,548. The net impact on Changes in financial assets revaluation reserve in June 2010 is $ 1,935,548.
(iii) | The Company has restated its accounts for the period ended 30 June 2010 in connection with the treatment of the Spring Tree loan facility. A remeasurement of the fair value of shares and options issued to repay the loan, commitment options and collateral shares issued have been expensed over the period of the facility as finance expenses. In addition, loan transaction costs have been amortised over the period of the facility. |
The excess of fair value of consideration conveyed (being shares and options issued) over the debt from each tranche has now been calculated and recorded as a finance cost in accordance with paragraph 56 of IAS 39. This has increased finance costs by $ 5,883,768.
The Tranche 6 finance cost included an amount which related to the repayment of the loan for that tranche. This amount has now been removed from finance costs. This has reduced finance costs by $602,732.
The total loan transaction costs, including the initial commencement fee and the maintenance fees, have now been amortised over the term of the Spring Tree loan facility for each tranche in proportion to the total facility. This has increased finance costs by $296,737 and reduced other current assets by $296,737.
Reversal of finance costs previously expensed as incurred. This has reduced finance costs by $907,600 and increased other current assets by $907,600.
The value of the commitment options have been recalculated using the Black-Scholes option pricing model for each tranche and expensed over the term of the Spring Tree loan facility for each tranche in proportion to the total facility. This has increased finance costs by $499,047.
Reversal of the commitment options previously expensed on a straight-line basis based on fair value at commencement of loan facility. This has reduced finance costs by $243,244 and increased other current assets by $243,244.
The fair value of the option to retain the collateral shares at a discount has now been calculated based on a Monte Carlo pricing model for each tranche and expensed over the term of the Spring Tree loan facility for each tranche in proportion to the total facility. This has increased finance costs by $477,527.
In addition, the charge for a modification of the option has now been calculated based on a Monte Carlo pricing model and expensed. This has increased finance costs by $136,943.
F-21
The Tranche 12 finance cost has now been apportioned to reflect the exact cost to 30 June 2010. This has reduced finance costs by $382,926.
The overall impact of these restatements on finance costs was an increase in finance costs of $5,157,520. The net impact on Finance expenses in June 2010 is $5,157,520.
(iv) | Reversal of commitment options previously calculated at fair value at commencement of loan facility and recorded as a prepayment in other current assets. This has reduced other current assets by $750,000. |
Reallocation between current and non-current components of other assets. This has reduced other current assets by $299,289 and increased other non-current assets by $299,289. The net impact on Other current assets is $195,182.
The net impact on Other non-current assets is $299,289.
(v) | R eversal of the collateral shares valued on the issuing date. This has reduced other financial assets non-current by $1,065,000 and reduced issued capital by $1,065,000. The net impact on Other financial assets non-current is $1,065,000. |
(vi) | The Tranche 12 fair value movement in the shares and options issued and the embedded derivatives have been calculated to reflect the exact balance at 30 June 2010. This has reduced borrowings by $13,318 and reduced issued capital by $369,608. |
The net impact on Borrowings is $13,318.
F-22
NOTE 4. OPERATING SEGMENTS
Identification of reportable operating segments
The consolidated entity is organised into two operating segments: Cancer Immunotherapy and Other R & D. These operating segments are based on the internal reports that are reviewed and used by the Board of Directors (who are identified as the Chief Operating Decision Makers (CODM)) in assessing performance and in determining the allocation of resources. There is no aggregation of operating segments.
The CODM reviews both adjusted earnings before interest, tax, depreciation and amortisation (segment result) and profit before income tax.
Types of products and services
The principal products and services of each of these operating segments are as follows:
Cancer Immunotherapy
Other R & D
The Consolidated Group has identified its operating segments based on the internal reports that are reviewed and used by the management team in assessing performance and determining the allocation of resources.
The operating segments are identified by management based on the manner in which the expenses are incurred. Discrete financial information about each of these operating segments is reported to the board on a regular basis.
The reportable segments are based on aggregated operating segments determined by similarity of expenses, where expenses in the reportable segments exceed 10% of the total expenses for either the current and / or previous reporting period.
Intersegment receivables, payables and loans
Intersegment loans are initially recognised at the consideration received. Intersegment loans receivable and loans payable that earn or incur non-market interest are not adjusted to fair value based on market interest rates. Intersegment loans are eliminated on consolidation.
F-23
Operating segment information
000,000,000) | 000,000,000) | 000,000,000) | 000,000,000) | |||||||||||||
30 June 2011 |
Cancer
Immunotherapy A$ |
Other
R&D A$ |
Intersegment
eliminations/ unallocated A$ |
Consolidated
A$ |
||||||||||||
Revenue |
||||||||||||||||
Other income |
| | 1,066,196 | 1,066,196 | ||||||||||||
Total Revenue |
| | 1,066,196 | 1,066,196 | ||||||||||||
Segment Result |
| | | | ||||||||||||
Depreciation and amortisation |
| | (64,287 | ) | (64,287 | ) | ||||||||||
other expenses |
(7,944,531 | ) | (401,813 | ) | (12,670,536 | ) | (21,016,880 | ) | ||||||||
Loss before income tax expense |
(7,944,531 | ) | (401,813 | ) | (12,734,823 | ) | (21,081,167 | ) | ||||||||
Income tax expense |
| |||||||||||||||
|
|
|||||||||||||||
Loss after income tax expense |
(21,081,167 | ) | ||||||||||||||
|
|
000,000,000) | 000,000,000) | 000,000,000) | 000,000,000) | |||||||||||||
30 June 2010 |
Cancer
Immunotherapy A$ |
Other
R&D A$ |
Intersegment
eliminations/ unallocated A$ |
Consolidated
A$ |
||||||||||||
Revenue |
||||||||||||||||
Other income |
41,417 | | 482,317 | 523,734 | ||||||||||||
Total Revenue |
41,417 | | 482,317 | 523,734 | ||||||||||||
Segment Result |
| | | | ||||||||||||
Depreciation and amortisation |
| | (53,209 | ) | (53,209 | ) | ||||||||||
other expenses |
(5,155,122 | ) | (2,445,777 | ) | (10,306,479 | ) | (17,907,378 | ) | ||||||||
Loss before income tax expense |
(5,155,122 | ) | (2,445,777 | ) | (10,359,688 | ) | (17,960,587 | ) | ||||||||
Income tax expense |
| |||||||||||||||
|
|
|||||||||||||||
Loss after income tax expense |
(17,960,587 | ) | ||||||||||||||
|
|
000,000,000 | 000,000,000 | 000,000,000 | 000,000,000 | |||||||||||||
30 June 2009 |
Cancer
Immunotherapy A$ |
Other
R&D A$ |
Intersegment
eliminations/ unallocated A$ |
Consolidated
A$ |
||||||||||||
Revenue |
||||||||||||||||
Other income |
4 | | 29,108 | 29,112 | ||||||||||||
Total Revenue |
4 | | 29,108 | 29,112 | ||||||||||||
Segment Result |
| | | | ||||||||||||
Depreciation and amortisation |
| | (49,418 | ) | (49,418 | ) | ||||||||||
other expenses |
(1,212,049 | ) | (1,261,334 | ) | (423,641 | ) | (2,897,024 | ) | ||||||||
Loss before income tax expense |
(1,212,049 | ) | (1,261,334 | ) | (473,059 | ) | (2,946,442 | ) | ||||||||
Income tax expense |
| |||||||||||||||
|
|
|||||||||||||||
Loss after income tax expense |
(2,946,442 | ) | ||||||||||||||
|
|
F-24
NOTE 5. REVENUE
$000000.000 | $000000.000 | $000000.000 | ||||||||||
Consolidated | ||||||||||||
30 June 2011
A$ |
30 June 2010
A$ |
30 June 2009
A$ |
||||||||||
Other Revenue |
||||||||||||
Interest |
1,066,196 | 475,037 | 29,112 | |||||||||
|
|
|
|
|
|
|||||||
Revenue |
1,066,196 | 475,037 | 29,112 | |||||||||
|
|
|
|
|
|
NOTE 6. OTHER INCOME
$00.00 | $00.00 | $00.00 | ||||||||||
Consolidated | ||||||||||||
30 June 2011
A$ |
30 June 2010
A$ |
30 June 2009
A$ |
||||||||||
Research & development tax credit refund |
| 48,697 | | |||||||||
|
|
|
|
|
|
F-25
NOTE 7. EXPENSES
Consolidated | ||||||||||||
30 June 2011
A$ |
30 June 2010
A$ |
30 June 2009
A$ |
||||||||||
Loss before income tax includes the following specific expenses: |
||||||||||||
Depreciation |
||||||||||||
Plant and equipment |
22,016 | 9,809 | 5,243 | |||||||||
Furniture and fittings |
335 | 1,295 | 2,239 | |||||||||
|
|
|
|
|
|
|||||||
Total depreciation |
22,351 | 11,104 | 7,482 | |||||||||
|
|
|
|
|
|
|||||||
Amortisation |
||||||||||||
Patents and trademarks |
41,935 | 41,935 | 41,936 | |||||||||
|
|
|
|
|
|
|||||||
Total depreciation and amortisation |
64,286 | 53,039 | 49,418 | |||||||||
|
|
|
|
|
|
|||||||
Impairment |
||||||||||||
Fair value adjustment to available for sale financial assets |
555,107 | | 471,464 | |||||||||
|
|
|
|
|
|
|||||||
Research & Development and Intellectual Property |
||||||||||||
Research and development |
9,204,826 | 4,904,751 | 380,002 | |||||||||
Intellectual property management |
326,337 | 219,771 | 233,890 | |||||||||
|
|
|
|
|
|
|||||||
Total Research & Development and Intellectual Property |
9,531,163 | 5,124,522 | 613,892 | |||||||||
|
|
|
|
|
|
|||||||
Corporate and Administrative Expenses |
||||||||||||
Administrative expenses |
2,499,369 | 2,067,366 | 1,107,340 | |||||||||
Directors fees and employee expenses |
2,686,645 | 3,660,378 | 375,798 | |||||||||
Foreign currency loss |
127,178 | 21,615 | 38,093 | |||||||||
Audit and taxation fees |
287,796 | 66,647 | 50,612 | |||||||||
|
|
|
|
|
|
|||||||
Total Corporate and Administrative Expenses |
5,600,988 | 5,816,006 | 1,571,843 | |||||||||
|
|
|
|
|
|
|||||||
Other Expenses |
||||||||||||
Fair value adjustment to liabilities |
| 528,846 | 115,385 | |||||||||
Other expenses |
| 15,280 | 4,677 | |||||||||
|
|
|
|
|
|
|||||||
Total Other Expenses |
| 544,126 | 120,062 | |||||||||
|
|
|
|
|
|
|||||||
Finance costs |
||||||||||||
Finance expenses |
6,395,818 | 6,946,628 | 148,875 | |||||||||
|
|
|
|
|
|
F-26
NOTE 8. INCOME TAX EXPENSE
(00,000,000) | (00,000,000) | (00,000,000) | ||||||||||
Consolidated | ||||||||||||
30 June 2011
A$ |
30 June 2010
A$ |
30 June 2009
A$ |
||||||||||
Numerical reconciliation of income tax expense to prima facie tax payable |
||||||||||||
Loss before income tax expense |
(21,081,167 | ) | (17,960,587 | ) | (2,946,442 | ) | ||||||
Tax at the Australian tax rate of 30% |
(6,324,350 | ) | (5,388,176 | ) | (883,933 | ) | ||||||
Tax effect amounts which are not deductible/(taxable) in calculating taxable income: |
3,349,512 | 1,405,186 | 210,703 | |||||||||
Non-deductible expenses |
(148,083 | ) | (53,582 | ) | (44,776 | ) | ||||||
|
|
|
|
|
|
|||||||
Section 40-880 deductions |
(3,122,921 | ) | (4,036,572 | ) | (718,006 | ) | ||||||
Net adjustment to deferred tax assets and liabilities for tax losses and temporary differences not recognised |
3,122,921 | 4,036,572 | 718,006 | |||||||||
|
|
|
|
|
|
|||||||
Income tax expense |
| | | |||||||||
|
|
|
|
|
|
(00,000,000) | (00,000,000) | (00,000,000) | ||||||||||
Consolidated | ||||||||||||
30 June 2011
A$ |
30 June 2010
A$ |
30 June 2009
A$ |
||||||||||
Deferred tax assets not recognised |
||||||||||||
Deferred tax assets not recognised comprises temporary differences attributable to: |
||||||||||||
Carried forward tax losses |
16,051,519 | 13,320,601 | 8,981,277 | |||||||||
Carried forward capital losses |
14,905 | 14,905 | 14,905 | |||||||||
Over provision for prior year tax |
(117,007 | ) | (239,749 | ) | 211,702 | |||||||
Temporary differences |
(32,891 | ) | (167,159 | ) | 76,145 | |||||||
|
|
|
|
|
|
|||||||
Total deferred tax assets not recognised |
15,916,526 | 12,928,598 | 9,284,029 | |||||||||
|
|
|
|
|
|
The above potential tax benefit, which excludes tax losses, for deductible temporary differences has not been recognised in the statement of financial position as the recovery of this benefit is uncertain.
NOTE 9. CURRENT ASSETS CASH AND CASH EQUIVALENTS
Consolidated | ||||||||||||
30 June 2011
A$ |
30 June 2010
A$ |
30 June 2009
A$ |
||||||||||
Cash on hand |
2,888 | | | |||||||||
Cash at bank |
45,540,530 | 1,567,067 | 119,952 | |||||||||
Cash on deposit |
375,134 | 4,071,275 | 819,609 | |||||||||
|
|
|
|
|
|
|||||||
45,918,552 | 5,638,342 | 939,561 | ||||||||||
|
|
|
|
|
|
F-27
NOTE 10. CURRENT ASSETS TRADE AND OTHER RECEIVABLES
Consolidated | ||||||||
30 June 2011
A$ |
30 June 2010
A$ |
|||||||
Trade receivables |
| 750 | ||||||
Other receivables |
35,899 | 76,095 | ||||||
BAS receivable |
| 49 | ||||||
|
|
|
|
|||||
35,899 | 76,894 | |||||||
|
|
|
|
Impairment of receivables
The consolidated entity has recognised a loss of $ nil (2010: $ 10,832) in profit or loss in respect of impairment of receivables for the year ended 30 June 2011.
NOTE 11. CURRENT ASSETS INVENTORIES
10,000,000 | 10,000,000 | |||||||
Consolidated | ||||||||
30 June 2011 | 30 June 2010 | |||||||
A$ | A$ | |||||||
Stock on hand at cost |
214,346 | | ||||||
|
|
|
|
NOTE 12. CURRENT ASSETS OTHER FINANCIAL ASSETS
10,000,000 | 10,000,000 | |||||||
Consolidated | ||||||||
30 June 2011 | 30 June 2010 | |||||||
A$ | A$ | |||||||
Not less than three month term deposit |
10,000,000 | 10,000,000 | ||||||
|
|
|
|
NOTE 13. CURRENT ASSETS OTHER
10,000,000 | 10,000,000 | |||||||
Consolidated | ||||||||
30 June 2011 | 30 June 2010 | |||||||
A$ | A$ | |||||||
Prepayments |
498,014 | 510,770 | ||||||
Security deposit |
12,212 | 2,265 | ||||||
Accrued interest |
383,779 | 350,899 | ||||||
|
|
|
|
|||||
894,005 | 863,934 | |||||||
|
|
|
|
F-28
NOTE 14. NON-CURRENT ASSETS AVAILABLE-FOR-SALE FINANCIAL ASSETS
Consolidated | ||||||||
30 June 2011
A$ |
30 June 2010
A$ |
|||||||
Unlisted investments at recoverable amount. |
| 574,504 | ||||||
|
|
|
|
Refer to note 27 for detailed information on financial instruments.
NOTE 15. NON-CURRENT ASSETS PROPERTY, PLANT AND EQUIPMENT
Consolidated | ||||||||
30 June 2011
A$ |
30 June 2010
A$ |
|||||||
Plant and equipment at cost |
143,397 | 98,579 | ||||||
Less: accumulated depreciation |
(27,772 | ) | (5,755 | ) | ||||
|
|
|
|
|||||
115,625 | 92,824 | |||||||
|
|
|
|
|||||
Fixtures and fittings at cost |
6,708 | 6,708 | ||||||
Less: accumulated depreciation |
(2,380 | ) | (2,045 | ) | ||||
|
|
|
|
|||||
4,328 | 4,663 | |||||||
|
|
|
|
|||||
119,953 | 97,487 | |||||||
|
|
|
|
Reconciliations
Reconciliations of the written down values at the beginning and end of the current and previous financial year are set out below:
Plant and
Equipment A$ |
Furniture
and
Fittings A$ |
Total
A$ |
||||||||||
Consolidated |
||||||||||||
Balance at 1 July 2008 |
12,814 | 16,898 | 29,712 | |||||||||
Additions |
2,660 | | 2,660 | |||||||||
Disposals |
(1,598 | ) | (3,981 | ) | (5,579 | ) | ||||||
Depreciation Expense |
(5,243 | ) | (2,239 | ) | (7,482 | ) | ||||||
|
|
|
|
|
|
|||||||
Balance at 30 June 2009 |
8,633 | 10,678 | 19,311 | |||||||||
|
|
|
|
|
|
|||||||
Additions |
95,327 | | 95,327 | |||||||||
Disposals |
(1,327 | ) | (4,720 | ) | (6,047 | ) | ||||||
Depreciation Expense |
(9,809 | ) | (1,295 | ) | (11,104 | ) | ||||||
|
|
|
|
|
|
|||||||
Balance at 30 June 2010 |
92,824 | 4,663 | 97,487 | |||||||||
|
|
|
|
|
|
|||||||
Additions |
44,817 | | 44,817 | |||||||||
Depreciation expense |
(22,016 | ) | (335 | ) | (22,351 | ) | ||||||
|
|
|
|
|
|
|||||||
Balance at 30 June 2011 |
115,625 | 4,328 | 119,953 | |||||||||
|
|
|
|
|
|
F-29
NOTE 16. NON-CURRENT ASSETS INTANGIBLES
Consolidated | ||||||||
30 June 2011 | 30 June 2010 | |||||||
A$ | A$ | |||||||
Patents, trademarks and licenses at cost |
1,915,671 | 1,915,671 | ||||||
Less: accumulated Amortisation |
(547,766 | ) | (513,907 | ) | ||||
Less: Impairment |
(909,999 | ) | (901,923 | ) | ||||
|
|
|
|
|||||
457,906 | 499,841 | |||||||
|
|
|
|
Reconciliations
Reconciliations of the written down values at the beginning and end of the current and previous financial year are set out below:
Patents, licenses
and
trademarks A$ |
Total
A$ |
|||||||
Consolidated |
||||||||
Balance at 1 July 2008 |
583,712 | 583,712 | ||||||
Amortisation expense |
(41,935 | ) | (41,935 | ) | ||||
|
|
|
|
|||||
Balance at 30 June 2009 |
541,777 | 541,777 | ||||||
Amortisation expense |
(41,936 | ) | (41,936 | ) | ||||
|
|
|
|
|||||
Balance at 30 June 2010 |
499,841 | 499,841 | ||||||
Amortisation expense |
(41,935 | ) | (41,935 | ) | ||||
|
|
|
|
|||||
Balance at 30 June 2011 |
457,906 | 457,906 | ||||||
|
|
|
|
F-30
NOTE 17. NON-CURRENT ASSETS OTHER
1,770,121 | 1,770,121 | |||||||
Consolidated | ||||||||
30 June 2011 | 30 June 2010 | |||||||
A$ | A$ | |||||||
Other non-current assets |
| 299,289 | ||||||
|
|
|
|
NOTE 18. CURRENT LIABILITIES TRADE AND OTHER PAYABLES
1,770,121 | 1,770,121 | |||||||
Consolidated | ||||||||
30 June 2011 | 30 June 2010 | |||||||
A$ | A$ | |||||||
Trade payables |
1,770,121 | 1,351,987 | ||||||
Other payables |
701,091 | 147,104 | ||||||
|
|
|
|
|||||
2,471,212 | 1,499,091 | |||||||
|
|
|
|
Refer to note 27 for detailed information on financial instruments.
NOTE 19. CURRENT LIABILITIES BORROWINGS
1,770,121 | 1,770,121 | |||||||
Consolidated | ||||||||
30 June 2011
A$ |
30 June 2010
A$ |
|||||||
Total secured liabilities |
||||||||
The total secured current liabilities are as follows: |
||||||||
Convertible loan |
| 603,062 | ||||||
Derivative loan liability at fair value |
| 83,620 | ||||||
|
|
|
|
|||||
| 686,682 | |||||||
|
|
|
|
(A) | On July 21, 2009, the Company announced that it had entered into an agreement in relation to a A$25.5 million convertible loan facility from New York-based investment fund SpringTree Special Opportunities Fund, LP (SpringTree) to provide funds for the commercialization of Primas headline CVac ovarian cancer vaccine treatment. In the financial year ended June 30, 2010, the Company received A$8.0 million before costs, of which A$7.3 million was repaid by the issue of shares and options. |
Each loan is made in a separate tranche, and aside from certain exceptions, each tranche is repaid within 30 days of the draw down by issuing to SpringTree ordinary shares and options to purchase our ordinary shares. The number of ordinary shares issued as repayment is determined by dividing the amount of the tranche by the conversion price. The conversion price is the lesser of:
|
130% (or in certain circumstances, 150%) of the average of the closing price of our ordinary shares for 20 business days prior to the agreement (which is A$0.0743 and A$0.0858 respectively), and |
|
90% of the average volume-weighted average price of our ordinary shares for a 5 consecutive business day period during a particular tranche ending on the date |
The Company repaid each tranche by delivering ordinary shares, we also grant SpringTree a five-year option per five shares issued to it (1:5), exercisable at 150% of the average of the volume-weighted average prices of our ordinary shares for the 20 business days immediately prior to the repayment date.
During the fiscal year ended June 30. 2010, the Company drew down on an aggregate of A$8.0 million, of which A$7.3 million was repaid by the issue of 73,377,055 ordinary shares and options to purchase 15,498,254 ordinary shares. As of June 30,2010 A$686,682 was owed to SpringTree.
The total loan transaction costs, including the initial commencement fee and the maintenance fees, have been amortised over the term of the SpringTree loan facility for each tranche in proportion to the total facility.
NOTES 20. CURRENT LIABILITIES DERIVATIVE FINANCIAL INSTRUMENTS
1,770,121 | 1,770,121 | |||||||
Consolidated | ||||||||
30 June 2011 | 30 June 2010 | |||||||
A$ | A$ | |||||||
Derivative liability at fair value |
| 83,620 | ||||||
|
|
|
|
Refer to note 27 for detailed information on financial instruments.
F-31
NOTE 21. CURRENT LIABILITIES EMPLOYEE BENEFITS
Consolidated | ||||||||
30 June 2011
A$ |
30 June 2010
A$ |
|||||||
|
|
|
|
|||||
Annual leave |
65,879 | 23,692 | ||||||
|
|
|
|
NOTE 22. NON-CURRENT LIABILITIES EMPLOYEE BENEFITS
Consolidated | ||||||||
30 June 2011 | 30 June 2010 | |||||||
A$ | A$ | |||||||
Long service leave |
4,440 | 887 | ||||||
|
|
|
|
NOTE 23. EQUITY CONTRIBUTED
Consolidated | ||||||||||||||||
Note |
30 June 2011
A$ |
30 June 2010
A$ |
30 June 2009
A$ |
|||||||||||||
Fully paid ordinary shares |
23 | (a) | 125,066,002 | 68,926,335 | 42,136,709 | |||||||||||
Options over ordinary shares |
23 | (b) | 9,828,999 | 5,608,078 | 429,097 | |||||||||||
|
|
|
|
|
|
|||||||||||
134,895,001 | 74,534,413 | 42,565,806 | ||||||||||||||
|
|
|
|
|
|
(a) Ordinary Shares | 30 June 2011 | 30 June 2010 | 30 June 2009 | |||||||||||||||||||||||||
Note | No. | A$ | No. | A$ | No. | A$ | ||||||||||||||||||||||
At the beginning of reporting period |
699,237,595 | 68,926,335 | 420,574,941 | 42,136,709 | 305,079,915 | 39,745,331 | ||||||||||||||||||||||
Shares issued during year |
(i | ) | 161,558,834 | 44,617,993 | 104,947,129 | 14,771,556 | 108,200,026 | 2,086,998 | ||||||||||||||||||||
Exercise of options (Shares issued during the year) |
(ii | ) | 69,076,228 | 5,107,210 | 85,338,470 | 1,246,446 | 7,295,000 | 172,489 | ||||||||||||||||||||
Fair value of tranche shares to be issued |
(iii | ) | 51,142,972 | 6,834,695 | 73,377,055 | 11,165,452 | | | ||||||||||||||||||||
Collateral shares |
(iv | ) | | 1,500,000 | 15,000,000 | | | | ||||||||||||||||||||
Cost of options exercised |
| | | (215,177 | ) | | | |||||||||||||||||||||
Expiration of Options |
| | | | | 219,257 | ||||||||||||||||||||||
Transaction costs relating to share issues |
| (1,920,231 | ) | | (178,651 | ) | | (87,366 | ) | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
At reporting date |
981,015,629 | 125,066,002 | 699,237,595 | 68,926,335 | 420,574,941 | 42,136,709 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-32
2011 |
Details |
Note | Number |
Issue Price
A$ |
Total
A$ |
|||||||||||
21 Jul 2010 | SpringTree Convertible Loan T12 Tranche Repayment Shares | iii) | 8,610,086 | 0.108 | 929,429 | |||||||||||
21 Jul 2010 | Exercise of PRRO options | ii) | 1,251,850 | 0.022 | 27,541 | |||||||||||
11 Aug 2010 | Exercise of PRRO options | ii) | 890,000 | 0.022 | 19,580 | |||||||||||
23 Aug 2010 | SpringTree Convertible Loan T13 Tranche Repayment Shares | iii) | 8,474,576 | 0.095 | 808,390 | |||||||||||
06 Aug 2010 | Expiry of options | ii) | 300 | |||||||||||||
30 Aug 2010 | Exercise of PRRO options | ii) | 1,011,538 | 0.022 | 22,254 | |||||||||||
24 Sep 2010 | SpringTree Convertible Loan T14 Tranche Repayment Shares | iii) | 8,706,468 | 0.100 | 866,577 | |||||||||||
01 Oct 2010 | Exercise of PRRO options | ii) | 200,000 | 0.022 | 4,400 | |||||||||||
08 Oct 2010 | Exercise of PRRO options | ii) | 489,000 | 0.022 | 10,758 | |||||||||||
22 Oct 2010 | Exercise of PRRO options | ii) | 200,000 | 0.022 | 4,400 | |||||||||||
27 Oct 2010 | SpringTree Convertible Loan T15 Tranche Repayment Shares | iii) | 7,700,770 | 0.133 | 1,025,435 | |||||||||||
28 Oct 2010 | Exercise of PRRO options | ii) | 261,000 | 0.022 | 5,742 | |||||||||||
11 Nov 2010 | Exercise of PRRO options | ii) | 200,000 | 0.022 | 4,400 | |||||||||||
24 Nov 2010 | SpringTree Convertible Loan T16 Tranche Repayment Shares | iii) | 6,578,947 | 0.120 | 788,040 | |||||||||||
06 Dec 2010 | Issue of shares to Directors | i) | 1,250,000 | 0.100 | 125,000 | |||||||||||
10 Dec 2010 | Exercise of PRRO options | ii) | 71,242 | 0.022 | 1,567 | |||||||||||
23 Dec 2010 | Exercise of PRRO options | ii) | 100,000 | 0.022 | 2,200 | |||||||||||
31 Dec 2010 | SpringTree Convertible Loan T17 Tranche Repayment Shares (part) | iii) | 22,608 | |||||||||||||
31 Dec 2009 | Equity to Be Issued | ii) | 50,000 | |||||||||||||
04 Jan 2011 | SpringTree Convertible Loan T17 Tranche Repayment Shares (part) | iii) | 7,368,421 | 0.200 | 1,476,601 | |||||||||||
04 Jan 2011 | Exercise of PRRO options | ii) | 2,500,000 | 0.002 | 5,000 | |||||||||||
10 Jan 2011 | SpringTree placement of shares | i) | 6,209,638 | 0.201 | 1,250,000 | |||||||||||
10 Jan 2011 | Exercise of PRRO options | ii) | 600,000 | 0.022 | 13,200 | |||||||||||
13 Jan 2011 | Exercise of PRRO options | ii) | 2,038,333 | 0.022 | 44,843 | |||||||||||
19 Jan 2011 | Exercise of PRRO options | ii) | 4,461,473 | 0.022 | 98,152 | |||||||||||
27 Jan 2011 | Exercise of PRRO options | ii) | 2,118,407 | 0.022 | 46,605 | |||||||||||
01 Feb 2011 | Exercise of ESOP options | ii) | 100,000 | 0.100 | 10,000 | |||||||||||
01 Feb 2011 | SpringTree Convertible Loan T18 Tranche Repayment Shares | iii) | 3,703,704 | 0.248 | 917,615 | |||||||||||
03 Feb 2011 | Exercise of PRRO options | ii) | 85,160 | 0.022 | 1,874 | |||||||||||
14 Feb 2011 | Exercise of PRRO options | ii) | 200,000 | 0.022 | 4,400 | |||||||||||
17 Feb 2011 | Exercise of PRRAI options | ii) | 5,000,000 | 0.063 | 314,500 | |||||||||||
17 Feb 2011 | Exercise of PRRO options | ii) | 200,000 | 0.022 | 4,400 | |||||||||||
24 Feb 2011 | SpringTree conversion of Convertible security part of $ 1.25m | i) | 3,140,704 | 0.355 | 1,116,419 | |||||||||||
28 Feb 2011 | Exercise of PRRO options | ii) | 210,553 | 0.022 | 4,632 | |||||||||||
03 Mar 2011 | SpringTree conversion of Convertible security part of $ 1.25m | i) | 3,140,704 | 0.235 | 738,065 | |||||||||||
10 Mar 2011 | Exercise of PRRO options | ii) | 1,112,929 | 0.022 | 24,484 | |||||||||||
17 Mar 2011 | Exercise of PRRO options | ii) | 39,000 | 0.022 | 858 | |||||||||||
24 Mar 2011 | Exercise of PRRAI options | ii) | 5,000,000 | 0.063 | 314,500 | |||||||||||
29 Mar 2011 | Issue of 15 million collateral shares | iv) | | | 1,500,000 | |||||||||||
30 Mar 2011 | Exercise of PRRO options | ii) | 3,035,000 | 0.022 | 66,770 | |||||||||||
08 Apr 2011 | Exercise of PRRO options | ii) | 893,466 | 0.022 | 19,656 | |||||||||||
14 Apr 2011 | Exercise of PRRO options | ii) | 946,468 | 0.022 | 20,822 |
F-33
F-34
2010 |
Details |
Note | Number |
Issue Price
A$ |
Total
A$ |
|||||||||||
17 Jul 2009 | Exercise of PRRO Options | ii) | 3,000,000 | 0.022 | 66,000 | |||||||||||
21 Jul 2009 | Convertible Loan agreement | iv) | 15,000,000 | 0.071 | | |||||||||||
29 Jul 2009 | Exercise of PRRO Options | ii) | 2,233,363 | 0.022 | 49,134 | |||||||||||
10 Aug 2009 | Convertible Loan SpringTree Tranche 1 | iii) | 7,739,938 | 0.069 | 534,306 | |||||||||||
17 Aug 2009 | Exercise of PRRO Options | ii) | 16,371,430 | 0.022 | 360,171 | |||||||||||
02 Sep 2009 | Exercise of PRRO Options | ii) | 3,704,800 | 0.022 | 81,506 | |||||||||||
09 Sep 2009 | Convertible Loan SpringTree Tranche 2 | iii) | 8,833,922 | 0.101 | 889,571 | |||||||||||
11 Sep 2009 | Exercise of PRRO Options | ii) | 1,525,000 | 0.022 | 33,550 | |||||||||||
16 Sep 2009 | Exercise of PRRAO Options | ii) | 38,500,000 | | | |||||||||||
24 Sep 2009 | Exercise of PRRO Options | ii) | 3,058,933 | 0.022 | 67,297 | |||||||||||
07 Oct 2009 | Exercise of PRRAE Options | ii) | 2,000,000 | 0.125 | 260,000 | |||||||||||
09 Oct 2009 | Exercise of PRRO Options | ii) | 400,000 | 0.022 | 8,800 | |||||||||||
09 Oct 2009 | Convertible Loan SpringTree Tranche 3 | iii) | 9,421,265 | 0.222 | 2,088,822 | |||||||||||
13 Oct 2009 | Exercise of PRRO Options | ii) | 2,232,178 | 0.022 | 49,108 | |||||||||||
29 Oct 2009 | Exercise of PRRO Options | ii) | 1,900,000 | 0.022 | 41,800 | |||||||||||
09 Nov 2009 | Convertible Loan SpringTree Tranche 4 | iii) | 9,421,265 | 0.178 | 1,680,609 | |||||||||||
13 Nov 2009 | Exercise of PRRO Options | ii) | 2,847,200 | 0.022 | 62,638 | |||||||||||
27 Nov 2009 | Exercise of PRRO Options | ii) | 333,500 | 0.022 | 7,337 | |||||||||||
30 Nov 2009 | Share Purchase Plan | i) | 80,401,244 | 0.140 | 11,256,108 | |||||||||||
02 Dec 2009 | Issued as per Resolution 3 of AGM | i) | 211,267 | 0.071 | 15,000 | |||||||||||
03 Dec 2009 | Issued in lieu of cash payment for services rendered | i) | 71,430 | 0.140 | 10,000 | |||||||||||
10 Dec 2009 | Exercise of PRRO Options | ii) | 200,000 | 0.022 | 4,400 | |||||||||||
14 Dec 2009 | Convertible Loan SpringTree Tranche 5 | iii) | 5,307,051 | 0.156 | 826,195 | |||||||||||
16 Dec 2009 | Exercise of PRRO Options | ii) | 120,000 | 0.022 | 2,640 | |||||||||||
18 Dec 2009 | Conversion of Convertible Loan Resolution 3 of June GM | i) | 4,830,084 | 0.159 | 769,813 | |||||||||||
31 Dec 2009 | Convertible Loan SpringTree Tranche 6 | iii) | 5,307,051 | | 42,309 | |||||||||||
05 Jan 2010 | Exercise of PRRO Options | ii) | 2,045,000 | 0.022 | 44,990 | |||||||||||
11 Jan 2010 | Exercise of PRRO Options | ii) | 251,333 | 0.022 | 5,529 | |||||||||||
12 Jan 2010 | Convertible Loan SpringTree Tranche 6 | iii) | | | 878,993 | |||||||||||
21 Jan 2010 | Exercise of PRRO Options | ii) | 170,000 | 0.022 | 3,740 | |||||||||||
29 Jan 2010 | Exercise of PRRO Options | ii) | 266,666 | 0.022 | 5,867 | |||||||||||
09 Feb 2010 | Exercise of PRRO Options | ii) | 10,000 | 0.022 | 220 | |||||||||||
23 Feb 2010 | Convertible Loan SpringTree Tranche 7 | iii) | 5,591,055 | 0.187 | 1,045,777 | |||||||||||
23 Feb 2010 | Issue of SPP Shortfall to investors | i) | 17,602,741 | 0.140 | 2,464,384 | |||||||||||
26 Feb 2010 | Issue of SPP Shortfall to investors | i) | 1,638,577 | 0.140 | 229,401 | |||||||||||
05 Mar 2010 | Exercise of PRRO Options | ii) | 1,475,000 | 0.022 | 32,450 | |||||||||||
12 Mar 2010 | Exercise of PRRO Options | ii) | 225,000 | 0.022 | 4,950 | |||||||||||
19 Mar 2010 | Exercise of PRRO Options | ii) | 40,000 | 0.022 | 880 | |||||||||||
19 Mar 2010 | Convertible Loan SpringTree Tranche 8 | iii) | 5,376,344 | 0.150 | 805,883 | |||||||||||
01 Apr 2010 | Exercise of PRRO Options | ii) | 252,500 | 0.022 | 5,555 | |||||||||||
15 Apr 2010 | Exercise of PRRO Options | ii) | 1,000,000 | 0.022 | 22,000 | |||||||||||
20 Apr 2010 | Convertible Loan SpringTree Tranche 9 | iii) | 5,380,477 | 0.158 | 852,800 |
F-35
2010 |
Details |
Note | Number |
Issue Price
A$ |
Total
A$ |
|||||||||||||
28 Apr 2010 | Exercise of PRRO Options | ii | ) | 676,567 | 0.022 | 14,884 | ||||||||||||
19 May 2010 | Convertible Loan SpringTree Tranche 10 | iii | ) | 5,275,057 | 0.149 | 785,134 | ||||||||||||
08 Jun 2010 | Exercise of PRRO Options | ii | ) | 250,000 | 0.022 | 5,500 | ||||||||||||
15 Jun 2010 | Exercise of PRRO Options | ii | ) | 250,000 | 0.022 | 5,500 | ||||||||||||
21 Jun 2010 | Convertible Loan SpringTree Tranche 11 | iii | ) | 5,723,630 | 0.127 | 727,805 | ||||||||||||
30 Jun 2010 | Shares issue to employee | i | ) | 191,786 | 0.140 | 26,850 | ||||||||||||
30 Jun 2010 | Convertible Loan SpringTree Tranche 12 (Part) | iii | ) | | | 7,248 | ||||||||||||
Cost of Options Exercised |
(215,177 | ) | ||||||||||||||||
Transaction costs relating to share issues |
(178,651 | ) | ||||||||||||||||
|
|
|
|
|||||||||||||||
278,662,654 | 26,789,626 | |||||||||||||||||
|
|
|
|
F-36
2009 |
Details |
Note | Number |
Issue Price
A$ |
Total
A$ |
|||||||||||||
31 Dec 2008 | Share purchase plan | i | ) | 39,600,000 | 0.005 | 198,000 | ||||||||||||
17 Apr 2009 | Exercise of options | ii | ) | 2,000,000 | 0.010 | 20,000 | ||||||||||||
21 Apr 2009 | Shares issued in lieu of cash | i | ) | 5,473,684 | 0.019 | 104,000 | ||||||||||||
11 May 2009 | Exercise of options | ii | ) | 3,056,500 | 0.020 | 61,130 | ||||||||||||
22 May 2009 | Exercise of options | ii | ) | 1,700,000 | 0.020 | 34,000 | ||||||||||||
4 Jun 2009 | Exercise of options | ii | ) | 403,500 | 0.020 | 8,070 | ||||||||||||
24 Jun 2009 | Exercise of options | ii | ) | 135,000 | 0.020 | 2,699 | ||||||||||||
29 Jun 2009 | Share purchase plan | i | ) | 2,357,112 | 0.070 | 164,998 | ||||||||||||
30 Jun 2009 | Shares issued to investors | i | ) | 57,692,307 | 0.026 | 1,500,000 | ||||||||||||
30 Jun 2009 | Shares issued to consultants | i | ) | 3,076,923 | 0.039 | 120,000 | ||||||||||||
30 Jun 2009 | Issue costs of exercised options | ii | ) | 46,590 | ||||||||||||||
|
|
|
|
|||||||||||||||
115,495,026 | 2,259,487 | |||||||||||||||||
|
|
|
|
F-37
Consolidated | Consolidated | Consolidated | ||||||||||||||||||||||||||
30 June 2011 | 30 June 2010 | 30 June 2009 | ||||||||||||||||||||||||||
(b) Options | Note | No. | A$ | No. | A$ | No. | A$ | |||||||||||||||||||||
At the beginning of reporting period |
152,958,086 | 5,608,078 | 166,698,302 | 429,097 | 185,243,302 | 694,944 | ||||||||||||||||||||||
Options movements during year |
||||||||||||||||||||||||||||
Options issued during year |
(i | ) | 44,728,594 | 2,194,810 | 56,498,254 | 4,918,131 | | | ||||||||||||||||||||
Exercise of Options |
(ii | ) | (69,076,228 | ) | (69,380 | ) | (85,338,470 | ) | (215,177 | ) | (7,295,000 | ) | (46,590 | ) | ||||||||||||||
(Shares issued during the year) |
||||||||||||||||||||||||||||
Expiry of options |
(iii | ) | (300,000 | ) | (300 | ) | | | (11,250,000 | ) | (219,257 | ) | ||||||||||||||||
Commitment options |
(iv | ) | | 2,069,576 | 15,000,000 | 474,931 | | | ||||||||||||||||||||
ESOP options |
(v | ) | | 26,215 | 100,000 | 1,096 | | | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
At reporting date |
128,310,452 | 9,828,999 | 152,958,086 | 5,608,078 | 166,698,302 | 429,097 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-38
2011 |
Details |
Note | Number |
Issue Price
A$ |
Total A$ | |||||||||||||
21 Jul 2010 | SpringTree Convertible Loan T12 Options exercisable at $ 0.1605 21/7/2015 | i | ) | 1,722,017 | 0.081 | 140,180 | ||||||||||||
21 Jul 2010 | Exercise of PRRO Options | ii | ) | (1,251,850 | ) | (0.002 | ) | (2,504 | ) | |||||||||
06 Aug 2010 | Expiry of PRRAK options (exercisable at $ 0.20 6/8/2010) | iii | ) | (300,000 | ) | 0.001 | (300 | ) | ||||||||||
11 Aug 2010 | Exercise of PRRO Options | ii | ) | (890,000 | ) | (0.002 | ) | (1,780 | ) | |||||||||
23 Aug 2010 | SpringTree Convertible Loan T13 Options exercisable at $ 0.1439 20/8/2015 | i | ) | 1,694,915 | 0.071 | 119,499 | ||||||||||||
30 Aug 2010 | Exercise of PRRO Options | ii | ) | (1,011,538 | ) | (0.002 | ) | (2,023 | ) | |||||||||
24 Sep 2010 | SpringTree Convertible Loan T14 Options exercisable at $ 0.1414 22/9/2015 | i | ) | 1,741,294 | 0.070 | 122,400 | ||||||||||||
01 Oct 2010 | Exercise of PRRO Options | ii | ) | (200,000 | ) | (0.002 | ) | (400 | ) | |||||||||
08 Oct 2010 | Exercise of PRRO Options | ii | ) | (489,000 | ) | (0.002 | ) | (978 | ) | |||||||||
22 Oct 2010 | Exercise of PRRO Options | ii | ) | (200,000 | ) | (0.002 | ) | (400 | ) | |||||||||
27 Oct 2010 | SpringTree Convertible Loan T15 Options exercisable at $ 0.1944 27/10/2015 | i | ) | 1,540,154 | 0.108 | 165,997 | ||||||||||||
28 Oct 2010 | Exercise of PRRO Options | ii | ) | (261,000 | ) | (0.002 | ) | (522 | ) | |||||||||
11 Nov 2010 | Exercise of PRRO Options | ii | ) | (200,000 | ) | (0.002 | ) | (400 | ) | |||||||||
24 Nov 2010 | SpringTree Convertible Loan T16 Options exercisable at $ 0.1893 24/11/2015 | i | ) | 1,315,789 | 0.097 | 127,834 | ||||||||||||
06 Dec 2010 | Issue of options to Directors (20 cents, 6 Dec. 2013) | i | ) | 32,500,000 | 0.032 | 1,053,000 | ||||||||||||
06 Dec 2010 | Issue of options to Director (10 cents, 6 Dec. 2014) | i | ) | 2,000,000 | 0.007 | 14,300 | ||||||||||||
10 Dec 2010 | Exercise of PRRO Options | ii | ) | (71,242 | ) | (0.002 | ) | (142 | ) | |||||||||
23 Dec 2010 | Exercise of PRRO Options | ii | ) | (100,000 | ) | (0.002 | ) | (200 | ) | |||||||||
31 Dec 2010 | SpringTree Convertible Loan T17 | i | ) | | | 27,336 | ||||||||||||
04 Jan 2011 | SpringTree Convertible Loan T17 Options exercisable at $0.1874 04/01/2016 | i | ) | 1,473,684 | 0.185 | 244,773 | ||||||||||||
04 Jan 2011 | Exercise of PRRO Options | ii | ) | (2,500,000 | ) | (0.002 | ) | (5,000 | ) | |||||||||
10 Jan 2011 | Exercise of PRRO Options | ii | ) | (600,000 | ) | (0.002 | ) | (1,200 | ) | |||||||||
13 Jan 2011 | Exercise of PRRO Options | ii | ) | (2,038,333 | ) | (0.002 | ) | (4,077 | ) | |||||||||
19 Jan 2011 | Exercise of PRRO Options | ii | ) | (4,461,473 | ) | (0.002 | ) | (8,923 | ) | |||||||||
27 Jan 2011 | Exercise of PRRO Options | ii | ) | (2,118,407 | ) | (0.002 | ) | (4,237 | ) | |||||||||
11 Jan 2011 | Take-up of commitment options (15 m) based on valuation at each drawdown date | iv | ) | | | 1,347,214 | ||||||||||||
31 Jan 2011 | To expense ESOP options | v | ) | | | 26,215 | ||||||||||||
01 Feb 2011 | Exercise of ESOP options | ii | ) | (100,000 | ) | (0.008 | ) | 757 | ||||||||||
01 Feb 2011 | SpringTree Convertible Loan T18 Options exercisable at $ 0.3390 1/02/2016 | i | ) | 740,741 | 0.242 | 179,491 | ||||||||||||
03 Feb 2011 | Exercise of PRRO Options | ii | ) | (85,160 | ) | (0.002 | ) | (170 | ) | |||||||||
14 Feb 2011 | Exercise of PRRO Options | ii | ) | (200,000 | ) | (0.002 | ) | (400 | ) | |||||||||
17 Feb 2011 | Exercise of PRRAI options | ii | ) | (5,000,000 | ) | | | |||||||||||
17 Feb 2011 | Exercise of PRRO Options | ii | ) | (200,000 | ) | (0.002 | ) | (400 | ) | |||||||||
28 Feb 2011 | Exercise of PRRO Options | ii | ) | (210,553 | ) | (0.002 | ) | (421 | ) | |||||||||
04 Mar 2011 | Take-up of commitment options (15 m) based on valuation at each drawdown date | iv | ) | | | 722,362 | ||||||||||||
10 Mar 2011 | Exercise of PRRO Options | ii | ) | (1,112,929 | ) | (0.002 | ) | (2,226 | ) |
F-39
2011 |
Details |
Note | Number |
Issue Price
A$ |
Total
A$ |
|||||||||||||
17 Mar 2011 | Exercise of PRRO Options | ii | ) | (39,000 | ) | (0.002 | ) | (78 | ) | |||||||||
24 Mar 2011 | Exercise of PRRAI options | ii | ) | (5,000,000 | ) | | | |||||||||||
30 Mar 2011 | Exercise of PRRO Options | ii | ) | (3,035,000 | ) | (0.002 | ) | (6,070 | ) | |||||||||
08 Apr 2011 | Exercise of PRRO Options | ii | ) | (893,466 | ) | (0.002 | ) | (1,787 | ) | |||||||||
14 Apr 2011 | Exercise of PRRO Options | ii | ) | (946,468 | ) | (0.002 | ) | (1,893 | ) | |||||||||
14 Apr 2011 | Exercise of PRRAI options | ii | ) | (5,000,000 | ) | | | |||||||||||
21 Apr 2011 | Exercise of PRRAF options | ii | ) | (1,722,017 | ) | | | |||||||||||
21 Apr 2011 | Exercise of PRRAK options | ii | ) | (1,694,915 | ) | | | |||||||||||
21 Apr 2011 | Exercise of PRRAG options | ii | ) | (1,741,294 | ) | | | |||||||||||
21 Apr 2011 | Exercise of PRRO Options | ii | ) | (384,176 | ) | (0.002 | ) | (768 | ) | |||||||||
29 Apr 2011 | Exercise of PRRO Options | ii | ) | (1,348,685 | ) | (0.002 | ) | (2,697 | ) | |||||||||
06 May 2011 | Exercise of PRRAH options | ii | ) | (1,540,154 | ) | | | |||||||||||
06 May 2011 | Exercise of PRRAJ options | ii | ) | (1,315,789 | ) | | | |||||||||||
06 May 2011 | Exercise of PRRAL options | ii | ) | (1,473,684 | ) | | | |||||||||||
06 May 2011 | Exercise of PRRO Options | ii | ) | (65,000 | ) | (0.002 | ) | (130 | ) | |||||||||
13 May 2011 | Exercise of PRRO Options | ii | ) | (125,000 | ) | (0.002 | ) | (250 | ) | |||||||||
23 May 2011 | Exercise of PRRO Options | ii | ) | (817,000 | ) | (0.002 | ) | (1,634 | ) | |||||||||
24 May 2011 | Exercise of PRRO Options | ii | ) | (2,225,505 | ) | (0.002 | ) | (4,451 | ) | |||||||||
24 May 2011 | Exercise of PRRAC options | ii | ) | (2,000,000 | ) | | | |||||||||||
31 May 2011 | Exercise of PRRO Options | ii | ) | (404,050 | ) | (0.002 | ) | (808 | ) | |||||||||
02 Jun 2011 | Exercise of PRRAM options | ii | ) | (1,547,988 | ) | | | |||||||||||
02 Jun 2011 | Exercise of PRRAQ options | ii | ) | (1,766,784 | ) | | | |||||||||||
02 Jun 2011 | Exercise of PRRAO options | ii | ) | (1,884,253 | ) | | | |||||||||||
02 Jun 2011 | Exercise of PRRAA options | ii | ) | (1,076,095 | ) | | | |||||||||||
02 Jun 2011 | Exercise of PRRAE options | ii | ) | (1,144,726 | ) | | | |||||||||||
02 Jun 2011 | Exercise of PRRO Options | ii | ) | (368,765 | ) | (0.002 | ) | (738 | ) | |||||||||
10 Jun 2011 | Exercise of PRRO Options | ii | ) | (292,303 | ) | (0.002 | ) | (585 | ) | |||||||||
20 Jun 2011 | Exercise of PRRO Options | ii | ) | (1,700,876 | ) | (0.002 | ) | (3,402 | ) | |||||||||
30 Jun 2011 | Exercise of PRRO Options | ii | ) | (4,221,750 | ) | (0.002 | ) | (8,444 | ) | |||||||||
|
|
|
|
|||||||||||||||
(24,647,634 | ) | 4,220,921 | ||||||||||||||||
|
|
|
|
F-40
PRRO are tradeable listed options.
As at June 30, 2011
Code |
Quantity |
Weighted
Average exercise value |
Excercise
by date |
Exercise value | ||||||||||||
PRRO |
84,491,303 | A$ | 0.0200 | 31-Dec-11 | A$ | 1,689,826 | ||||||||||
PRRAS |
1,884,253 | A$ | 0.2685 | 09-Nov-14 | A$ | 505,922 | ||||||||||
PRRAU |
1,884,253 | A$ | 0.2360 | 08-Dec-14 | A$ | 444,684 | ||||||||||
PRRAY |
1,061,411 | A$ | 0.2271 | 12-Jan-15 | A$ | 241,046 | ||||||||||
PRRAW |
1,118,211 | A$ | 0.2345 | 12-Feb-15 | A$ | 262,220 | ||||||||||
PRRAZ |
1,075,269 | A$ | 0.2277 | 18-Mar-15 | A$ | 244,839 | ||||||||||
PRRAC |
500,000 | A$ | 0.2500 | 06-May-15 | A$ | 125,000 | ||||||||||
PRRAD |
1,055,011 | A$ | 0.2351 | 19-May-15 | A$ | 248,033 | ||||||||||
PRRAL |
32,500,000 | A$ | 0.2000 | 06-Dec-13 | A$ | 6,500,000 | ||||||||||
PRRAL |
2,000,000 | A$ | 0.1000 | 06-Dec-14 | A$ | 200,000 | ||||||||||
PRRAL |
740,741 | A$ | 0.3390 | 01-Feb-16 | A$ | 251,111 | ||||||||||
|
|
|
|
|||||||||||||
As at June 30, 2011 |
128,310,452 | A$ | 10,712,682 | |||||||||||||
|
|
|
|
|||||||||||||
As at June 30, 2011 |
Weighted | A$ | 0.0835 | |||||||||||||
|
|
|||||||||||||||
|
Average exercise
value |
|
F-41
2010 |
Details |
Note | Number |
Issue Price
A$ |
Total
A$ |
|||||||||||||
17 Jul 2009 |
Exercise of PRRO Options | ii | ) | (3,000,000 | ) | (0.002 | ) | (6,000 | ) | |||||||||
21 Jul 2009 |
Commitment Options | iv | ) | 15,000,000 | 0.032 | 474,931 | ||||||||||||
29 Jul 2009 |
Exercise of PRRO Options | ii | ) | (2,233,363 | ) | (0.002 | ) | (4,467 | ) | |||||||||
05 Aug 2009 |
Issue of Shares as per Resolutions 1, 2 & 3 of GM | i | ) | 38,500,000 | 0.070 | 2,695,000 | ||||||||||||
10 Aug 2009 |
Convertible Loan SpringTree Tranche 1 | i | ) | 1,547,988 | 0.050 | 76,713 | ||||||||||||
17 Aug 2009 |
Exercise of PRRO Options | ii | ) | (16,371,430 | ) | (0.002 | ) | (32,743 | ) | |||||||||
02 Sep 2009 |
Exercise of PRRO Options | ii | ) | (3,704,800 | ) | (0.002 | ) | (7,410 | ) | |||||||||
09 Sep 2009 |
Convertible Loan SpringTree Tranche 2 | i | ) | 1,766,784 | 0.074 | 130,993 | ||||||||||||
11 Sep 2009 |
Exercise of PRRO Options | ii | ) | (1,525,000 | ) | (0.002 | ) | (3,050 | ) | |||||||||
16 Sep 2009 |
Exercise of PRRAO Options | ii | ) | (38,500,000 | ) | (0.002 | ) | (115,500 | ) | |||||||||
24 Sep 2009 |
Exercise of PRRO Options | ii | ) | (3,058,933 | ) | (0.002 | ) | (6,118 | ) | |||||||||
09 Oct 2009 |
Exercise of PRRAE Options | ii | ) | (2,000,000 | ) | (0.002 | ) | (10,000 | ) | |||||||||
09 Oct 2009 |
Exercise of PRRO Options | ii | ) | (400,000 | ) | (0.002 | ) | (800 | ) | |||||||||
09 Oct 2009 |
Convertible Loan SpringTree Tranche 3 | i | ) | 1,884,253 | 0.217 | 409,140 | ||||||||||||
13 Oct 2009 |
Exercise of PRRO Options | ii | ) | (2,232,178 | ) | (0.002 | ) | (4,464 | ) | |||||||||
29 Oct 2009 |
Exercise of PRRO Options | ii | ) | (1,900,000 | ) | (0.002 | ) | (3,800 | ) | |||||||||
09 Nov 2009 |
Convertible Loan SpringTree Tranche 4 | i | ) | 1,884,253 | 0.143 | 268,578 | ||||||||||||
13 Nov 2009 |
Exercise of PRRO Options | ii | ) | (2,847,200 | ) | (0.002 | ) | (5,694 | ) | |||||||||
27 Nov 2009 |
Exercise of PRRO Options | ii | ) | (333,500 | ) | (0.002 | ) | (667 | ) | |||||||||
10 Dec 2009 |
Exercise of PRRO Options | ii | ) | (200,000 | ) | (0.002 | ) | (400 | ) | |||||||||
14 Dec 2009 |
Convertible Loan SpringTree Tranche 5 | i | ) | 1,884,253 | 0.112 | 211,734 | ||||||||||||
16 Dec 2009 |
Exercise of PRRO Options | ii | ) | (120,000 | ) | (0.002 | ) | (240 | ) | |||||||||
31 Dec 2009 |
Convertible Loan SpringTree Tranche 6 | i | ) | 1,061,411 | 0.148 | 28,217 | ||||||||||||
05 Jan 2010 |
Exercise of PRRO Options | ii | ) | (2,045,000 | ) | (0.002 | ) | (4,090 | ) | |||||||||
11 Jan 2010 |
Exercise of PRRO Options | ii | ) | (251,333 | ) | (0.002 | ) | (503 | ) | |||||||||
12 Jan 2010 |
Convertible Loan SpringTree Tranche 6 | i | ) | | | 129,349 | ||||||||||||
21 Jan 2010 |
Exercise of PRRO Options | ii | ) | (170,000 | ) | (0.002 | ) | (340 | ) | |||||||||
29 Jan 2010 |
Exercise of PRRO Options | ii | ) | (266,666 | ) | (0.002 | ) | (533 | ) | |||||||||
09 Feb 2010 |
Exercise of PRRO Options | ii | ) | (10,000 | ) | (0.002 | ) | (20 | ) | |||||||||
23 Feb 2010 |
Convertible Loan SpringTree Tranche 7 | i | ) | 1,118,211 | 0.150 | 167,455 | ||||||||||||
05 Mar 2010 |
Exercise of PRRO Options | ii | ) | (1,475,000 | ) | (0.002 | ) | (2,950 | ) | |||||||||
12 Mar 2010 |
Exercise of PRRO Options | ii | ) | (225,000 | ) | (0.002 | ) | (450 | ) | |||||||||
23 Feb 2010 |
Exercise of PRRO Options | ii | ) | (40,000 | ) | (0.002 | ) | (80 | ) | |||||||||
19 Mar 2010 |
Convertible Loan SpringTree Tranche 8 | i | ) | 1,075,269 | 0.178 | 191,665 | ||||||||||||
01 Apr 2010 |
Exercise of PRRO Options | ii | ) | (252,500 | ) | (0.002 | ) | (505 | ) | |||||||||
15 Apr 2010 |
Exercise of PRRO Options | ii | ) | (1,000,000 | ) | (0.002 | ) | (2,000 | ) | |||||||||
20 Apr 2010 |
Convertible Loan SpringTree Tranche 9 | i | ) | 1,076,095 | 0.124 | 133,394 | ||||||||||||
28 Apr 2010 |
Exercise of PRRO Options | ii | ) | (676,567 | ) | (0.002 | ) | (1,353 | ) | |||||||||
06 May 2010 |
ESOP Matt Resolution 4 of April 2010 GM | v | ) | 100,000 | 0.015 | 1,513 | ||||||||||||
06 May 2010 |
April 2010 GM Resol 5 in lieu cash for services | i | ) | 500,000 | 0.083 | 41,495 | ||||||||||||
06 May 2010 |
Issued in lieu of cash payment for services rendered | i | ) | 2,000,000 | 0.083 | 165,980 | ||||||||||||
19 May 2010 |
Convertible Loan SpringTree Tranche 10 | i | ) | 1,055,011 | 0.133 | 140,656 |
F-42
2010 |
Details |
Note | Number |
Issue Price
A$ |
Total
A$ |
|||||||||||||
08 Jun 2010 |
Exercise of PRRO Options | ii | ) | (250,000 | ) | (0.002 | ) | (500 | ) | |||||||||
15 Jun 2010 |
Exercise of PRRO Options | ii | ) | (250,000 | ) | (0.002 | ) | (500 | ) | |||||||||
21 Jun 2010 |
Convertible Loan SpringTree Tranche 11 | i | ) | 1,144,726 | 0.112 | 127,762 | ||||||||||||
30 Jun 2010 |
Expensing of ESOP options issued | v | ) | | | (417 | ) | |||||||||||
|
|
|
|
|||||||||||||||
(13,740,216 | ) | 5,178,981 | ||||||||||||||||
|
|
|
|
F-43
Code |
Quantity |
Weighted
Average exercise value |
Excercise
by date |
Exercise value | ||||||||||||
PRRO |
119,559,832 | A$ | 0.0200 | 31-Dec-11 | A$ | 2,391,197 | ||||||||||
PRRAK |
300,000 | A$ | 0.2000 | 06-Aug-10 | A$ | 60,000 | ||||||||||
PRRAI |
15,000,000 | A$ | 0.0629 | 20-Jul-14 | A$ | 943,500 | ||||||||||
PRRAM |
1,547,988 | A$ | 0.1053 | 10-Aug-14 | A$ | 163,003 | ||||||||||
PRRAQ |
1,766,784 | A$ | 0.1325 | 09-Sep-14 | A$ | 234,099 | ||||||||||
PRRAO |
1,884,253 | A$ | 0.2231 | 10-Oct-14 | A$ | 420,377 | ||||||||||
PRRAS |
1,884,253 | A$ | 0.2685 | 09-Nov-14 | A$ | 505,922 | ||||||||||
PRRAU |
1,884,253 | A$ | 0.2360 | 08-Dec-14 | A$ | 444,684 | ||||||||||
PRRAY |
1,061,411 | A$ | 0.2271 | 12-Jan-15 | A$ | 241,046 | ||||||||||
PRRAW |
1,118,211 | A$ | 0.2345 | 12-Feb-15 | A$ | 262,220 | ||||||||||
PRRAZ |
1,075,269 | A$ | 0.2270 | 18-Mar-15 | A$ | 244,086 | ||||||||||
PRRAA |
1,076,095 | A$ | 0.2196 | 19-Apr-15 | A$ | 236,310 | ||||||||||
PRRAB |
100,000 | A$ | 0.1000 | 01-Feb-11 | A$ | 10,000 | ||||||||||
PRRAC |
2,500,000 | A$ | 0.2500 | 06-May-15 | A$ | 625,000 | ||||||||||
PRRAD |
1,055,011 | A$ | 0.2351 | 19-May-15 | A$ | 248,033 | ||||||||||
PRRAE |
1,144,726 | A$ | 0.2070 | 21-Jun-15 | A$ | 236,958 | ||||||||||
|
|
|
|
|||||||||||||
As at June 30, 2010 |
152,958,086 | A$ | 7,266,436 | |||||||||||||
|
|
|
|
|||||||||||||
As at June 30, 2010 |
Weighted | A$ | 0.0475 | |||||||||||||
|
|
|||||||||||||||
|
Average exercise
value |
|
F-44
2009 |
Details |
Note | Number |
Issue Price
A$ |
Total
A$ |
|||||||||||||
30 Sept 2008 |
Expiry of options ( PRRAA) | iii | ) | (5,000,000 | ) | (0.005 | ) | (22,500 | ) | |||||||||
26 Feb 2009 |
Expiry of options ( PRRAY) | iii | ) | (5,250,000 | ) | (0.029 | ) | (154,007 | ) | |||||||||
26 Feb 2009 |
Expiry of Options (PRRAC) | iii | ) | (1,000,000 | ) | (0.043 | ) | (42,750 | ) | |||||||||
17 April 2009 |
Exercise of Options | ii | ) | (2,000,000 | )) | (0.018 | ) | (36,000 | ) | |||||||||
11 May 2009 |
Exercise of Options | ii | ) | (3,056,500 | ) | (0.002 | ) | (6,113 | ) | |||||||||
22 May 2009 |
Exercise of Options | ii | ) | (1,700,000 | ) | (0.002 | ) | (3,400 | ) | |||||||||
4 June 2009 |
Exercise of Options | ii | ) | (403,500 | ) | (0.002 | ) | (807 | ) | |||||||||
24 June 2009 |
Exercise of Options | ii | ) | (135,000 | ) | (0.002 | ) | (270 | ) | |||||||||
|
|
|
|
|||||||||||||||
(18,545,000 | ) | (265,847 | ) | |||||||||||||||
|
|
|
|
Ordinary shares
Ordinary shares entitle the holder to participate in dividends and the proceeds on the winding up of the company in proportion to the number of and amounts paid on the shares held. The fully paid ordinary shares have no par value.
On a show of hands every member present at a meeting in person or by proxy shall have one vote and upon a poll each share shall have one vote.
A class shares
A class shares entitle the holder to participate in dividends and the proceeds on the winding up of the company in proportion to the number of and amounts paid on the shares held, with priority over ordinary shareholders.
A class shares do not have any voting rights.
Share buy-back
There is no current on-market share buy-back.
Capital risk management
The consolidated entitys objectives when managing capital are to safeguard its ability to continue as a going concern, so that it can provide returns for shareholders and benefits for other stakeholders and to maintain an optimum capital structure to reduce the cost of capital.
In order to maintain or adjust the capital structure, the consolidated entity may adjust the amount of dividends paid to shareholders, return capital to shareholders, issue new shares or sell assets to reduce debt.
The consolidated entity would look to raise capital when an opportunity to invest in a business or company was seen as value adding relative to the current parent entitys share price at the time of the investment. The consolidated entity is not actively pursuing additional investments in the short term as it continues to integrate and grow its existing businesses in order to maximise synergies.
The consolidated entity is subject to certain financing arrangements covenants and meeting these are given priority in all capital risk management decisions. There have been no events of default on the financing arrangements during the financial year.
F-45
NOTE 24. EQUITY RESERVES
Consolidated | ||||||||||||
30 June 2011 | 30 June 2010 | 30 June 2009 | ||||||||||
A$ | A$ | A$ | ||||||||||
Available-for-sale reserve |
| 19,397 | | |||||||||
Foreign currency reserve |
(1,157 | ) | | | ||||||||
|
|
|
|
|
|
|||||||
(1,157 | ) | 19,397 | | |||||||||
|
|
|
|
|
|
NOTE 25. EQUITY NON-CONTROLLING INTEREST
Consolidated | ||||||||||||
30 June 2011 | 30 June 2010 | 30 June 2009 | ||||||||||
A$ | A$ | A$ | ||||||||||
Accumulated losses |
| (254 | ) | (236 | ) | |||||||
|
|
|
|
|
|
NOTE 26. EQUITY DIVIDENDS
There were no dividends paid or declared during the current or previous financial year.
NOTE 27. FINANCIAL INSTRUMENTS
Financial risk management objectives
The consolidated entitys activities expose it to a variety of financial risks: market risk (including foreign currency risk, price risk and interest rate risk), credit risk and liquidity risk. The consolidated entitys overall risk management program focuses on the unpredictability of financial markets and seeks to minimise potential adverse effects on the financial performance of the consolidated entity. The consolidated entity uses derivative financial instruments such as forward foreign exchange contracts to hedge certain risk exposures. Derivatives are exclusively used for hedging purposes, i.e not as trading or other speculative instruments. The consolidated entity uses different methods to measure different types of risk to which it is exposed. These methods include sensitivity analysis in the case of interest rate, foreign exchange and other price risks, ageing analysis for credit risk and beta analysis in respect of investment portfolios to determine market risk.
Risk management is carried out by senior finance executives (finance) under policies approved by the Board of Directors (Board). These policies include identification and analysis of the risk exposure of the consolidated entity and appropriate procedures, controls and risk limits. Finance identifies, evaluates and hedges financial risks within the consolidated entitys operating units. Finance reports to the Board on a monthly basis.
Market risk
Foreign currency risk
The consolidated entity undertakes certain transactions denominated in foreign currency and are exposed to foreign currency risk through foreign exchange rate fluctuations.
Foreign exchange risk arises from future commercial transactions and recognised financial assets and financial liabilities denominated in a currency that is not the entitys functional currency. The risk is measured using sensitivity analysis and cash flow forecasting.
F-46
Steps to reduce risk may include the acquisition of foreign currency ahead of the anticipated due date of an invoice or may include negotiations with suppliers to make payment in our functional currency.
At 30 June 2011, the Consolidated Group had the following exposure to foreign currency risk that is not denominated in Australian dollars. All amounts have been converted to Australian dollars using applicable rates.
As from 1 July 2011, the Consolidated Group has entered into a hedging arrangement that covers 75% of the forecast foreign currency expenditure to 30 June 2012 and 50% of the forecast foreign currency expenditure for the following 12 month period to 30 June 2013.
The carrying amount of the consolidated entitys foreign currency denominated financial assets and financial liabilities at the reporting date was as follows:
Consolidated | Assets | Liabilities | ||||||||||||||
30 June 2011 | 30 June 2010 | 30 June 2011 | 30 June 2010 | |||||||||||||
A$ | A$ | A$ | A$ | |||||||||||||
US Dollars |
| | 1,079,130 | 656,413 | ||||||||||||
Euros |
| | 205,232 | | ||||||||||||
Swiss Francs |
| | | 45,731 | ||||||||||||
Canadian Dollars |
| 574,504 | | | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
| 574,504 | 1,284,362 | 702,144 | |||||||||||||
|
|
|
|
|
|
|
|
The consolidated entity had liabilities denominated in $ US dollars of $ 1,079,130 (2010: $ 656,413). Based on this exposure, had the Australian dollar weakened by 5 % / strengthened by 5 % (2010: weakened by 5 % / strengthened by 5 %) against this foreign currency with all other variables held constant, the consolidated entitys profit before tax for the year would have been $ 53,957 lower/ $ 53,957 higher (2010: $ 32,821 lower / $ 32,821 higher) and equity would have been $ 53,957 lower / $ 53,957 higher (2010: $ 32,821 lower / $ 32,821 higher).
The consolidated entity had assets denominated in Canadian dollars of $ nil (2010: $ 574,504). Based on this exposure, had the Australian dollar weakened by 5 % / strengthened by 5 % (2010: weakened by 5 % / strengthened by 5 %) against this foreign currency with all other variables held constant, the consolidated entitys profit before tax for the year would have been $ nil lower / $ nil higher (2010: $ 28,725 lower / $ 28,725 higher) and equity would have been $ nil lower / $ nil higher (2010: $ 28,725 lower / $ 28,725 higher).
The consolidated entity had liabilities denominated in Swiss francs of $ nil (2010: $ 45,731). Based on this exposure, had the Australian dollar weakened by 5 % / strengthened by 5 % (2010: weakened by 5 % / strengthened by 5 %) against this foreign currency with all other variables held constant, the consolidated entitys profit before tax for the year would have been $ nil lower / $ nil higher (2010: $ 2,287 lower / $ 2,287 higher) and equity would have been $ nil lower / $ nil higher (2010: $ 2,287 lower / $ 2,287 higher).
The consolidated entity had liabilities denominated in Euros of $ 205,232 (2010: $ nil). Based on this exposure, had the Australian dollar weakened by 5 % / strengthened by 5 % (2010: weakened by 5 % / strengthened by 5 %) against this foreign currency with all other variables held constant, the consolidated entitys profit before tax for the year would have been $ 10,261 lower / $10,261 higher (2010: $ nil lower / $ nil higher) and equity would have been $ 10,261 lower / $ 10,261 higher (2010: $ nil lower / $ nil higher).
Price risk
The consolidated entity is not exposed to any significant price risk.
Interest rate risk
The Company is exposed to interest rate risk via the cash and cash equivalents that it holds. Interest rate risk is the risk that a financial instruments value will fluctuate as a result of changes in market interest rates. The objective of managing interest rate risk is to minimize the Companys exposure to fluctuations in interest rates that might impact its interest revenue and cash flow.
F-47
To manage interest rate risk, the Company locks a portion of the Companys cash and cash equivalents into term deposits. The maturity of term deposits is determined based on the Companys cash flow forecast. Interest rate risk is considered when placing funds on term deposits.
The Company considers the reduced interest rate received by retaining cash and cash equivalents in the Companys operating account compared to placing funds into a term deposit. This consideration also takes into account the costs associated with breaking a term deposit should early access to cash and cash equivalents be required.
The Companys exposure to interest rate risk and the weighted average interests on the Companys financial assets and financial liabilities is as follows:
2011 |
Weighted
Average Effective Interest Rate |
Floating
Interest Rate A$ |
Fixed Interest Rate |
Non
Interest Bearing A$ |
Total
A$ |
|||||||||||||||||||||||
Within year
A$ |
1 to 5
years A$ |
Over 5
years A$ |
||||||||||||||||||||||||||
Financial Assets: |
||||||||||||||||||||||||||||
Cash and cash equivalents |
4.94 | % | 43,875,278 | 2,043,274 | | | | 45,918,552 | ||||||||||||||||||||
Trade and other receivables |
| | | | 35,899 | 35,899 | ||||||||||||||||||||||
Other assets |
| | | | 894,005 | 894,005 | ||||||||||||||||||||||
Not less than three months term deposit |
6.49 | % | | 10,000,000 | | | | 10,000,000 | ||||||||||||||||||||
Other financial assets |
| | | | | | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
43,875,278 | 12,043,274 | | | 929,904 | 56,848,456 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Financial Liabilities: |
||||||||||||||||||||||||||||
Trade and other payables |
| | | | 2,471,212 | 2,471,212 | ||||||||||||||||||||||
Convertible loan |
| | | | | | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| | | | 2,471,212 | 2,471,212 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
2010 |
Weighted
Average Effective Interest Rate |
Floating
Interest Rate A$ |
Fixed Interest Rate |
Non
Interest Bearing A$ |
Total
A$ |
|||||||||||||||||||||||
Within year
A$ |
1 to 5
years A$ |
Over 5
years A$ |
||||||||||||||||||||||||||
Financial Assets: |
||||||||||||||||||||||||||||
Cash and cash equivalents |
4.61 | % | 5,597,044 | 41,298 | | | | 5,638,342 | ||||||||||||||||||||
Trade and other receivables |
| | | | 76,894 | 76,894 | ||||||||||||||||||||||
Other assets |
| | | | 1,163,223 | 1,163,223 | ||||||||||||||||||||||
Not less than three months term deposit |
6.80 | % | | 10,000,000 | | | | 10,000,000 | ||||||||||||||||||||
Other financial assets |
| | | | 574,504 | 574,504 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
5,597,044 | 10,041,298 | 1,814,621 | 17,452,963 | |||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Financial Liabilities: |
||||||||||||||||||||||||||||
Trade and other payables |
| | | | 1,499,091 | 1,499,901 | ||||||||||||||||||||||
Convertible loan |
| | | | 686,682 | 686,682 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
| | | | 2,185,773 | 2,185,773 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-48
Interest Rate Risk Sensitivity Analysis
The following sensitivity is based on interest rate risk exposures in existence at balance date:
At 30 June, 2011, if interest rates had moved 100 basis points (1%), as illustrated in the table below, with all other variables held constant, post tax profit or loss would have been affected as follows:
Years Ended June, 30
Increase/(decrease) |
||||||||
2011
A$ |
2010
A$ |
|||||||
+1% (100 basis points) |
438,753 | 55,970 | ||||||
-1% (100 basis points) |
(438,753 | ) | (55,970 | ) |
Credit risk
Credit risk is managed on a consolidated entity basis. Credit risk refers to the risk that a counterparty will default on its contractual obligations resulting in financial loss to the consolidated entity. The consolidated entity has a strict code of credit, including obtaining agency credit information, confirming references and setting appropriate credit limits. The consolidated entity obtains guarantees where appropriate to mitigate credit risk. The maximum exposure to credit risk at the reporting date to recognised financial assets is the carrying amount, net of any provisions for impairment of those assets, as disclosed in the statement of financial position and notes to the financial statements. The consolidated entity does not hold any collateral.
Historically the Consolidated Group has had minimal trade and other receivables, with the majority of its funding being provided via shareholder investment. Traditionally the Companys trade and other receivables relate to recovery of expenses from third parties and GST refunds due to the Group from the Australian Tax Office. The Board believe that the Consolidated Group does not have significant credit risk at this time in respect of its trade and other receivables.
Liquidity risk
Vigilant liquidity risk management requires the consolidated entity to maintain sufficient liquid assets (mainly cash and cash equivalents) and available borrowing facilities to be able to pay debts as and when they become due and payable.
The consolidated entity manages liquidity risk by maintaining adequate cash reserves and available borrowing facilities by continuously monitoring actual and forecast cash flows and matching the maturity profiles of financial assets and liabilities.
At 30 June 2011, the consolidated entity had current assets of $ 57,062,802 and current liabilities of $ 2,537,091. Based on this the directors are confident that the consolidated entity will be able to pay its debts as and when they fall due.
Remaining contractual maturities
The following tables detail the consolidated entitys remaining contractual maturity for its financial instrument liabilities. The tables have been drawn up based on the undiscounted cash flows of financial liabilities based on the earliest date on which the financial liabilities are required to be paid. The tables include both interest and principal cash flows disclosed as remaining contractual maturities and therefore these totals may differ from their carrying amount in the statement of financial position.
F-49
Weighted
average years interest rate |
1 year or
less |
Between
1 and 2 years |
Between
2 and 5 years |
Over 5
years |
Remaining
contractual maturities |
|||||||||||||||||||
Consolidated 30 June 2011 | % | A$ | A$ | A$ | A$ | A$ | ||||||||||||||||||
Non-derivatives |
||||||||||||||||||||||||
Non-interest bearing |
||||||||||||||||||||||||
Trade payables |
| 2,471,212 | | | | 2,471,212 | ||||||||||||||||||
Employee benefits |
| 65,879 | | | 4,440 | 70,319 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total non-derivatives |
| 2,537,091 | | 4,440 | 2,541,531 | 2,541,531 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
average interest rate |
1 year or
less |
Between
1 and 2 years |
Between
2 and 5 years |
Over 5
years |
Remaining
contractual maturities |
|||||||||||||||||||
Consolidated 30 June 2010 | % | A$ | A$ | A$ | A$ | A$ | ||||||||||||||||||
Non-derivatives |
||||||||||||||||||||||||
Non-interest bearing |
||||||||||||||||||||||||
Trade payables |
| 1,499,091 | | | | 1,499,091 | ||||||||||||||||||
Employee benefits |
| 23,692 | | | 887 | 24,579 | ||||||||||||||||||
Convertible loan |
| 603,062 | | | | 603,062 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total non-derivatives |
| 2,125,845 | | | 887 | 2,126,732 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Derivatives |
||||||||||||||||||||||||
Derivative financial instruments |
| 83,620 | | | | 83,620 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total derivatives |
| 83,620 | | | | 83,620 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
The cash flows in the maturity analysis above are not expected to occur significantly earlier than disclosed.
Fair value of financial instruments
Unless otherwise stated, the carrying amounts of financial instruments reflect their fair value. The carrying amounts of trade receivables and trade payables are assumed to approximate their fair values due to their short-term nature. The fair value of financial liabilities is estimated by discounting the remaining contractual maturities at the current market interest rate that is available for similar financial instruments.
Financial Instruments Measured at Fair Value
The financial instruments recognised at fair value in the statement of financial position have been analysed and classified using a fair value hierarchy reflecting the significance of the inputs used in making the measurements. The fair value hierarchy consists of the following levels:
| quoted prices in active markets for identical assets or liabilities (Level 1); |
| inputs other than quoted prices included within Level 1 that are observable for the asset or liability, either directly (as prices) or indirectly (derived from prices) (Level 2); and |
| inputs for the asset or liability that are not based on observable market data (unobservable inputs) (Level 3). |
F-50
Consolidated Group | ||||||||||||||||
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
2011 | A$ | A$ | A$ | A$ | ||||||||||||
Financial assets |
||||||||||||||||
Available-for-sale financial assets: |
||||||||||||||||
- Unlisted investments |
| | | | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Financial liabilities |
||||||||||||||||
Derivative financial instruments |
| | | | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
| | | | |||||||||||||
|
|
|
|
|
|
|
|
Level 1 | Level 2 | Level 3 | Total | |||||||||||||
2010 | A$ | A$ | A$ | A$ | ||||||||||||
Financial assets |
||||||||||||||||
Available-for-sale financial assets: |
||||||||||||||||
- Unlisted investments |
| 574,504 | | 574,504 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
| 574,504 | | 574,504 | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Financial liabilities |
||||||||||||||||
Derivative financial instruments |
| 83,620 | | 83,620 | ||||||||||||
| 83,620 | | 83,620 |
In valuing unlisted investments, included in Level 2 of the hierarchy, valuation techniques such as those using comparisons to similar investments for which market observable prices are available have been adopted to determine the fair values of these investments.
Derivative financial instruments are included in Level 2 of the hierarchy with the fair values being determined using valuation techniques incorporating observable market data.
NOTE 28. KEY MANAGEMENT PERSONNEL DISCLOSURES
Compensation
The aggregate compensation made to directors and other members of key management personnel of the consolidated entity is set out below:
Consolidated | ||||||||||||
30 June 2011 | 30 June 2010 | 30 June 2009 | ||||||||||
A$ | A$ | A$ | ||||||||||
Short-term employee benefits |
1,501,781 | 1,167,313 | 480,869 | |||||||||
Post-employment benefits |
42,602 | 680 | | |||||||||
Share-based payments |
1,307,814 | 2,738,513 | 104,000 | |||||||||
|
|
|
|
|
|
|||||||
2,852,197 | 3,906,506 | 584,869 | ||||||||||
|
|
|
|
|
|
F-51
Shareholding
The number of shares in the parent entity held during the financial year by each director and other members of key management personnel of the consolidated entity, including their personally related parties, is set out below:
30 June 2011 |
Balance at
start of the year |
Received as
part of remuneration |
Additions |
Disposals/
other |
Balance at end
of the year |
|||||||||||||||
Ordinary shares |
||||||||||||||||||||
Ms Lucy Turnbull, AO |
4,347,076 | | | | 4,347,076 | |||||||||||||||
Mr Ata Gokyildirim |
13,734,000 | | | | 13,734,000 | |||||||||||||||
Mr Albert Wong |
1,600,000 | 1,250,000 | 400,000 | | 3,250,000 | |||||||||||||||
Mr Martin Rogers |
20,821,500 | | | | 20,821,500 | |||||||||||||||
Dr Richard Hammel |
5,000,000 | | | | 5,000,000 | |||||||||||||||
Mr Phillip Hains |
3,061,429 | | 40,000 | (600,000 | ) | 2,501,429 | ||||||||||||||
Mr Matt Lehman |
| | 100,000 | | 100,000 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
48,564,005 | 1,250,000 | 540,000 | (600,000 | ) | 49,754,005 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
30 June 2010 |
Balance at
start of the year |
Received as
part of remuneration |
Additions |
Disposals/
other |
Balance at end
of the year |
|||||||||||||||
Ordinary shares |
||||||||||||||||||||
Mr Ata Gokyildirim |
234,000 | | 13,500,000 | | 13,734,000 | |||||||||||||||
Mr Albert Wong |
| | | 1,600,000 | 1,600,000 | |||||||||||||||
Dr Richard Hammel |
| | 5,000,000 | | 5,000,000 | |||||||||||||||
Mr Martin Rogers |
497,500 | | 20,000,000 | 324,000 | 20,821,500 | |||||||||||||||
Mr Phillip Hains |
2,000,000 | 990,000 | | 71,429 | 3,061,429 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
2,731,500 | 990,000 | 38,500,000 | 1,995,429 | 44,216,929 | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
30 June 2009 |
Balance at
start of the year |
Received as
part of remuneration |
Additions |
Disposals/
other |
Balance at end
of the year |
|||||||||||||||
Ordinary shares |
||||||||||||||||||||
Mr Ata Gokyildirim |
| | | 234,000 | 234,000 | |||||||||||||||
Mr Martin Rogers |
| | | 497,500 | 497,500 | |||||||||||||||
Mr Phillip Hains |
3,333,333 | 5,473,684 | | (6,807,017 | ) | 2,000,000 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
3,333,333 | 5,473,684 | | (6,075,517 | ) | 2,731,500 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
F-52
Option holding
The number of options over ordinary shares in the parent entity held during the financial year by each director and other members of key management personnel of the consolidated entity, including their personally related parties, is set out below:
30 June 2011 |
Balance at
start of the year |
Granted | Exercised |
Expired/forfeited/
other |
Balance at
end of the year |
|||||||||||||||
Options over ordinary shares |
||||||||||||||||||||
Ms Lucy Turnbull, AO |
| 10,000,000 | | | 10,000,000 | |||||||||||||||
Mr Ata Gokyildirim |
9,964,285 | | | | 9,964,285 | |||||||||||||||
Mr Albert Wong |
400,000 | 7,500,000 | (400,000 | ) | | 7,500,000 | ||||||||||||||
Dr Richard Hammel |
7,619,047 | 5,000,000 | | | 12,619,047 | |||||||||||||||
Mr Martin Rogers |
12,345,238 | 10,000,000 | | | 22,345,238 | |||||||||||||||
Mr Matt Lehman |
100,000 | | (100,000 | ) | | | ||||||||||||||
Dr Neil Frazer |
| 2,000,000 | | | 2,000,000 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
30,428,570 | 34,500,000 | (500,000 | ) | | 64,428,570 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
30 June 2010 |
Balance at
start of the year |
Granted | Exercised |
Expired/forfeited/
other |
Balance at
end of the year |
|||||||||||||||
Options over ordinary shares |
||||||||||||||||||||
Mr Ata Gokyildirim |
18,000,000 | 13,500,000 | (13,500,000 | ) | (8,035,715 | ) | 9,964,285 | |||||||||||||
Mr Albert Wong |
| | | 400,000 | 400,000 | |||||||||||||||
Dr Richard Hammel |
10,000,000 | 5,000,000 | (5,000,000 | ) | (2,380,953 | ) | 7,619,047 | |||||||||||||
Mr Martin Rogers |
18,000,000 | 20,000,000 | (20,000,000 | ) | (5,654,762 | ) | 12,345,238 | |||||||||||||
Mr Matt Lehman |
| 100,000 | | | 100,000 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
46,000,000 | 38,600,000 | (38,500,000 | ) | (15,671,430 | ) | 30,428,570 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
30 June 2009 |
Balance at
start of the year |
Granted | Exercised |
Expired/forfeited/
other |
Balance at
end of the year |
|||||||||||||||
Options over ordinary shares |
||||||||||||||||||||
Mr Ata Gokyildirim |
18,000,000 | | | | 18,000,000 | |||||||||||||||
Dr Richard Hammel |
10,500,000 | | | (500,000 | ) | 10,000,000 | ||||||||||||||
Mr Martin Rogers |
18,000,000 | | | | 18,000,000 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
46,500,000 | | | (500,000 | ) | 46,000,000 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
Related party transactions
Related party transactions are set out in note 32.
F-53
NOTE 29. REMUNERATION OF AUDITORS
During the financial year the following fees were paid or payable for services provided by MDHC Audit Assurance Pty Ltd, the auditor of the company, and its related practices:
Consolidated | ||||||||||||
30 June
2011
A$ |
30 June
2010
A$ |
30 June
2009
A$ |
||||||||||
Audit services MDHC Audit Assurance Pty Ltd |
||||||||||||
Audit or review of the financial report |
45,000 | 42,500 | 40,000 | |||||||||
Other services MDHC Audit Assurance Pty Ltd |
||||||||||||
Preparation of the tax return and assistance with NASDAQ listing |
148,346 | 24,147 | 10,612 | |||||||||
|
|
|
|
|
|
|||||||
193,346 | 66,647 | 50,612 | ||||||||||
|
|
|
|
|
|
The Board of Directors, in accordance with advice from the Audit, Risk & Compliance committee, is satisfied that the provision of non-audit services during the year is compatible with the general standard of independence for Auditors imposed by the Corporations Act 2001. The Directors are satisfied that the provision of non-audit services by the Auditor, as set out below, did not compromise the external Auditors independence requirements of the Corporations Act 2001 for the following reasons:
| all non-audit services are reviewed by the Audit, Risk & Compliance committee to ensure they do not impact the impartiality and objectivity of the Auditor; and |
| none of the services undermine the general principles relating to Auditor independence as set out in APES 10 Code of Ethics for Professional Accountants. |
NOTE 30. CONTINGENT LIABILITIES
There were no material contingent liabilities in existence at 30 June 2011 and 30 June 2010.
NOTE 31. COMMITMENTS FOR EXPENDITURE
There were no material capital or leasing commitments at 30 June 2011 and 30 June 2010.
NOTE 32. RELATED PARTY TRANSACTIONS
Parent entity
Prima BioMed Ltd is the parent entity.
Subsidiaries
Interests in subsidiaries are set out in note 34.
Key management personnel
Disclosures relating to key management personnel are set out in note 28.
Transactions with related parties
There were no transactions with related parties during the financial year.
Receivable from and payable to related parties
F-54
There were no trade receivables from or trade payables to related parties at the reporting date.
Loans to/from related parties
There were no loans to or from related parties at the reporting date.
NOTE 33. PARENT ENTITY INFORMATION
Set out below is the supplementary information about the parent entity.
Statement of comprehensive income
Parent | ||||||||||||
30 June 2011 | 30 June 2010 | 30 June 2009 | ||||||||||
A$ | A$ | A$ | ||||||||||
Loss after income tax |
(20,200,362 | ) | (10,875,565 | ) | (1,718,760 | ) | ||||||
Total comprehensive income |
(20,200,362 | ) | (10,875,565 | ) | (1,718,760 | ) |
Statement of financial position
Parent | ||||||||
30 June 2011 | 30 June 2010 | |||||||
A$ | A$ | |||||||
Total current assets |
56,651,114 | 16,459,344 | ||||||
|
|
|
|
|||||
Total assets |
69,035,131 | 29,357,766 | ||||||
|
|
|
|
|||||
Total current liabilities |
1,960,450 | 2,200,897 | ||||||
|
|
|
|
|||||
Total liabilities |
1,964,890 | 2,201,784 | ||||||
|
|
|
|
|||||
Equity |
||||||||
Contributed equity |
134,895,021 | 74,534,413 | ||||||
Reserves |
| 19,397 | ||||||
Accumulated losses |
(67,824,780 | ) | (47,397,828 | ) | ||||
|
|
|
|
|||||
Total equity |
67,070,241 | 27,155,982 | ||||||
|
|
|
|
Contingent liabilities
The parent entity had no contingent liabilities as at 30 June 2011 and 30 June 2010.
In the current or previous financial year, the debts of its controlled entities were inter-company loans from Parent Entity only. Prima BioMed Ltd has not entered into any guarantees, in relation to the debts of its subsidiaries.
Capital commitments Property, plant and equipment
The parent entity had no capital commitments for property, plant and equipment at as 30 June 2011 and 30 June 2010.
F-55
Significant accounting policies
The accounting policies of the parent entity are consistent with those of the consolidated entity, as disclosed in note 1, except for the following:
Investments in subsidiaries are accounted for at cost, less any impairment.
NOTE 34. SUBSIDIARIES
The consolidated financial statements incorporate the assets, liabilities and results of the following subsidiaries in accordance with the accounting policy described in note 1:
Country of
|
Equity holding | |||||||||||||
30 June 2011 | 30 June 2010 | 30 June 2009 | ||||||||||||
Name of entity |
% | % | % | |||||||||||
Arthron Pty Ltd |
Australia | 100.00 | 99.99 | 99.99 | ||||||||||
Cancer Vac Pty Ltd |
Australia | 100.00 | 100.00 | 100.00 | ||||||||||
Oncomab Pty Ltd |
Australia | 100.00 | 100.00 | 100.00 | ||||||||||
Panvax Pty Ltd |
Australia | 100.00 | 100.00 | 100.00 | ||||||||||
Prima BioMed USA Inc |
United States of America | 100.00 | 100.00 | | ||||||||||
Prima BioMed Europe Ltd |
United Kingdom | 100.00 | 100.00 | | ||||||||||
PRR Middle East FZ LLC |
United Arab Emirates | 100.00 | | | ||||||||||
Prima BioMed GmbH |
Germany | 100.00 | | |
Acquisition of subsidiaries
In October 2009, Prima BioMed Europe Limited, a 100 % owned subsidiary of Prima BioMed Ltd was incorporated in the United Kingdom. The initial issued capital was 1 share of 1 British pound, which remains unchanged. This subsidiary is inactive.
In April 2010, Prima BioMed USA Inc, a 100 % owned subsidiary of Prima BioMed Ltd, was incorporated in the United States. The initial issued capital was 1,500 shares of no par value, which remains unchanged.
In May 2011, Prima BioMed GmbH, a 100 % owned subsidiary of Prima BioMed Ltd, was incorporated inGermany. The initial issued capital was 25,000 shares of 1 Euro per share, which remains unchanged.
Also in May 2011, Prima BioMed Middle East FZLLC, a 100 % owned subsidiary of Prima BioMed Ltd, was incorporated in the United Arab Emirates. The initial issued capital was 300 shares of 1,000 Dirhams per share, which remains unchanged.
The Middle East and German subsidiaries were established to allow Prima to conduct commercial and clinical operations in Europe, the United States, and the UAE.
F-56
NOTE 35. EVENTS OCCURRING AFTER THE REPORTING DATE
Date |
Detail |
|
01/07/2011 |
Change of registered address to Level 7, 151 Macquarie Street, Sydney, NSW 2000 Mr. Phillip Hains resigns as a joint Company Secretary of the Company |
|
14/07/2011 | Appendix 3B 1,368,185 PRR shares issued following exercise of PRRO options | |
15/07/2011 | Appendix 3B 19,964,285 PRR shares issued following exercise of PRRO options | |
19/07/2011 |
Appendix 3Y Change of Directors interest notice for Mr. Martin Rogers
Appendix 3Y Change of Directors interest notice for Dr. Richard Hammel
Appendix 3B 113,000 PRR shares issued following exercise of PRRO options |
|
28/07/2011 | Appendix 3B 654,123 PRR shares issued following exercise of PRRO options | |
05/08/2011 | The Company receives AUD $ 5.35 million grant to support CVac clinical program | |
08/08/2011 |
Appendix 3B 155,500 PRR shares issued following exercise of PRRO options
Appendix 3Y Change of Directors interest notice for Mr. Albert Wong
Appendix 3Y Change of Directors interest notice for Ms Lucy Turnbull, AO
Appendix 3Y Change of Directors interest notice for Dr. Neil Frazer
Appendix 3Y Change of Directors interest notice for Dr. Richard Hammel \
Appendix 3Y Change of Directors interest notice for Mr. Martin Rogers |
|
22/08/2011 | Appendix 3B 3,792,217 PRR shares issued following exercise of PRRO options | |
31/08/2011 |
Appendix 4E Preliminary Final Report Diversity Policy issued
Appendix 3B 250,000 PRR shares issued following exercise of PRRO options 2,000,000 Unlisted Options (PRRAL) issued exercisable at $ 0.10 per option on or before 6 December 2014 |
|
02/09/2011 | Prima BioMed Ltd included in S&P Australian 300 Index | |
05/09/2011 | Appendix 3B 30,000 PRR shares issued following exercise of PRRO options | |
12/09/2011 | Prima completes patient enrolment for CVacTM Phase IIB trial complete | |
13/09/2011 | Appendix 3B 1,253,266 PRR shares issued following exercise of PRRO options |
No other matter or circumstance has arisen since 30 June 2011 that has significantly affected, or may significantly affect the consolidated entitys operations, the results of those operations or the consolidated entitys state of affairs in future financial years.
F-57
NOTE 36. RECONCILIATION OF LOSS AFTER INCOME TAX TO NET CASH USED IN OPERATING ACTIVITIES
Consolidated | ||||||||||||
30 June 2011 | 30 June 2010 | 30 June 2009 | ||||||||||
A$ | A$ | A$ | ||||||||||
Loss after income tax expense for the year |
(21,081,167 | ) | (17,960,587 | ) | (2,946,442 | ) | ||||||
Adjustments for: |
||||||||||||
Depreciation and amortisation |
64,220 | 53,039 | 49,418 | |||||||||
Net fair value loss on available-for-sale financial assets |
555,107 | | 471,464 | |||||||||
Add back doubtful debts |
| 10,832 | | |||||||||
Add back share based payments |
10,581,933 | 3,256,988 | 224,000 | |||||||||
Add back finance costs on convertible loans |
| 6,946,628 | | |||||||||
Add back loss on disposal of assets |
| 4,232 | 4,677 | |||||||||
Unrealised loss on financial liability at fair value through the profit and loss |
| 528,846 | 115,385 | |||||||||
Change in operating assets and liabilities |
||||||||||||
Decrease/(increase) in trade and other receivables |
40,995 | 279,578 | (9,531 | ) | ||||||||
Increase in inventories |
(214,346 | ) | | | ||||||||
Increase in other operating assets |
(30,071 | ) | (786,542 | ) | (41,337 | ) | ||||||
Increase in trade and other payables |
972,121 | 1,182,377 | 248,896 | |||||||||
Increase in employee benefits |
42,187 | 887 | | |||||||||
Increase/(decrease) in other operating liabilities |
(686,682 | ) | 22,042 | | ||||||||
|
|
|
|
|
|
|||||||
Net cash used in operating activities |
(9,755,703 | ) | (6,461,680 | ) | (1,883,470 | ) | ||||||
|
|
|
|
|
|
F-58
NOTE 37. EARNINGS PER SHARE
Consolidated | ||||||||||||
30 June 2011 | 30 June 2010 | 30 June 2009 | ||||||||||
A$ | A$ | A$ | ||||||||||
Loss after income tax |
(21,081,167 | ) | (17,960,587 | ) | (2,946,442 | ) | ||||||
Non-controlling interest |
72 | 267 | 86 | |||||||||
|
|
|
|
|
|
|||||||
Loss after income tax attributable to the owners of Prima BioMed Ltd |
(21,081,095 | ) | (17,960,320 | ) | (2,946,356 | ) | ||||||
|
|
|
|
|
|
|||||||
Number | Number | Number | ||||||||||
Weighted average number of ordinary shares used in calculating basic earnings per share |
563,696,560 | 499,567,326 | 326,869,863 | |||||||||
|
|
|
|
|
|
|||||||
Weighted average number of ordinary shares used in calculating diluted earnings per share |
563,696,560 | 499,567,326 | 326,869,863 | |||||||||
|
|
|
|
|
|
|||||||
Cents | Cents | Cents | ||||||||||
Basic earnings per share |
(3.740 | ) | (3.600 | ) | (0.90 | ) | ||||||
Diluted earnings per share |
(3.740 | ) | (3.600 | ) | (0.90 | ) |
F-59
ITEM 19. | EXHIBITS |
The following exhibits are filed as part of this registration statement:
Exhibit |
Description |
|
1.1 | Constitution of Registrant | |
2.1^ | Deposit Agreement between Prima BioMed, The Bank of New York Mellon, as Depositary, and owners and holders from time to time of ADSs issued thereunder, including the Form of American Depositary Shares | |
4.1 | Convertible Loan Agreement between Prima BioMed and SpringTree Global Opportunities Fund, LP, dated July 20, 2009 | |
4.2 | Amendment Deed between Prima BioMed and SpringTree Special Global Opportunities Fund, LP, dated January 10, 2011 | |
4.3 | Standby Subscription Agreement between Prima BioMed and Fortrend Securities Pty Ltd, dated March 10, 2009 | |
4.4* | Technology License Deed, among Prima BioMed, Oncomab Pty Ltd, Austin Research Institute and Ilexus Pty Ltd, dated November 20, 2002, as amended by Deed of Variation, dated August 24, 2005 | |
4.5* | Technology License Agreement, among Prima BioMed, Cancer Vac Pty Ltd, Austin Research Institute and Ilexus Pty Ltd, dated May 31, 2001, as amended by Deed of Variation, dated August 24, 2005 | |
4.6* | Research and Development Partnership Agreement between Prima BioMed and Bioceros B.V., dated August 9, 2010 | |
4.7* | License and Development Agreement among Prima BioMed, Cancer Vac Pty Ltd and Biomira, Inc., dated March 9, 2004, as amended by Deed of Variation of License and Development Agreement, dated February 2007 | |
4.8* | Collaborative Research Agreement between Prima BioMed and NewSouth Innovations Pty Limited, dated December 17, 2009 | |
4.9* | Manufacturing Agreement between Cancer Vac Pty Ltd and Cell Therapies Pty Ltd, dated October 14, 2009 | |
4.10* | Agreement on the Tasks and the Division of Responsibilities in Contract Manufacturing of Investigational Medicinal Products between Prima BioMed and Fraunhofer-Gesellschaft zur Förderung der angewandten Forschung e. V., as legal entity for the Fraunhofer Institute for Cell Therapy and Immunology, dated March 18, 2010 | |
4.11* | Services Agreement between Prima BioMed and Progenitor Cell Therapy LLC, dated May 13, 2009, as amended November 10, 2009 and March 18, 2010 | |
4.12+ | Prima BioMed Employee Share Option Plan | |
4.13+ | Employment Agreement between Prima BioMed and Martin Rogers, effective January 1, 2011 | |
4.14+ | Employment Agreement between Prima BioMed and Neil Frazer, effective March 1, 2010 |
144
Exhibit |
Description |
|
4.15+ | Employment Agreement between Prima BioMed and Matthew Bryson Lehman, effective February 1, 2010 | |
4.16+ | Consulting Agreement between Prima BioMed and Sharron Gargosky, dated July 20, 2010 | |
4.17+ | Service Agreement between Prima BioMed and The CFO Solution HQ Pty Ltd, dated March 1, 2010 | |
4.18+ | Employment Agreement between Prima BioMed and Ian Bangs, effective February 11, 2011 | |
15.1 | Consent of Independent Registered Public Accounting Firm |
^ | To be filed by amendment. |
* | Confidential treatment has been requested with respect to certain portions of this exhibit. Omitted portions have been submitted separately with the U.S. Securities and Exchange Commission. |
+ | Indicates management contract or compensatory plan. |
145
SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this registration statement on its behalf.
P RIMA B IO M ED L TD | ||
/s/ Martin Rogers | ||
By: Martin Rogers Title: Chief Executive Officer |
||
Date: February 13, 2012
Exhibit 1.1
Constitution | ||
Prima Biomed Ltd | ||
ACN 009 237 889
|
Table of Contents |
||||||
1. | Definition and Interpretation | 4 | ||||
2. | Exercise of powers | 6 | ||||
3. | Share capital | 7 | ||||
4. | Brokerage and commission | 9 | ||||
5. | Ownership of Securities | 9 | ||||
6. | Variation of class rights | 9 | ||||
7. | Certificates | 10 | ||||
8. | Calls on shares | 11 | ||||
9. | Forfeiture of Securities | 12 | ||||
10. | Lien | 13 | ||||
11. | Sale of Unmarketable Parcels of Shares | 14 | ||||
12. | Transfer of Securities | 16 | ||||
13. | Transmission of Securities | 20 | ||||
14. | Conversion and reduction of capital | 21 | ||||
15. | General meetings | 21 | ||||
16. | Proceedings at general meeting | 23 | ||||
17. | Votes of members | 25 | ||||
18. | Proxies | 26 | ||||
19. | Body corporate representatives | 27 | ||||
20. | Meetings of classes of shareholders | 27 | ||||
21. | Directors | 28 | ||||
22. | Disqualification of directors | 29 | ||||
23. | Rotation of directors | 31 | ||||
24. | Tenure and removal of directors | 31 | ||||
25. | Managing director | 32 | ||||
26. | Alternate directors | 33 | ||||
27. | Powers and duties of directors | 33 | ||||
28. | Proceedings of directors | 33 | ||||
29. | Secretary | 36 | ||||
30. | Minutes | 36 | ||||
31. | Seal and execution of documents | 36 | ||||
32. | Dividends | 37 | ||||
33. | Reserves and provisions | 39 | ||||
34. | Accounts | 41 | ||||
35. | Notices | 41 |
2
36. | Winding up | 43 | ||||
37. | Indemnity and insurance | 44 | ||||
38. | Deadlock | 44 | ||||
39. | ASX | 44 |
3
Constitution of Prima Biomed Ltd ACN 009 237 889
1. |
Definition and Interpretation |
1.1 |
Definitions |
In this constitution, unless the contrary intention appears, the following words have the following meanings:
Term: |
Definition: |
|
Approved CS facility |
has the same meaning given to that term in the Listing Rules. |
|
ASTC |
ASX Settlement and Transfer Corporation Pty Limited ACN 008 504 532. |
|
ASTC Settlement Rules |
the operating rules of the settlement facility provided by ASTC. |
|
ASX |
ASX Limited ACN 008 624 691 and includes, any body corporate succeeding to all or most of the powers, functions and duties of ASX Limited. |
|
Board |
the board of Directors of the Company from time to time or any committee of the Directors. |
|
Business Day |
has the same meaning given to that term in the Listing Rules. |
|
Certificated Securities |
Securities of the Company which are evidenced by certificates which have been issued and not subsequently cancelled. |
|
CHESS |
has the meaning given to that term in the ASTC Settlement Rules. |
|
CHESS approved |
Securities of the Company for which CHESS approval has been given in accordance with the ASTC Settlement Rules. |
|
CHESS Holding |
has the same meaning as given in the ASTC Settlement Rules. |
|
Company |
Prima Biomed Ltd ACN 009 237 889. |
|
Corporations Act |
Corporations Act 2001 (Cth). |
|
CS facility |
has the meaning given to that term in the Corporations Act. |
|
Directors |
the directors of the Company, or such number of them as have authority to act for the Company and includes, a person duly appointed and for the time being acting as an attorney for a director of the Company or as an alternate director of the Company. |
|
Divestment Notice |
has the meaning given to that term in clause 11.1(b)(i). |
|
Divested Securities |
the Securities held by a shareholder which are sold or disposed of by the Company in accordance with clause 11. |
4
Dividend |
includes a bonus payment or other distribution of funds. | |
Holding Lock |
has the meaning given to that term in the Listing Rules. | |
Issued Sponsored Holding |
has the same meaning as given in the ASTC Settlement Rules. | |
Listing Rules |
the Listing Rules of ASX and any other rules of ASX which are applicable while the Company is admitted to the Official List, except to the extent of any express written waiver by ASX. |
|
Marketable Parcel |
has the meaning given to that term in the Listing Rules. | |
Managing Director |
a Director appointed to that office pursuant to clause 25. | |
Member |
any person who qualifies as a member of the Company and includes, any person who is the holder of a share in the capital of the Company. |
|
Non-marketable Parcel |
a parcel of shares in the Company that is less than a Marketable Parcel. | |
Official List |
has the meaning given to that term in the Listing Rules. | |
Ordinary Share |
an ordinary share in the capital of the Company issued in accordance with the provisions of clause 3. |
|
Plan |
has the meaning given to that term in clause 32.11. |
|
Preference Share |
a preference share in the capital of the Company issued in accordance with the provisions of clause 3. |
|
Present |
when used of a Member in relation to a meeting, means present in person, or by proxy, or by attorney, or if a corporation, by a representative appointed pursuant to this constitution or the Corporations Act. |
|
Register |
the register of Members required to be maintained pursuant to the Corporations Act and includes any other subregister required to be maintained under the Listing Rules or any Relevant Operating Rules applicable to the Company. |
|
Relevant Operating Rules |
the ASTC Settlement Rules or the operating rules of any CS facility regulating the settlement, clearing and registration of Uncertificated Securities and under which any of the Securities of the Company are approved. |
|
Restricted Securities |
has the meaning given to that term in the Listing Rules. |
|
Secretary |
any person appointed by the Board from time to time in accordance with the provisions of clause 29. |
|
Securities |
has the same meaning given to that term by section 92 of the Corporations Act and includes, but is not limited to, Ordinary Shares, Preference Shares and Voting Shares. |
5
Specified Period |
has the meaning given to that term in clause 11.1(b)(i). | |
Takeover |
has the meaning given to that term in the Listing Rules. | |
Uncertificated Securities |
Securities of the Company for which no certificates are issued (or in respect of which any certificate previously issued has been cancelled) and for which certificates are not required by the Corporations Act, the Listing Rules and any Relevant Operating Rules to be issued. | |
Voting Share |
an issued share in the capital of the Company which, by the terms of its issue in accordance with clause 3, confers a right to vote at general meetings of Members or on resolutions to be passed without meetings. |
1.2 |
Interpretation |
(a) |
In this constitution: |
(i) |
references to clauses are references to clauses of this constitution; |
(ii) |
references to an officer of the Company include any person acting for the time being as an officer; |
(iii) |
words importing the singular include the plural and vice versa; |
(iv) |
words importing the masculine gender include the feminine gender and vice versa; |
(v) |
words importing persons include partnerships, associations and corporations and vice versa; |
(vi) |
words, terms or expressions defined in the Corporations Act, the Listing Rules or any Relevant Operating Rules but not defined in this constitution bear, if not inconsistent with the subject or context, the same meaning when used in this constitution; and |
(vii) |
references to the Corporations Act, the Listing Rules or any Relevant Operating Rules include any amendment, variation or replacement and any reference to any provision of the Corporations Act, the Listing Rules or any Relevant Operating Rules is a reference to that provision as amended, varied or replaced or waived (as the case may be and whether in respect of the Company or generally) and in the case of the Corporations Act includes, any regulations proclaimed under the Corporations Act. |
(viii) |
headings are for ease of reference and do not affect interpretation. |
(b) |
The replaceable rules contained in the Corporations Act do not apply to the Company. |
2. |
Exercise of powers |
The Company may, by resolution or special resolution as the Corporations Act requires, exercise from time to time any power which a company limited by shares may exercise if authorised by the Corporations Act or its constitution.
6
3. |
Share capital |
3.1 |
Classification of shares |
(a) |
Subject to the Listing Rules, all shares in the capital of the Company are called Ordinary Shares and are deemed to be of one class with the exception of any shares which, by the terms of issue, are classified as Ordinary Shares of any type or class or as Preference Shares of any type or class. |
(b) |
Ordinary Shares are referred to in this constitution as Voting Shares unless, by the terms of issue, they are declared to be non voting shares. |
3.2 |
Power to issue shares |
Subject to this constitution, the Listing Rules and to the provisions of the Corporations Act with respect to the consent of the Members affected and subject and without prejudice to any special rights attached to any Securities for the time being issued, all Securities are under the absolute control of the Directors who may, from time to time:
(a) |
issue any Securities; |
(b) |
create any class or new class of Securities, including Ordinary Shares or Preference Shares (including a class of Preference Shares which are, or at the option of the Company, are to be redeemed, the terms and manner of redemption being (subject to the Corporations Act) determined by the Directors upon the issue of the Preference Shares); |
(c) |
reclassify or convert any Securities; |
(d) |
issue or grant options in respect of, or otherwise dispose of, any Securities to such persons, on such terms and conditions and at such times and subject or not to the payment of any part of the amount of the Securities in cash, as the Directors may determine; |
(e) |
issue any Securities as fully or partly paid Securities as part payment for any property bought by the Company, or for services rendered to the Company; or |
(f) |
create any new class of Securities with preferred, deferred or other special rights, or subject to rights of compulsory sale, conversion or pre-emption, or subject to rights and restrictions (whether in regard to Dividends, voting, return of share capital or other matters) as the Directors may determine. |
3.3 |
Power to buy-back shares |
The Company may, in accordance with the Corporations Act and the Listing Rules, buy back its own shares.
3.4 |
Preference Shares |
(a) |
If the Company at any time proposes to issue any Preference Shares with the terms set out in this clause 2, each Preference Share confers on the holder: |
(i) |
the same rights as holders of Ordinary Shares in relation to receiving notices, reports and audited accounts, and attending meetings of members; |
(ii) |
the right to vote only: |
7
(1) |
during a period during which a dividend (or part of a dividend) in respect of the share is in arrears; |
(2) |
on a proposal to reduce the share capital of the Company; |
(3) |
on a resolution to approve the terms of a buy-back agreement; |
(4) |
on a proposal that affects rights attached to the Preference Share; |
(5) |
on a proposal to wind up the Company; |
(6) |
on a proposal for the disposal of the whole of the property, business and undertaking of the Company; and |
(7) |
during the winding up of the Company; |
(iii) |
the right in priority to any payment of a Dividend to any other class of shares, to a cumulative preferential Dividend at the rate or of the amount (which may be fixed or variable) and on the conditions (including conditions which may be changed or reset at certain times or upon certain events) that the Board resolves under the terms of issue unless, and to the extent that, the Board resolves under the terms of issue that there is no right to receive a Dividend; |
(iv) |
the right in winding up or on a reduction of capital, and on redemption in the case of a redeemable Preference Share, to payment in cash of any arrears of Dividend in respect of that Preference Share in priority to any other class of share; |
(v) |
the right in a winding up or on a reduction of capital, and on redemption in the case of a redeemable Preference Share, to payment of any amount (which may include the amount paid or agreed to be considered as paid on the Preference Share) that the Board resolves at the time of issue, and payment of such amount will rank in priority to any other class of share. |
(vi) |
the right to a bonus issue or capitalisation of profits in favour of the holders of Preference Shares, if and only to the extent the Board resolves under the terms of issue; |
(vii) |
no right to participate beyond the extent elsewhere specified in this clause 3.4 in surplus assets or profits of the Company, whether in winding up or otherwise. |
In the case of a redeemable Preference Share, the Company must if required by the terms of issue for that Preference Share but subject to the Corporations Act, at the time and place for redemption specified in, or determined in accordance with, the terms of issue, redeem that Preference Share and, subject to the giving or receiving of a valid redemption notice or other document (if any) required by the terms of issue, pay to or at the direction of the registered holder the amount payable on redemption of that Preference Share.
8
4. |
Brokerage and commission |
4.1 |
Brokerage and commission |
The Company may, at any time, pay brokerage or commission to any person for subscribing or agreeing to subscribe (whether absolutely or conditionally) for any Securities of the Company, or procuring, or agreeing to procure subscriptions (whether absolute or conditional) for any Securities of the Company and so that:
(a) |
the statutory conditions and requirements for the time being in force (if any) are observed and complied with; |
(b) |
the amount does not exceed 10% of the price at which the Securities are issued (unless otherwise determined by the Directors); |
(c) |
the amount may be paid either in cash, or in fully paid Securities of the Company of any class, or in such other manner as the Directors may determine; and |
(d) |
the Company may grant to any person subscribing, or agreeing to subscribe, or procuring, or agreeing to procure subscriptions for Securities, an option to require the Company to issue to that person, or a nominee of that person, any further Securities of the Company. |
4.2 |
Powers may be exercised by Directors |
The powers conferred by clause 4.1 upon the Company may be exercised on its behalf by the Directors.
5. |
Ownership of Securities |
5.1 |
No recognition of trust |
Except as required by law, no person is (unless the Directors in any case otherwise determine) recognised by the Company as holding any Securities of the Company on any trust.
5.2 |
Company need only recognise absolute rights |
The Company is not bound by, or compelled in any way to recognise (even when the Company has received notice of the matter) any equitable, contingent, future, or partial interest in any share or unit of a Security of the Company, or any other rights in respect of any Security, except an absolute right in the registered holder.
6. |
Variation of class rights |
6.1 |
Procedure |
If at any time the issued share capital of the Company is divided into different classes of shares, the rights attached to any class (unless otherwise provided by the terms of issue of the shares of that class) may be varied with either:
(a) |
the written consent of the holders of not less than 75% of the issued shares of that class; or |
(b) |
the sanction of a special resolution passed at a separate general meeting of the holders of the shares of that class. |
9
6.2 |
Effect of further or new issue |
The rights conferred on the holders of shares of any class in the capital of the Company issued with preferred or other rights, are deemed to be varied by the issue of further shares that rank equally with the existing shares of that class unless otherwise provided by the terms of issue of the existing shares of that class.
7. |
Certificates |
7.1 |
Company to issue certificates |
Subject to clause 7.2, every person whose name is entered as a Member in the Register is, without payment, entitled to a certificate.
7.2 |
Participation in computerised or electronic system |
(a) |
The Company will participate in, or seek admission to, any computerised or electronic system or scheme approved by the Corporations Act. If shares are officially quoted by ASX, or deemed to be quoted by the ASTC Settlement Rules and ASX allows, or otherwise requires, trading of Uncertificated Securities of the Company must comply with the Listing Rules, the ASTC Settlement Rules and any other rules of an Approved CS facility and the Corporations Act regulating the system or scheme applicable to Uncertificated Securities. |
(b) |
Without limiting the generality of clause 7.2(a) a Member may, subject to the provisions of the Listing Rules and, if applicable, any Relevant Operating Rules, request that all or any of the Certificated Securities held by that Member in the capital of the Company be converted to Uncertificated Securities or vice versa. On receipt by the Company of any such request, the Company must comply with the Listing Rules, any Relevant Operating Rules and the Corporations Act regulating the system or scheme applicable to Certificated Securities and Uncertificated Securities. |
(c) |
In the case of Securities of the Company which are CHESS approved the Company must at all times, as applicable, comply with the provisions of the Listing Rules and the Relevant Operating Rules. |
7.3 |
Joint holders |
In respect of Securities of the Company held jointly by several persons, the Company is not bound to issue more than one certificate or statement (as the case may be) and delivery of a certificate or statement for a Security to one of several joint holders is sufficient delivery to all.
7.4 |
Issue of replacement certificate |
The Company must, subject to clause 7.2, the Corporations Act, the Listing Rules and the Relevant Operating Rules, issue a replacement certificate for Securities if:
(a) |
the certificate to be replaced is received by the Company for cancellation and is cancelled; or |
(b) |
satisfactory evidence has been received by the Company that the certificate previously issued has been lost or destroyed and has not been disposed of and the Member undertakes to return the certificate to the Company if it is found or received by the Member. |
10
7.5 |
Issue and despatch |
Every certificate, statement or notice (as applicable) in respect of a Members securityholding must be issued and despatched in accordance with the requirements of the Corporations Act, the Listing Rules and the Relevant Operating Rules.
8. |
Calls on shares |
8.1 |
Directors may make calls |
(a) |
The Directors may, subject to the terms and conditions of issue of any Securities of the Company and to the requirements of the Listing Rules and the Corporations Act, make calls upon the Members in respect of any money unpaid on their Securities and not by the conditions of issue of those Securities made payable at fixed times but so that: |
(i) |
no call is payable earlier than 30 Business Days from the date fixed for the payment of the last preceding; and |
(ii) |
each Member must (subject to the provisions of clause 8.1(b) and receiving at least 10 Business Days notice or, if the Company is a participant in any computerised or electronic system or scheme relating to shares which are officially quoted by ASX, subject to receiving such period of notice before the due date for payment as is required by the Listing Rules) pay to the Company, at the time or times and place so specified, the amount called on his shares. |
(b) |
In the event that a person becomes registered as a new Member of the Company or a Members securityholding changes after the date of despatch of any notice referred to in clause 8.1(a) , the Directors must despatch notices to that new Member and those Members whose securityholdings have changed since despatch of any notice referred to in clause 8.1(a) at least four Business Days prior to and inclusive of the due date of payment of the sum called, or such other period as is required under the Listing Rules. |
(c) |
Subject to the requirements of the Listing Rules, a call may be revoked or postponed before the due date for payment. |
(d) |
A call is deemed to have been made at the time when the resolution of the Directors authorising the call was passed and may be required to be paid by instalments. |
8.2 |
Liability for calls |
(a) |
The joint holders of a Security of the Company are jointly and severally liable to pay all calls in respect of that Security. |
(b) |
If a sum called in respect of a Security is not paid before or on the day appointed for payment, the person from whom the sum is due must pay interest on the sum from the day appointed for payment to the time of actual payment at such rate as the Directors may determine. |
(c) |
Any sum which by the terms of issue of a share becomes payable on issue or at any fixed date is, for the purposes of this constitution, deemed to be a call duly made and payable on the date on which by the terms of issue the sum becomes payable and in the event of non payment of interest and expenses, forfeiture or otherwise applies as if the sum had become payable by virtue of a call duly made and notified. |
11
8.3 |
Differentiation of calls |
The Directors may, on the issue of Securities of the Company, differentiate between the holders as to the amount of calls to be paid and the times of payment.
8.4 |
Directors may waive payment |
The Directors may, to the extent permissible by law, waive or compromise all or any part of any payment due to the Company under this clause 8.
8.5 |
Directors to protect rights of the Company |
The Directors must do all such things as may be necessary, or appropriate, under the ASTC Settlement Rules to protect any rights to which the Company may be entitled under any law or under this constitution.
8.6 |
Payment in advance |
The Directors may, if they think fit, receive from any Member willing to advance such sum all or any part of the money uncalled and unpaid upon any Securities held by the Member and upon all or any part of the money so advanced may (until the same would but for the advance become payable) pay interest at such rate as may be agreed upon between the Directors and the Member paying the sum in advance.
8.7 |
Proof of call |
On the trial or hearing of any action for the recovery of any money due for any call, it is sufficient to prove that:
(a) |
the name of the Member sued is entered in the Register as the holder or one of the holders of the Securities in respect of which such debt accrued; |
(b) |
the resolution making the call is duly recorded in the minute book; and |
(c) |
notice of such call was duly given to the Member sued in pursuance of this constitution, |
and it is not necessary to prove the appointment of the Directors who made such call or that a quorum of Directors was present at the meeting at which such call was made nor any other matters whatsoever and the proof of such matters is conclusive evidence of the debt.
9. |
Forfeiture of Securities |
9.1 |
Notice for payment |
(a) |
If a Member fails to pay any call or instalment of a call on the day appointed for payment the Directors may, at any time after that day, during such time as any part of the call or instalment remains unpaid serve a notice on that Member requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued and all expenses which may have been incurred by the Company by reason of non payment. |
(b) |
The notice must name a day (not earlier than 14 days from the date of the notice) and a place or places on and at which the call and interest and expenses are to be paid. The notice must also state that in the event of non payment at or before the time and at the place appointed the shares in respect of which the call is payable will be liable to be forfeited. |
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9.2 |
Forfeiture on failure to comply with notice |
(a) |
If the requirements of any such notice are not complied with, any Securities in respect of which the notice has been given may, at any time thereafter, before the payment required by the notice has been made, be forfeited by a resolution of the Directors to that effect. Such forfeiture may include all Dividends declared in respect of the forfeited Securities and not actually paid before the forfeiture. |
(b) |
When any share has been so forfeited, notice of the resolution must be given to the Member in whose name it stood immediately prior to the forfeiture and an entry of the forfeiture with the date must immediately be made in the Register. |
(c) |
The forfeiture of a Security involves the extinction of all interest in and also of all claims and demands against the Company in respect of the Securities and all other rights incident to the Securities except only such of those rights as by this constitution are expressly waived. |
9.3 |
Disposal of Securities |
(a) |
A forfeited Security may (subject to the Corporations Act and the Listing Rules) be cancelled, sold or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale or disposition the forfeiture may be cancelled on such terms as the Directors think fit. |
(b) |
Any residue remaining after satisfaction of all moneys payable in respect of the forfeited Securities including expenses, must be held in trust and dealt with in accordance with the requirements of the Listing Rules and the Corporations Act. |
9.4 |
Cessation of membership |
A person whose Securities have been forfeited ceases to be a Member in respect of the forfeited Securities but, notwithstanding, remains liable to pay and must immediately pay to the Company all money which at the date of forfeiture was payable by that Member in respect of the Securities as set out in the notice referred to in clause 9.1 (together with interest from the date of forfeiture on the money for the time being unpaid at such rate as the Directors may determine until the actual date of payment) but that Members liability ceases if and when the Company receives payment in full of all such money in respect of the Securities.
10. |
Lien |
10.1 |
Right to a lien |
(a) |
The Company has subject to this constitution, the Listing Rules, the Relevant Operating Rules and the Corporations Act a first and paramount lien on every Security registered in the name of each Member (whether solely or jointly with others) for: |
(i) |
all calls payable at a fixed time in respect of that Security and due but unpaid or presently payable by him or his estate to the Company; |
(ii) |
such amounts (if any) as the Company may be required by law to pay and has paid in respect of that share; and |
(iii) |
all monies due and remaining outstanding to the Company pursuant to loans made by the Company to any Member under any employee incentive scheme in respect of that share, |
13
but the Directors may, at any time, declare any share to be wholly or in part exempt from the provisions of this clause. |
(b) |
The Companys lien on a Security extends to all Dividends payable on it (if any) and all reasonable interest and expenses incurred because of monies remaining outstanding. |
10.2 |
Waiver on registration of transfer |
Unless otherwise agreed the registration of a transfer of Securities operates as a waiver of the Companys lien (if any) on such Securities.
10.3 |
Sale on exercise of lien |
(a) |
The Company may sell in such manner as the Directors think fit any Securities on which the Company has a lien but no sale may be made: |
(i) |
unless a sum in respect of which the lien exists is presently payable; and |
(ii) |
until the expiration of 14 days after a notice in writing stating and demanding payment of such part of the amount in respect of which the lien exists as is presently payable has been given to the registered holder for the time being of the Security or the person entitled to the Security by reason of his death or bankruptcy. |
(b) |
To give effect to any sale pursuant to clause 10.3(a) , the Directors may authorise some person to effect on behalf of the holders of the Securities an instrument of transfer in order to transfer the Securities sold to the purchaser of the Securities. The purchaser is registered as the holder of the Securities comprised in any such transfer and is not bound to see to the application of the purchase money nor is his title to the Securities affected by any irregularity or invalidity in the proceedings in reference to the sale. |
10.4 |
Application of proceeds of sale |
The proceeds of the sale under clause 10.3 must be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is presently payable and the residue if any must (subject to a like lien for sums not presently payable as existed upon the Securities before the sale) be paid to the person entitled to the Securities at the date of the sale.
10.5 |
Directors to protect lien |
The Directors must do all such things as may be necessary or appropriate under the Relevant Operating Rules to protect any lien, charge or other right to which the Company may be entitled under any law or under this constitution.
11. |
Sale of Unmarketable Parcels of Shares |
11.1 |
Power to Sell Non-Marketable Parcels |
(a) |
The provisions of this clause 10 will have effect notwithstanding any provision in this Constitution to the contrary. |
(b) |
Subject to the Corporations Act, Listing Rules and ASTC Settlement Rules, the Company may sell the Securities of any Member who holds a Non-Marketable Parcel if: |
14
(i) |
the Company gives written notice ( Divestment Notice ) to that Member of its intention to sell or dispose of its Non-Marketable Parcel in accordance with this clause 11 within a specified time frame, being no less than 42 days after the date on which the notice is sent by the Company ( Specified Period ); and |
(ii) |
the Member does not give notice in writing to the Company before the end of the Specified Period that the Member wants to retain its Non-Marketable Parcel, in which case the Company must not sell the Members Non-Marketable Parcel. |
(c) |
Subject to clause 11.1(d) , the Company may only exercise its powers under clause 11.1(b) once in any 12 month period. |
(d) |
From the date on which a Takeover in respect of the Companys Securities is announced until the close of offers made under that Takeover, the Companys powers under this clause 11 cease to have any force or effect. |
11.2 |
Exercise of powers by Company |
The exercise by the Company of its powers under clause 11.1 extinguishes:
(a) |
all interests of relevant Members in the Divested Securities; and |
(b) |
all claims by relevant Members against the Company in respect of the Divested Securities, |
and the remedy of any Member to whom this clause 11 applies, in relation to the sale of that Members Securities, is expressly limited to a right of action in damages against the Company to the exclusion of any other right, remedy or relief against any other person.
11.3 |
Appointment of Company as Agent |
Each Member in receipt of a Divestment Notice, unless the Member has given written notice to the Company in accordance with 11.1 (b)(ii) , is deemed to have irrevocably appointed the Company as the Members agent to:
(a) |
sell its Non-Marketable Parcel to an arms length purchaser, provided that the Company does not do so until after the end of the Specified Period; and |
(b) |
receive the sale proceeds on behalf of the Member, |
although nothing in this clause 11 obliges the Company to sell those Securities.
11.4 |
Secretary to assist |
(a) |
The Secretary may, in respect of any sale of a shareholders Non-Marketable Parcel under this clause 11 : |
(i) |
execute on behalf of such shareholder an instrument of transfer of the Members Non-Marketable Parcel in such manner and form as the Secretary considers necessary and to deliver such share transfer to the purchaser; and |
(ii) |
take any other action on behalf of any such Member or the Company as the Secretary considers necessary to effect the sale and transfer of the Non-Marketable Parcel. |
15
(b) |
A certificate under the hand of the Secretary to the effect that Securities sold under this clause 11 have been duly sold will discharge the purchaser from all liability in respect of the purchase of those Securities. |
11.5 |
Title to Securities |
A purchaser of Securities sold under this clause 11 will, upon being entered in the Register as the holder of the Securities, have title to the Securities which is not affected by any irregularity or invalidity in the actions of the Company pursuant to this clause 11 and will not be bound to see to the application of the purchase money or other consideration.
11.6 |
Proceeds of sale |
(a) |
If: |
(i) |
the Company sells a Members Non-Marketable Parcel on a Members behalf under this clause 11 ; and |
(ii) |
any certificate relating to the Securities the subject of the sale has been received by the Company (or the Company is satisfied that the certificate has been lost or destroyed), |
the Company must, within 60 days after completion of the sale, cause the proceeds of sale (less any amount due and unpaid in respect of those Securities) to be sent to the Member entitled to those proceeds by sending a cheque made payable to the Member through the post to the address of that Member in the Register (or, in the case of joint holders, to that one whose name stands first in the Register in respect of the joint holding) or by any other means as determined by the Board.
(b) |
Payment of any money under this clause 11 is at the risk of the Member to whom it is sent and no money payable under this clause 11 by the Company bears interest as against the Company. |
(c) |
The Company, or the purchaser of Securities sold under this clause 11 , must bear all stamp duty, brokerage and government taxes and charges (except for tax on income or capital gains of the shareholder) payable by the transferor on a sale of Securities pursuant to this clause 11. |
11.7 |
Determination by Company |
Any determination made by or on behalf of the Company (including any determination made by the Secretary) under this clause 11 , will be binding on, and conclusive (in the absence of a manifest error) against a Member.
12. |
Transfer of Securities |
12.1 |
Instrument of transfer |
Subject to the Corporations Act, the Listing Rules, the Relevant Operating Rules and this constitution, Securities of the Company may be transferred by:
(a) |
a transfer document in writing in any usual or common form executed by or on behalf of the transferor or stamped by the transferors broker and executed by or on behalf of the transferee or stamped by the transferees broker; or |
16
(b) |
any other form approved by the Directors and permitted or required by the Corporations Act. |
12.2 |
Quoted shares or Securities |
(a) |
The provisions of clause 12.1 do not apply while the Company is a participant in any computerised or electronic system or scheme relating to Securities which are officially quoted by ASX or deemed to be quoted by the ASTC Settlement Rules and while the Relevant Operating Rules provide that, in any case, a written instrument of transfer is not required |
(b) |
For the purposes of clause 12.2(a), the Directors must do everything necessary or appropriate to enable the Company to participate in any computerised or electronic system or scheme for facilitating the transfer Securities or operation of the Companys registers which may be operated or sponsored by ASX including (without limitation) the provisions under the Listing Rules and any Relevant Operating Rules. |
12.3 |
Fees |
No fee may be charged on the transfer of any Securities.
12.4 |
No interference with transfer |
(a) |
The Company must not in any way prevent, delay or interfere with the registration of a transfer document relating to shares or other Securities quoted on ASX except as provided in clauses 12.4(b) and 12.4(c). |
(b) |
The Directors may, if permitted by the Listing Rules: |
(i) |
request an Approved CS facility to apply a Holding Lock to prevent a transfer of Securities in the Company from being registered; or |
(ii) |
refuse to register a paper-based transfer document, |
in any of the circumstances provided in the Listing Rules.
(c) |
The Directors must, if required by the Listing Rules or if a transfer would result in a breach of the Listing Rules or a restriction agreement, request an Approved CS facility to apply a Holding Lock to prevent the transfer of Securities in the Company from being registered in any circumstances other than as provided in clauses 12.4(b) and 12.5. |
12.5 |
Reservation of Securities |
Notwithstanding the provisions of clause 12.4 the Company must in accordance with the Listing Rules, refuse to register a paper-based transfer where some or all of the Securities the subject of the transfer are reserved for a bidder because the holder of Securities in the bid class has accepted an offer under an off-market bid unless:
(a) |
the off-market bid is not, or ceases to be, subject to a defeating condition; and |
(b) |
the transfer is to, or is effected at the direction of the bidder. |
17
12.6 |
Proportional takeover bid |
(a) |
Subject to the Corporations Act, the Listing Rules, clause 12.7 and despite any other provision of this constitution, if offers are made under a proportional takeover bid for Securities of the Company: |
(i) |
the Directors must refuse to register a transfer giving effect to a takeover contract for the bid unless and until a resolution ( approving resolution ) to approve the bid is passed in accordance with the provisions of this clause; and |
(ii) |
a person (other than the bidder or an associate of the bidder) who, as at the end of the day on which the first offer under the bid was made, held bid class Securities is entitled to vote on an approving resolution; and |
(iii) |
an approving resolution is to be voted on at a general meeting of the Company by the persons entitled to vote on the resolution, or in such other manner provided by the Corporations Act; and |
(iv) |
an approving resolution that has been voted on is taken to have been passed if the proportion that the number of votes cast in favour of the resolution bears to the total number of votes cast on the resolution is greater than 50%, and otherwise is taken to have been rejected. |
(b) |
For the purposes of clause 12.6(a), an approving resolution in relation to a proportional takeover bid must be passed before the 14th day before the last day of the bid period to be effective. |
(c) |
The provisions of clauses 15 to 19 (both inclusive) of this constitution and the Corporations Act that applies to general meetings of the Company have effect, with such modifications as the circumstances may require, to a meeting called and held under clause 12.6(a). |
12.7 |
Period of effect of proportional takeover bid provisions |
Clause 12.6 ceases to have effect on the third anniversary of the date of passing of the special resolution to adopt this constitution as the Companys constitution, in accordance with the Corporations Act and, in the event that the Corporations Act is amended to remove the requirement to periodically renew that clause, this clause 12.7 ceases to have any effect.
12.8 |
No disposal of Restricted Securities |
Notwithstanding the provisions of clause 12.4, no disposal of Restricted Securities is permitted during the escrow period and the Company must refuse to acknowledge a disposal (including registering a transfer) of any Restricted Securities during the escrow period, except as permitted by the Listing Rules and ASX.
12.9 |
Notice of refusal to register a transfer |
In the event that the Company refuses to register a transfer of any Securities in accordance with the provisions of clause 12.4, the Company must give to the lodging party written notice of the refusal and the precise reasons for the refusal within five Business Days after the date on which the transfer was lodged with the Company.
18
12.10 |
Holding Lock |
If the Company requests ASX or an Approved CS facility to apply a Holding Lock in accordance with the provisions of clause 12.4, the Company must give the holder of the Securities written notice of the Holding Lock and the reasons for the Holding Lock within five Business Days after the date on which the Company asked for the Holding Lock to be applied.
12.11 |
Procedures for transfer |
(a) |
Every transfer document must: |
(i) |
in the case of a transfer of Certificated Securities: |
(A) |
be left at the registered office of the Company or the office of the Companys share registry; |
(B) |
be accompanied by a certificate for the shares the subject of the instrument of transfer unless the Directors waive production of the certificate on receiving satisfactory evidence of the loss or destruction of the certificate; and |
(C) |
be accompanied by such other evidence of the transferors right to transfer the Securities as the Directors may require; |
(ii) |
in the case of a transfer of Securities where a Member has elected to have his holding converted from certificated to uncertificated mode, be left at the registered office of the Company or the office of the Companys Securities registry but need not be accompanied by a certificate; and |
(iii) |
in the case of a transfer of Uncertificated Securities, in accordance with the Listing Rules or the Relevant Operating Rules regulating transfer and registration procedures. |
(b) |
All instruments of transfer once registered must be retained by the Company but any instrument of transfer which the Directors may decline to register must, except in the case of apparent fraud, be returned on demand to the person depositing the instrument. |
12.12 |
Register to remain open |
Except as otherwise permitted by the Corporations Act, the Listing Rules or the Relevant Operating Rules, the Register must remain open every Business Day.
12.13 |
Register to be audited |
The Directors must cause the Register to be audited in accordance with the provisions of the Listing Rules, the ASTC Settlement Rules and any other Relevant Operating Rules.
12.14 |
Waiver of transfer requirements |
The Directors may, to the extent permissible by law, waive all or any of the requirements of this clause 11 and prescribe such other requirements for the purposes of giving effect to the provisions of clause 11 or otherwise.
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12.15 |
Delegation of powers |
The Directors may delegate their authority under this clause 11 to any person as the Directors may consider to be appropriate or necessary having regard to all the circumstances.
13. |
Transmission of Securities |
13.1 |
Legal personal representatives |
(a) |
The legal personal representative of a deceased sole holder of shares is the only person recognised by the Company as having any title to the share. |
(b) |
In the case of a Securities registered in the names of two or more holders, the survivors or survivor, or the legal representatives of the deceased survivor, are the only persons recognised by the Company as having any title to the Securities but nothing contained in this constitution releases the estate of a deceased joint holder from any liability in respect of any Securities which had been held jointly by him with other persons. |
13.2 |
Registration of transfer on transmission |
(a) |
Any of the following persons: |
(i) |
either of the parents or the guardian of any infant Member; |
(ii) |
any person becoming entitled to a share in consequence of the bankruptcy of a Member; |
(iii) |
the legal personal representative of a deceased Member; |
(iv) |
the beneficiaries of a deceased Member becoming entitled to a Security under the deceased Members will or the next of kin of the deceased Member entitled on an intestacy; |
(v) |
any person having authority in law to manage the affairs of a Member who, by reason of mental or physical infirmity, is unable to manage his affairs, |
may, on evidence being produced as to his status or authority as is from time to time properly required by the Directors, have the right either to be registered themselves or to make such transfer of the Security as the Member could have made but the Directors, in any such case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Security by the Member, if the Member had been alive or capable of transferring the Security.
(b) |
Where two or more persons are jointly entitled to be registered pursuant to the provisions of clause 13.2(a) they are, for the purposes of this constitution, deemed to be joint holders of the Securities. |
13.3 |
Entitlements on registration |
A person entitled to be registered as a Member in respect of a Security of the Company pursuant to clause 13.2 is entitled to the same Dividends and other advantages to which he would be entitled if he were the registered holder of the Security except that he must not, before being registered as a Member in respect of the Security, be entitled in respect of the Security to exercise any right conferred by membership in relation to a general
20
meeting of the Company unless at least 48 hours prior to the time of holding the relevant general meeting at which he proposes to vote, he must satisfy the Directors of his entitlement to be registered as a Member in respect of a Security pursuant to clause 13.2, or the Directors must have previously admitted his right to vote at an adjourned general meeting.
14. |
Conversion and reduction of capital |
14.1 |
Conversion by resolution |
(a) |
The Company may (subject to clause 6, the Listing Rules and the Corporations Act) by resolution convert all or any of its Securities into a larger or small number. |
(b) |
For the purposes of clause 14.1(a), any amount unpaid on Securities to be converted is to be apportioned equally among the replacement Securities. |
14.2 |
Reduction of capital |
Subject to the Listing Rules and the Corporations Act, the Company may reduce its share capital in any way which is not otherwise authorised by law.
15. |
General meetings |
15.1 |
Calling and holding general meetings |
(a) |
An annual general meeting of the Company must be held in accordance with the provisions of this constitution and the Corporations Act. Any reference in this constitution to general meetings (where the context so requires) means and include annual general meetings. |
(b) |
The Directors may, whenever they think fit, call a general meeting and general meetings must be called on such requisition or, in default, may be called by such requisitionists as provided by the Corporations Act. |
(c) |
If at any time there are not sufficient Directors capable of acting to form a quorum for the purpose of calling a general meeting, any Director or any Members of the Company holding not less than 5% of the votes that may be cast at general meetings may call and arrange to hold a general meeting in the same manner, as nearly as possible, in which meetings may be called by the Directors. |
15.2 |
Postponement or change of general meetings |
The Directors may, subject to the provisions of the Corporations Act, by notice in writing to ASX postpone, cancel or change the place of any general meeting as the Directors may consider to be necessary or appropriate from time to time.
15.3 |
Notice of general meetings |
Subject to the provisions of the Corporations Act relating to resolutions and special resolutions and agreements for shorter notice and to the provisions of the Listing Rules, written notice must be given in accordance with the Corporations Act and the Listing Rules of all general meetings specifying:
(a) |
the place, date and time for the meeting (and, if the general meeting is to be held in two or more places, the technology that will be used to facilitate this); |
21
(b) |
the general nature of the business of the general meeting; |
(c) |
if a special resolution is to be proposed: |
(i) |
an intention to propose the special resolution; and |
(ii) |
the special resolution itself; |
(d) |
if a Member is entitled to appoint a proxy, that: |
(i) |
the Member has a right to appoint a proxy; |
(ii) |
the proxy does not need to be a Member of the Company; and |
(iii) |
that a Member who is entitled to cast two or more votes may appoint two proxies and may specify the proportion or number of votes each proxy is appointed to exercise; and |
(e) |
such other information as provided by clause 18 or prescribed by the Corporations Act or the Listing Rules. |
15.4 |
Electronic Notice |
(a) |
If a Member nominates: |
(i) |
an electronic means by which the member may be notified that notices of meeting are available; and |
(ii) |
an electronic means the member may use to access notices of meeting, |
the Company may give the Member notice of the meeting by notifying the Member (using the notification means nominated by the Member):
(iii) |
that the notice of meeting is available; and |
(iv) |
how the member may use the access means nominated by the member to access the notice of meeting. |
(b) |
A notice of meeting given to a Member by this electronic means is taken to be given on the business day after the day on which the member is notified that the notice of meeting is available. |
15.5 |
Rights of holders of Preference Shares |
The holders of Preference Shares (if any) have the same rights as the holders of Ordinary Shares as regards receiving notices, reports and audited accounts and are entitled to attend general meetings of the Company.
15.6 |
Omission to give notice |
The accidental omission to give notice of a meeting to any Member, or the non receipt of notice of a meeting by any Member, does not invalidate the proceedings at any meeting.
22
15.7 |
Business at general meetings |
All business is deemed special that is transacted at a general meeting and all business that is transacted at an annual general meeting is also deemed special with the exception of:
(a) |
sanctioning a Dividend; |
(b) |
the consideration of the annual financial report, Directors report and auditors report; |
(c) |
the election of Directors; |
(d) |
the appointment of the auditor; and |
(e) |
the fixing of the auditors remuneration. |
15.8 |
Resolutions without general meetings |
(a) |
Subject to the Corporations Act, any resolution of the Company determined on without any general meeting and evidenced in writing under the hand of each Member of the Company who, for the time being, is entitled to attend and vote or of his proxy or attorney appointed as provided in this constitution, or (if the Member is a corporation) of its corporate representative appointed as provided in this constitution or the Corporations Act, is as valid and effectual as a resolution duly passed at a general meeting of the Company. |
(b) |
Any resolution passed in accordance with the provisions of clause 15.8(a) may consist of identical copies of the document recording the resolution and accompanying information, each signed by one or more Members or their respective proxies, attorneys or, if any Members are corporations, by their respective representatives. |
16. |
Proceedings at general meeting |
16.1 |
Quorum |
(a) |
No business may be transacted at any general meeting unless a quorum of two Members is Present at the time when the meeting proceeds to business. |
(b) |
If within 15 minutes from the time appointed for the meeting a quorum is not Present: |
(i) |
the meeting, if called on the requisition of Members, is dissolved; and |
(ii) |
in any other case: |
(A) |
it stands adjourned to the same day, in the next week, at the same time and place; and |
(B) |
if at the adjourned meeting a quorum is not Present within 15 minutes from the time appointed for the meeting, the meeting is dissolved. |
16.2 |
Chairing general meetings |
(a) |
Subject to the provisions of the Corporations Act and the Listing Rules, the Chairperson (if any) elected by the Directors must chair each general meeting of |
23
the Company or if there is no such Chairperson, or if at any meeting he is not Present within 15 minutes after the time appointed for holding the meeting, or is unwilling to act, the persons Present and entitled to vote at a meeting must choose some one of their number to chair the meeting. |
(b) |
The Chairperson may, with the consent of any meeting at which a quorum is Present (and must if so directed by the meeting), adjourn the meeting from time to time and from place to place but so that: |
(i) |
no business may be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place; |
(ii) |
when a meeting is adjourned for 10 days or more at any one time, notice of the adjourned meeting must be given as in the case of an original meeting; |
(iii) |
save as otherwise provided in this clause, it is not necessary to give any notice of an adjourned meeting or of the business to be transacted at an adjourned meeting. |
16.3 |
Decisions at general meetings |
(a) |
At any general meeting a resolution put to the vote of the meeting may be decided on a show of hands unless a poll is (before or on the declaration of the results of the show of hands) demanded: |
(i) |
by the Chairperson; |
(ii) |
by at least three Members Present having the right to vote at the meeting; or |
(iii) |
by any Member or Members Present and representing not less than 5% of the votes that may be cast on the resolution on a poll, |
and unless a poll is so demanded, a declaration by the Chairperson that a resolution has, on a show of hands, been carried or carried unanimously or by a particular majority or lost and an entry to that effect in the book containing the minutes of the proceedings of the Company is conclusive evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.
(b) |
The demand for a poll may be withdrawn. |
(c) |
If a poll is duly demanded, it may be taken in such manner and either at once or after an interval or adjournment, or otherwise as the Chairperson directs and the result of the poll is the resolution of the meeting at which the poll was demanded but a poll demanded on the election of a Chairperson, or on a question of adjournment, must be taken immediately. |
16.4 |
Chairperson not to have casting vote |
In the case of an equality of votes, whether on a show of hands or on a poll, the Chairperson of the meeting at which the show of hands takes place, or at which the poll is demanded, is not entitled to a second or casting vote.
24
17. |
Votes of members |
17.1 |
Voting at general meetings |
Subject to this constitution and to any special rights or restrictions imposed on or attaching to any shares or classes of shares by the Directors:
(a) |
on a show of hands, each Member Present who holds one or more Voting Shares is entitled to one vote at meetings of Members; and |
(b) |
on a poll, every Member has one vote for each fully paid share held and, if at any time there is on issue any share which has not been fully paid up, that share confer only the proportion of one vote which the sum paid up (excluding any amount credited as paid up) on that share bears to the total issue price of that share. |
17.2 |
Rights of holders of Restricted Securities |
In the event of a breach of the Listing Rules relating to Restricted Securities, or a breach of a restriction agreement entered into by the Company under the Listing Rules in relation to Securities which are classified under the Listing Rules or by ASX as Restricted Securities, the Member holding those Restricted Securities ceases to be entitled to vote in respect of those Restricted Securities for so long as the breach subsists.
17.3 |
Rights of holders of Preference Shares |
The holders of Preference Shares (if any) are entitled to vote at any general meeting called and held for the purpose of:
(a) |
reducing the capital of the Company; |
(b) |
sanctioning the terms of a buy-back agreement; |
(c) |
winding up the Company and during the winding up of the Company; |
(d) |
sanctioning a disposal of the whole of the property, business and undertaking of the Company; |
(e) |
where any proposition directly affects the rights and privileges attaching to the Preference Shares, |
and the holders of Preference Shares (if any) are entitled to vote at any general meeting during a period when any Dividend (or part of a Dividend) payable in respect of those Preference Shares is in arrears.
17.4 |
Joint holders |
In the case of joint holders, the vote of the senior Present who tenders a vote must be accepted to the exclusion of the votes of the other joint holders and for this purpose, seniority is determined by the order in which the names stand in the Register.
17.5 |
Voting by committee or trustee |
A Member who is of unsound mind or is a person whose person or estate is liable to be dealt with in any way under any relevant law relating to mental health, may vote whether on a show of hands or on a poll by his committee or by the trustee or by such other person as properly has the management of his estate and any such committee, trustee or other person may vote by proxy or attorney.
25
17.6 |
Infant Members |
A Member who is an infant may vote by either of his parents or by his guardian upon such evidence being produced of the relationship or of the appointment of the guardian as the Directors may, from time to time, properly require.
17.7 |
Entitlement to vote |
No Member is entitled to vote at any general meeting in respect of any particular shares on which calls due and payable by that Member to the Company in respect of those shares have not been paid or as otherwise provided under the Listing Rules.
17.8 |
Objections to right to vote |
Subject to the Listing Rules, no objection may be raised to the qualification of any voter except at the meeting or adjourned meeting at which the vote objected to is given or tendered and every vote not disallowed at such meeting is valid for all purposes. Any objection made in due time may be referred to the Chairperson of the meeting whose decision is final and conclusive.
17.9 |
Method of voting |
On a show of hands and on a poll votes may be given either personally or by representatives appointed pursuant to this constitution or by attorney or by proxy.
18. |
Proxies |
18.1 |
Members entitlement to appoint proxy |
(a) |
Each Member of the Company entitled to attend and cast a vote at a general meeting may appoint an individual or body corporate as his proxy to attend and vote for that Member at the general meeting. |
(b) |
If a Member is entitled to cast two or more votes at the meeting, that Member may appoint not more than two proxies. |
(c) |
A proxy need not be a Member of the Company. |
18.2 |
Instrument of appointment |
(a) |
The instrument appointing a proxy must, subject to clause 18.2(b), be in written form and: |
(i) |
if the appointor is an individual, signed by the appointor; or |
(ii) |
if the appointor is a corporation, signed in accordance with the constitution of that corporation; or |
(iii) |
in either case, signed by the duly authorised attorney of the Member. |
(b) |
Despite clause 18.2(a), an appointment of proxy is valid if it is authenticated in a manner prescribed by the Corporations Act. |
(c) |
The instrument appointing a proxy and the power of attorney or other authority (if any) under which it is signed or otherwise authenticated as prescribed by the Corporations Act or a notarially certified copy of that power or authority must be received by the Company not less than 48 hours before the time for holding the general meeting or adjourned general meeting at which the person named in the |
26
instrument proposes to vote (unless a shorter period is specified in the notice of general meeting to which the proxy relates) and, in default, the instrument of proxy must not be treated as valid unless otherwise determined by the Chairperson. |
(d) |
For the purposes of clause 18.2(c), an instrument appointing a proxy must be received by the Company in any manner prescribed by the Corporations Act or as specified in the notice of meeting for that purpose. |
18.3 |
Proportion or number of votes |
Where a Member appoints two proxies, the appointment may specify the proportion or number of votes that the proxy may exercise.
18.4 |
Authority to demand poll |
Any instrument appointing a proxy confers authority to demand, or join in demanding, a poll.
19. |
Body corporate representatives |
19.1 |
Members entitlement to appoint representative |
Any body corporate which is a Member of the Company may appoint an individual (whether a Member of the Company or not) whom it thinks fit as its representative to exercise all or any of the powers that the body corporate may exercise by Corporations Act.
19.2 |
Rights of corporate representative |
The person so appointed is entitled to exercise the same powers on behalf of the body corporate which he represents as that body corporate could exercise (including the giving of any consent and the signing of any resolution, appointment or other document) if it were a natural person and also to exercise all the powers mentioned in clause 19.1 as are conferred by the instrument of appointment.
19.3 |
Certificate of appointment |
(a) |
A certificate executed in accordance with the constitution of the body corporate, accompanied by such other evidence as the Directors may properly require of any appointment of a representative, must be received by the Company before the commencement of the meeting or adjourned meeting at which the person named in the certificate proposes to vote and, in the case of a resolution to be determined on without any general meeting, before the resolution or other document or statement in which the resolution is set out is circulated for signing by the Members of the Company entitled to vote on the resolution. |
(b) |
For the purposes of clause 19.3(a), a certificate of appointment must be received by the Company in any manner prescribed by Corporations Act or as specified in the notice of meeting for that purpose. |
20. |
Meetings of classes of shareholders |
At every separate meeting of holders of shares of any class, the provisions of this constitution relating to general meetings must, with such modifications as are necessary, apply but so that (subject to clause 6.1):
27
(a) |
the necessary quorum is two Members holding issued shares of the class; or |
(b) |
where only one Member is the holder of shares of the class that Member Present constitutes a quorum; and |
(c) |
any holder of shares of the class Present at the meeting may demand a poll. |
21. |
Directors |
21.1 |
Number of Directors |
The number of the Directors must, unless otherwise provided by the Corporations Act, be not less than three.
21.2 |
Company may fix number |
The Company may from time to time by resolution passed at a general meeting, fix the number of Directors or increase or reduce the number of Directors (but so that the number must be not less than the minimum number required by clause 21.1) and may (subject to the provisions of clause 23) determine in what rotation the increased or reduced number is to go out of office.
21.3 |
Election |
(a) |
No person other than a retiring Director is eligible for election as a Director at any general meeting unless he or she or some other Member intending to propose him or her has, at least 35 days before the general meeting (unless otherwise required by the Corporations Act or the Listing Rules or such shorter period as is permitted by the Board), left at the Companys registered office a notice in writing duly signed by the nominee giving his or her consent to the nomination and signifying his or her candidature for the office or the intention of such Member to propose him or her. |
(b) |
Notwithstanding the provisions of clause 21.3(a), in the case of a person recommended by the Directors for election, 14 days notice is necessary. |
(c) |
Notice of each and every candidate for election to the Board must be served on the Members at least seven Business Days prior to the date of the general meeting at which the election is to take place. |
21.4 |
Auditor not eligible for appointment |
No person is eligible for appointment as a Director who is the auditor, or a partner or employer or employee of the auditor, or who is bankrupt, or who has current a composition or arrangement with or an assignment of his estate for the benefit of his creditors, or who is a person whose person or estate is liable to be dealt with in any way under any relevant law relating to mental health.
21.5 |
Qualification |
No share qualification is required of a Director.
21.6 |
Remuneration |
(a) |
The Directors (other than executive Directors) may be paid out of the funds of the Company by way of remuneration for their services such fixed sum as is, from time to time, determined by the Board and such remuneration may be paid to, or applied for the benefit of, the Directors in such proportions and in such |
28
manner as the Directors may determine and in default of such determination, equally. |
(b) |
If any Director, being willing, is called upon to perform extra services or to make any special exertions in going from his usual residence or otherwise for any of the purposes of the Company, the Company may remunerate the Director (other than any executive Director) for so doing in such sum (not being, if the Listing Rules so prohibit, a commission on, or percentage of, profits or of operating revenue) as may be determined by the Board. |
(c) |
Executive Directors of the Company may be remunerated in such manner as the Directors may from time to time determine (not being, if prohibited by the Listing Rules, a commission on, or percentage of, operating revenue). |
21.7 |
Increase in payments to Directors |
(a) |
The remuneration of the Directors must not be increased except at a general meeting called by a notice specifying the intention to propose the increase, the amount of the increase and the maximum sum that may be paid to the Directors as a whole. |
(b) |
The provisions of clause 21.7(a) do not apply to the salary of an executive Director. |
21.8 |
Payment of expenses |
The Directors may also be paid all travelling and other expenses properly incurred by them in attending, participating in and returning from meetings of the Directors, or any committee of the Directors, or general meetings of the Company, or otherwise in connection with the business of the Company.
22. |
Disqualification of directors |
22.1 |
Vacation of office |
The office of Director must be vacated if the Director:
(a) |
ceases to be a Director pursuant to any provision of the Corporations Act; |
(b) |
becomes bankrupt or makes any arrangement or composition with his creditors generally; |
(c) |
becomes prohibited from being a Director by reason of any order made under the Corporations Act; |
(d) |
becomes of unsound mind or a person whose person or estate is liable to be dealt with in any way under any relevant law relating to mental health; |
(e) |
resigns his office by notice in writing to the Company; or |
(f) |
is removed from office pursuant to this constitution. |
22.2 |
Exclusions and disclosure of certain interests |
Notwithstanding any rule of law or equity to the contrary but subject always to the provisions of the Corporations Act and the Listing Rules:
29
(a) |
a Director is not disqualified by his office from contracting with the Company either as vendor, purchaser or otherwise, or from being employed or acting in any capacity professionally or otherwise by or on behalf of the Company; |
(b) |
no contract made by a Director with the Company and no contract or arrangement entered into by or on behalf of the Company with any company or partnership of, or in which, any Director is a director, Member or otherwise in any way directly or indirectly interested and no contract or arrangement entered into by or on behalf of the Company in which any Director is in any way interested is liable to be impeached, affected or avoided by reason of the Director holding his office; |
(c) |
no Director so contracting or being such Director, Member or so interested is liable to account to the Company for any profit realised by any such contract or arrangement by reason only of such Director holding his office, or of the fiduciary relation thereby established, or by reason of his interest; |
(d) |
subject to the provisions of clause 22.3 and the Corporations Act, a Director (including an alternate Director) may not be present at a meeting of Directors while a matter relating to a contract or arrangement in which the Director has (directly or indirectly) a material personal interest is being considered and may not vote on, or in relation to, the matter; |
(e) |
a Director may execute, or attest the affixing of the common seal to, any document relating to a contract or arrangement in which the Director has an interest; |
(f) |
a Director may hold any other office or place of profit in the Company in conjunction with his directorship and may be appointed upon such terms as to remuneration, tenure of office and otherwise as may be arranged by the Directors; |
(g) |
a Director of the Company may be or become a director of any other companies promoted by the Company and any subsidiary company or company having dealings with the Company and that Director is not accountable for any benefits received as a director or member of or holder of any office or place of profit under such company and the Directors may exercise the voting power conferred by the shares in any companies held or owned by the Company in such manner, in all respects, as the Directors think fit and any such Director of the Company may vote in favour of the exercise of such voting rights in that manner notwithstanding that he may be, or be about to be, appointed a director of such other company. |
22.3 |
Disclosure not required |
The provisions of clause 22.2(d) do not apply to an interest that a Director has:
(a) |
as a Member of the Company; and |
(b) |
in common with the other Members of the Company, or |
(c) |
in a matter relating to any contract of insurance merely because the contract insures or would insure that Director as an officer of the Company in accordance with the provisions of clause 37.1; or |
(d) |
as otherwise permitted by the Corporations Act. |
30
22.4 |
Notice to ASX |
The Company must, in accordance with the provisions of the Listing Rules, advise ASX without delay (or within such period of time as required, from time to time, by the Listing Rules) of any information concerning Directors interests, the affairs of the Company including (without limitation) any contract or arrangement involving Directors interests, and of any other information or matter required by the Listing Rules, that may be considered to have a material effect on the price or value of the Companys Securities.
23. |
Rotation of directors |
23.1 |
Rotation |
(a) |
A Director, other than a Managing Director, must not hold office for more than three years or beyond the third annual general meeting following his appointment (whichever is the longer period) without submitting himself for re-election. |
(b) |
A retiring Director may act until the conclusion of the meeting at which he retires and is eligible for re-election. |
(c) |
If in any year, there is no Director who is required to submit himself for re-election pursuant to clause 23.1(a), the Director to retire by rotation at that annual general meeting will be the Director who has been longest in office and the length of time a Director has been in office is, subject to section 203D(7) of the Corporations Act, computed from his last election. |
(d) |
As between Directors who have been in office an equal length of time, the Directors to retire are, in default of agreement between them, determined by drawing lots in any manner determined by the Chairperson of Directors or if he is not able and willing to act, by the deputy Chairperson. |
(e) |
For the purpose of ascertaining the number and identity of the Directors to retire by rotation, a Director appointed by the Directors is not taken into account. |
(f) |
The Company may, at a meeting at which the Directors retire by rotation, fill all or any of the vacant places by election and may fill up any other vacancy. |
23.2 |
Election each year |
An election of Directors, other than a Managing Director, must be held each year.
24. |
Tenure and removal of directors |
24.1 |
Term of office |
Each Director holds office until he resigns or is removed or vacates office as provided in this constitution.
24.2 |
Removal by Members |
Subject to the Corporations Act, the Company, by resolution at a general meeting:
(a) |
may remove a Director from office; and |
(b) |
may appoint a new Director to replace any Director who is removed from office, |
31
and any Director appointed pursuant to clause 24.2(b) holds office for the remainder of the term of office of the Director who is removed from office.
24.3 |
Appointment by Members |
Subject to the Corporations Act and the Listing Rules, the Company, by resolution at a general meeting:
(a) |
may appoint a Director to fill a casual vacancy; and |
(b) |
may appoint additional Directors, |
and any Director appointed pursuant to this clause 24.3 is subject to retirement by rotation in accordance with clause 23.
24.4 |
Casual vacancy or addition to Board |
(a) |
The Directors have power, at any time and from time to time, to appoint any person to be a Director either to fill a casual vacancy (including an appointment to increase the total number of Directors to the minimum number required by the Corporations Act) or as an addition to the existing Directors but so that the total number of Directors must not at any time exceed the number (if any) fixed in accordance with this constitution. |
(b) |
Any Director appointed pursuant to clause 24.4(a) holds office until the next annual general meeting and is then eligible for re-election. |
25. |
Managing director |
25.1 |
Appointment |
(a) |
The Directors may, from time to time, appoint one or more of their body to the office of Managing Director for such period and on such terms as they think fit and subject to the terms of any agreement entered into in any particular case, may revoke any such appointment. |
(b) |
A Director appointed as Managing Director is not, while holding that office, subject to retirement by rotation or be taken into account in determining the rotation of retirement of Directors but his appointment is automatically determined if he ceases, for any reason, to be a Director. |
25.2 |
Remuneration |
The Managing Director may, subject to the terms of any agreement entered into in any particular case, receive such remuneration (whether by way of salary or participation in profits or partly in one way and partly in another) as the Directors may determine.
25.3 |
Powers |
The Directors may entrust to and confer upon the Managing Director any of the powers exercisable by them upon such terms and conditions and with such restrictions as they may think fit and either collaterally with, or to the exclusion of, their own powers and may from time to time revoke, withdraw, alter or vary all or any of those powers.
32
26. |
Alternate directors |
26.1 |
Appointment of Alternate Directors |
A Director may appoint any person (who need not be a Member of the Company) to be an alternate Director in his place during such period as he thinks fit.
26.2 |
Rights of Alternate Director |
Any person while he holds office as an Alternate Director, is entitled to notice of meetings of Directors and to attend and vote thereat and to exercise all the powers of the appointor in his place.
26.3 |
Vacation of office |
An Alternate Director must ipso facto vacate office if his appointor vacates office as a Director or removes the appointee from office.
26.4 |
Notice of appointment or removal |
Any appointment or removal under this clause 26 must be effected by notice in writing to the Company and to person concerned under the hand of the Director who makes the appointment or removal.
27. |
Powers and duties of directors |
27.1 |
Management of Company |
The business of the Company is managed by the Directors who may exercise all the powers of the Company that are not by the Corporations Act or by this constitution required to be exercised by the Company in general meeting subject nevertheless to any provision of this constitution and to the provisions of the Corporations Act.
27.2 |
Members approval to significant changes |
The Directors must not make a significant change (either directly or indirectly) to the nature and scale of its activities except after having disclosed full details to ASX in accordance with the requirements of the Listing Rules and the Directors must not sell or otherwise dispose of the main undertaking of the Company without the approval of the Company in general meeting in accordance with the requirements of the Listing Rules.
28. |
Proceedings of directors |
28.1 |
Directors Meetings |
The Directors may meet together to adjourn and otherwise regulate their meetings as they think fit using any technology consented to from time to time by all the Directors.
28.2 |
Decisions at Directors Meetings |
(a) |
Questions arising at any meeting are decided by a majority of votes cast by Directors entitled to vote. |
(b) |
In the case of an equality of votes, the Chairperson does not have a second or casting vote. |
33
28.3 |
Calling Directors Meetings |
A Director may, and the Secretary at the request of a Director, may at any time call a meeting of the Directors.
28.4 |
Quorum |
Subject to clause 28.9, the quorum necessary for the transaction of the business of the Directors may be fixed by the Directors and unless fixed is two, being Directors who are entitled to attend and vote.
28.5 |
Notice of Meetings |
(a) |
Notice of a meeting of Directors must be given to each Director in such manner as the Directors may, pursuant to clause 28.1, determine from time to time. |
(b) |
Unless the Directors in any case otherwise determine, the provisions contained in clauses 28.10 or 35 (as the case may be) apply to the giving of notice pursuant to the provisions of this clause 28.5. |
28.6 |
Chairperson |
The Directors may elect a Chairperson of their meetings and determine the period for which he is to hold office but if no Chairperson is elected or, if at any meeting the Chairperson is not present within 15 minutes after the time appointed for holding the meeting or declines to act, the Directors present may choose one of their number to chair the meeting.
28.7 |
Delegation of powers |
(a) |
The Directors may delegate any of their powers to a committee of the Directors. Any committee so formed must, in the exercise of the powers so delegated, conform to any regulations that are imposed on that committee by the Directors. |
(b) |
A committee may elect a chairperson of its meetings but if no chairperson is elected or, if at any meeting the chairperson is not present within 15 minutes after the time appointed for holding the meeting or declines to act, the members of that committee present may choose one of their number to chair the meeting. |
(c) |
A committee may meet and adjourn as it thinks proper. Questions arising at any meeting must be determined by a majority of votes of the members of such committee present and the chairperson has a deliberative but not a second or casting vote. |
(d) |
The Directors may delegate any of their powers to one of their number who may in the exercise of the powers so delegated, conform to any regulations which may be imposed upon him by the Directors and receive such remuneration as the Directors may determine. |
28.8 |
Validity of actions |
All acts done by any meeting of the Directors, or of a committee of Directors, or by any person acting as a Director, is notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director or person so acting, or that they or any of them were disqualified, as valid as if every Director or other person had been duly appointed and was qualified to be a Director.
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28.9 |
Resolutions without meetings |
(a) |
A resolution which has been signed by a majority of the Directors for the time being entitled to vote in relation to the resolution (not being less than a quorum) is as valid and effectual from the time it is signed by the last Director constituting the majority as if it had been passed at a duly convened meeting of Directors provided each Director has received 24 hours notice of the resolution. |
(b) |
Any resolution passed in accordance with the provisions of clause 28.9(a) may consist of identical copies of the document recording the resolution and accompanying information, each signed by one or more Directors. An electronic transmission purporting to be signed by a Director will, for the purposes of this clause, be deemed to be in writing signed by that Director. |
28.10 |
Telephone and audio visual communications |
(a) |
For the purpose of this constitution, the contemporaneous linking together by telephone or by such other method of audio or audio visual communication system, of a number of the Directors not less than the quorum specified in clause 28.4 constitutes a meeting of the Directors and all the provisions in this constitution as to meetings of the Directors apply to such meetings subject to the following conditions: |
(i) |
all the Directors for the time being entitled to receive notice of a meeting of the Directors are entitled to notice of a meeting by telephone or by such other method of audio or audio visual communication system and to be linked by telephone or such other audio or audio visual communication system for the purposes of such meeting; |
(ii) |
each of the Directors taking part in the meeting by telephone must be able to hear each of the other Directors taking part at the commencement of the meeting; and |
(iii) |
at the commencement of the meeting each Director must acknowledge his presence for the purpose of a meeting of the Directors of the Company to all other Directors taking part. |
(b) |
A notice of a meeting of Directors may be given by telephone or such other method of audio or audio visual communication system as the Directors may from time to time determine or as provided in clause 35. |
(c) |
A Director may not leave the meeting by disconnecting his telephone or such other audio or audio visual communication system unless he has previously obtained the express consent of the Chairperson of the meeting and a Director is conclusively presumed to have been present and to have formed part of the quorum at all times during the meeting unless he has previously obtained the express consent of the Chairperson to leave the meeting as aforesaid. |
(d) |
A minute of the proceedings at such meeting by telephone or such other method of audio or audio visual communication system is be sufficient evidence of such proceedings and of the observance of all necessary formalities if certified to be a correct minute by the Chairperson of the meeting. |
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29. |
Secretary |
One or more persons may, in accordance with the Corporations Act, be appointed by the Directors for such term at such remuneration and upon such conditions as they may think fit and any Secretary so appointed may be removed by them.
30. |
Minutes |
(a) |
The Directors must cause minutes to be made: |
(i) |
of all appointments of officers; |
(ii) |
of the names of the Directors present at each meeting of the Directors and of any committee of the Directors; |
(iii) |
of all resolutions and proceedings at all meetings of Members of the Company and of the Directors and of committees of Directors and of all resolutions determined on without meetings; and |
(iv) |
of all other matters required by the Corporations Act. |
(b) |
Except in the case of documents deemed to constitute minutes in accordance with the provisions of the Corporations Act and resolutions signed in accordance with the provisions of clauses 15.8 and 28.9, all minutes must be signed by the Chairperson of the meeting at which the proceedings were held or by the Chairperson of any succeeding meeting. |
31. |
Seal and execution of documents |
31.1 |
Common seal |
(a) |
The Company may have a common seal. |
(b) |
If the Company has a common seal, the Directors must provide for the safe custody of the common seal of the Company (and if they think fit of a share seal which is hereby authorized in accordance with the Corporations Act) which may only be used with the authority of the Directors and every instrument to which the common seal is affixed must be signed by at least one Director and must be countersigned by the Secretary or another Director or by some other person or persons appointed by the Directors to attest the affixing of the common seal. |
31.2 |
Execution of documents without common seal |
All documents which of legal necessity need not be under common seal and which the Company is capable in law of entering into is legally binding on the Company if signed in the same manner as is prescribed in clause 31.1(b) or as otherwise provided by the Corporations Act.
31.3 |
Duplicate |
The Company may have a duplicate common seal which is a copy of the common seal with the addition on its face of the words duplicate seal or share seal or certificate seal and a certificate for Securities issued under such seal if affixed in the same manner as is prescribed in clause 31.1 is deemed for all purposes to be sealed with the common seal.
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31.4 |
Negotiable instruments |
All cheques, bills of exchange, promissory notes or other negotiable instruments may be signed, drawn, made, accepted or endorsed (as the case may be) for and on behalf of the Company in such manner and by such person or persons as the Directors may from time to time determine.
31.5 |
Signatures |
The Directors have power to determine whether or not printed or facsimile signatures may be used on instruments referred to in clause 31.4.
32. |
Dividends |
32.1 |
Dividend rights |
(a) |
Subject to the provisions of clauses 32.2 and 32.3 and to the rights attaching to shares issued on special terms and conditions, the profits of the Company are divisible among the Members in proportion to the number of shares held by them but, in the case of partly paid shares, all Dividends must be apportioned and paid in the proportion that the amount paid up on those shares bears to the total issue price. Any amount paid up on a partly paid share during the period in respect of which a Dividend is declared only entitles the holder of that share to an apportioned amount of such Dividend as from the date of payment and any amount credited as paid up on a share is not to be taken into account for the purposes of this clause. Where capital is paid up on any shares in advance of calls, such capital is not taken as paid for the purposes of this clause. |
(b) |
The Directors may declare that a Dividend be paid to the Members according to the Members rights and interests in the profits and the Directors may fix the amount, the time for payment and the method of payment. |
32.2 |
Dividends payable in accordance with law |
No Dividend is payable except in accordance with the Corporations Act as amended from time to time and no Dividend carries interest as against the Company.
32.3 |
Restricted Securities breach of Listing Rules |
In the event of a breach of the Listing Rules relating to Restricted Securities or a breach of a restriction agreement entered into by the Company under the Listing Rules in relation to shares which are classified under the Listing Rules or by ASX as Restricted Securities, the Member holding those Restricted Securities cease to be entitled to any Dividends in respect of those Restricted Securities for so long as the breach subsists.
32.4 |
Directors to retain Dividends |
The Directors may retain the Dividends payable upon shares in respect of which any person is under clause 13.2 entitled to be registered as a Member of which any person under that clause is entitled to transfer, until any such person becomes a Member in respect of such shares or duly transfers the shares.
32.5 |
Limitation on transfer unless registered |
Subject to the provisions of the Listing Rules, or the ASTC Settlement Rules, a transfer of shares must not pass the right to any Dividend declared on such shares unless the transfer is lodged for registration on or before the date fixed by the Directors as the
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record date in respect of the Dividend or if a date is not so fixed, the date the Dividend is declared.
32.6 |
Receipts |
Any one of the several persons who are registered as the joint holders of any share may give effectual receipts for all Dividends and payments on account of Dividends in respect of that share.
32.7 |
Unclaimed Dividends |
All Dividends unclaimed for one year after having been declared may be invested or otherwise made use of by the Directors for the benefit of the Company until duly claimed or until the said moneys become payable to some official under any law relating to unclaimed moneys.
32.8 |
Method of payment |
(a) |
Any Dividend may, unless otherwise directed by a Member, be paid by automatic payment to any bank nominated in writing for that purpose by that Member or person entitled, or by cheque or warrant sent through the post to the registered address of the Member or person entitled or, in the case of joint holders, to the bank nominated by or the registered address of the Member whose name stands first in the Register in respect of the joint holding. |
(b) |
The Company is not liable for any loss arising from any mode of payment referred to in clause 32.8(a). |
32.9 |
Declaration of Dividend by Members and calls |
(a) |
Any general meeting declaring a Dividend may make a call on the Members of such amount as the meeting fixes but so that the call on each Member must not exceed the Dividend payable to him and so that the call be made payable at the same time as the Dividend and that the Dividend may be set off against the call. |
(b) |
The making of a call under clause 32.9(a) is deemed ordinary business of an annual general meeting which declares a Dividend. |
32.10 |
Dividends and distribution rights |
The Directors may, from time to time, in respect of any Dividend or any part of a Dividend direct that the payment be effected wholly or in part by the distribution to the persons entitled of specific assets or documents of title and, without limiting the generality of this clause:
(a) |
paid up Ordinary Shares, debentures or debenture stock in or of the Company; or |
(b) |
paid up Ordinary Shares, debentures or debenture stock in or of any other company; or |
(c) |
any combination of the above, |
and any disputes or other difficulties which may arise in relation to such distribution must be settled in such manner as the Directors may determine.
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32.11 |
Dividend Reinvestment, Employee and Bonus Share Plans |
(a) |
The Directors may, subject to the Corporations Act and the Listing Rules, establish and maintain one or more plans ( Plan ) whereby some or all of the Members may elect in terms of one or more of the following for a period or periods as provided in the Plan: |
(i) |
that Dividends paid in respect of some or all of the shares from time to time held by the Member must be satisfied by the issue or transfer of fully paid shares of the same class as such shares so held; or |
(ii) |
that Dividends must not, to the extent provided in the Plan, be declared or paid in respect of some or all of the shares from time to time held by the Members but that the Member will receive an issue or transfer of fully paid shares of the same class as the shares so held in accordance with the Plan; or |
(iii) |
if elections in terms of clauses 32.11(a)(i) and 32.11(a)(ii) are available under the Plans, in terms of clause 32.11(a)(i) as to some of the shares from time to time held by the Member and in terms of clause 32.11(a)(ii) as to the others of them; or |
(iv) |
certain Directors and employees of the Company or its related bodies corporate or associated companies or entity may acquire, whether by issue or transfer, shares or options to acquire shares. |
(b) |
For the purposes of clause 32.11(a), the Directors may, subject to the Listing Rules, in their absolute discretion: |
(i) |
prescribe the terms and conditions of the Plan, including any rules in relation to the Plan; |
(ii) |
from time to time vary the terms and conditions of the Plan and any agreement between the Company and a Member relating to the Plan; |
(iii) |
determine whether a Member is permitted to participate in the Plan or ceases to participate in the Plan; and |
(iv) |
terminate or suspend the Plan, |
and a Member who participates in the Plan is bound by the terms and conditions of the Plan as prescribed and as varied from time to time.
(c) |
Any Plan established and maintained under the provisions of clauses 32.11(a) and 32.11(b) has effect in accordance with its terms and the Directors will do (and will have authority under clauses 32.11(a) and 32.11(b) to do) all things necessary and convenient for the purposes of implementing the Plan, including (but without limitation) the issue of shares and of necessary appropriation, capitalisation, application, payment and distribution of funds which may lawfully be appropriated, capitalised, applied, paid or distributed for the purposes of the issue. |
33. |
Reserves and provisions |
33.1 |
Reserves |
(a) |
The Directors may set aside out of the profits of the Company such sums as they think proper as reserves which may at the discretion of the Directors be |
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applicable for any purpose to which the profits of the Company may be properly applied and pending any such application may at the like discretion either be employed in the business of the Company or be invested in such investments (other than shares of the Company) as the Directors may from time to time think fit.
(b) |
The Directors may, without placing the same to reserve, carry forward any profits which they may think prudent not to divide. |
33.2 |
Capitalisation of profits |
(a) |
The Directors may from time to time, subject to the Listing Rules and the Corporations Act, pass a resolution to the effect that any money investments or other assets available for distribution as Dividend but not required for the payment or provision of any fixed preferential Dividend, whether standing to the credit of any reserve or provision or not, and: |
(i) |
forming part of the undivided profits of the business of the Company; or |
(ii) |
representing profits arising from an ascertained accretion to capital or from a revaluation of the assets of the Company; or |
(iii) |
arising from the realisation of any capital assets of the Company or any investments representing the same, |
must be capitalised and, subject to the terms on which the shares in the Company are issued, must be distributed amongst the holders of all of the shares or of such one or more classes of shares as the Directors think fit without making a distribution among the holders of other classes of shares or must be distributed in different proportions among the holders of different classes of shares.
(b) |
For the purposes of clause 33.2(a): |
(i) |
the resolution may declare that all or any part of the capitalised fund may be applied in paying up in part or in full shares or debentures of the Company and that such application may be accepted by the Members entitled to share in the distribution in part or in full satisfaction of their interests in the capitalised sum; |
(ii) |
when any such resolution has been passed the Directors may issue a sufficient number of shares or may issue a sufficient amount of debentures to the Members entitled to share in the distribution in satisfaction of their respective interests in the capitalised sum and as nearly as may be in proportion to the amounts paid up on the shares of the relevant class or classes held by them; and |
(iii) |
prior to such issue the Directors may authorize any person on behalf of the holders of the shares to whom a distribution is to be made to enter into any agreement with the Company for the issue to them of shares to be credited as fully paid up or partly paid up and in satisfaction of the bonus or for the issue to them of debentures in satisfaction of the bonus and any agreement made under such authority is effective. |
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33.3 |
Settlement of capitalisation and distribution |
For the purposes of giving effect to any resolution for capitalisation and distribution of undivided profits or other moneys or for satisfaction of a Dividend by distribution of shares or other assets of the Company the Directors may:
(a) |
settle as they think expedient any difficulty that may arise in making the distribution and, in particular, they may determine that fractions of less value than $1 may be disregarded in order to adjust the rights of all parties; |
(b) |
fix the value for distribution of any specific assets; |
(c) |
determine the amount of any cash payments to be made to any Members upon the footing of the value so fixed; |
(d) |
vest any cash or specific assets in trustees upon such trusts for the persons entitled to the capitalised fund or Dividend (as the case may be) as may seem expedient to the Directors; and |
(e) |
where necessary, file a proper contract in accordance with any statutory requirements and appoint any person to sign the contract on behalf of the persons entitled to the capitalised fund or Dividend (as the case may be) and such appointment is effective. |
33.4 |
Payment in foreign currency |
For the purpose of clause 32 and this clause 33 the Directors may, with the approval of the Member concerned or pursuant to the terms of issue of any shares held by that Member, determine to pay any amount payable to that Member in the currency of another country and the Directors may fix a date for payment at which date the relevant exchange rate will be determined.
34. |
Accounts |
34.1 |
Company to keep accounts |
The Directors must keep or cause to be kept proper books of account and must distribute copies of financial reports as required by the Corporations Act and the Listing Rules and must, from time to time, determine whether and to what extent and at what times and places and under what conditions or regulations the records, accounts and books of the Company, or any of them, is open to the inspection of Members not being Directors and no Member (not being a Director) has any right of inspecting any record, account, book or paper of the Company except as conferred by statute or authorised by the Directors or by the Company in general meeting.
34.2 |
Accounts to be audited |
The Directors must cause the accounts of the Company to be audited in accordance with the requirements of the Corporations Act and the Listing Rules.
35. |
Notices |
35.1 |
Method of giving notice |
A notice may be given by the Company to any Member:
(a) |
personally; or |
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(b) |
by sending it by post to him at his registered address or to the address (if any) supplied by him to the Company for the giving of notices to him; or |
(c) |
by sending it to the fax number or electronic address (if any) nominated by the Member; or |
(d) |
in the case of an overseas Member, by air mail or to the fax number nominated by that Member or such other manner as will ensure prompt receipt by that Member; or |
(e) |
by any other means determined by the Directors in accordance with the provisions of clause 35.2(c). |
35.2 |
Service of notice |
(a) |
Where a notice is sent by post, service of the notice is deemed to be effected by properly addressing prepaying and posting a letter containing the notice and to have been effected, in the case of a notice of a meeting, on the day after the date of its posting and in any other case, at the time at which the letter would be delivered in the ordinary course of post. |
(b) |
A notice of meeting sent by fax or other electronic means is taken to be given on the Business Day after it is sent. |
(c) |
Notwithstanding the provisions of clause 35.1, if the Directors determine, a notice may be given by any other means as ensures prompt receipt of the notice and service of the notice is deemed to be effected if the mode of service of the notice is properly addressed and paid for and lodged for delivery or transmission with a competent authority or body and to have been effected at the time at which in the ordinary course that mode of service of the notice would be delivered. |
35.3 |
Notice to joint holders |
A notice may be given by the Company to the joint holders of a share by giving the notice to the joint holder first named in the Register in respect of the share.
35.4 |
Notice to legal personal representatives and trustees |
A notice may be given by the Company to the persons entitled to a share in consequence of the death or bankruptcy of a Member by sending it through the post in a prepaid letter addressed to them by name or by the title of representatives of the deceased or assignee of the bankrupt or by any like description at the address if any supplied for the purpose by the persons claiming to be so entitled or (until such an address has been so supplied) by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred.
35.5 |
Persons entitled to notice |
(a) |
Notice of every general meeting must be given in any manner authorised by the constitution to: |
(i) |
every Member except those Members who have not supplied to the Company an address for the giving of notices to them; |
(ii) |
every person entitled to a share in consequence of the death or bankruptcy of a Member who but for his death or bankruptcy would be entitled to receive notice of the meeting; |
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(iii) |
the auditor for the time being of the Company; |
(iv) |
ASX; and |
(v) |
such other persons as required by the Corporations Act. |
(b) |
No person other than as referred to in clause 35.5(a) is entitled to receive notices of general meetings. |
36. |
Winding up |
36.1 |
Distribution |
(a) |
If the Company is wound up and the assets available for distribution among the Members are insufficient to repay the whole of the paid up capital the assets must be distributed so that, as nearly as may be, the losses are borne by the Members in proportion to the capital paid up or which ought to have been paid up at the commencement of the winding up on the shares held by them respectively. |
(b) |
If in a winding up, the assets available for distribution among the Members are sufficient to repay the whole of the capital paid up at the commencement of the winding up, the excess must be distributed amongst the Members in proportion to the capital at the commencement of the winding up paid up or which ought to have been paid up on the shares held by them respectively. |
(c) |
The provisions of clauses 36.1(a) and 36.1(b) must not add to or detract from the rights of the holders of shares issued on special terms and conditions. |
36.2 |
Members to approve payment of fee or commission |
(a) |
On the sale of the Companys main undertaking or on the voluntary liquidation of the Company, no fee or commission may be paid to any Director or liquidator unless it has been ratified by the Members in general meeting. |
(b) |
Written notification of the amount of the proposed payment must be given to all Members at least 14 days prior to the meeting at which the payment is to be considered. |
36.3 |
Distribution in specie |
(a) |
If the Company is wound up, whether voluntarily or otherwise, the liquidator may with the sanction of a special resolution divide among the contributories in specie or in kind any part of the assets of the Company and may with the like sanction vest any part of the assets of the Company in trustees upon such trusts for the benefit of the contributories or any of them as the liquidator with the like sanction thinks fit. |
(b) |
If thought expedient, any division may be otherwise than in accordance with the legal rights of the contributories and, in particular, any class may be given preferential or special rights or may be excluded altogether or in part but in the event of a determination otherwise than in accordance with the legal rights of the contributories, any contributory who would be prejudiced by the division has a right to dissent and ancillary rights as if such determination were a special resolution passed pursuant to section 507 of the Corporations Act. |
(c) |
In case any shares to be divided among the contributories involve a liability to calls or otherwise, any person entitled under the division to any of the shares |
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may within 10 days after the passing of the special resolution, by notice in writing, direct the liquidator to sell his proportion and pay him the net proceeds and, if practicable, the liquidator must act in accordance with that direction. |
37. |
Indemnity and insurance |
37.1 |
Indemnification of officers |
(a) |
The Company may indemnify a person who is, or has been, an officer of the Company, to the full extent permissible by law, out of the property of the Company, against: |
(i) |
any liability incurred by that person as an officer of the Company; and |
(ii) |
legal costs incurred in defending an action for a liability incurred by that person as an officer of the Company, |
except in respect of a liability or legal costs for which the Company is prohibited from indemnifying the officer pursuant to the Corporations Act.
(b) |
For the avoidance of doubt, clause 37.1(a) will not apply so as to enable the Company to indemnify a person who is, or has been, an officer of the Company to the extent that the law precludes the giving of such an indemnity. |
37.2 |
Insurance premium |
The Company may pay a premium for a contract insuring a person who is, or has been, an officer of the Company against:
(a) |
any liability incurred by that person as an officer of the Company; and |
(b) |
any liability for costs and expenses incurred by that person in defending proceedings relating to that person acting as an officer of the Company, whether civil or criminal, and whatever their outcome, except any liabilities in respect of which the Company is prohibited from doing so pursuant to the Corporations Act. |
38. |
Deadlock |
In the event of an equality of votes for and against any resolution proposed or submitted at any meeting of the Directors that resolution must be put to a meeting of the Company called and held for that purpose.
39. |
ASX |
(a) |
Notwithstanding anything contained in this constitution, if the Listing Rules prohibit an act being done, the act must not be done. |
(b) |
Nothing contained in this constitution prevents an act being done that the Listing Rules require to be done. |
(c) |
If the Listing Rules require an act to be done or not to be done, authority is given for that act to be done or not to be done (as the case may be). |
(d) |
If the Listing Rules require this constitution to contain a provision and it does not contain such a provision, this constitution is deemed to contain that provision. |
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(e) |
If the Listing Rules require this constitution not to contain a provision and it contains such a provision, this constitution is deemed not to contain that provision. |
(f) |
If any provision of this constitution is or becomes inconsistent with the Listing Rules, this constitution is deemed not to contain that provision to the extent of the inconsistency. |
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Exhibit 4.1
EXECUTION COPY
CONVERTIBLE LOAN AGREEMENT
THIS CONVERTIBLE LOAN AGREEMENT (the Agreement) is made as of the 20 th day of July, 2009 (United States Eastern Standard Time) by and between Prima BioMed Limited (ACN 009 237 889), a public limited liability organized under the laws of the State of Victoria, Australia, with registered offices located at Suite 1, 1233 High Street, Armadale, Victoria 3143, Australia (the Company), and SpringTree Global Opportunities Fund, LP, a Delaware limited partnership, with offices located at 55 Fifth Avenue, 18 th Floor, New York, NY 10003, USA (the Investor).
Recitals
The Investor wishes to lend to the Company, and the Company wishes to borrow from the Investor, upon the terms and subject to the conditions stated in this Agreement, in tranches determined hereunder, an aggregate principal amount of up to AU$25,500,000, convertible into ordinary shares of the Company (the Shares).
NOW, THEREFORE, in consideration of the foregoing facts and the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto (each, a Party and, collectively, the Parties) hereby agree as follows:
1. |
Definitions . In addition to those terms defined in the Recitals above and elsewhere in this Agreement, for the purposes of this Agreement, the following terms shall have the meanings set forth below: |
Affiliate shall mean, with respect to any person (the First Person): (a) any other person who, directly or indirectly, Controls, is under common control with, or is controlled by, such First Person; (b) any other person who is a director, officer, employee, manager, direct or indirect member, shareholder or interest holder, partner, or trustee of the First Person or a person described in clause (a) of this definition, or any spouse of the First Person or of a person described in clause (a) of this definition; (c) any relative of the First Person or any other person described in clause (b) of this definition; or (d) any person of which the First Person and/or any one or more of the persons specified in any of clauses (a), (b) or (c) of this definition, individually or in the aggregate, beneficially own 10% or more of any class of voting securities.
Appendix 3B shall have the meaning given in the Listing Rules.
ASIC shall mean the Australian Securities and Investments Commission.
ASTC Settlement Rules shall mean the settlement rules of the ASX Settlement and Transfer Corporation Pty Ltd.
ASX shall mean ASX Limited and the market operated by it, the Australian Securities Exchange, as applicable.
1.
EXECUTION COPY
Australian Governmental Authority shall mean any Australian federal, state, territorial or local governmental, legislative, regulatory or administrative authority, agency or commission, or any Australian court, tribunal or judicial or arbitral body.
Australian Law shall mean each of the following: each Listing Rule or regulation of ASX, Australian law or regulation, an Australian judicial, governmental or administrative order, and an Australian Governmental Authority regulation, order, interpretation, guideline, policy or directive.
Base Price shall mean $AU0.02, as may be adjusted as set forth in Section 20.5.
Business Day shall have the meaning given to that term in the Listing Rules.
CHESS shall have the meaning given to that term in the ASTC Settlement Rules.
Cleansing Statement shall mean a written notice by the Company to ASX pursuant to Section 708A(5) of the Corporations Act meeting the requirements of Section 708A(6) of the Corporations Act, in a form, and containing the information, that is sufficient to permit subsequent re-sales on the ASX of the Shares to which it relates;
Closing shall mean each of the First Closing, the Second Closing, the Third Closing and the Subsequent Closings.
Collateral Shares shall mean 15,000,000 Shares issued to the Investor or its designee or nominee in accordance with Section 11.
Collateral Share Holding Number shall mean 15,000,000, subject to adjustments made pursuant to Section 20.5.
Commitment Options shall mean 15,000,000 options to purchase Shares of the Company at the Commitment Option Exercise Price, granted on the terms set forth herein.
Commitment Option Exercise Price shall mean a per option exercise price equal to 110% of the average of the VWAPs per Share for the twenty (20) Business Days immediately prior to the Execution Date; subject to all adjustments pursuant to this Agreement.
Contemplated Transactions shall mean the transactions contemplated hereby.
Control (including the terms controlling, controlled by or under common control with) shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.
Conversion Price, in relation to a Repayment, shall equal the lesser of (a) Conversion Price A and (b) 90% of the average of the VWAPs per Share on any five (5) consecutive Business Days (chosen by the Investor) during the period commencing on the date of the Closing in which the Tranche being repaid was advanced to the Company and ending on the date
2.
EXECUTION COPY
immediately prior to the Repayment Date of such Tranche (Conversion Price B); subject to all adjustments pursuant to this Agreement.
Conversion Price A shall mean (a) 130% of the average of the closing prices per Share for the twenty (20) Business Days immediately prior to the Execution Date (Conversion Price C), or (b) provided that each of the three (3) consecutive Repayments prior to the Repayment in relation to which Conversion Price A is being determined has been effected at Conversion Price C, and only for as long as Conversion Price C is less than Conversion Price B, 150% of the average of the closing prices per Share for the twenty (20) Business Days immediately prior to the Execution Date; as may be adjusted as set forth in Section 20.5.
Corporations Act shall mean the Australian Corporations Act 2001 (Cth).
Electronic Delivery (including the terms Electronically Deliver, Electronically Delivered and Electronically Delivering) shall mean receipt by the Investor or its designee or nominee by electronic registration to the Investors CHESS Account (or such other electronic system which provides for the recording, delivery and transfer of title by way of electronic entries, as may be required by the Investor by notice to the Company) of duly and validly issued Investors Shares, in accordance with the ASTC Settlement Rules and procedures of CHESS, and receipt of confirmation by the Investor that this has occurred.
Event of Default shall have the meaning given to that term in Section 17.
Excluded Tax shall mean a Tax imposed by any jurisdiction on the Investor, or assessed against the Investor as a consequence of the Investor being a resident of or organized or doing business in that jurisdiction, but not any Tax: (a) calculated on or by reference to the gross amount of a payment provided for under this Agreement or made pursuant to a Contemplated Transaction (without the allowance of a deduction); or (b) imposed as a result of the Investor being considered a resident of or organized or doing business in Australia as a result of the Investor being a party to this Agreement or entering into a Contemplated Transaction.
Execution Date shall mean the date of mutual execution of this Agreement.
Governmental Authority shall mean any United States, Australian or other national, federal, state, territorial or local governmental, legislative, regulatory or administrative authority, agency or commission, or any court, tribunal or judicial or arbitral body.
Governmental Authorization shall mean any authorization, consent, license, permit or registration issued or granted by any Governmental Authority.
GST shall mean the goods and services tax levied under the GST Act.
GST Act shall mean the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).
Insolvency Event shall mean any of the following events in relation to the Investor: (a) an application is made to a court (other than a frivolous or vexatious application) for an order that it be wound up, except where the application is withdrawn, struck out or dismissed within
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seven Business Days of it being made; (b) a liquidator or provisional liquidator is appointed; (c) an administrator or a controller is appointed to any of its assets; (d) it enters into an arrangement or composition with one or more of its creditors, or an assignment for the benefit of one or more of its creditors; (e) it proposes a reorganisation, moratorium, agreement of company arrangement or other administration involving one or more of its creditors, or its winding up or dissolution; (f) it is insolvent as disclosed in its accounts or otherwise states that it is insolvent or it is presumed to be insolvent under an applicable law; (g) it is taken to have failed to comply with a statutory demand as a result of section 459F(1) of the Corporations Act; (h) a writ of execution is levied against it or its property; or (i) anything occurs under the a United States federal or state law which has a materially equivalent effect to any of the above paragraphs of this definition.
Investors CHESS Account shall mean the Investors brokerage or prime brokerage account the details of which may from time to time be notified by the Investor to the Company.
Investors Shares shall mean the Repayment Shares, the Collateral Shares and the Shares issued or issuable on exercise of the Options.
Law shall mean each of the following: each Listing Rule or regulation of ASX, a law, a regulation, a judicial, governmental or administrative order, and a Governmental Authority regulation, order, interpretation, guideline, policy or directive.
Lien shall mean a lien, charge, mortgage, security interest, encumbrance, right of first refusal, or pre-emptive right.
Listing Rules shall mean the listing rules of the ASX.
Loan shall mean the total of all amounts lent to the Company by the Investor which are outstanding from time to time.
Market Capitalization Amount shall mean the Australian dollar amount equal to (a) (i) 2%, when calculated in connection with the First Closing or the Second Closing, or (ii) 3%, when calculated in connection with any other Closing, multiplied by (b) the number of Shares on issue immediately prior to the Closing in connection with which the Market Capitalization Amount is being calculated, multiplied by (c) the lower of (i) the VWAP per Share on the Business Day immediately preceding the Closing Date of such Closing or (ii) the averages of the VWAPs per Share during the five (5) Business Days immediately preceding the Closing Date of such Closing.
Material Adverse Effect shall mean a material adverse effect on (a) the assets, liabilities, results of operations, condition (financial or otherwise), business, or prospects of the Company and its Subsidiaries taken as a whole, or (b) the ability of the Company to perform its obligations under the Agreement.
New York Business Day shall mean a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business.
Option shall mean each of the Commitment Options and the Tranche Options, and Options shall mean the Commitment Options and the Tranche Options, collectively.
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Prior Tranche shall mean, as to a Closing, the Tranche that has become due to the Investor hereunder most recently prior to such Closing.
Prohibited Transaction shall mean a transaction with a third party or third parties in which the Company issues or sells (a) any debt, equity or equity-linked securities (including options) that are convertible into, exchangeable or exercisable for, or include the right to receive, Shares (i) at a conversion, exercise or exchange rate or other price that is based on, and/or varies with, the trading prices of, or quotations for, the Shares, or (ii) at a conversion, exercise or exchange rate or other price that is subject to being reset at some future date after the initial issuance of such debt, equity or equity-linked security or upon the occurrence of specified or contingent events, or (b) any securities in a capital or debt raising transaction or series of related transactions which grant to an investor the right to receive additional securities based upon future transactions of the Company on terms more favorable than those granted to such investor in such first transaction or series of related transactions; and shall be deemed to include transactions generally referred to as equity lines of credit and stand-by equity distribution agreements, and convertible notes and loans having a similar effect. For the avoidance of doubt, none of rights issuances, shareholder purchase plans, convertible notes, or equity issuances, each at a fixed price per Share, shall be deemed to be a Prohibited Transaction.
Register of Tranches shall mean a register of Tranches recording advances and Repayments of the Tranches hereunder.
Remediable Event of Default shall mean any Remediable Event of Default A, as defined in Section 18 and/or Remediable Event of Default B, as defined in Section 18.
Repayment shall mean a repayment of a Tranche, by way of Tranche Repayment Shares, or as may be expressly permitted under this Agreement, in immediately available funds.
Repayment Date shall mean (a) as to the first Tranche, the date immediately preceding the date of the Second Closing, and (b) as to each Tranche other than the first Tranche, the 28th calendar day after the date of the Closing of that Tranche; except (i) as adjusted pursuant to Sections 15.20 or 18. 1, and (ii) where a Repayment Date falls on a day that is not a Business Day then the Business Day that immediately precedes the date that would otherwise be such Repayment Date, shall be the Repayment Date.
Repayment Shares shall mean any and all Tranche Repayment Shares.
Securities shall mean each of the Investors Shares and the Options, and all of the Investors Shares and the Options, collectively.
Security Structure Event shall mean any consolidation, subdivision or pro-rata cancellation of the Companys issued capital; and for clarity, does not include a rights offering, a bonus issuance, or a share dividend.
Shares shall mean ordinary shares in the capital of the Company and shall include Investors Shares; and Share shall mean each of the foregoing.
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Securities Registrar Direction shall mean an irrevocable and unconditional direction from the Company to its securities registrar to allot and issue Investors Shares to the Investor or at the direction of the Investor or its attorney, and register Investors Shares in the Investors name or the name of the person designated by the Investor or its attorney; from time to time, in a form reasonably acceptable to the Investor and, until further notice by the Investor, substantially in the form set forth in Exhibit D.
Subsidiary shall have the meaning given in the Corporations Act.
Tax shall mean any tax, including the GST, levy, charge, impost, duty, fee, deduction, compulsory loan or withholding, and any income, stamp or transaction duty, tax or charge, which is assessed, levied, imposed or collected by any Governmental Authority and includes any interest, fine, penalty, charge, fee or other amount imposed on or in respect of any of the foregoing.
Tranche shall mean the Australian dollar amount lent by the Investor to the Company at a Closing.
Tranche Options shall mean options to purchase Shares of the Company at the Tranche Option Exercise Price, granted on the terms set forth herein.
Tranche Option Exercise Price, in relation to a tranche of Tranche Options, shall mean a per option exercise price equal to 150% of the average of the VWAPs per Share for the twenty (20) Business Days immediately prior to the date of grant of such Tranche Options; subject to all adjustments pursuant to this Agreement.
Tranche Repayment Shares shall mean, as to any Tranche, the Shares issued or issuable by the Company to the Investor or its designee or nominee as repayment of that Tranche.
Transaction Documents shall mean this Agreement, all Option certificates and Exercise Forms issued hereunder, the Securities Registrar Direction and all Cleansing Statements; and a Transaction Document means each of the foregoing.
VWAP shall mean (and VWAPs shall be construed accordingly), in relation to a Business Day, the volume weighted average price (in Australian dollars, rounded to four decimal places) of the Shares traded in the ordinary course of business on the ASX on that Business Day, excluding crossings executed outside the open session state, special crossings, overseas trades and trades pursuant to exercise of options over Shares, subject to all adjustments set forth in this Agreement; provided that
(a) |
where, on that Business Day, Shares were quoted on the ASX as cum dividend or cum any other distribution or entitlement, and the issue of Shares for the purpose of which the VWAP is being determined will occur after that date, and those Shares no longer carry that dividend or other distribution or entitlement, then the VWAP on that Business Day shall be reduced by an amount (Cum Value) equal to: (i) in the case of a dividend or other distribution, the amount of that dividend or other distribution, (ii) in the case of any other entitlement which is traded on the ASX on that Business Day, the VWAP of such entitlements sold on the ASX |
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on that Business Day, or (iii) in the case of an entitlement not traded on the ASX on that Business Day, the value of the entitlement as reasonably determined by the Investor; and |
(b) |
where, on that Business Day, Shares were quoted on the ASX as ex-dividend or ex any other distribution or entitlement, and the Shares for the purpose of which the VWAP is being determined would be entitled to receive the relevant dividend or other distribution or entitlement, the VWAP on that Business Day shall be increased by the Cum Value. |
2. |
Loan . On the terms and subject to the conditions of this Agreement, and in reliance on the respective representations and warranties of the Parties: |
2.1 |
on the Execution Date or such later date as may be determined in accordance with the provisions of this Agreement, the Investor shall lend to the Company, in immediately available funds, AU$500,000 (the First Closing); |
2.2 |
on the 15 th Business Day after the date of the First Closing or such later date as may be determined in accordance with the provisions of this Agreement, the Investor shall lend to the Company, in immediately available funds, AU$500,000 (the Second Closing); |
2.3 |
on the date that is thirty (30) calendar days after the date of the Second Closing or such later date as may be determined in accordance with the provisions of this Agreement, the Investor shall lend to the Company, in immediately available funds, AU$700,000 (the Third Closing); and |
2.4 |
on each date that is thirty (30) calendar days after the date of the immediately preceding Closing (other than on such date after the First Closing and the Second Closing) or such later date as may be determined in accordance with the provisions of this Agreement, the Investor shall lend to the Company, in immediately available funds, AU$700,000 (each, a Subsequent Closing and, collectively, the Subsequent Closings); |
provided that there shall be no more than a total of thirty-seven (37) Closings, the aggregate amount that the Investor shall lend to the Company shall not exceed AU$25,500,000 (the Total), and all amounts to be lent pursuant to this Section 2 shall be subject to all adjustments pursuant to all other provisions of this Agreement, including the adjustments set forth in Sections 15.10 and 15.16. Notwithstanding the foregoing, where a date of a Closing (a Closing Date) falls on a day that is not a New York Business Day, the Closing shall occur on the day that is the next day that is a New York Business Day.
3. |
Interest . There shall be no interest payable by the Company to the Investor in connection with the Loan, except as set forth in Section 18 of this Agreement. |
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4. |
Fees and Costs . |
4.1 |
Legal Costs and Commencement Fee . At the First Closing, the Company shall (a) reimburse the Investor or its designee or nominee for the Investors actual legal costs in connection with the execution of this Agreement, to the extent to which such legal costs exceed AU$15,000 (and the Investor acknowledges that the Company has previously reimbursed the Investor for its legal costs in the amount of AU$15,000), for an amount not exceeding AU$10,000, and (b) pay the Investor or its designee or nominee a non-refundable commencement fee in the amount equal to 1.87% of the Total (the Commencement Fee), to be satisfied by way of set-off of the aggregate amount of such reimbursement and the Commencement Fee against the proceeds of the Tranche lent by the Investor to the Company at the First Closing (and any subsequent Closings, to the extent to which the aggregate amount of such reimbursement and the Commencement Fee exceeds the gross proceeds of the Tranche lent by the Investor to the Company at the First Closing). |
4.2 |
Maintenance Fee . At each of the Second Closing, the Third Closing and the first ten Subsequent Closings, the Company shall pay the Investor or its designee or nominee a maintenance fee in the amount of 0.15% of the Total (the Maintenance Fee), to be satisfied by way of set-off of the Maintenance Fee against the proceeds of the Tranche lent by the Investor to the Company at such Closing. |
4.3 |
Commitment Options . At the First Closing, the Company shall grant to the Investor or its designee or nominee the Commitment Options. |
5. |
First Closing Deliveries . Without limiting the generality of any of the conditions to Closing set forth in Sections 7 and 8, and in addition to the deliveries set forth in Section 6, no later than immediately prior to the First Closing, the Company shall deliver or cause to be delivered to the Investor the following: |
5.1 |
an option certificate from the Companys security registrar confirming that the name of the Investor has been entered onto the Companys option register, as holding the Commitment Options; |
5.2 |
a copy of the duly executed Securities Registrar Direction; |
5.3 |
a copy of the resolutions duly adopted by the Board of Directors of the Company, substantially in the form attached hereto as Exhibit B; |
5.4 |
a certificate, executed on behalf of the Company by its Chief Executive Officer, Managing Director, Chairman or Chief Financial Officer, dated as of the First Closing Date, certifying that (a) the Company has performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the First Closing, and (b) all |
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conditions to First Closing have been satisfied, substantially in the form attached hereto as Exhibit C (the CEO Certificate); |
5.5 |
a holding statement from the Companys security registrar confirming that the name of the Investor or its designee or nominee has been entered onto the Companys share register, as holding the Collateral Shares; and |
5.6 |
a copy of a duly executed and lodged Cleansing Statement and Appendix 3B and confirmation that they have been lodged by the Company with ASX in respect of the issue of Collateral Shares on the date of their issue, pursuant to Section 15.13. |
6. |
Other Closing Deliveries . Without limiting the generality of any of the conditions to Closing contained in Sections 7 and 8, and in addition to the deliveries set forth in Section 5, no later than one Business Day prior to each Closing, the Company shall deliver or cause to be delivered to the Investor the following: |
6.1 |
a copy of a duly executed and lodged Cleansing Statement and Appendix 3B and confirmation that they have been lodged by the Company with ASX, in respect of the Tranche Repayment Shares issued by the Company to the Investor or its designee or nominee as repayment of the Prior Tranche; |
6.2 |
a copy of the relevant page of the ASX Daily Schedule or notification from ASX evidencing that ASX has granted quotation of the Tranche Repayment Shares issued by the Company to the Investor or its designee or nominee as repayment of the Prior Tranche; |
6.3 |
a holding statement and an option certificate from the Companys securities registrar confirming that the name of the Investor or its designee or nominee has been entered onto the Companys Share register and option register, as holding (a) the Tranche Options granted to the Investor or its designee or nominee, pursuant to Section 10.4, in connection with the Repayment of the Prior Tranche and (b) the Tranche Repayment Shares issued to the Investor or its designee or nominee as Repayment of the Prior Tranche pursuant to Section 10.1; |
6.4 |
copies of the resolutions duly adopted by the Board of Directors of the Company approving the Transaction Documents and the Contemplated Transactions, to the extent to which such resolutions are, in the reasonable opinion of the Investor, or pursuant to any Australian Law, required in addition to the resolutions referred to in Section 5.3, prior to the consummation of those Contemplated Transactions that, as of the date of such Closing, remain to be consummated; |
6.5 |
copies of all valid consents, permits, approvals, registrations and waivers that may, in the reasonable opinion of the Investor, be necessary or appropriate for the consummation of those Contemplated Transactions that would be consummated at the Closing, including approvals for the purpose of Listing Rule 7.1 and section 611 of the Corporations Act; |
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6.6 |
copies of such additional documents, certificates, payment, assignments, transfers and other deliveries as the Investor or its legal counsel may reasonably request or as are customary in Australia to effect a closing of the matters herein contemplated; and |
6.7 |
the flow of funds request, substantially in the form set forth in Exhibit E. |
7. |
Conditions to the Obligations of the Investor - First Closing . The obligations of the Investor to effect the First Closing shall be subject to the fulfillment before the First Closing of each of the following conditions: |
7.1 |
each of the conditions set forth in Sections 8.1 8.10 shall have been fulfilled; |
7.2 |
the Company shall have recorded the grant of the Commitment Options to the Investor or its designee or nominee; |
7.3 |
the Company shall have issued the Collateral Shares to the Investor or its designee or nominee, as set forth in Section 11.1; |
7.4 |
the Company shall have filed with the ASX a Cleansing Statement and Appendix 3B in relation to the Collateral Shares, as set forth in Sections 15.8 and 15.13; |
7.5 |
the Board of Directors of the Company shall have duly adopted resolutions substantially in the form attached hereto as Exhibit B; and |
7.6 |
the Issuer shall have received the CEO Certificate. |
8. |
Conditions to the Obligations of the Investor - Each Closing . The obligations of the Investor to effect each Closing shall be subject to the fulfillment before that Closing of each of the following conditions (and the Investor may, but is not required to, deem the absence of notification by the Company prior to a Closing that any conditions to that Closing have not been fulfilled to be an assurance that all conditions have been fulfilled): |
8.1 |
any and all consents, permits, approvals, registrations and waivers, in the reasonable opinion of the Investor necessary or appropriate for the consummation of those Contemplated Transactions that would be consummated at the Closing or the subsequent Repayment, shall have been issued and received, and all of such shall be in full force and effect; |
8.2 |
the Board of Directors of the Company shall have adopted resolutions approving the Transaction Documents and the relevant Contemplated Transactions, to the extent to which such approval is, in the reasonable opinion of the Investor, or pursuant to any Australian Law, required in addition to the approval referred to in Section 7.5, prior to the consummation of those Contemplated Transactions that, as of the date of such Closing, remain to be consummated; |
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8.3 |
the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the dates as of which they are made or deemed to be made hereunder; |
8.4 |
the Company shall have performed, or complied in all respects with, all agreements and covenants required by this Agreement to be performed or complied with by the Company as at or at any time prior to the Closing; |
8.5 |
the Investor shall have received all the closing deliveries required in connection with that Closing; |
8.6 |
where a Closing may not be effected under the Listing Rules in the absence of a shareholder approval, the Company shall have obtained shareholder approval for the purposes of Listing Rule 7.1 and Section 611 item 7 of the Corporations Act; |
8.7 |
the Company shall have (a) duly issued and Electronically Delivered to the Investor or its designee or nominee the Tranche Repayment Shares issuable to the Investor or its designee or nominee as Repayment of the Prior Tranche pursuant to Section 10.1, and (b) recorded the grant of, and delivered certificates in respect of, the Tranche Options granted to the Investor or its designee or nominee in connection with the Repayment of the Prior Tranche, pursuant to Section 10.4, each in accordance with all the provisions of this Agreement; |
8.8 |
the Company shall have filed with the ASX a Cleansing Statement and Appendix 3B in connection with all of the Tranche Repayment Shares issued as Repayment of the Prior Tranche pursuant to Section 10.1; |
8.9 |
(a) in the reasonable opinion of the Investor, any offer for sale by the Investor or its designee or nominee of the Tranche Repayment Shares issued as repayment of the Prior Tranche pursuant to Section 10.1 shall not have, and would not, need disclosure under Part 6D.2 of the Corporations Act, (b) the issue of such Tranche Repayment Shares shall not have resulted in the Company being in breach of the Listing Rules or any other Australian Law, and (c) quotation of such Tranche Repayment Shares on ASX shall have commenced; and |
8.10 |
(a) no Event of Default other than a Remediable Event of Default shall have occurred, (b) no Remediable Event of Default shall have occurred and be continuing, and (c) no Event of Default would, in the reasonable opinion of the Investor, result from the Closing being effected. |
9. |
Conditions to the Obligations of the Company Each Closing . The obligations of the Company to effect each Closing shall be subject to the fulfillment before that Closing of each of the following conditions: |
9.1 |
where a Closing may not be effected under the Listing Rules in the absence of a shareholder approval, the Company shall have obtained shareholder approval for the purposes of Listing Rule 7.1 and Section 611 item 7 of the Corporations Act; |
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9.2 |
the representations and warranties of the Investor contained in this Agreement shall be true and correct in all material respects as of the dates as of which they are made or deemed to be made hereunder; and |
9.3 |
the Investor shall have performed or complied in all respects with all agreements and covenants required by this Agreement to be performed or complied with by the Investor as at or prior to the Closing. |
10. |
Repayments . |
10.1 |
Repayment Date and Method . The Company shall repay each Tranche no later than on the Repayment Date of that Tranche, (a) by issuing and Electronically Delivering the Tranche Repayment Shares (in the number determined pursuant to Section 10.2) to the Investor or its nominee or designee, or (b) (only (i) as set forth in Section 10.3, or (ii) if required to repay Tranches in immediately available funds as set forth in Sections 15.14, 15.15 and/or 18), in immediately available funds. |
10.2 |
Repayment Shares . The number of Tranche Repayment Shares that the Company shall issue and Electronically Deliver as repayment of a Tranche shall be determined by dividing the Australian dollar amount of that Tranche (for the avoidance of doubt, before giving effect to any set-offs set forth in Sections 4.1 and 4.2 or other valid set-offs) by the Conversion Price, provided that if the resultant number contains a fraction, such number shall be rounded up to the next highest whole number. |
10.3 |
Companys Floor Price Protection . If the Conversion Price in respect of a Repayment is less than AU$0.04 per Share (subject to the adjustments set forth in Section 20.5, the Floor Price) the Company may elect to make such Repayment on the Repayment Date of such Repayment in immediately available funds and not in Shares (the Optional Cash Repayment), provided that the Company gives the Investor no less than four (4) Business Days written notice of its intention to undertake such Repayment in immediately available funds, which notice shall be deemed irrevocable. |
10.4 |
Tranche Options . On each Repayment Date, the Company shall grant the Investor or its nominee or designee Tranche Options, in the number equal to one fifth of the number of the Tranche Repayment Shares issued or issuable on that Repayment Date, exercisable at the Tranche Option Exercise Price, except where the Company undertakes the Repayment in immediately available funds under Section 10.3. |
10.4A |
Notice of Conversion Price . On or prior to each Repayment Date, the Investor shall provide the Company with a notice of the Conversion Price applicable to the Repayment due to be effected on such Repayment Date, setting out the manner in which such Conversion Price was calculated by the Investor. |
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10.5 |
Conditions to Repayment in Shares and Options . The obligation of the Investor to accept Repayment of a Tranche by way of Tranche Repayment Shares and Tranche Options shall be subject to the fulfillment on or before the Repayment Date of such Tranche of each of the following conditions, and the Company shall not issue Repayment Shares or Tranche Options to the Investor or its designee or nominee without the prior written consent of the Investor if on the issue of those Repayment Shares or Tranche Options any of the following conditions shall not have been fulfilled (and if the Company does so in breach hereof, such Repayment shall not be deemed to have been accepted by the Investor): |
10.5.1 |
any and all consents, permits, approvals, registrations and waivers necessary for the issuance of the Repayment Shares shall have been issued and received, and all of such shall be in full force and effect; |
10.5.2 |
the Board of Directors of the Company shall have adopted resolutions approving the Transaction Documents and the Contemplated Transactions, to the extent to which such approval is, pursuant to any Australian Law, required prior to the consummation of those Contemplated Transactions that, as of the date of such Repayment Date, remain to be consummated; |
10.5.3 |
the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the dates as of which they are made or deemed to be made hereunder; |
10.5.4 |
the Company shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Repayment Date; |
10.5.5 |
if the Tranche Repayment Shares may not be issued without a shareholder approval for the purposes of Section 611 item 7 of the Corporations Act, the Company shall have obtained such shareholder approval; |
10.5.6 |
the Investor shall have received all the deliveries required in connection with that Repayment; |
10.5.7 |
(a) no Event of Default other than a Remediable Event of Default shall have occurred, (b) no Remediable Event of Default shall have occurred and be continuing, and (c) no Event of Default would result from such Repayment being effected; and |
10.5.8 |
(a) any offer for sale by the Investor or its designee or nominee of the Tranche Repayment Shares issued as repayment of that Tranche shall not have, and would not, need disclosure under Part 6D.2 of the Corporations Act, subject only to the Company giving a notice under Section 708A(5)(e), (b) the issue and Electronic Delivery of such Tranche Repayment Shares would not result in the Company being in breach of the Listing Rules or any other Australian Law, and (c) ASX shall not have |
13.
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indicated to the Company that quotation of such Tranche Repayment Shares on ASX will not be granted upon notification to the ASX of their issue. |
11. |
Security . |
11.1 |
Issue of Collateral Shares . At the First Closing, the Company shall issue and Electronically Deliver the Collateral Shares to the Investor or its designee or nominee. The Collateral Shares shall be issued to secure the Loan, and in consideration of the Investor agreeing to enter into this Agreement and make the Loan to the Company. |
11.2 |
Return of Collateral . The Investor shall, within five (5) Business Days of the date of termination of this Agreement, in its sole discretion: |
11.2.1 |
request of the Company in writing that the number of Shares held by the Investor that is equal to the Collateral Share Holding Number, be cancelled for nil consideration (as discharge of the security represented by the Collateral Shares and in full and final settlement of all Investors liabilities in connection with the Collateral Shares), and the Investor agrees to sign all documents and do all things reasonably necessary to give effect to such cancellation; or |
11.2.2 |
pay to the Company (in immediately available funds) an amount in lieu of cancellation of the Collateral Shares (and as discharge of the security represented by the Collateral Shares and in full and final settlement of all Investors liabilities in connection with the Collateral Shares) equal to the Collateral Share Holding Number, multiplied by 90% of the average of the VWAPs per Share on any five (5) consecutive Business Days (chosen by the Investor) during the period commencing on the date of the Closing most recently preceding the date of termination of this Agreement and ending on the date that is immediately prior to the date on which termination of this Agreement takes effect; subject to Section 11.5. |
11.3 |
Shareholder Approval . If a request is made in accordance with Section 11.2.1, the Company shall (a) within five (5) Business Days of such request notify the Investor of its election to receive immediately available funds in lieu of cancellation of the Collateral Shares (and as discharge of the security represented by the Collateral Shares and in full and final settlement of all Investors liabilities in connection with the Collateral Shares) (the Companys Cash Election), or (b) use its reasonable efforts to obtain its shareholder approval for the cancellation of the number of Shares held by the Investor that is equal to the Collateral Share Holding Number (for no consideration) in accordance with the Corporations Act, and upon obtaining such approval, effect that cancellation in accordance with the Corporations Act (the Cancellation Approval). Where (a) the Companys Cash Election shall not have been made, but the Cancellation Approval shall not have been obtained by the Company prior to the Cancellation Date, being the date that |
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is sixty (60) calendar days after the date of the Investors request hereunder, or (b) the Companys Cash Election shall have been made; the Company shall immediately notify the Investor of that fact in writing, the Investors request shall be deemed to have been withdrawn and rescinded, the Company shall not cancel the foregoing Shares notwithstanding such original request, and the Investor shall make a payment in immediately available funds, as set forth in Section 11.4. |
11.4 |
Absence of Shareholder Approval . Within thirty (30) calendar days of the earlier of (a) the date of receipt of written notice of the Companys Cash Election, (b) the date of receipt of written notice from the Company that it was unable to obtain shareholder approval for the cancellation or (c) the Cancellation Date (the Return Period), the Investor shall pay to the Company (in immediately available funds) an amount in lieu of cancellation of the Collateral Shares (and as discharge of the security represented by the Collateral Shares and in full and final settlement of all Investors liabilities in connection with the Collateral Shares) equal to the Collateral Share Holding Number, multiplied by 90% of the average of the VWAPs per Share on any five (5) consecutive Business Days (chosen by the Investor) during the Return Period; subject to Section 11.5. |
11.5 |
Suspended Shares . Where the Investor would otherwise be required to make a payment to the Company in immediately available funds under Section 11.2.2 or Section 11.4, and the Shares are suspended or halted from trading on the ASX for a period that has exceeded or is reasonably expected to exceed, seven (7) Business Days, or the Company has ceased to be listed on the ASX, the Investor shall pay to the Company (as discharge of the security represented by the Collateral Shares, in lieu of its payment under Section 11.2.2 or Section 11.4, and in full and final settlement of all Investors liabilities in connection with the Collateral Shares), the fair market value (as of the date as of which the payment under Section 11.2.2 or Section 11.4 would otherwise be made) of the number of Shares that is equal to the Collateral Share Holding Number. |
12. |
Representations and Warranties of the Company . The Company acknowledges that the Investor has entered into this Agreement in reliance on the Companys representations and warranties set forth herein. Each representation and warranty of the Company is to be construed independently of the others and is not limited by reference to any other representation or warranty. The Company shall immediately notify the Investor upon becoming aware of any breach of any representation or warranty given by the Company under this Agreement. The Company hereby represents and warrants to the Investor, on and as of the Execution Date, each Closing Date and each Repayment Date, and as of each Closing, and where qualified by an express reference herein as to the representation or the warranty being given on and as of a particular other date or dates, on and as of that date or dates, that except as set forth in the schedules delivered herewith (collectively, the Disclosure Schedules), the following are true: |
12.1 |
Organization, Good Standing and Qualification . Each of the Company and its Subsidiaries is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has all requisite |
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corporate power and authority to carry on its business as now conducted and to own its properties (each, the Corporate Power). Each of the Company and its Subsidiaries is duly qualified and authorized to do business and is in good standing in each jurisdiction in which the conduct of its business or its ownership of property makes such qualification necessary, except where the failure to be so qualified would not have a material adverse effect on the Companys or such Subsidiarys business. No proceeding has been instituted in any jurisdiction seeking to revoke, limit or curtail any Corporate Power or the authority or qualification referred to in the preceding sentence of this paragraph. Neither the Company nor any Subsidiary is in violation or default of any of the provisions of their respective constitution, shareholders agreement, certificate or articles of incorporation, bylaws or other organizational or charter documents. |
12.2 |
Authorization . The Company has full power and authority to, has taken all action necessary, and has caused its officers, directors and security holders to, take all action necessary to (a) enter into, authorize, execute and deliver the Transaction Documents, (b) enter into, and authorize the performance of, all obligations of the Company, as and when required, under the Transaction Documents and the Contemplated Transactions, including issuing the Options and the Investors Shares; and no further action is required by the Company, its officers, its board of directors, or its security holders (except, (a) to the extent this representation is made as of a Repayment Date, and the Tranche Repayment Shares and/or Tranche Options may not be issued without a shareholder approval for the purposes of Listing Rule 7.1 and/or Section 611 item 7 of the Corporations Act, and (b) to the extent this representation is made as of a Closing Date, and the Loan may not be made without a shareholder approval for the purposes of Listing Rule 7.1 and/or Section 611 item 7 of the Corporations Act), in connection with the Transaction Documents or the relevant Contemplated Transactions. Each Transaction Document constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors rights generally. |
12.3 |
Capitalization . All of the issued Shares (a) have been duly and validly issued, (b) are fully paid, non-assessable and free of pre-emptive rights, (c) were issued in full compliance with applicable securities law and all rights of third parties, and (d) are free and clear of any Liens. No person is entitled, or purports to be entitled, to any right of first refusal, pre-emptive right, right of participation, or any similar right, to participate in the Contemplated Transactions or otherwise with respect to any securities of the Company. Except as described on Schedule 12.3, there are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which the Company or any Subsidiary is, or may be, obligated to issue any equity or equity-linked securities of any kind. There are no voting, buy-sell, outstanding or authorized stock appreciation, right of first purchase, phantom stock, profit participation or equity-based compensation agreements, options or arrangements, or like rights |
16.
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relating to the securities of the Company or agreements of any kind among the Company and any of its security holders. Except as described on Schedule 12.3, as of the Execution Date, there is no indebtedness or other equity of the Company that is senior to, or pari passu with, the Loan in right of payment, whether with respect to interest or upon liquidation or dissolution, or otherwise. The Company has not granted security with respect to any indebtedness or other equity of the Company. The issuance and sale of any of the Investors Shares or the Options will not obligate the Company to issue Shares or other securities to any other person and will not result in the adjustment of the exercise, conversion, exchange, or reset price of any outstanding security. Except as described on Schedule 12.3, the Company does not have in effect or outstanding any shareholder purchase rights, poison pills or any similar arrangements giving any person the right to purchase any equity interest in the Company upon the occurrence of certain events. |
12.4 |
Securities on Issue . The Companys Appendix 3B dated 30 June 2009 accurately describes the number and type of securities on issue by the Company as at the Execution Date. |
12.5 |
Valid Issuance . When issued pursuant to this Agreement, all Investors Shares will be validly issued, fully paid and non-assessable, and will be free and clear of all Liens and restrictions, except for restrictions on transfer imposed by applicable laws. |
12.6 |
Consents . The execution, delivery and performance by the Company of the Transaction Documents, and the offer, issuance and sale of the Investors Shares and the Options (except as expressly stipulated herein as required in the future under the circumstances under which they are expressly stipulated under the Agreement to be required), require no waivers of the Listing Rules by the ASX, or any consent of, action by or in respect of, or filing with, any Governmental Authority, the ASX or any other person, other than (a) lodgment of a Cleansing Statement with the ASX, where applicable, (b) disclosure of the entry into the Agreement to the ASX, and (c) applications to the ASX for the listing of the Investors Shares for trading thereon in the time and manner required hereunder. |
12.7 |
Regulatory Issues . (a) No stop order, trading halt, suspension of trading, cessation of quotation, or removal of the Company or the Shares from ASXs Official List has been requested by the Company or imposed by ASIC, the ASX, or any other Governmental Authority or regulatory body with respect to public trading in the Shares on the ASX (except for any trading halt of 2 days or less or as otherwise agreed to by the Investor, which suspension or halt has been terminated), and (b) there exists no fact or circumstance that may cause the Company to request, or ASIC, the ASX, or any other Governmental Authority to impose, any of the foregoing. |
12.8 |
No Material Adverse Effect; Other . Since June 30, 2008, there has not been an event or condition that has had, or may have, a Material Adverse Effect. Since the |
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date of the Companys latest audited financial statements, (a) the Company has not incurred any liabilities (contingent or otherwise) other than (i) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (ii) liabilities not required to be reflected in the Companys financial statements pursuant to the financial standards pursuant to which such financial statements are prepared or required to be disclosed in the Companys public filings, (b) the Company has not altered its method of accounting, and (c) the Company has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock. |
12.9 |
No Conflict, Breach, Violation or Default . Except as qualified in Section 15.14, the execution and delivery of, and the performance of the terms of, the Transaction Documents by the Company, and the issuance and sale of any of the Investors Shares or the Options will not (a) result in the creation of any Lien in respect of any property of the Company or any of its Subsidiaries, or (b) violate, conflict with, result in a breach of any provision of, require any notice or consent under, constitute a default under, result in the termination of, or in a right of termination or cancellation of, accelerate the performance required by, result in the triggering of any payment or other material obligations pursuant to, any of the terms, conditions or provisions of (i) the Companys constitution, as in effect on the date hereof, or (ii) any Australian Law, any Governmental Authority or an order of any court, domestic or foreign, having jurisdiction over the Company, any Subsidiary or any of their respective assets or properties, or (iii) any material agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or a Subsidiary is bound or to which any of their respective assets or properties is subject (or render any such agreement or instrument voidable or without further effect), or (iv) the Listing Rules. |
12.10 |
Litigation . |
12.10.1 |
Except as set forth in Schedule 12.10, there are no pending actions, suits or proceedings against or affecting the Company, its Subsidiaries or any of its or their properties; and to the Companys knowledge, no such actions, suits or proceedings are threatened or contemplated. |
12.10.2 |
Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any action, suit, proceeding, or investigation involving a claim of violation of or liability under securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is no pending or contemplated investigation by ASIC involving the Company or any current or former director or officer of the Company. ASIC has not issued any stop order or other order suspending the effectiveness of any prospectus filed or lodged by the Company or any Subsidiary. |
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12.11 |
Compliance . Except as set forth in Schedule 12.11, neither the Company nor any Subsidiary (a) is in material default under or in material violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (b) is in violation of any order of any court, arbitrator or Governmental Authority, or (c) is or has been in violation of any Australian Law. |
12.12 |
Tax Returns . Without limiting anything else in this Agreement, the Company has filed, or caused to be filed, all tax returns, business activity statements and other tax filings which were required to be filed by the Execution Date under applicable Tax law, and has paid all Taxes that became due and payable by it on or before the Execution Date when those Taxes became due and payable. No claims have been, or are reasonably likely to be, asserted against it with respect to those filings or payment of Taxes that, if adversely determined, would have the potential to have a Material Adverse Effect. |
12.13 |
Disclosures . The materials delivered, and statements made, by the Company and its representatives to the Investor in connection with the Contemplated Transactions (the Materials) do not (a) contain any untrue statement of a material fact or misleading statement, or (b) omit to state a material fact necessary in order to make the statements contained therein, in light of the circumstances under which they were made, not misleading. Neither the Company nor any of its Subsidiaries has incurred any indebtedness or any security interest in any of its assets that remains outstanding, except as disclosed in the Companys public filings. Neither the Company nor any of its Subsidiaries has made any agreement, offer, tender or quotation which remains outstanding and currently capable of acceptance relating to the purchase or sale of any business or assets of the Company or any of its subsidiaries. |
12.14 |
Solvency . The Company and each of its Subsidiaries is able, and is not aware of anything which would render the Company or any of its Subsidiaries unable, to pay all its debts as and when they become due and payable. No judicial order has been made or obtained against the Company or any of its Subsidiaries which is unpaid or unsatisfied. No attachment is in the process of being levied or enforced against any asset of the Company or any of its Subsidiaries. No administrator, liquidator, provisional liquidator, controller or receiver of, or in connection with, the Company or any of its Subsidiaries has been appointed, and the Company is not aware of such appointment pending, threatened, or being likely. No person has entered into, proposed, sanctioned, approved, or commenced, legal action relating to any scheme of arrangement, liquidation or compromise, or composition of the liabilities or arrangement of the affairs of the Company or any of its Subsidiaries, or between any of the foregoing and any of its shareholders and/or creditors. Neither the Company nor any of its Subsidiaries is in default under any |
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security interest over, or in relation to, any asset. The Company did not receive a qualified opinion from its auditors with respect to its most recent fiscal year end and, after giving effect to the Contemplated Transactions, does not anticipate or know of any basis upon which its auditors might issue a qualified opinion in respect of its current fiscal year. |
12.15 |
Intellectual Property . The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. The Company has no knowledge of any infringement by the Company or its Subsidiaries of trademarks, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations, trade secrets or other similar rights of others, and, to the knowledge of the Company, there is no claim, action or proceeding being made or brought, or threatened against, the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret or other infringement; and the Company and its subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing. |
12.16 |
Exchange Notices . To the best of the Companys knowledge, the Company is in material compliance with the Listing Rules and no fact exists which may result in the Company not complying with the Listing Rules or the Corporations Act. |
12.17 |
Continuous Disclosure . The Company is not in breach of its continuous disclosure obligations under the Listing Rules and the Corporations Act. |
12.18 |
Related Party . No person has contravened or will contravene Section 208 or Section 209 of the Corporations Act by entering into any Transaction Document or participating in any Contemplated Transaction. |
12.19 |
Entitlement to Rely on Disclosure Exemption . As of the Execution Date, each Closing Date, each Repayment Date, and each date on which the Company issues a Cleansing Statement hereunder (each, a Cleansing Statement Date), the Company and the Investor are entitled to rely on the sale offer exemption under s708A(5) of the Corporations Act in respect of the Investors Shares, in that, in particular: |
12.19.1 |
the Shares were quoted on the ASX at all times for the preceding 12 months, without suspension for more than five Business Days; |
12.19.2 |
the Shares have been quoted securities at all times in the three (3) months before the day on which they have been, or are to be, issued; |
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12.19.3 |
no exemption under Section 111AS or Section 111AT of the Corporations Act applied to the Company, or any director or auditor of the Company, during the preceding 12 months; |
12.19.4 |
no order under Section 340 or Section 341 of the Corporations Act applied to the Company, or any director or auditor of the Company, during the preceding 12 months; and |
12.19.5 |
there exist no circumstances that would cause ASIC to make a determination under Section 708A(2) of the Corporations Act, and no such determination has been made. |
12.20 |
Section 713(6) of the Corporations Act . ASIC has not made a determination in relation to the Company under section 713(6) of the Corporations Act. |
12.21 |
Miscellaneous Regulatory Issues . As at the Execution Date, the Company has no information that has not been told to the ASX under Listing Rule 3.1A. |
12.22 |
Self-Reliance . The Companys decision to enter into this Agreement has been based solely on its own evaluation of the Contemplated Transactions. The Company has been represented and advised by advisors of their own choice, including financial advisors, tax advisors and legal counsel, who have assisted the Company in understanding and evaluating the risks and merits associated with the Contemplated Transactions. |
12.23 |
Non-Public Information . Neither the Company nor any person acting on its behalf has provided the Investor or its agents, representatives or counsel with any information that constitutes material non-public information, and, to the Companys knowledge, the Investor does not possess any material non-public information. |
12.24 |
Securities Registrar . The Company has given its securities registrar no instruction inconsistent with the Securities Registrar Direction. |
12.25 |
Prohibited Transactions . For 45 calendar days preceding the Execution Date, the Company has not drawn-down, agreed to draw down, or notified any third party of its intention to draw down, any funds under the Standby Subscription Agreement between the Company and Fortrend Securities Pty Ltd for itself and as agent for the Fortrend Small Cap Investors Limited, dated on or about March 10, 2009 (the Fortrend Agreement). Other than the Fortrend Agreement, the Company has not entered or agreed to enter into a Prohibited Transaction. |
12.26 |
Default . Neither the Company nor any Subsidiary is in material default under a document or agreement (including a Governmental Authorization) binding on it or its assets which relates to financial indebtedness or is otherwise material. |
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12.27 |
Absence of Events of Default . No Event of Default and no event which, with notice, lapse of time or both, would constitute an Event of Default, has occurred and is continuing. |
13. |
Representations and Warranties of the Investor . The Investor acknowledges that the Company has entered into this Agreement in reliance on the Investors representations and warranties set forth herein. Each representation and warranty of the Investor is to be construed independently of the others and is not limited by reference to any other representation or warranty. The Investor shall immediately notify the Company upon becoming aware of any breach of any representation or warranty given by it under this Agreement. The Investor hereby represents and warrants to the Company, on and as of the Execution Date, each Closing Date and as of each Closing (in each case, except where qualified by an express reference herein as to the representation or the warranty being given on and as of a particular date or dates, only on and as of that date or dates), that the following are true: |
13.1 |
Organization, Good Standing and Qualification . The Investor is a validly existing limited partnership and has all requisite power and authority to enter into and consummate the Contemplated Transactions and otherwise to carry out its obligations hereunder. The Investor is in good standing under the laws of the jurisdiction of its incorporation and has all requisite power and authority to carry on its business as now conducted and to own its properties (each, the Investors Corporate Power). No proceeding has been instituted in any jurisdiction seeking to revoke, limit or curtail any Investors Corporate Power or the authority or qualification referred to in the preceding sentence of this paragraph. The Investor is not in violation or default of any of the provisions of its limited partnership agreement, certificate of formation, or other organizational or charter documents. |
13.2 |
Authorization . The execution, delivery and performance by the Investor of the Agreement have been duly authorized and will each constitute a valid and legally binding obligation of the Investor, enforceable against the Investor in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability, relating to or affecting creditors rights generally. |
13.3 |
Purchase Entirely for Own Account . The Investors Shares and Options will be acquired for the Investors own account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the United States Securities Act of 1933, as amended (Securities Act), and the Investor has no present intention of selling, granting any participation in, or otherwise distributing the same, in violation of the Securities Act; provided that nothing contained herein shall be deemed to restrict the Investors right at any time to sell or otherwise dispose of all or any Investors Shares and Options in compliance with applicable Australian and United States federal and state securities laws. Nothing contained herein shall be deemed a representation or warranty by the Investor to hold any Investors Shares or Options for any period of time, except as required by law. |
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13.4 |
Litigation . |
13.4.1 |
As of the Execution Date, there are no material pending actions, suits or proceedings against or affecting the Investor or any of its properties; and to the Investors knowledge, no such actions, suits or proceedings are threatened or contemplated. |
13.4.2 |
As of the Execution Date, neither the Investor, nor any director or officer thereof, is or has been the subject of any action, suit, proceeding, or investigation involving a claim of violation of or liability under securities laws or a claim of breach of fiduciary duty; and to the knowledge of the Investor, there has not been, and there is no, pending or contemplated investigation by SEC involving the Investor or any current or former director or officer of the Investor. |
13.5 |
Tax Returns . Without limiting anything else in this Agreement, the Investor has filed, or caused to be filed, all tax returns, business activity statements and other tax filings which were required to be filed by the Execution Date under applicable Tax law, and has paid all Taxes that became due and payable by it on or before the Execution Date when those Taxes became due and payable. |
13.6 |
Solvency . The Investor is able, and is not aware of anything which would render the Investor unable, to pay all its debts and obligations under this Agreement as and when they become due and payable. No judicial order has been made or obtained against the Investor which is unpaid or unsatisfied. No attachment is in the process of being levied or enforced against any asset of the Investor. No administrator, liquidator, provisional liquidator, controller or receiver of, or in connection with, the Investor has been appointed, and the Investor is not aware of such appointment pending, threatened, or being likely. No person has entered into, proposed, sanctioned, approved, or commenced, legal action relating to any scheme of arrangement, liquidation or compromise, or composition of the liabilities or arrangement of the affairs of the Investor, or between any of the foregoing and any of its limited partners and/or creditors. |
13.7 |
Self-Reliance . The Investor has been represented and advised by advisors of its own choice, including financial advisors, tax advisors and legal counsel, who have assisted the Investor in understanding and evaluating the risks and merits associated with the Contemplated Transactions. |
13.8 |
Default . The Investor is not in material default under a document or agreement (including a Governmental Authorization) binding on it or its assets which relates to financial indebtedness or is otherwise material. |
14. |
Terms of the Options . |
14.1 |
Nature of Options . |
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14.1.1 |
Each Option shall grant the holder of that Option the right but not the obligation to be issued by the Company one Share, at (in the case of Commitment Options) the Commitment Option Exercise Price per Share, or (in the case of Tranche Options) the Tranche Option Exercise Price per Share. Each of the Commitment Option Exercise Price and the Tranche Option Exercise Price shall be referred to herein as the Option Exercise Price. |
14.1.2 |
Each Option shall be exercisable, by the Option holder complying with its obligations under this Section 14, at any time after the time of its grant and (a) in the case of the Commitment Options, prior to the fifth anniversary date of the Execution Date (the Commitment Option Expiration Date), and (b) in the case of each tranche of the Tranche Options, prior to the fifth anniversary date of the date on which such tranche of Tranche Options is granted (each, the Tranche Option Expiration Date and, collectively, the Tranche Option Expiration Dates), after which time it will lapse. |
14.2 |
Exercise of Options . Without limiting the generality of, and subject to, the other provisions of the Agreement, an Option holder may exercise any of its Options at any time prior to their expiration, by delivery of (a) a copy, whether facsimile or otherwise, of a duly executed Option exercise form substantially in the form attached hereto as Exhibit A (the Exercise Form) to the Company during normal business hours on any Business Day at the Companys principal executive offices (or such other office or agency of the Company as it may designate by notice to the Option holder), and (b) payment of an amount equal to the Option Exercise Price multiplied by the number of Shares in respect of which the Options are being exercised at the time (the Exercise Price), by wire transfer to the account specified by the Company from time to time or by bank draft delivered to the Company during normal business hours on any Business Day at the Companys principal executive offices (or such other office or agency of the Company as it may designate by notice to the Option holder). As soon as reasonably practicable, but in any event no later than one Business Day after receipt of a duly completed Exercise Form and the payment referred to in the foregoing sentence, the Company shall cause its securities registrar to (a) issue and Electronically Deliver the Shares in respect of which the Options are so exercised by the Option holder and (b) provide to the Option holder holding statements evidencing that such Shares have been recorded on the Share register. |
14.3 |
Exercise Limitations . The Company shall not effect, and the Option holder shall not have the right to, effect any exercise of any Option, if in connection with an exercise of the Option an issuance of such Shares on exercise of the Option, (a) would result in the acquisition of a relevant interest in the Shares which would cause the voting power of the Investor or any of its associates (as defined in the Corporations Act) in the Company to exceed 20%, or increase from a starting point that is above 20% and below 90%, and (b) there is no relevant exception to the acquisition of the relevant Shares under the Corporations Act. |
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14.4 |
Bonus Issues . If, prior to an exercise of an Option, the Company makes an issue of Shares by way of capitalization of profits or out of its reserves (other than pursuant to a dividend reinvestment plan), pursuant to an offer of such Shares to at least all the holders of Shares resident in Australia, then on exercise of the Option, the number of Shares over which an Option is exercisable shall be increased by the number of Shares which the holder of the Option would have received if the Option had been exercised before the date on which entitlements to the issue were calculated. |
14.5 |
Rights Issues . If, prior to an exercise of an Option, any offer or invitation is made by the Company to at least all the holders of Shares resident in Australia for the subscription for cash with respect to Shares, options or other securities of the Company on a pro rata basis relative to those holders Share holding at the time of the offer, the Option Exercise Price shall be reduced as specified in the Listing Rules in relation to pro-rata issues (except bonus issues). |
14.6 |
Reconstruction of Capital . In the event of a consolidation, subdivision or similar reconstruction of the issued capital of the Company, and subject to such changes as are necessary to comply with the Listing Rules applying to a reconstruction of capital at the time of the reconstruction: |
14.6.1 |
the number of the Shares to which each Option holder is entitled on exercise of the outstanding Options shall be reduced or increased in the same proportion as, and the nature of the Shares shall be modified to the same extent that, the issued capital of the Company is consolidated, subdivided or reconstructed (subject to the same provisions with respect to rounding of entitlements as sanctioned by the meeting of shareholders approving the consolidation, subdivision or reconstruction); and |
14.6.2 |
an appropriate adjustment shall be made to the Option Exercise Price of the outstanding Options, with the intent that the total amount payable on exercise of the Options shall not alter. |
14.7 |
Cumulative Adjustments . Full effect shall be given to the provisions of Sections 14.4 to 14.6, as and when occasions of their application arise and in such manner that the effects of the successive applications of them are cumulative, the intention being that the adjustments they progressively effect will be such as to reflect, in relation to the Shares issuable on exercise of the Options outstanding, the adjustments which on the occasions in question are progressively effected in relation to Shares already on issue. |
14.8 |
Notice of Adjustments . Whenever the number of Shares over which an Option is exercisable, or the Option Exercise Price, is adjusted pursuant to this Agreement, the Company shall give notice of the adjustment to all the Option holders, within one Business Day thereof. |
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14.9 |
Rights prior to Exercise . Prior to its exercise, an Option does not confer a right on the Option holder to participate in a new issue of securities by the Company. |
14.10 |
Redemption . The Options shall not be redeemable by the Company. |
15. |
Additional Covenants and Agreements . |
15.1 |
Ranking of the Investors Shares . The Investors Shares shall rank equally in all respects with the existing Shares on the date of issue of the Investors Shares. At each issuance, the Company shall credit all Investors Shares as fully paid. All Investors Shares shall be issued free and clear of any Liens. |
15.2 |
Ranking of Loan . The Loan shall constitute direct, general, subordinated unsecured and unconditional obligations of the Company which rank pari passe among themselves and with other unsecured subordinated obligations of the Company. |
15.3 |
Rights of Investor . The Loan does not confer on the Investor any entitlement to receive dividends or vote at a general meeting of shareholders of the Company. |
15.4 |
No Conflicting Actions . Neither Party will take any action, enter into any agreement or make any commitment that would conflict or interfere in any material respect with its obligations to another Party under the Agreement. Unless so required by applicable law or regulation or in order to establish a dividend, distribution or other rights attaching to the Shares, the Company shall not close its share register or take any other action which prevents the transfer of its Shares or options generally. |
15.5 |
Compliance with Laws . The Company shall comply in all material respects with all applicable laws, rules, regulations, orders and decrees of all Governmental Authorities and, for as long as the Shares are listed on the ASX, the Listing Rules. The Investor shall comply with all of the provisions of the Corporations Act and the Securities Act. |
15.6 |
Further Assurances . Each Party shall (a) take, or cause to be taken, all such further actions, as may reasonably be required, (b) execute and deliver all such other agreements, certificates, instruments and documents, as may reasonably be required, and (c) use its reasonable efforts to obtain (and shall each refrain from taking any willful action that would impede or delay obtaining) all consents, waivers, approvals (including all shareholder approvals referred to herein), authorizations and orders needed, in order to consummate the Contemplated Transactions. The Company shall not, by amendment of its constitution or similar organizational document, or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under any Transaction Documents by the Company, but will at all times in good faith assist in the carrying out of all the |
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provisions of all Transaction Documents and in the taking of all such action as may be necessary or appropriate in order to protect the rights of the Investor against impairment. |
15.7 |
Non-ASX Quotation . The Company shall not permit any of its securities to be quoted, or the Company or any of its securities to be listed, on any financial market, quotation system or stock exchange other than the ASX without the Investors prior written consent, which consent may be withheld in the Investors sole discretion. |
15.8 |
Quotation . The Company shall undertake its good faith best efforts, and execute all documents that are necessary to be executed (including execution of each Appendix 3B), so as to obtain quotation of each parcel and lodgement with ASX of the Investors Shares on the ASX no later than on the Business Day immediately after the day of the issuance of such parcel. No later than on the Business Day on which the ASX grants quotation of the Shares, the Company shall provide the Investor with documentary evidence of the ASX having granted such quotation. |
15.9 |
Reports . As long as the Investor owns any Securities, the Company covenants to use good faith best efforts to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the Execution Date pursuant to applicable law. |
15.10 |
ASX Listing; Trading Halts and Suspensions . At all times, the Company shall ensure that the Shares remain continuously quoted on the ASX without suspension for more than five Business Days in any 12 month period, for as long as the Investor holds any Securities. Notwithstanding anything contained in Section 2, the amount otherwise required to be lent by the Investor to the Company at any Closing may, in the Investors sole discretion, be reduced by 5% of the gross amount of the Tranche after other adjustments (but before any set-offs) for each Business Day on which the trading in the Companys Shares on the ASX is halted or suspended during the twenty (20) Business Days prior to the Closing Date; provided that the Investor shall not do so where the trading in the Companys Shares on the ASX is halted or suspended for one (1) Business Day only during the twenty (20) Business Days prior to the Closing Date. |
15.11 |
Securities Registrar . The Company shall ensure that its securities registrar complies with the Securities Registrar Direction and shall give its securities registrar no instruction inconsistent with the Securities Registrar Direction. In the event that the Companys securities registry relationship with its current securities registrar is terminated for any reason, the Company shall immediately appoint a new securities registrar and provide it with the Securities Registrar Direction. |
15.11.A |
Register of Tranches . The Investor shall, on behalf of the Company, as the Companys attorney, maintain the Register of Tranches during the term of this Agreement. |
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15.12 |
Prohibited Transactions . From the date of execution of this Agreement until the date that is thirty (30) calendar days after the date of termination of this Agreement the Company shall not effect, or enter into an agreement to effect, any Prohibited Transaction, including any transactions under the Fortrend Agreement. |
15.13 |
Future Cleansing Statements . For as long as the Shares are listed on the ASX, notwithstanding any other provision of this Agreement, no later than on the Business Day immediately after the date of issuance of any Investors Shares and in any event no later than the lodgement of the Appendix 3B in respect of those Investors Shares the Company shall (a) issue a Cleansing Statement and (b) notify the Investor that it has issued such Cleansing Statement. The Company shall use its good faith best efforts to ensure that it is able to issue Cleansing Statements at all times while it remains liable under this Agreement to issue any Investors Shares. On each occasion on which the Company issues any Shares pursuant to an exercise of Options, the Company will immediately apply to the ASX for unconditional admission to trading of the Shares. |
15.14 |
Listing Rule 7.1 . |
15.14.1 |
Where (a) the advance of a Tranche to the Company at a Closing would result in the Company breaching Listing Rule 7.1 as a result of the Company incurring the obligation to issue Tranche Repayment Shares as Repayment of that Tranche; or (b) the grant of Tranche Options on a Repayment would result in the Company breaching Listing Rule 7.1, and (subject to this Section 15.14.1) there is no relevant exception available in the Listing Rules, prior to such Closing or Repayment, the Company shall have obtained approval by the requisite majority of the shareholders of the Company for the purposes of Listing Rule 7.4 (the Listing Rule Approval), so that that Closing and/or Repayment (as applicable) may proceed without causing such breach of Listing Rule 7.1. Where the Company seeks the Listing Rule Approval, it shall also seek, to the extent allowable under the Listing Rules, approval under Listing Rule 7.3 for future Tranche advances and/or grants of Tranche Options. |
15.14.2 |
Without limiting the requirements of Section 15.14.1 and notwithstanding anything contained in Section 10, where the Company has not obtained the Listing Rule Approval where required by Section 15.14.1, and there is no relevant exception available in the Listing Rules, the Company shall effect the Repayment of such Tranche in immediately available funds, at 110% of par of the amount of that Tranche. |
15.14.3 |
Without limiting the requirements of Section 15.14.1 and notwithstanding anything contained in Section 10, where the Company has not obtained the Listing Rule Approval, and a grant of Tranche Options would result in the Company breaching Listing Rule 7. 1, and there is no relevant exception available in the Listing Rules, the Investor may, in its sole discretion, give notice of its election to receive the amount equal to (a) the number of |
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Options that would result in the Company breaching Listing Rule 7.1, multiplied by (b) the difference between (i) the average of the VWAPs of the Shares for the five (5) Business Days immediately prior to, at the Investors election, the date of such notice (regardless of when it is given) or the Repayment Date on which, but for the Companys inability to issue the Tranche Options, those Options would have been granted, and (ii) the Option Exercise Price of such Options (had they been issued); and the Company shall, within 3 Business Days of receipt of such notice, effect such payment in immediately available funds. |
15.14.4 |
For the avoidance of doubt, in addition to the remedies set forth in this Section 15.14, the Investor may exercise any other right, power or remedy granted to it by the Transaction Documents or otherwise permitted to it by Law, including by suit in equity and/or by action at Law. |
15.15 |
Takeover Limitation . Notwithstanding anything contained in Section 10, here an issuance of Repayment Shares would result in an acquisition of a relevant interest in the Shares which causes the voting power in the Company of the Investor or any its associates (as defined in the Corporations Act) to exceed 20% or to increase from a starting point that is above 20% and below 90%, and there is no relevant exception to the acquisition of the relevant Shares under the Corporations Act (a Threshold Event), the Company shall not effect such Repayment by way of issuance of Shares, and shall effect the Repayment in immediately available funds. Notwithstanding anything contained in Sections 2 and 10, where in the Investors reasonable opinion, an issuance of Repayment Shares would result in a Threshold Event, the Investor may terminate this Agreement, by written notice, effective as of the time immediately prior to the next Closing that would have occurred after the time of such notice but for such termination; provided that the Investor shall have paid the Company AU$225,000 in immediately available funds, within five (5) calendar days of the date of such notice. |
15.16 |
Anti-Dilution Protection . Notwithstanding anything contained in Section 2, the Investor shall not lend the Company, and the Company shall not borrow from the Investor, in any one Tranche, an amount that is greater than the Market Capitalization Amount. Upon a written or verbal request of the Investor, the Company shall, within one Business Day, confirm verbally and in writing to the Investor the total number of its Shares outstanding as of the date of the request. The Company shall notify the ASX of all changes in its number of Shares outstanding on the date on which such changes are effected, and shall notify the Investor of such changes immediately thereafter, regardless of whether the Investor has requested such confirmation. |
15.17 |
Investors Activity . Subject to the Corporations Act, the Investor may purchase and/or sell any securities, including any Investors Shares, at any time, and hold or not hold any securities, including any Investors Shares, for any term. The Company acknowledges and agrees that transactions in its securities by the Investor may impact the market prices of the Companys publicly-traded |
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securities, including during periods when the prices at which the Company may be required to issue Investors Shares are determined. |
15.18 |
Set-Off . The Investor may set off any of its obligations to the Company (whether or not due for payment) (including, for clarity, its obligations set forth in Section 11), against any of the Companys obligations to the Investor (whether or not due for payment) under this Agreement and/or any Transaction Document. The Investor may do anything necessary to effect any set-off hereunder (including varying the date for payment of any amount payable by the Investor to the Company). |
15.19 |
Set-Off Exclusion . All payments which are required to be made by the Company to the Investor shall be made without: (a) any set-off, counterclaim or condition; or (b) any deduction or withholding for Tax or any other reason, unless a deduction or withholding is required by law; except as may otherwise be consented to by the Investor. |
15.20 |
Extension of Advance . |
15.20.1 |
Postponements Below the Floor Price . Notwithstanding anything contained in Section 2, if the lowest of the averages of the VWAPs per Share for any five (5) consecutive Business Days during the twenty (20) Business Days prior to a Repayment Date (the Period) is less than AU$0.04 (regardless of what such average was at any time prior to the Period), the Investor may elect, in its sole discretion, to postpone by twenty (20) Business Days (from the dates on which they would otherwise occur) such Repayment Date (and the Repayment that would otherwise be due on such Repayment Date) and the Closing that would otherwise immediately follow that Period (each, a Postponement and, collectively, Postponements). No Postponement shall affect any other Investors rights hereunder. For the avoidance of doubt, there is no limitation on the number of Postponements that the Investor may elect to undertake hereunder, except that the Investor may undertake a Postponement only once in relation to any one Tranche. |
15.20.2 |
Companys Periodic Postponements . The Company may elect, in its sole discretion, to postpone by thirty (30), sixty (60) or ninety (90) calendar days (from the dates on which they would otherwise occur) each of the fourteenth and the twenty-sixth Closing (each, an Anniversary Postponement), provided that the Company shall have given the Investor no less than thirty-five (35) calendar days written notice of an Anniversary Postponement and specified in such notice by how many days it elects to so postpone such Closing. Such notice shall be irrevocable. No Anniversary Postponement shall affect the timing or amount of the Companys Repayments of the Tranches already advanced prior to such Anniversary Postponement, or any other Investors rights hereunder. |
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15.20.3 |
Postponements in Lieu of Termination . (a) Notwithstanding anything contained in Section 2, if the VWAPs per Share are less than the Base Price in any two (2) Business Days during the Period (regardless of what such VWAPs were at any time prior thereto), the Investor may elect, in its sole discretion, to postpone by sixty (60) calendar days (from the dates on which it would otherwise occur) (the Pause Period) the Closing (the Postponed Closing) that would otherwise immediately follow that Period (each, a Postponement in Lieu of Termination and, collectively, Postponements in Lieu of Termination). No Postponement in Lieu of Termination shall affect the timing or amount of the Companys Repayments of the Tranches already advanced prior to such Postponement in Lieu of Termination, or any other Investors rights hereunder. For the avoidance of doubt, there is no limitation on the number of Postponements in Lieu of Termination that the Investor may elect to undertake hereunder, except that the Investor may undertake a Postponement in Lieu of Termination only once in relation to any one Tranche. An Investor may undertake either a Postponement or a Postponement in Lieu of Termination, but not both, in relation to the same Tranche that otherwise qualifies for both. |
(b) |
If at any time during the Pause Period, each VWAP per Share in any ten (10) consecutive Business Day period is greater than the Base Price (the First Renewal Prerequisite), the Company may on twenty (20) Business Days written notice (the Renewal Notice Period), to be given no later than three (3) Business Days after the final date of the Pause Period, require the Investor to consummate the Postponed Closing; provided that the VWAPs per Share are greater than the Base Price on at least nineteen (19) out of the twenty (20) Business Days during the Renewal Notice Period (the Second Renewal Prerequisite). The foregoing notice shall be irrevocable. Where the First Renewal Prerequisite shall not have occurred during the Pause Period, or the Second Renewal Prerequisite shall not have occurred during the Renewal Notice Period, the Investor may, by written notice to the Company, effective immediately, terminate this Agreement. |
15.21 |
Stamp Duties . Without limiting anything else in this Agreement, the Company indemnifies the Investor against any claim, action, damage, loss, liability, cost, charge, expense, outgoing or payment, including any penalty, fine or interest, which the Investor pays, suffers, incurs, or is liable for, in connection with (including any administration costs of any Investor in connection with the matters referred to in the preceding part of this sentence, any legal costs and expenses and any professional consultants fees for any of the above on a full indemnity basis): |
15.21.1 |
the stamping of, or any stamp duty payable on, any of the following: (a) this Agreement, (b) a Contemplated Transaction, or (c) any agreement or document entered into or signed under, or the performance or exercise of |
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any right or obligation under, this Agreement or a Contemplated Transaction; |
15.21.2 |
any enquiry by a Governmental Authority (including any stamp duty or state or territory revenue office) in connection with the assessment for stamp duty of the documents referred to in this clause 15.24 involving the Investor; |
15.21.3 |
any litigation or administrative proceedings (including any objection made to a stamp duty or state or territory revenue office) taken against or involving the Investor in connection with the assessment for stamp duty of the documents or transactions referred to in this clause 15.24; and/or |
15.21.4 |
any future, or any change in any present or future, stamp duty law or regulation or stamp duty or state or territory revenue office practice (with which, if not having the force of law, compliance is in accordance with the practice of responsible bankers and financial institutions in the jurisdiction concerned). |
15.22 |
Conduct of Business . The Company shall, and shall cause all of its Subsidiaries to carry on and conduct its business and the business of each Subsidiary in a proper and efficient manner in accordance with good commercial practice; and ensure that while any amount of the Loan is outstanding the voting and other rights attached to the Shares (or any other securities of the Company) are not altered in a manner which, in the reasonable opinion of the Investor, is materially prejudicial to the Investor. |
15.23 |
Miscellaneous Negative Covenants . The Company shall not, and shall cause all of its Subsidiaries not to, directly or indirectly, without the Investors written approval: |
15.23.1 |
enter into, create, incur, assume or suffer to exist any indebtedness or Liens in excess of an aggregate amount of AU$5,000,000 on or with respect to any of its, or its Subsidiarys, property or assets now owned or hereafter acquired, or any interest therein, or any income or profits therefrom, that is senior to or pari passu with, any the Investors rights hereunder; |
15.23.2 |
dispose, in a single transaction, or in a series of transactions, of all or any part of its assets unless such disposal is (a) in the ordinary course of business, (b) for fair market value and (c) approved by the board of directors of the Company; |
15.23.3 |
reduce its issued share capital or any uncalled liability in respect thereof, except by means of a purchase or redemption of the share capital, that is permitted under Australian law; |
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15.23.4 |
change the nature of its business or the nature of the business of any Subsidiary; |
15.23.5 |
make an application under section 411 of the Corporations Act; |
15.23.6 |
transfer the jurisdiction of incorporation of the Company or any of its Subsidiaries; or |
15.23.7 |
enter into any agreement with respect to any of the foregoing. |
15.24 |
Use of Proceeds . The Company shall use the proceeds of the Loan for working capital purposes that are reasonable in light of the nature of the Companys business as of the Execution Date, and not, among other things, for dividend payments, or the repayment or redemption of any indebtedness or obligations or interests held by any security holders. |
16. |
Taxes . |
16.1 |
Without limiting anything else in this Agreement, if the Investor is required to pay any Tax to any Australian Governmental Authority (other than Excluded Tax) in respect of any payment it receives from the Company, the Company hereby indemnifies the Investor against that Tax, and the Company shall pay to the Investor the additional amount which the Investor reasonably determines to be necessary to ensure that the Investor receives, when due, a net amount (after payment of any Tax in respect of each additional amount, and taking into account any tax credit that the Investor would receive in connection with such Tax in the United States of America) that is equal to the full amount it would have received if a deduction or withholding or payment of that Tax had not been made. |
16.2 |
Without limiting anything else in this Agreement, the Company (a) shall pay any Tax required to be paid to any Australian Governmental Authority (other than Excluded Tax) which is payable in respect of this Agreement or any Contemplated Transaction (including in respect of the execution, delivery, performance, release, discharge, amendment or enforcement of this Agreement or any Contemplated Transaction); (b) shall pay any fine, penalty or other cost in respect of a failure to pay any Tax as required by this Section 16; and (c) hereby indemnifies the Investor against any amount payable by it under this Section 16. |
16.3 |
Without limiting anything else in this Agreement, if the Investor is or becomes liable to pay any GST in respect of any supply it makes, under, in accordance with, or pursuant to an enforcement of, this Agreement or any Contemplated Transaction, whether or not that supply is made to or for the benefit of the Company (GST Liability) then: (a) to the extent that an amount is payable by the Company to the Investor under this Agreement or in any Contemplated Transaction for that supply, that amount will be increased by the full amount of the GST Liability; and (b) otherwise, the Company hereby indemnifies the |
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Investor for the full amount of the GST Liability and any interest or penalties in relation to that GST Liability. |
16.4 |
Without limiting anything else in this Agreement, the Company shall pay all stamp, loan transaction, registration and similar Taxes, including fines and penalties, financial institutions duty and debits tax that may be payable to or required to be paid by any appropriate authority or determined to be payable in connection with the execution, delivery, performance or enforcement of this Agreement or any Contemplated Transaction or any payment, receipt or other transaction contemplated by it. The Company hereby indemnifies the Investor against any loss or liability incurred or suffered by it as a result of the delay or failure by the Company to pay those Taxes. |
16.5 |
Without limiting anything else in this Agreement, at all times on and from the date of this Agreement, the Company shall comply in all material respects with all applicable laws relating to Tax; and promptly file, or cause to be filed, all tax returns, business activity statements and other tax filings required under applicable Tax law. |
17. |
Default . If, in the Investors reasonable opinion, an Event of Default has occurred, or is or may be continuing, the Investor may investigate such purported Event of Default, the Company shall co-operate with the Investor in such investigation and comply with all reasonable requests made by the Investor of the Company in connection therewith, and the Company shall pay all reasonable costs in connection with such investigation. Any of the following shall constitute an Event of Default: |
17.1 |
any of the representations, warranties, or covenants made by the Company or any of its agents, officers, directors, employees or representatives in any Transaction Document, Materials or public filing shall be inaccurate, false or misleading in any material respect, as of the date as of which it is made or deemed to be made, or any certificate or financial or other written statements furnished by or on behalf of the Company to the Investor, any of its representatives, or the Companys shareholders, shall be inaccurate, false or misleading, in any material respect, as of the date of which it is made or deemed to be made, or on any Closing Date or any Repayment Date; |
17.2 |
the Company or any Subsidiary of the Company shall be or shall become insolvent within the meaning of section 95A(2) of the Corporations Act; |
17.3 |
a court shall be required by reason of section 459C(2) of the Corporations Act to presume that the Company or any Subsidiary is insolvent; |
17.4 |
the Company or any Subsidiary shall fail to comply with a statutory demand (within the meaning of section 459F(1) of the Corporations Act); |
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17.5 |
an administrator shall be appointed over all or any of the assets or undertaking of the Company or any Subsidiary or any step preliminary to the appointment to an administrator shall be taken; |
17.6 |
a controller within the meaning of section 9 of the Corporations Act or similar officer shall be appointed to all or any of the assets or undertaking of the Company or any Subsidiary; |
17.7 |
an application or order shall be made, proceedings shall be commenced, a resolution shall be passed or proposed in a notice of meeting, or an application to a court or other steps shall be taken (other than frivolous or vexatious applications, proceedings, notices or steps), for the winding up or dissolution of the Company or any Subsidiary, or for the Company or any Subsidiary to enter an arrangement, compromise or composition with, or assignment for the benefit of, its creditors, a class of them or any of them; |
17.8 |
the Company or any of its Subsidiaries shall cease, suspend, or threaten to cease or suspend, the conduct of all or a substantial part of its business, or dispose of, or threaten to dispose of, a substantial part of its assets; |
17.9 |
the Company or any of its Subsidiaries shall take action to reduce its capital or pass a resolution referred to in section 254N(1) of the Corporations Act; |
17.10 |
the Company shall not comply with Section 15.13 (regardless of whether it is able to comply with Section 15.13); or, despite so complying, the Investors Shares the subject of the Cleansing Statement referred to in Section 15.13 shall not, in the Investors reasonable opinion, be able to be freely traded following their quotation on ASX without a prospectus required under Part 6D.2 of the Corporations Act; |
17.11 |
any Investors Shares shall not be quoted on ASX by the Business Day immediately following the date of their issue; |
17.12 |
a stop order, trading halt, suspension of trading, cessation of quotation, or removal of the Company or the Shares from the ASX Official List shall have been requested by the Company or imposed by ASIC, the ASX, or any other Governmental Authority or regulatory body with respect to public trading in the Shares on the ASX (except for any trading halt not exceeding two (2) Business Days or as agreed to by the Investor, which shall be terminated prior to the next Closing that would otherwise follow the date of such stop order, trading halt, suspension of trading, cessation of quotation, or removal); |
17.13 |
trading in securities generally in Australia or the United States shall have been suspended or limited, minimum prices shall have been established on securities in Australia or the United States or on the ASX, a banking moratorium shall have been declared by the Australian, the United States or the New York State authorities, or there shall have occurred other national or international calamity of such magnitude in its effect on, or adverse change in, the United States or the |
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Australian financial market which, in the reasonable judgment of the Investor, makes it impracticable or inadvisable for the Investor to effect a Closing or accept a Repayment by way of Shares; |
17.14 |
any of the conditions set forth in Sections 7, 8 or 10.5 shall not have been timely fulfilled: |
17.15 |
a Transaction Document or a Contemplated Transaction shall become, or is claimed by any person that is not the Investor or its Affiliate to be, wholly or partly void, voidable or unenforceable; |
17.16 |
any person shall commence any action, claim, proceeding, suit, investigation, or action against any other person or otherwise assert any claim before any Governmental Authority, which seeks to restrain, challenge, deny, enjoin, limit, modify, delay or dispute the right of the Investor or the Company to enter into any Transaction Documents or undertake any of the Contemplated Transactions; |
17.17 |
the Company shall deny the right of the Investor to receive any Investors Shares or Options, or otherwise dishonor or reject any action taken, or document delivered, in furtherance of the Investors rights to receive any Investors Shares or Options; |
17.18 |
a Material Adverse Effect shall occur; |
17.19 |
there shall exist a Law which, or an official or reasonable interpretation of which, in the Investors reasonable opinion, makes it, or is more likely than not to make it, illegal or impossible for the Investor or the Company to undertake any of the Contemplated Transactions or transactions of similar kind, in the manner set forth herein, or renders, or is more likely than not to render, consummation of any of the Contemplated Transactions in the manner set forth herein unenforceable, void, voidable or unlawful, or contrary to or inconsistent with any Law; |
17.20 |
(a) a Law, a change in an interpretation or administration of a Law or a proposed Law introduced or proposed to be introduced into the Parliament of the Commonwealth of Australia, any State or Territory of Australia or the House of Representatives or Senate of the United States of America, (b) compliance by the Investor or any of its Affiliates with a Law or an interpretation or administration of a Law, or (c) a change in a Law or an interpretation or administration of a Law, shall, or shall be more likely than not to, in the reasonable opinion of the Investor, directly or indirectly, (i) vary the duties, obligations or liabilities of the Company or the Investor in connection with any Transaction Document or Contemplated Transactions so that the Investors rights, powers, benefits, remedies or economic burden are adversely affected (including by way of delay or postponement), (ii) otherwise adversely affect rights, powers, benefits, remedies or the economic burden of the Investor (including by way of delay or postponement), or (iii) otherwise make it impracticable for the Investor to undertake any of the Contemplated Transactions; |
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17.21 |
the Company shall not provide to the Investor a copy of the Securities Registrar Direction or a securities registrar shall refuse to comply with such; |
17.22 |
any consent, permit, approval, registration or waiver necessary or appropriate for the consummation of those Contemplated Transactions that remain to be consummated at the applicable time, shall not have been issued or received, or shall not be in full force and effect; |
17.23 |
the transactions to be undertaken upon a Closing or at a Repayment would result in the Company breaching Listing Rule 7.1; |
17.24 |
the Investor shall not have received all the deliveries required hereunder in connection with a Repayment or a Closing; or |
17.25 |
the Company shall fail to perform, comply with, or observe, any other term, covenant, undertaking, obligation or agreement under any Transaction Document. |
18. |
Rights of the Investor upon Default . |
18.1 |
Upon the occurrence or existence of any Event of Default and at any time thereafter during the continuance of such Event of Default, the Investor may (a) declare, by notice to the Company, effective immediately, all outstanding obligations payable by the Company under the Transaction Documents to be immediately due and payable in immediately available funds without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Company, anything to the contrary contained in this Agreement or in any other Transaction Document notwithstanding; and/or (b) terminate this Agreement, by notice to the Company, effective as of the date set forth in the Investors notice; provided that (i) an Event of Default set forth in Sections 17.10, 17.11, 17.14, 17.21, 17.22, 17.24 or 17.25 (each, Remediable Event of Default A), if capable of being remedied, shall have continued for a period of two (2) Business Days after the delivery to the Company of notice that it is in default thereunder, before the Investor may exercise its rights set out in clauses (a) and (b) of this sentence, and (ii) an Event of Default set forth in Sections 17.13 or 17.16 (each, Remediable Event of Default B), if capable of being remedied, shall have continued for a period of thirty (30) calendar days after the delivery to the Company of notice that it is in default thereunder, before the Investor may exercise its rights set out in clauses (a) and (b) of this sentence. The Investor shall have no obligation to accept a Repayment by way of Shares or consummate a Closing under this Agreement where a Remediable Event of Default has occurred, for as long as such Remediable Event of Default continues; and the Repayment Dates and the Closing Dates shall be deemed to be postponed accordingly, unless the Investor notifies the Company otherwise in writing. In addition to the foregoing remedies, upon the occurrence or existence of any Event of Default, the Investor may exercise any other right, power or remedy granted to it by the Transaction Documents or otherwise permitted to it by Law, including by suit in equity and/or by action at Law. |
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18.2 |
Notwithstanding anything to the contrary contained in this Agreement or in any other Transaction Document, in addition to the rights of the Investor specified in Section 18.1, and notwithstanding the provisions of Section 3, upon an Event of Default occurring, the interest payable on the Loan shall be at a rate per annum of the interest rate prescribed for the purposes of Section 101 of the Civil Procedure Act 2005 (NSW) prevailing at the time of the Event of Default, which interest shall accrue from the earliest date of the Loan that remains outstanding and shall be compounded monthly; provided that the Event of Default shall not have been remedied as set forth in Section 18.1. |
19. |
Survival and Indemnification . |
19.1 |
Survival . |
19.1.1 |
The representations and the warranties contained in this Agreement shall survive the execution of this Agreement, each Closing, each Repayment and all Contemplated Transactions, and shall continue in full force and effect for a period of two years from the date of termination of this Agreement. The provisions of Sections 4, 10, 11, 14 16 and 18 - 20 shall survive, and continue in full force and effect, notwithstanding (a) the execution of this Agreement, (b) any Closing, Repayment or Contemplated Transaction occurring, and (c) the termination of this Agreement or another Transaction Document or any provision hereof or thereof. |
19.1.2 |
Each indemnity set forth in this Agreement (a) is a continuing obligation, independent of the Companys other obligations hereunder, (b) continues notwithstanding any termination hereof, (c) constitutes a liability of the Company separate and independent from any other liability hereunder and under any other agreement, and (d) shall survive, and continue in full force and effect, as set forth in Section 19.1.1. It shall not be necessary for the Investor or any other Indemnified Person to incur any expense or make any payment before enforcing any indemnity hereunder. |
19.1.3 |
To the extent that any Repayments are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, debtor in possession, receiver or other person under any bankruptcy law, common law or equitable cause, then to such extent, the amount of the Loan satisfied by such Repayments shall be revived and continue as if such payment or proceeds had not been received; and the rights, powers and remedies under this Agreement and all Transaction Documents shall continue in full force and effect. In such event, each Transaction Document shall be deemed to be automatically reinstated and the Company shall take such action as may be reasonably requested by the Investor to effect such reinstatement. |
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19.2 |
Indemnification . No Indemnified Person, as defined below, shall be liable to the Company, and the Company shall indemnify and hold harmless each of the Investor, SpringTree Global Investors, LLC, Affiliates of each of the foregoing, the respective directors, officers, members, shareholders, partners, employees, attorneys, agents and permitted successors and assigns of each of the foregoing (each, an Indemnified Person and, collectively, the Indemnified Persons), from and against any and all losses, claims, damages, liabilities, awards, demands and expenses, (including, without limitation, all judgments, amounts paid in settlements, reasonable solicitors fees and costs and attorney fees and disbursements and other expenses incurred in connection with investigating, preparing or defending any action, claim, proceeding, suit, investigation, or action by any Governmental Authority, pending or threatened, and the costs of enforcement thereof) (collectively, Losses), that arise out of, are based on, relate to, or are incurred in connection with, any of the following: |
19.2.1 |
a breach or non-performance by the Company of its covenants under this Agreement; |
19.2.2 |
a breach or an inaccuracy of any of the Companys representations or warranties made in this Agreement; |
19.2.3 |
(a) an untrue statement made in the Materials or the Companys public filings of a material fact in relation to the Company or the Contemplated Transactions, or (b) any non-disclosure of any material fact, in relation to the Company or the Contemplated Transactions, or necessary to make the statements in the Materials or the Companys public filings, in light of the circumstances under which they were made, not misleading; and |
19.2.4 |
without limiting anything contained in this Section 19.2, the execution, delivery, performance or enforcement of any of the Transaction Documents or any of the Contemplated Transactions, or any other instruments, documents or agreements executed pursuant to, or in connection with, any of the foregoing; |
provided, however, that the Company shall not indemnify any Indemnified Person from, or hold any Indemnified Person harmless against, any Losses that result from (i) such Indemnified Persons breach of any representation or warranty contained in this Agreement, or (ii) such Indemnified Persons fraud, gross negligence or willful default in performing its obligations under this Agreement. To the extent that the Companys undertaking in this Section 19 may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of all Losses that is permissible under applicable law.
20. |
Miscellaneous . |
20.1 |
Time of the Essence . With regard to all dates and time periods set forth or referred to in any Transaction Document, time shall be of the essence. |
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20.2 |
No Partnership or Advisory or Fiduciary Relationship . Nothing herein shall be construed to create a partnership between the Parties, or a fiduciary or an advisory relationship between the Investor or any of its Affiliates and the Company. |
20.3 |
Certificates . Each certificate or notice given by the Investor to the Company, including each certificate as to the occurrence of a Closing, shall be sufficient evidence of an amount or matter in connection with any Transaction Document or Contemplated Transaction, unless the content of such certificate or notice is proven to be incorrect. |
20.4 |
Remedies . The rights and remedies of the Investor set forth in this Agreement and the other Transaction Documents are in addition to all other rights and remedies given to the Investor by law or otherwise. |
20.5 |
Adjustments . Each time when a Security Structure Event occurs, the Floor Price, the Base Price, Conversion Price A and the Collateral Share Holding Number shall be reduced or, as the case may be, increased, in the same proportion as the issued capital of the Company is, as the case may be, consolidated, subdivided or cancelled. The intent of this Section 20.5 is to maintain the relative benefit and burden to the Investor and the Company of their respective economic bargains hereunder. When the Company becomes aware of a fact that may give rise to an adjustment of the Floor Price, the Base Price, Conversion Price A or the Collateral Share Holding Number hereunder, the Company shall promptly notify the Investor of the specifics of the fact that may give rise to such adjustment. |
20.6 |
Termination . This Agreement may be terminated, without limiting the generality of Section 19.1: |
20.6.1 |
by the mutual written consent of the Parties, at any time; |
20.6.2 |
by either Party, by written notice to the other Party, effective immediately, if the First Closing shall not have occurred within 10 Business Days of the Execution Date, provided that the right to terminate this Agreement under this Section 20.6.2 shall not be available to any Party (a) that is in material breach of or default under this Agreement or, (b) in the case of purported termination under Section 20.6.2, whose failure to fulfill any obligation under this Agreement shall have been the principal cause of, or shall have resulted in, the failure of the First Closing to occur; |
20.6.3 |
by either Party, at any time after the date that is thirty (30) calendar days prior to the third anniversary of the Execution Date, by written notice to the other Party, effective (a) on the third anniversary of the Execution Date or, (b) if a Repayment is due to the Investor or its designee or nominee at any time after the time of such notice, effective immediately following such Repayment; |
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20.6.4 |
where the Company has notified the Investor of its desire to make a Repayment by way of the Optional Cash Repayment, then by the Company, at no cost to the Company, by written notice to the Investor, to be given no later than four (4) Business Days prior to the Repayment Date of the Optional Cash Repayment, effective as of the time immediately prior to the next Closing that would have occurred after the time of such notice but for such termination; |
20.6.5 |
by the Company, by written notice to the Investor, effective as of the time immediately prior to the next Closing that would have occurred after the time of such notice but for such termination; provided that the Company shall have paid the Investor or its designee or nominee AU$225,000 in immediately available funds, within the earlier of (a) five (5) calendar days of the date of such notice and (b) the time period between the date of such notice and the time immediately prior to the time as of which such Closing would have occurred but for such termination; |
20.6.6 |
by the Investor, as set forth in Sections 15.15, 15.20.3, 18 or 20.18; |
20.6.7 |
by the Investor, by written notice to the Company, effective as of the date stipulated (in the Investors sole discretion) by the Investor in such notice; provided that the Company shall have given notice to the Investor of its intention to undertake, shall have undertaken, or shall have become required to undertake, a Repayment in immediately available funds for any reason, including under Sections 10.3, 15.14 or 15.15 (and, for the avoidance of doubt, such right of termination shall not be deemed to have been waived in connection with subsequent Repayments in immediately available funds if not exercised in connection with any earlier Repayment in immediately available funds); or |
20.6.8 |
by the Company, by written notice to the Investor, effective on its delivery to the Investor, provided that an Insolvency Event in relation to the Investor shall have occurred. |
20.7 |
Effect of Termination . Each Partys right of termination under Section 20.6 is in addition to any other rights it may have under this Agreement or otherwise, and the exercise of a right of termination will not be an election of remedies. Nothing herein shall be deemed to release any Party from any liability for any breach by such Party of the terms and provisions of this Agreement or to impair the right of any Party to compel specific performance by any other Party of its obligations under this Agreement. |
20.8 |
Successors and Assigns . The rights and obligations of the Parties under this Agreement are personal and may not be assigned to any other person or assumed by any other person, except as expressly provided in this Section 20.8. Neither this Agreement nor any of the Companys rights and obligations hereunder may be assigned by the Company without the prior written consent of the Investor. The |
41.
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Investor may assign this Agreement and/or any of its rights and/or obligations hereunder to any Affiliate of the Investor, any bank or financial institution, any successor entity in connection with a merger or consolidation of the Investor with another entity, and/or any acquirer of a substantial portion of the Investors business and/or assets, on 10 days prior written notice to the Company. Nothing in this Section 20.8 shall be deemed to prevent the Investor from assigning, transferring, encumbering or otherwise dealing with its rights under or in connection with the Investors Shares or Options without the consent of any person. The provisions of this Agreement shall inure to the benefit, and be binding upon the respective permitted successors and assigns, of the Parties. |
20.9 |
Counterparts; Faxes . This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Such counterparts may be delivered by one party to the other by facsimile or other electronic transmission, and such counterparts shall be valid for all purposes. |
20.10 |
Headings and Sub-Headings; Variation of Terms . The headings and sub-headings used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All terms and any variations thereof shall be deemed to refer to masculine, feminine, or neuter, similar or plural, as the identity of the person or persons may require. |
20.11 |
Notices . Except as otherwise specifically agreed, all notices and other communications made in connection with any Transaction Document shall be in writing and shall be delivered by a courier or another like service in person, or sent by facsimile transmission or by e-mail. When delivered by a courier or another like service in person in Australia, a notice shall be deemed given, or another communication shall be deemed received, (a) when delivered, if received during business hours in the place of delivery or (b) at 9 am on the Business Day immediately following the date of such delivery, if delivered outside of business hours in the place of delivery. When delivered by a courier or another like service in person outside of Australia, a notice shall be deemed given, or another communication shall be deemed received, (a) when delivered, if received during business hours in the place of delivery, or (b) at 9 am on the New York Business Day immediately following such date of delivery, if delivered outside of business hours in the place of delivery. When sent by facsimile transmission, a notice shall be deemed given, or another communication shall be deemed received, (a) at the time shown in the transmission report in connection with such transmission as the time that the whole facsimile transmission was sent (the Facsimile Time), if such time falls within business hours in the place of delivery, (b) at 9 am on the Business Day immediately following such date of transmission, if sent to an Australian facsimile number at a Facsimile Time that falls outside of business hours in the place of delivery, or (c) at 9 am on the New York Business Day immediately following such date of transmission, if sent to a number outside of Australia, at a Facsimile Time that falls outside of business hours in the place of delivery. When sent by e-mail transmission, a notice shall be deemed given, or |
42.
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another communication shall be deemed received, (a) at the E-mail Time, being two hours after the time at which such transmission was sent, if such time falls within business hours in the place of delivery, (b) at 9 am on the Business Day immediately following the date of the E-mail Time, if sent to the Company and the E-mail Time falls outside of business hours in the State of Victoria, or (c) at 9 am on the New York Business Day immediately following the date of the E-mail Time, if sent to the Investor and the Facsimile Time falls outside of business hours in the City of New York; unless the sender receives an automated message that the email has not been delivered. All notices and other communications hereunder shall be sent to the representatives of the party to be noticed at the addresses, facsimile numbers or e-mail addresses indicated respectively below, or at such other addresses, facsimile numbers or e-mail addresses as the Parties may from time to time by like notice hereafter specify: |
If to the Company:
Attn: Chief Executive Officer
Prima Biomed Limited
Level 7 151 Macquarie Street
Sydney
NSW 2000
Australia
Facsimile: + 61 3 9822 7735
E-mail: martin.rogers@primabiomed.com.au
If to the Investor:
Attention: General Partner
c/o Abundance Partners, LP
SpringTree Global Opportunities Fund, LP
55 5 th Ave, Suite 1802
New York, NY 10003
Facsimile: +1 212 208 3043
E-mail: jeaston@springtreegi.com
20.12 |
Additional Expenses . The Company shall reimburse the Investor upon demand for all reasonable out-of-pocket expenses incurred by the Investor in connection with any amendment, modification or waiver of this Agreement, including, without limitation, reimbursement of reasonable attorney or solicitors fees and disbursements. |
20.13 |
Amendments and Waivers . Any term of this Agreement may be amended, supplemented or modified, only with the written consent of the Parties. Any obligation of either Party hereunder may be extended or waived only by an instrument in writing signed on behalf of the Party entitled to enforce the obligation. No waiver of any default with respect to any provision, condition or requirement of this Agreement (including an Event of Default) shall be deemed to |
43.
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be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any Party to exercise any right hereunder, including its right to a Postponement, in any manner impair the exercise of any such right. |
20.14 |
Publicity; Confidentiality . The Company shall not, and shall cause its Affiliates and all persons acting on behalf of the Company and any of its Affiliates not to, issue any public release or announcement concerning this Agreement, its subject-matter or content, or the Contemplated Transactions, or disclose any information provided by the Investor (including the terms of any Transaction Documents) without the prior written consent of the Investor (which consent shall not be unreasonably withheld or delayed where the public release or announcement is proposed to be made pursuant to the Listing Rules), and no references to the Investor may be made by the Company without the Investors express consent. Without limiting the foregoing, the Investor shall have the right to review, approve and amend all press releases and public disclosure documents concerning the Investor, or any Transaction Documents or Contemplated Transactions, which are required to be issued by the Company under applicable securities laws and regulations and stock exchange rules. Following the execution of this Agreement, the Investor may place announcements on its corporate website and in financial and other newspapers and publications (including, without limitation, customary tombstone advertisements) describing its relationship with the Company hereunder and including therein the name and corporate logo of the Company. |
20.15 |
Non-Public Information . The Company shall not, directly or indirectly, and shall cause its Affiliates and agents and representatives not to, at any time after the date of this Agreement, without the prior consent of the Investor, disclose material non-public information to an Indemnified Person. Where the Investor has consented to such disclosure, the Company shall identify all material non-public information as such, and provide the Investor with the opportunity to accept or refuse to accept such material non-public information. |
20.16 |
Additional Notifications . The Company shall immediately notify the Investor immediately upon any Event of Default, or anything that is likely to detrimentally affect the ability of the Company to perform its obligations under this Agreement, occurring, or becoming, to the Companys knowledge, likely to occur, and include the specifics of such Event of Default or other event in its notice. At the Investors request, the Company shall provide the Investor with a certificate signed by two of its directors or its Chief Executive Officer, which shall state whether an Event of Default has occurred and/or is continuing. The Company shall provide the Investor with documents provided by the Company to the ASX which are generally available to the public and documents provided by it to any Governmental Authority which are generally available to the public; immediately following the provision of such document thereto. |
20.17 |
Severability; Supervening Legislation . Nothing in this Agreement shall be deemed to limit the indemnities set forth in Sections 15.21, 16 and 19. Every |
44.
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provision of this Agreement is intended to be severable, and any provision of this Agreement that is illegal, invalid, prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such illegality, invalidity, prohibition or unenforceability, without invalidating the remaining provisions hereof, but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable Law, and any such illegality, invalidity, prohibition or unenforceability in any jurisdiction shall not affect the legality, validity, permissibility or enforceability of the remainder of this Agreement in that jurisdiction, or invalidate or render illegal, invalid, prohibited or unenforceable, such or any other provision of this Agreement in any other jurisdiction. To the extent not prohibited by applicable law, the Parties hereby waive and exclude any provision of Law, current or future, which renders any provision hereof illegal, invalid, prohibited or unenforceable in any respect. The preceding two sentences of this Section 20.17 shall be of no force or effect to the extent that the consequence of enforcing the remainder of this Agreement without such illegal, invalid, prohibited or unenforceable provision of this Agreement would be to cause either Party to lose the material benefit of its economic bargain. To the extent not prohibited by applicable Law, the Parties hereby waive and exclude any provision of Law, current or future, which operates to vary (a) the duties, obligations or liabilities of the Company or the Investor in connection with any Transaction Document so that the Investors rights, powers, benefits, economic benefit, economic burden or remedies are adversely affected (including by way of delay or postponement), or (b) adversely, the Investors rights, powers, benefits, economic benefit, economic burden or remedies (including by way of delay or postponement). |
20.18 |
Illegality; Impossibility . Without limiting the generality of the Investors rights set out elsewhere in this Agreement in connection with the Event of Default set forth in Section 17.19, if in the reasonable opinion of the Investor, at any time there exists a Law which, or an official or reasonable interpretation of which, makes it, or may make it, illegal or impossible in practice for the Investor to undertake any of the Contemplated Transactions or render any of the Contemplated Transactions unenforceable, void or voidable, the Investor may, by giving a notice to the Company, suspend or cancel some or all of its obligations under this Agreement, or terminate this Agreement, as indicated in such notice. Such suspension or cancellation (but not such termination) shall apply only to the extent necessary to avoid such illegality or impossibility. |
20.19 |
Entire Agreement . This Agreement, including the Exhibits and the Disclosure Schedules, and the instruments referenced in this Agreement, supersedes all prior agreements, understandings, negotiations and discussions, both oral and written, between the Parties, their Affiliates and persons acting on their behalf with respect to the subject matter hereof and constitutes the entire agreement among the Parties with respect to the subject matter hereof. Except as specifically set forth herein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to the subject matter hereof. |
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20.20 |
GOVERNING LAW; SUBMISSION TO JURISDICTION . |
20.20.1 |
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF NEW SOUTH WALES WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. EACH PARTY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF COURTS EXERCISING JURISDICTION IN NEW SOUTH WALES, AND WAIVES ANY RIGHT TO CLAIM THAT THOSE COURTS ARE AN INCONVENIENT FORUM. |
20.20.2 |
EACH PARTY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF (I) ANY DISPUTE, SUIT, ACTION, PROCEEDING OR JUDGMENT BASED ON, ARISING OUT OF, IN CONNECTION WITH, WITH RESPECT TO, OR RELATING TO THIS AGREEMENT, ANY OF THE TRANSACTION DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS, AND (II) ENFORCEMENT OF ANY AWARD ISSUED HEREUNDER OR THEREUNDER; AND (B) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT. SERVICE OF PROCESS IN CONNECTION WITH ANY SUCH DISPUTE, SUIT, ACTION, PROCEEDING OR JUDGMENT MAY BE SERVED ON EACH PARTY ANYWHERE IN THE WORLD BY THE SAME METHODS AS ARE SPECIFIED FOR THE GIVING OF NOTICES UNDER THIS AGREEMENT. EACH OF THE PARTIES KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH DISPUTE, SUIT, ACTION, PROCEEDING OR JUDGMENT AND TO THE LAYING OF VENUE IN SUCH COURT. EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH DISPUTE, SUIT, ACTION, PROCEEDING OR JUDGMENT BROUGHT IN SUCH COURTS, AND KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION, PROCEEDING OR JUDGMENT BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM OR AN IMPROPER VENUE. EACH PARTY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY |
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BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. |
20.21 |
WAIVER OF JURY TRIAL . EACH PARTY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY CLAIM, CAUSE OF ACTION OR LITIGATION BASED ON, ARISING OUT OF, IN CONNECTION WITH, WITH RESPECT TO, OR RELATING TO, THIS AGREEMENT, ANY OF THE TRANSACTION DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER. EACH PARTY HERETO (A) CERTIFIES THAT NEITHER OF THEIR RESPECTIVE REPRESENTATIVES, AGENTS OR ATTORNEYS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN. |
20.22 |
No Third-Party Beneficiaries . Except as otherwise set forth in Section 19, the Agreement is intended for the benefit of the Parties and their respective successors and permitted assigns only, and shall not benefit or create any right, obligation to, or cause of action in or on behalf of, any other person, and no other person may enforce any provision hereof. |
20.23 |
Rescission and Withdrawal Right . Whenever the Investor exercises a right, election, demand or option under this Agreement, and the Company does not timely perform its related obligations within the periods therein provided, then the Investor may rescind or withdraw, in its sole discretion, upon written notice to the Company, the relevant notice, demand or election in whole or in part, without prejudice to its future actions and rights. |
20.24 |
Legal Costs . Except as provided in Section 4.1, each Party shall bear its own legal costs in connection with the preparation of this Agreement. |
20.25 |
Payments under this Agreement . Any payment to be made pursuant to the terms of this Agreement shall be made by telegraphic transfer of cleared funds, except as expressly stated herein or unless the Parties agree otherwise. |
20.26 |
Interpretation . |
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20.26.1 |
Each reference to the word including herein shall be deemed to be followed by the words , but not limited to,. |
20.26.2 |
As used in this Agreement, references to the Recitals, Sections, Disclosure Schedules and the Exhibits are references, respectively, to the Recitals of, Sections of, Disclosure Schedules to, and the Exhibits to, this Agreement unless otherwise indicated. |
20.26.3 |
The Disclosure Schedules and the Exhibits identified in this Agreement are incorporated herein by reference and made a part of this Agreement. |
20.26.4 |
This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted. |
[Signature page follows]
48.
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IN WITNESS WHEREOF, the Parties have executed this Agreement or caused their duly authorized directors or officers to execute this Agreement as of the date first above written.
The Company: |
Prima Biomed Limited |
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By: |
/s/ Martin Rogers |
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Name: |
Martin Rogers |
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Title: |
Executive Director |
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By: |
/s/ Ata Gokyildirim |
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Name: |
Ata Gokyildirim |
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Title: |
Chairman |
Prima BioMed Ltd Signature Page to Convertible Loan Agreement
EXECUTION COPY
The Investor: |
||||||||||
By: |
SpringTree Opportunities Fund, LP |
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By: |
SpringTree Global Investors, LLC |
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Title: |
General Partner |
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By: |
/s/ Vladimir Efros |
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Name: |
Vladimir Efros |
|||||||||
Title: |
Manager and Managing Director |
SpringTree Special Opportunities Fund, LP Signature Page to Convertible Loan Agreement.
EXECUTION COPY
Schedule 12.3
PRIMA BIOMED LTD |
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CAPITAL STRUCTURE |
||||||||||||||||||||
Code Type Exercise price Expiry Date |
PRR
Ordinary Shares n/a n/a |
PRRO
Listed Options $0.020 31-Dec-11 |
PRRAE
Unlisted Options $0.125 31- Dec-09 |
PRRAK
Unlisted Options $0.200 06- Aug-10 |
Tba
Unlisted Options $0.000 30- Sep-09 |
|||||||||||||||
Currently on Issue |
||||||||||||||||||||
Securities on issue per 30 Jun 09 Appendix 3B |
420,574,941 | 164,398,302 | 2,000,000 | 300,000 | ||||||||||||||||
PRRO options exercised 17 Jul 09 |
1,000,000 | (1,000,000 | ) | 0 | 0 | |||||||||||||||
Securities on issue as at 17 Jul 09 (Appendix 3B will be lodged by 30 July 09) |
421,574,941 | 163,398,302 | 2,000,000 | 300,000 | ||||||||||||||||
Proposed Issues |
||||||||||||||||||||
PRRO options chq banked 17 Jul 09 today to be exercised when funds clear(3 work days) |
2,000,000 | (2,000,000 | ) | |||||||||||||||||
Options to be issued to directors per 5 Aug 09 adjourned General Meeting |
38,500,000 | |||||||||||||||||||
Shares to be issued by 17 Jan 10 per convertible loan agreement with Lucy Turnbull |
4,807,693 | |||||||||||||||||||
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TOTAL |
428,382,634 | 161,398,302 | 2,000,000 | 300,000 | 38,500,000 | |||||||||||||||
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Schedule 12.10
The Company is in dispute with Odyssey Corporate Pty Ltd for $8,903 unpaid rental bond to the Company.
EXECUTION COPY
Schedule 12.11
N.A.
EXECUTION COPY
Exhibit A Option Exercise Form
To Prima Biomed Limited:
The undersigned hereby irrevocably elects to exercise the right of purchase represented by options granted to the undersigned pursuant to the Convertible Loan Agreement dated July , 2009, between Prima Biomed Limited and the Investor, as defined therein (the Agreement and the Options) for, and to purchase thereunder, ordinary shares in Prima Biomed Limited (the Shares to Be Issued), provided for therein, and requests that the above number of the Shares to Be Issued be entered onto Prima Biomed Limiteds share register against the undersigneds name and Electronically Delivered, as defined in the Agreement, to the undersigned, and hereby tenders in payment of the exercise price for the exercise of the Options determined in accordance with the Agreement.
All capitalized terms herein are as defined in the Agreement, unless otherwise defined herein.
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Name |
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Address |
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Dated: ,
A-1
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Exhibit B Board Resolutions Form
Prima Biomed Limited
(ACN 009 237 889)
Minutes of a circulating resolution of the Directors
1. |
Documents |
The Company proposes to enter into an agreement between Prima Biomed Limited (the Company) and SpringTree Global Opportunities Fund, LP on or about 18 July 2009 (the Agreement).
2. |
Approval of Transaction |
The directors acknowledge the accuracy of the Companys representations and warranties contained in the Agreement and note that:
2.1 |
the entry into the transactions evidenced by the Agreement is: |
(a) |
in the best interests of the Company and for its commercial benefit; and |
(b) |
in accordance with the constitution of the Company; |
2.2 |
at the time of deciding to commit the Company to the Agreement, the Company is solvent and there are reasonable grounds to expect that if the Company executes the Agreement the Company would continue to be able to pay all its debts as they become due; and |
2.3 |
the Companys execution of the Agreement and the carrying out of the transactions contemplated therein would not cause the Company to contravene: |
(a) |
Section 260A of the Corporations Act (relating to the provision by the Company of financial assistance for acquiring the Companys shares); |
(b) |
Chapter 2E of the Corporations Act (relating to the provision of financial benefits to related parties of a public company); or |
(c) |
any provision of the Corporations Act or of any other statute by which the Company is bound. |
Resolved that:
The Agreement, the transactions contemplated in the Agreement and the Transaction Documents (as defined in the Agreement) (the Agreement and the Transaction Documents together the Documents ) are each approved.
B-1
EXECUTION COPY
3. |
Approval of Execution |
Resolved that:
The Company execute and deliver the Agreement in a form and with any changes (whether or not material and whether or not involving changes to the parties) as any director or secretary of the Company who executes the Agreement may, as conclusively evidenced by his or her execution, approve.
4. |
Authorised Officers |
Resolved :
that the following persons:
Phillip Hains, Robert Kliene, Martin Rogers, Ata Gokyildirim and Richard Hammel be severally authorised to execute and deliver for and on behalf of the Company all documents, notices, instruments, certificates and communications necessary or desirable to be executed and delivered by and on behalf of the Company under and in accordance with the Documents.
5. |
Further Assurances |
Resolved :
Each director, secretary and Authorised Officer (appointed pursuant to resolution 4) of the Company be severally authorised to do any act, matter or thing and to execute and deliver any other document as he or she may deem necessary, advisable or incidental in connection with the preceding resolutions or any Document and to perform the obligations of the Company under the Documents.
6. |
Statement |
The directors of the Company are in favour of the resolutions set out in this document.
Signed by the directors
Signature |
/s/ Martin Rogers |
Print Name: Martin Rogers |
Dated: 18/7/09 |
B-2
EXECUTION COPY
|
Signature |
/s/ Ata Gokyildirim |
Print Name: Ata Gokyildirim |
Dated: 18/7/09 |
|
Signature |
/s/ Richard Hammel |
Print Name: Richard Hammel |
Dated: 18/7/09 |
B-3
EXECUTION COPY
Exhibit C Form of CEO Certificate
To: SpringTree Special Opportunities Fund, LP
55 5th Ave, Suite 1802
New York, NY 10003
Attention: Vladimir Efros
SpringTree Global Investors, LLC
Date: [Execution Date]
The undersigned certifies, on behalf of Prima Biomed Ltd (the Company) that, as at the date of this certificate, the Company:
(a) |
has performed or complied in all material respects with all agreements and covenants required, prior to the First Closing, to be performed or complied with by the agreement between the Company and SpringTree Global Opportunities Fund, LP dated as of the date hereof (the Agreement); and |
(b) |
all conditions to the First Closing have been satisfied. |
For the purposes of this certificate, First Closing has the meaning given in the Agreement.
Signed for and on behalf of Prima Biomed Limited:
/s/ Martin Rogers |
Signature Martin Rogers |
|
Name |
|
Position |
Chief Executive Officer |
C-1
EXECUTION COPY
Exhibit D Form of Securities Registrar Direction
[*] 2009
REGISTRIES LIMITED
LVL 7,207 KENT ST
SYDNEY,NSW,
AUSTRALIA, 2000
Dear Sir
Direction
Prima Biomed Limited (Company) unconditionally and irrevocably directs Registries Limited, as its securities registrar to:
1. allot and issue ordinary shares in the Company (Shares) to SpringTree Global Opportunities Fund, LP (the Investor) or at the direction of the Investor or its attorney, in such number and as when directed by the Investor or its attorney; and
2. register in the Companys Share register the Shares so issued and allotted in the Investors name or the name of the person designated by the Investor or its attorney.
Mr. Vladimir Efros and Mr. Jeffrey Easton have each been individually appointed as attorneys of the Investor to direct Registries Limited as contemplated in paragraphs 1 and 2.
Further attorneys may be notified to you from time to time.
Yours sincerely
/s/ Martin Rogers |
/s/ Ata Gokyildirim | |
Martin Rogers |
Ata Gokyildirim | |
Executive Director |
Chairman | |
Prima Biomed Limited |
Prima Biomed Limited |
D-1
EXECUTION COPY
Exhibit E Form of Flow of Funds Request
FLOW OF FUNDS REQUEST
Prima Biomed Ltd Convertible Loan Agreement First Closing
In connection with that certain Convertible Loan Agreement, to be dated July 20, 2009 (the Agreement), by and among Prima Biomed Limited (the Company) and SpringTree Special Opportunities Fund, LP (the Investor), the Company hereby irrevocably authorizes the Investor to distribute such funds as set forth below, in the manner set forth below, at the aforementioned Closing. Capitalized terms used but not otherwise defined herein shall have the meaning given such term in the Agreement.
Item |
Amount | |||
Tranche number 1 |
AU$ | 500,000 | ||
Less: |
||||
Legal costs [applicable to the First Closing only] |
(AU$ | 10,000 | ) | |
Commencement Fee [applicable to the First Closing only] |
(AU$ | 476,850 | ) | |
Maintenance Fee [applicable to the Second Closing, Third Closing and ten Subsequent Closings only] |
(N/A | ) | ||
Other set-offs, if applicable |
(N/A | ) | ||
|
|
|||
Total |
AU$ | 13,150 | ||
|
|
Please kindly transfer the net amount of AU$13,150, due at the Closing, to the following bank account:
Yours sincerely, |
||
Prima Biomed Ltd | ||
By: |
/s/ Martin Rogers |
|
Martin Rogers |
||
Chief Executive Officer |
E-1
Exhibit 4.2
Deed of Amendment and
Termination
Prima BioMed Limited
SpringTree Global Opportunities Fund, LP
Convertible Loan Agreement
Allens Arthur Robinson
Deutsche Bank Place
Corner Hunter and Phillip Streets
Sydney NSW 2000 Australia
Tel +61 2 9230 4000
Fax +61 2 9230 5333
www.aar.com.au
© Copyright Allens Arthur Robinson, Australia 2011
913237 v2/HN
Deed of Amendment and Termination | ||
Table of Contents
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Page (i) |
Deed of Amendment and Termination | ||
jlds A0116399801v1 150220 3.1.2011 913237 v2/HN |
Page (ii) |
Deed of Amendment and Termination | ||
Date | 10 January 2011 | |||
Parties | ||||
1. | Prima BioMed Limited (ACN 009 237 889) of Suite 1, 1233 High Street, Armadale, Victoria 3143, Australia (the Company ) | |||
2. | SpringTree Global Opportunities Fund, LP , a Delaware limited partnership, of 370 Lexington Avenue, Suite 1900, New York, NY 10017, USA (the Investor ) | |||
Recitals | ||||
A | The Company and the Investor are parties to the Convertible Loan Agreement dated 20 July 2009, as amended on or around 21 October 2009 pursuant to an Amendment Deed (the Agreement ). | |||
B | The parties wish to amend and terminate the Agreement in the manner set out in this Deed. | |||
It is agreed as follows .
1. | Definitions and Interpretation |
(a) | Words which are defined in the Agreement and which are used in this Deed have the same meaning in this Deed as in the Agreement, unless the context requires otherwise. |
(b) | The provisions of Section 20.26 of the Agreement form part of this Deed as if set out at length in this Deed. |
(c) | The following additional definition applies to this Deed: |
Effective Date means the date this Deed is signed by both parties.
2. | Amendments |
On and from the Effective Date, the Agreement is amended as follows:
2.1 | The following definitions are inserted in Section 1: |
Commitment Option Sale Notice has the meaning set out in Section 14A.
Commitment Option Sale Notice Period has the meaning set out in Section 14A.
Convertible Security has the meaning set out in Section 2A.
Effective Date has the meaning given to that term in clause 1(c) of the Final Deed.
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Deed of Amendment and Termination | ||
Final Deed means the Deed of Amendment and Termination of the Agreement, dated on or about 10 January 2011.
Market Price means the VWAP per Share on the Trading Day immediately prior to the date of the New Closing.
New Closing has the meaning set out in Section 2A.
Option Purchase has the meaning given to that term in Section 14A.
Placement Shares has the meaning given to that term in Section 2A.
2.2 | The definition of Closing is amended as set out below so that the words which are underlined are added to that definition: |
Closing shall mean each of the First Closing, the Second Closing, the Third Closing, the New Closing, and the Subsequent Closings.
2.3 | The definition of Conversion Price is amended as set out below so that the words which are underlined are added to that definition and the words which are crossed through are deleted from that definition: |
Conversion Price, (a) in relation to each Excluded Repayment, shall equal the lesser of ( A ) Conversion Price A and (B) 90% of the average of the VWAPs per Share on any five (5) consecutive Business Days (chosen by the Investor) during the period commencing on the date of the Closing in which the Tranche being repaid was advanced to the Company and ending on the date immediately prior to the Repayment Date of such Tranche (Conversion Price B); subject to all adjustments pursuant to this Agreement; (b) in relation to each other Repayment made after the Effective Date, other than a Repayment or Repayments of the Tranche advanced by way of the Convertible Security, shall equal Conversion Price B; and (c) in relation to each Repayment of the Tranche advanced by way of the Convertible Security, shall equal 90% of the average of the VWAPs per Share on any five (5) consecutive Business Days (chosen by the Investor) during the twenty (20) Trading Days prior to the Repayment Date of such Tranche.
2.4 | The definition of Investors Shares is amended as set out below so that the words which are underlined are added to that definition: |
Investors Shares shall mean the Repayment Shares, the Collateral Shares, the Placement Shares, and the Shares issued or issuable on exercise of the Options.
2.5 | The definition of Prohibited Transaction is amended as set out below so that the words which are underlined are added to that definition and the words which are crossed through are deleted from that definition: |
Prohibited Transaction shall mean:
(A) a transaction with a third party or third parties in which the Company issues or sells (a) any debt, equity or equity-linked securities (including options) that are convertible into, exchangeable or exercisable for, or include the right to receive, Shares (i) at a conversion, exercise or exchange rate or other price that is based on, and/or varies with, the trading prices of, or quotations for, the Shares, or (ii) at a conversion,
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\
Deed of Amendment and Termination | ||
exercise or exchange rate or other price that is subject to being reset at some future date after the initial issuance of such debt, equity or equity-linked security or upon the occurrence of specified or contingent events, or (b) any securities in a capital or debt raising transaction or series of related transactions which grant to an investor the right to receive additional securities based upon future transactions of the Company on terms more favorable than those granted to such investor in such first transaction or series of related transactions; and shall be deemed to include transactions generally referred to as equity lines of credit and stand-by equity distribution agreements, and convertible notes and loans having a similar effect. For the avoidance of doubt, none of rights issuances, shareholder purchase plans, convertible notes, or equity issuances, each at a fixed price per Share, shall be deemed to be a Prohibited Transaction
2.6 | The definition of Repayment Date is amended as set out below so that the words which are underlined are added to that definition and the words which are crossed through are deleted from that definition: |
Repayment Date shall mean (a) as to the first Tranche, the date immediately preceding the date of the Second Closing, (b) as to each Tranche other than the first Tranche and the Tranche advanced by way of the Convertible Security at the New Closing, the 28th calendar day after the date of the Closing of that Tranche, and (c) as to the Tranche advanced by way of the Convertible Security at the New Closing, each date specified by the Investor in its discretion by providing the Company one (1) Business Days prior notice or notices at any time on or before 29 March 2011;
except (i) as adjusted pursuant to Sections 15.20 or 18.1, and (ii) where a Repayment Date falls on a day that is not a Business Day then the Business Day that immediately precedes the date that would otherwise be such Repayment Date, shall be the Repayment Date.
2.7 | The definition of Tranche is amended as set out below so that the words which are underlined are added to that definition: |
Tranche shall mean the Australian dollar amount lent by the Investor to the Company at a Closing, and for clarity, includes the amount advanced by the Investor to the Company in the Convertible Security.
2.8 | The final paragraph of Section 2 is amended as set out below so that the words which are underlined are added to that Section: |
provided that there shall be no more than a total of thirty-seven (37) Closings, the aggregate amount that the Investor shall lend to the Company shall not exceed AU$25,500,000 (the Total), there shall be no additional Closings other than the New Closing following the Effective Date of the Final Deed, and all amounts to be lent pursuant to this Section 2 shall be subject to all adjustments pursuant to all other provisions of this Agreement, including the adjustments set forth in Sections 15.10 and
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Deed of Amendment and Termination | ||
15.16. Notwithstanding the foregoing, where a date of a Closing (a Closing Date) falls on a day that is not a New York Business Day, the Closing shall occur on the day that is the next day that is a New York Business Day.
2.9 | Section 2A is inserted in the Agreement as follows: |
2A. New Closing . On the terms and subject to the conditions of this Agreement, and in reliance on the respective representations and warranties of the Parties, on the next New York Business Day after the Effective Date:
(i) | the Investor will advance to the Company, in immediately available funds, AU$1,250,000, in consideration of which the Company will issue to the Investor such number of Shares as is equal to AU$1,250,000 divided by the Market Price, provided that if the resultant number contains a fraction, such number shall be rounded up to the next highest whole number (the Placement Shares ); and |
(ii) | the Investor shall advance to the Company, in immediately available funds, AU$1,250,000, in consideration of which the Company shall issue (and, at the New Closing shall be deemed to have issued) to the Investor an uncertificated convertible security on the terms set out in this Agreement (the Convertible Security ) |
(collectively, the New Closing ).
2.10 | Section 8A is inserted in the Agreement as follows: |
8A. Conditions Precedent to the Obligations of the Investor New Closing . The obligations of the Investor to effect the New Closing shall be subject to the fulfilment before the New Closing of each of the following conditions (and the Investor may, but is not required to, deem the absence of notification by the Company prior to the New Closing that any conditions to the New Closing have not been fulfilled to be an assurance that all conditions have been fulfilled):
(a) | The Company has performed or complied in all respects with all agreements and covenants required by the Agreement and the Final Deed to be performed or complied with by the Company as at or prior to the date of the New Closing. |
(b) | The Company has delivered or caused to be delivered to the Investor, and the Investor has received: |
(i) | copies of the resolutions duly adopted by the Board of Directors of the Company approving entry into the Final Deed and the issue of the Placement Shares and the Convertible Security; |
(ii) | an executed Appendix 3B and confirmation that it has been timely lodged by the Company with ASX, in respect of the Placement Shares and the Convertible Security; |
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Deed of Amendment and Termination | ||
(iii) | an executed cleansing statement and confirmation that it has been timely lodged by the Company with ASX in respect of the Placement Shares; |
(iv) | a holding statement from the Companys security registrar confirming that the name of the Investor or its nominee or designee has been entered onto the Companys share registrar as holding the Placement Shares; |
(v) | copies of such additional documents, certificates, payments, assignments, transfers and other deliveries as the Investor or its legal counsel may reasonably request or as are customary in Australia to effect a closing of the matters contemplated in this Agreement; and |
(vi) | the flow of funds request. |
(c) | The Company has obtained all shareholder approvals for the purposes of Listing Rule 7.4 for any previous issues of securities by the Company (if required) so that the issue of the Placement Shares and the Convertible Security may proceed without breaching Listing Rule 7.1, and delivered to the Investor, and the Investor has received, documentary evidence (reasonably satisfactory to the Investor) of such shareholder approval having been obtained. |
(d) | The representations and warranties of the Company contained in Section 12 of the Agreement are true and correct in all material respects as of the dates as of which they are made or deemed to be made under this Agreement. |
(e) | Any and all consents, permits, approvals, registrations, waivers and documents, in the reasonable opinion of the Investor necessary or appropriate for the issue of the Placement Shares and the Convertible Security, have been issued by the Company and received by the Investor and remain in full force and effect. |
(f) | The Investor is of the opinion, acting reasonably, that: |
(i) | no Event of Default other than a Remediable Event of Default has occurred; |
(ii) | no Remediable Event of Default has occurred and is continuing; and |
(iii) | no Event of Default would result from the issue of the Placement Shares or the Convertible Security. |
(g) | The Investor has received each of the documents required to be delivered, or which evidences satisfaction of the conditions in accordance with paragraphs (a) (e) of this Section 8A. |
2.11 | Section 10.2 is amended as set out below so that the words which are underlined are added to that Section: |
10.2 Repayment Shares. The number of Tranche Repayment Shares that the Company shall issue and Electronically Deliver as repayment of a Tranche shall be determined by dividing the Australian dollar amount of that Tranche or, in the case of the Tranche
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Deed of Amendment and Termination | ||
advanced at the New Closing, that part of the Tranche that the Investor has notified the Company it wishes to convert (for the avoidance of doubt, before giving effect to any set-offs set forth in Sections 4.1 and 4.2 or other valid set-offs) by the Conversion Price, provided that if the resultant number contains a fraction, such number shall be rounded up to the next highest whole number.
2.12 | Section 10.5.5 is amended as set out below so that the words which are underlined are added to that Section and the words which are crossed through are deleted from that Section: |
10.5.5
(i) | If the Repayment Shares or the Options may not be issued without breaching Listing Rule 7.1, the Company has obtained an approval under Listing Rule 7.4 for any previous issues of securities by the Company (including securities already issued to the Investor) to the extent it is required so that the Repayment Shares and/ or the Options may be issued without breaching Listing Rule 7.1. |
(ii) | The issue and Electronic Delivery of the Repayment Shares, and the issue of the Options, would not result in the Company being in breach of the Listing Rules or any other Law. |
(iii) | The ASX has not indicated to the Company that quotation of the Repayment Shares on the ASX will not be granted upon notification to the ASX of their issue. |
(iv) | The Investor has received such additional documents, certificates, payments, assignments, transfers and other deliveries as it or its legal counsel may reasonably request to effect the Repayment and the issue of the Repayment Shares and the Options. |
2.13 | Section 11 is amended as set out below so that the words which are underlined are added to that Section and the words which are crossed through are deleted from that Section: |
11. Security.
11.1 Issue of Collateral Shares. At the First Closing, the Company shall issue and Electronically Deliver the Collateral Shares to the Investor or its designee or nominee. The Collateral Shares shall be issued to secure the Loan, and in consideration of the Investor agreeing to enter into this Agreement and make the Loan to the Company.
11.2 Return of Collateral. The Investor shall, on or before 29 March 2011 :
11.2.1. [Reserved] - 11.2.2. pay to the Company (in immediately available funds) an amount in lieu of cancellation of the Collateral Shares (and as discharge of the security represented by the Collateral Shares and in full and final settlement of all Investors liabilities in connection with the Collateral Shares) equal to the Collateral Share Holding Number, multiplied by the lower of (a) 90% of the average of the VWAPs per Share on any five (5) consecutive Business Days (chosen by the Investor) during the period
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Deed of Amendment and Termination | ||
commencing on the date of the Closing most recently preceding the date of termination of this Agreement and ending on the date that is immediately prior to the date on which such payment is made, or (b) AU$0.10; subject to Section 11.5.
11.3. [Reserved]
11.4. [Reserved] 11.5. Suspended Shares. Where the Investor would otherwise be required to make a payment to the Company in immediately available funds under Section 11.2.2, and the Shares are suspended or halted from trading on the ASX for a period that has exceeded or is reasonably expected to exceed, seven (7) Business Days, or the Company has ceased to be listed on the ASX, the Investor shall pay to the Company (as discharge of the security represented by the Collateral Shares, in lieu of its payment under Section 11.2.2, and in full and final settlement of all Investors liabilities in connection with the Collateral Shares), the lower of (a) the fair market value (as of the date as of which the payment under Section 11.2.2 would otherwise be made) of the number of Shares that is equal to the Collateral Share Holding Number, or (b) the Collateral Shareholding Number (subject to Section 11.5) multiplied by AU$0.10.
2.14 | Section 11.6 is inserted in the Agreement as follows: |
11.6. Fee . If the average of the five (5) daily VWAPs prior to the date on which the Investor makes the payment for the Collateral Shares pursuant to Section 11.2.2 is equal to 85% or less of the Market Price, the Company shall pay the Investor a fee of AU$250,000. If the fee is due from the Company to the Investor, the Investor shall be entitled to set-off the amount of that fee against the amount that the Investor is required to pay for the Collateral Shares under Section 11.2.2.
2.15 | The first paragraph of Section 12 is amended as set out below so that the words which are underlined are added to that Section: |
12. Representations and Warranties of the Company. The Company acknowledges that the Investor has entered into this Agreement in reliance on the Companys representations and warranties set forth herein. Each representation and warranty of the Company is to be construed independently of the others and is not limited by reference to any other representation or warranty. The Company shall immediately notify the Investor upon becoming aware of any breach of any representation or warranty given by the Company under this Agreement. The Company hereby represents and warrants to the Investor, on and as of the Execution Date, the Effective Date, each Closing Date and each Repayment Date, and as of each Closing, and where qualified by an express reference herein as to the representation or the warranty being given on and as of a particular other date or dates, on and as of that date or dates, that except as set forth in the schedules delivered herewith (collectively, the Disclosure Schedules), the following are true:
2.16 | Section 12.28 is inserted in the Agreement as follows : |
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Deed of Amendment and Termination | ||
12.28. Capacity . As at the Effective Date, the Company has capacity to issue up 15%, or 113,265,224, of additional Equity Securities (as such term is defined in the Listing Rules).
2.17 | Section 12.29 is inserted in the Agreement as follows: |
12.29. U.S. Compliance.
(i) | No general solicitation . Neither the Company nor to its knowledge, any person acting on its behalf, has conducted any general solicitation or general advertising (as those terms are used in Regulation D under the Securities Act), in connection with the offer or sale of any security of the Company. |
(ii) | No integrated offering . Neither the Company nor any of its Affiliates, nor any person acting on its or their behalf has, directly or indirectly, sold, offered for sale or solicited offers to buy or otherwise negotiated in respect of any security, in a manner, or under circumstances, that: |
(A) | would adversely affect reliance by the Company on the provisions of Rule 506 of Regulation D under the Securities Act for the exemption from registration for the Contemplated Transactions; |
(B) | would require registration of the sale of the Securities under the Securities Act; or |
(C) | would cause such offer or solicitation to be deemed integrated with the offering of the Securities, whether under the Listing Rules, the Securities Act, or otherwise. |
(iii) | Private placement . The offer and sale of the Securities to the Investor, as contemplated by this Agreement, is exempt from: |
(A) | the registration requirements of the Securities Act by virtue of Rule 506 of Regulation D under the Securities Act; and |
(B) | the registration and/or qualification provisions of all applicable U.S. state securities laws. |
(iv) | Foreign private issuer . Less than fifty percent (50%) of the outstanding voting securities of the Company are directly or indirectly owned of record by residents of the United States. The Company is a foreign private issuer as that term is defined in Rule 405 under the Securities Act. |
(v) | Category 1 securities . The Securities are eligible for Category 1 under Rule 903 of Regulation S under the Securities Act. |
(vi) | No registration required . The Company is not required to register its securities under the Securities Act, the United States Securities Exchange Act of 1934, as amended, and the rules and regulations under either of the foregoing. |
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Deed of Amendment and Termination | ||
2.18 | Section 13.3 is amended as set out below so that the words which are underlined are added to that Section and the words which are crossed through are deleted from that Section: |
13.3
U.S. Compliance.
13.3.1 Investment Intent. The Investor understands that the Securities are restricted securities under the United States Security Act of 1933 as amended and have not been registered under the Securities Act or any applicable state securities law, and, accordingly, may not be offered or sold except pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in accordance with applicable state securities laws. For purposes of assuring that the Investor is not an underwriter within the meaning of Section 2(a)(11) of the Securities Act for purposes of Rule 502(d) under the Securities Act, the Investor represents that it:
(i) | is acquiring the Securities as principal for its own account for investment purposes only (as contemplated by the Securities Act and the rules and regulations thereunder) and not with a present view to or for distributing or reselling such Securities or any part of the Securities in violation of the Securities Act; |
(ii) | has no present intention of distributing any of such Securities in violation of the Securities Act; and |
(iii) | has no arrangement or understanding with any other person or persons regarding the distribution of such Securities in violation of the Securities Act. |
13.3.2 Investor status. At the time the Investor was offered the Securities, it was, and at the Effective Date it is, an accredited investor as defined in Rule 501(a) under the Securities Act. The Investor is not, and is not required to be, registered as a broker or dealer under section 15 of the United States Security Act of 1933 as amended.
13.3.3 Experience of the Investor.
(i) | The Investor has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. |
(ii) | The Investor has been represented and advised by advisors of its own choice, including financial advisors, tax advisors and legal counsel, who have assisted the Investor in understanding and evaluating the risks and merits associated with the Contemplated Transactions. |
(iii) | The Investor is able to bear the economic risk of an investment in the Securities and is able to afford a complete loss of such investment. |
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Deed of Amendment and Termination | ||
13.3.4 Adequate information. The Investor has had an opportunity to receive all information related to the Company requested by it and to ask questions of and receive answers from the Company regarding the Company, its business and the terms and conditions of the offering of the Securities, and has reviewed such information as the Investor considers necessary or appropriate to evaluate the risks and merits of an investment in, and make an informed investment decision with respect to, the Securities.
13.3.5. General solicitation. The Investor is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar, or in any filing with the United States Securities and Exchange Commission, or any other general solicitation or general advertisement.
2.19 | Section 14A is inserted in the Agreement as follows: |
14A. Transfer of Commitment Options.
(a) | If, at any time on or before December 31, 2011, the Investor wishes to sell the Commitment Options to a third party that is not an Affiliate of the Investor, then the Investor shall give the Company written notice of its intent to sell the Commitment Options (the Commitment Option Sale Notice ). Upon the Investor giving the Company the Commitment Option Sale Notice, the Company shall have ten (10) Business Days (the Commitment Option Sale Notice Period ): |
(i) | to identify a party to purchase all of the Commitment Options at a price per Commitment Option that is equal to, or greater than, the difference between the daily VWAP on the Trading Day most recently preceding the date of such purchase and the Commitment Option Exercise Price, and otherwise on the terms reasonably acceptable to the Investor (the Option Purchase ); |
(ii) | to notify the Investor of the identity of such party; and |
(iii) | to cause such party to complete the Option Purchase; |
provided that the Company shall have the right set out in the preceding two sentences of this Section 14A only if Mr. Martin Rogers remains the Managing Director of the Company at all times before the Option Purchase is completed.
(b) | If following the expiration of the Commitment Option Sale Notice Period, the Option Purchase has not been completed (other than due to a failure by the Investor), nothing herein shall be deemed to restrict the Investors right to sell any or all of the Commitment Options to any third parties at any time. |
(c) | For clarity, nothing in this Section 14A shall be deemed to restrict the Investors right to exercise any Options and dispose of any Shares received as a result of an exercise of Options; and Section 14A(a) does not bestow any rights on the Company in connection with such exercise or disposal. |
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Deed of Amendment and Termination | ||
2.20 | Section 15.12 is amended as set out below so that the words which are underlined are added to that Section and the words which are crossed through are deleted from that Section: |
Prohibited Transactions. From the date of execution of this Agreement until 30 June 2011, the Company shall not effect, or enter into an agreement to effect, any Prohibited Transaction, including any transactions under the Fortrend Agreement.
2.21 | Section 15.25 is inserted as follows: |
15.25. Integration. The Company shall not, and shall cause all of its Affiliates, and all persons acting on its or their behalf not to, directly or indirectly, sell, offer for sale or solicit offers to buy, or otherwise negotiate in respect of, any security, in a manner, or under circumstances, that:
(a) | will adversely affect reliance by the Company on the provisions of Rule 506 of Regulation D under the Securities Act for the exemption from registration for the Contemplated Transactions; |
(b) | will require registration of the sale of the Securities under the Securities Act; or |
(c) | will cause such offer or solicitation to be deemed integrated with the offering of the Securities, whether under the Listing Rules, the Securities Act, or otherwise. |
2.22 | Section 20.6 is amended as set out below so that the words which are underlined are added to that Section and the words which are crossed through are deleted from that Section: |
20.6 Termination. This Agreement may be terminated, without limiting the generality of Section 19.1:
20.6.1. by the mutual written consent of the Parties, at any time (and shall be automatically terminated effective as of the Repayment of the Convertible Security or, as the case may be, its final part of the Convertible Security that remains outstanding);
20.6.2. by either Party, by written notice to the other Party, effective immediately, if the New Closing shall not have occurred within 10 Business Days of the Effective Date, provided that the right to terminate this Agreement under this Section 20.6.2 shall not be available to any Party (a) that is in material breach of or default under this Agreement or, (b) in the case of purported termination under Section 20.6.2, whose failure to fulfill any obligation under this Agreement shall have been the principal cause of, or shall have resulted in, the failure of the New Closing to occur;
20.6.6. by the Investor, as set forth in Sections 15.15, 15.20.3, 18 or 20.18;
20.6.7. by the Investor, by written notice to the Company, effective as of the date stipulated (in the Investors sole discretion) by the Investor in such notice; provided that the Company shall have given notice to the Investor of its intention to undertake, shall have undertaken, or shall have become required to undertake, a Repayment in immediately available funds for any reason, including under Sections 10.3, 15.14 or 15.15 (and, for the avoidance of doubt, such right of termination shall not be deemed to have been waived in
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Deed of Amendment and Termination | ||
connection with subsequent Repayments in immediately available funds if not exercised in connection with any earlier Repayment in immediately available funds); or
20.6.8. by the Company, by written notice to the Investor, effective on its delivery to the Investor, provided that an Insolvency Event in relation to the Investor shall have occurred.
3. | Effective Date |
This Deed takes effect, and the parties agree to be bound by the Agreement as amended by this Deed, on and from the Effective Date.
4. | Announcement |
The Company shall make an announcement on ASX in relation to the matters set out in this Deed, in a form agreed with the Investor, on the Effective Date.
5. | Remaining Provisions Unaffected |
Except as specifically amended by this Deed, all terms and conditions of the Agreement remain in full force and effect. With effect on and from the Effective Date, the Agreement as amended by this Deed is to be read as a single integrated document incorporating the amendments effected by this Deed.
6. | Governing Law and Jurisdiction; Waiver of Trial by Jury |
6.1 | GOVERNING LAW; SUBMISSION TO JURISDICTION |
(a) | THIS DEED SHALL BE GOVERNED BY THE LAWS OF NEW SOUTH WALES WITHOUT REGARD TO THE CHOICE OF LAW RULES THEREOF. EACH PARTY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF COURTS EXERCISING JURISDICTION IN NEW SOUTH WALES, AND WAIVES ANY RIGHT TO CLAIM THAT THOSE COURTS ARE AN INCONVENIENT FORUM. |
(b) |
EACH PARTY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF (I) ANY DISPUTE, SUIT, ACTION, PROCEEDING OR JUDGMENT BASED ON, ARISING OUT OF, IN CONNECTION WITH, WITH RESPECT TO, OR RELATING TO THIS DEED, ANY OF THE TRANSACTION DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS DEED OR ANY OF THE TRANSACTION DOCUMENTS, AND (II) ENFORCEMENT OF ANY AWARD ISSUED HEREUNDER OR THEREUNDER; AND (B) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR DEFEAT |
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Deed of Amendment and Termination | ||
SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY SUCH COURT. SERVICE OF PROCESS IN CONNECTION WITH ANY SUCH DISPUTE, SUIT, ACTION, PROCEEDING OR JUDGMENT MAY BE SERVED ON EACH PARTY ANYWHERE IN THE WORLD BY THE SAME METHODS AS ARE SPECIFIED FOR THE GIVING OF NOTICES UNDER THIS DEED. EACH OF THE PARTIES KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH DISPUTE, SUIT, ACTION, PROCEEDING OR JUDGMENT AND TO THE LAYING OF VENUE IN SUCH COURT. EACH PARTY IRREVOCABLY WAIVES ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH DISPUTE, SUIT, ACTION, PROCEEDING OR JUDGMENT BROUGHT IN SUCH COURTS, AND KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY CLAIM THAT ANY SUCH SUIT, ACTION, PROCEEDING OR JUDGMENT BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM OR AN IMPROPER VENUE. EACH PARTY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
6.2 | WAIVER OF JURY TRIAL. |
EACH PARTY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY CLAIM, CAUSE OF ACTION OR LITIGATION BASED ON, ARISING OUT OF, IN CONNECTION WITH, WITH RESPECT TO, OR RELATING TO, THIS DEED, ANY OF THE TRANSACTION DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS DEED OR ANY OF THE TRANSACTION DOCUMENTS (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE), AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER. EACH PARTY HERETO (A) CERTIFIES THAT NEITHER OF THEIR RESPECTIVE REPRESENTATIVES, AGENTS OR ATTORNEYS HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS DEED BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.
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Deed of Amendment and Termination | ||
7. | Counterparts |
This Deed may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
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Deed of Amendment and Termination | ||
Executed and delivered as a Deed .
Executed as a deed in accordance with
section 127 of the Corporations Act 2001 by
Prima BioMed Limited:
/s/ Lucinda Turnbull | /s/ Martin Rogers | |||
Director Signature | Director/Secretary Signature | |||
Lucinda Turnbull | Martin Rogers | |||
Print Name | Print Name |
Signed Sealed and Delivered for and on
behalf of SpringTree Special Opportunities
Fund, LP by SpringTree Global Investors,
LLC in the presence of:
/s/ Martin Rogers | /s/ Jeff Easton | |||
Witness Signature | Authorised Officer Signature | |||
Martin Rogers | Jeff Easton | |||
Print Name | Print Name |
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Page 15 |
Exhibit 4.3
Mallesons Stephen Jaques
Standby Subscription
Agreement
DATED
Prima Biomed Limited (ACN 009 237 889) (Company)
Fortrend Securities Pty Ltd (Fortrend Securities)
for itself and as agent for the Subscriber
Mallesons Stephen Jaques
Level 50
Bourke Place
600 Bourke Street
Melbourne Vic 3000
Australia
T +61 3 9643 4000
F +61 3 9643 5999
DX 101 Melbourne
www.mallesons.com
9825408_2
Standby Subscription Agreement
Contents
Details |
1 | |||||
General Terms |
2 | |||||
1 |
Interpretation |
2 | ||||
1.1 |
Definitions |
2 | ||||
1.2 |
References to certain general terms |
6 | ||||
1.3 |
Number |
7 | ||||
1.4 |
Headings |
7 | ||||
1.5 |
Agency for named principal |
7 | ||||
2 |
The Facility and Facility Limits |
8 | ||||
2.1 |
Subscriber to fund |
8 | ||||
2.2 |
Maximum subscription amount |
8 | ||||
3 |
Using the Facility |
8 | ||||
3.1 |
Drawing down |
8 | ||||
3.2 |
Requesting a drawdown |
8 | ||||
3.3 |
Effect of a Drawdown Notice |
8 | ||||
3.4 |
Conditions to first drawdown |
8 | ||||
3.5 |
Conditions to all drawdowns |
8 | ||||
3.6 |
Benefit of conditions |
9 | ||||
3.7 |
Notice to be given by the Company |
9 | ||||
4 |
Pricing |
10 | ||||
4.1 |
Issue Price for Shares |
10 | ||||
4.2 |
Adjustment if trade price below Threshold Price |
10 | ||||
4.3 |
Maximum Number of Shares to be Subscribed for |
10 | ||||
4.4 |
Shares to rank pari passu with other Shares |
11 | ||||
5 |
Delivery vs Payment
|
11 | ||||
6 |
Fees |
11 | ||||
6.1 |
Placement fee |
11 | ||||
6.2 |
Options |
12 | ||||
7 |
Increased Costs |
12 | ||||
7.1 |
Compensation |
12 | ||||
7.2 |
Possible minimisation |
13 | ||||
8 |
Illegality or Impossibility |
13 | ||||
8.1 |
Subscribers right to suspend or cancel |
13 | ||||
8.2 |
Extent and duration |
13 | ||||
9 |
Representations and Warranties |
14 | ||||
9.1 |
Representations and warranties |
14 | ||||
9.2 |
Repetition of representations and warranties |
16 | ||||
9.3 |
Reliance |
16 |
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
i |
10 |
Undertakings |
16 | ||||
11 |
Review |
17 | ||||
11.1 |
Review Event |
17 | ||||
11.2 |
Consequences of review |
18 | ||||
12 |
Termination |
19 | ||||
12.1 |
Termination Events |
19 | ||||
12.2 |
Consequences of default |
21 | ||||
12.3 |
Investigation of default |
21 | ||||
13 |
Costs and indemnities |
21 | ||||
13.1 |
What the Company agrees to pay |
21 | ||||
13.2 |
Indemnity |
22 | ||||
13.3 |
Items included in loss, liability and Costs |
22 | ||||
13.4 |
Payment of third party losses |
23 | ||||
13.5 |
Currency conversion on judgment debt |
23 | ||||
14 |
Interest on overdue amounts |
23 | ||||
14.1 |
Obligation to pay |
23 | ||||
14.2 |
Compounding |
24 | ||||
14.3 |
Interest following judgment |
24 | ||||
15 |
Payments |
24 | ||||
15.1 |
Manner of payment |
24 | ||||
15.2 |
Currency of payment |
25 | ||||
15.3 |
Application of Payments |
25 | ||||
16 |
Dealing with interests |
25 | ||||
16.1 |
No dealing by parties in the Facility |
25 | ||||
16.2 |
Dealings by the Subscriber |
25 | ||||
16.3 |
Short Selling |
25 | ||||
16.4 |
Sales of Shares |
25 | ||||
16.5 |
Holding of Shares |
26 | ||||
17 |
Notices and other communications |
26 | ||||
17.1 |
Form - all communications |
26 | ||||
17.2 |
Form - communications sent by email |
26 | ||||
17.3 |
Delivery |
26 | ||||
17.4 |
When effective |
26 | ||||
17.5 |
When taken to be received |
27 | ||||
17.6 |
Receipt outside business hours |
27 | ||||
17.7 |
Waiver of notice period |
27 | ||||
18 |
General |
27 | ||||
18.1 |
Application to Transaction Documents |
27 | ||||
18.2 |
Prompt performance |
27 | ||||
18.3 |
Consents |
28 | ||||
18.4 |
Certificates |
28 | ||||
18.5 |
Set-off |
28 | ||||
18.6 |
Discretion in exercising rights |
28 | ||||
18.7 |
Partial exercising of rights |
28 |
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
ii |
18.8 |
No liability for loss |
28 | ||||
18.9 |
Conflict of interest |
28 | ||||
18.10 |
Remedies cumulative |
28 | ||||
18.11 |
Indemnities |
29 | ||||
18.12 |
Rights and obligations are unaffected |
29 | ||||
18.13 |
Inconsistent law |
29 | ||||
18.14 |
Supervening legislation |
29 | ||||
18.15 |
Time of the essence |
29 | ||||
18.16 |
Variation and waiver |
29 | ||||
18.17 |
Confidentiality |
29 | ||||
18.18 |
Counterparts |
30 | ||||
18.19 |
Governing law |
30 | ||||
18.20 |
Serving documents |
30 | ||||
Schedule 1 Conditions precedent (clause 3.4) |
31 | |||||
Schedule 2 Drawdown Notice (clause 3) |
32 | |||||
Schedule 3 Form of Option Certificate (clause 6.2) |
33 | |||||
Signing page |
39 |
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
iii |
Standby Subscription Agreement
Details
Parties
Parties |
Company and the Subscriber and Fortrend Securities (as agent for the Subscriber) | |||
Company |
Name |
Prima Biomed Limited | ||
ACN | 009 237 889 | |||
Address |
Suite 1, 1233 High Street Armadale, Victoria 3143 |
|||
Fax | (03) 9822 7735 | |||
Telephone | (03) 9824 5254 | |||
Martin.rogers@primabiomed.com.au | ||||
Attention | Martin Rogers | |||
Subscriber |
Name |
Fortrend Small Cap Investors Limited | ||
Address |
C/- Fortrend Securities Level 42, 55 Collins Street, Melbourne, Victoria 3000 |
|||
Fortrend Securities |
Name |
Fortrend Securities Pty Ltd (as agent for the Subscriber) | ||
ABN | 95 055 706 693 | |||
Address |
Level 42, 55 Collins Street, Melbourne, Victoria 3000 |
|||
Fax | 61 3 9650 8740 | |||
Telephone | 61 3 9650 8400 | |||
cholly@fortrend.com.au | ||||
Attention | Chris Holly | |||
Date of agreement |
See signing page |
|||
Facility Limit |
A $12,000,000 |
|||
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
1 |
Standby Subscription Agreement
General Terms
1 | Interpretation |
1.1 | Definitions |
These meanings apply unless the contrary intention appears:
ASIC means the Australian Securities & Investments Commission.
ASX means Australian Securities Exchange and ASX Limited.
Authorised Officer means:
(a) | in the case of Fortrend Securities, a director or secretary, or an officer whose title contains the word director, chief, head, president or manager or a person performing the functions of any of them, or any other person nominated by Fortrend Securities as an Authorised Officer for the purposes of the Transaction Documents; and |
(b) | in the case of the Company, a director or secretary or any other person appointed by the Company to act as an Authorised Officer under the Transaction Documents to which it is a party. |
Availability Period means the period from the date of this agreement to the third anniversary of the date of this agreement.
Business Day means a day on which banks are open for general banking business in Melbourne, Australia (not being a Saturday, Sunday or public holiday in that place).
Company means the person so described in the Details.
Control of a corporation includes the direct or indirect power to directly or indirectly:
(a) | direct the management or policies of the corporation; or |
(b) | control the membership of the board of directors, |
whether or not the power has statutory, legal or equitable force or is based on statutory, legal or equitable rights and whether or not it arises by means of trusts, agreements, arrangements, understandings, practices, the ownership of any interest in shares or stock of the corporation or otherwise.
Controller has the meaning it has in the Corporations Act.
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
2 |
Costs includes costs, charges and expenses, including those incurred in connection with advisers.
Default Rate means at any time the penalty interest rate then fixed under the Penalty Interest Rates Act 1983 of Victoria.
Details means the section of this agreement headed Details.
Directive means:
(a) | a law; or |
(b) | a treaty, an official directive, request, guideline or policy (whether or not having the force of law) with which responsible financiers generally comply in carrying on their business. |
Drawdown Date means the date on which a drawdown is or is to be made.
Drawdown Notice means a completed notice containing the information and representations and warranties set out in schedule 2.
Drawdown Notice Date means the date a Drawdown Notice is received by Fortrend Securities.
Drawdown Pricing Period means in relation to a Drawdown Notice the period of 5 consecutive Trading Days commencing on (and including) the Drawdown Notice Date.
Drawing means the amount of a drawdown made under the Facility.
Encumbrance means any:
(a) | security for the payment of money or performance of obligations, including a mortgage, charge, lien, pledge, trust, power or title retention or flawed deposit arrangement; or |
(b) | right, interest or arrangement which has the effect of giving another person a preference, priority or advantage over creditors including any right of set-off; or |
(c) | right that a person (other than the owner) has to remove something from land (known as a profit à prendre), easement, public right of way, restrictive or positive covenant, lease, or licence to use or occupy; or |
(d) | third party right or interest or any right arising as a consequence of the enforcement of a judgment, |
or any agreement to create any of them or allow them to exist.
Facility means the facility for subscription for Shares by the Subscriber made available under this agreement.
Facility Limit means the amount set out in the Details.
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
3 |
Financial Report means a financial report consisting of:
(a) | financial statements; and |
(b) | any notes to those financial statements; and |
(c) | any directors declaration about the financial statements and notes, |
together with any reports (including any directors reports) attached to any of those documents or intended to be read with any of them.
Fortrend Securities means the person so described in the Details.
A person is Insolvent if:
(a) | it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or |
(b) | it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller appointed to its property; or |
(c) | it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by Fortrend Securities); or |
(d) | an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above; or |
(e) | it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand; or |
(f) | it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which Fortrend Securities reasonably deduces it is so subject); or |
(g) | it is otherwise unable to pay its debts when they fall due; or |
(h) | something having a substantially similar effect to (a) to (g) happens in connection with that person under the law of any jurisdiction. |
Issue Price has the meaning given in clause 4.1 (adjusted where applicable in accordance with clause 4.2).
Market Price has the meaning given in clause 4.1 (adjusted where applicable in accordance with clause 4.2).
Material Adverse Effect means a material adverse effect on:
(a) | the Companys ability to comply with its obligations under any Transaction Document; or |
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
4 |
(b) | the Subscribers rights under a Transaction Document; or |
(c) | the business or financial condition or prospects of the Company. |
Minimum Issue Price means A$0.01.
Option means in relation to a Drawdown Date an Option to be issued by the Company to the Subscriber on that Drawdown Date in accordance with clause 6.2.
Option Certificate means an option certificate in the form set out in schedule 3 (Form of Option Certificate).
Potential Termination Event means an event which, with the giving of notice, lapse of time or fulfilment of any condition, would be likely to become a Termination Event.
Related Entity has the meaning it has in the Corporations Act.
Review Event means an event so described in clause 11.1 (Review Event).
Share means a fully paid ordinary share in the capital of the Company.
Subscriber means the person so described in the Details.
Subsidiary of an entity means another entity which:
(a) | is a subsidiary of the first entity within the meaning of the Corporations Act; or |
(b) | is part of the consolidated entity constituted by the first entity and the entities it is required to include in the consolidated financial statements it prepares, or would be if the first entity was required to prepare consolidated financial statements. |
Tax Act means the Income Tax Assessment Act 1936 (Cwlth) or the Income Tax Assessment Act 1997 (Cwlth), as the context requires.
Taxes means taxes, levies, imposts, charges and duties (including stamp and transaction duties) imposed by any authority together with any related interest, penalties, fines and expenses in connection with them, except if imposed on, or calculated having regard to, the net income of Fortrend Securities.
Termination Event means an event so described in clause Error! Reference source not found.Error! Reference source not found. (Termination).
Trading Day means a day which is a trading day under the Listing Rules of the ASX.
Transaction Documents means:
(a) | this agreement; |
(b) | any Drawdown Notice; |
(c) | any Option; |
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
5 |
(d) | any document which the Company acknowledges in writing to be a Transaction Document; and |
(e) | any other document connected with any of them. |
Undrawn Facility Limit means the Facility Limit less the total of the Drawings.
VWAP means, in relation to a Trading Day the volume weighted average price ( in Australian dollars, rounded to three decimal places) of Shares sold on the ASX on that Trading Day PROVIDED THAT :
(a) | where, on that Trading Day, Shares have been quoted on the ASX as cum dividend or cum any other distribution or entitlement and the issue of Shares will occur after that date and those Shares no longer carry that dividend or other distribution or entitlement, then the VWAP on that Trading Day shall be reduced by an amount ( Cum Value ) equal to: |
(i) | (in the case of a dividend or other distribution), the amount of that dividend or other distribution; |
(ii) | (in the case of any other entitlement which is traded on the ASX on that Trading Day), the VWAP of such entitlements sold on the ASX on that Trading Day; or |
(iii) | (in the case of an entitlement not traded on the ASX on that Trading Day), the value of the entitlement as reasonably determined by Fortrend Securities; |
(b) | where, on that Trading Day, Shares have been quoted on the ASX as ex dividend or ex any other distribution or entitlement, and Shares which are to be issued would be entitled to receive the relevant dividend or other distribution or entitlement, the VWAP on that Trading Day shall be increased by the Cum Value; and |
(c) | where the Shares are reconstructed, consolidated, divided or reclassified into a lesser or greater number of securities, the VWAP shall be adjusted by Fortrend Securities as it considers appropriate. |
In determining VWAP the following trades will be excluded: any crossing transacted outside the Open Session State or any special crossing transacted at any time ( each as defined in the Market Rules of ASX) or any overseas trade or trade pursuant to the exercise of options over Shares.
1.2 | References to certain general terms |
Unless the contrary intention appears, in this agreement:
(a) | a reference to any thing (including an amount) is a reference to the whole and each part of it; |
(b) | a reference to a document (including this agreement) includes any variation or replacement of it; |
(c) |
the word law includes common law, principles of equity, and laws made by parliament (and laws made by parliament include State, Territory and |
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
6 |
Commonwealth laws and regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them); |
(d) | a reference to accounting standards is a reference to the accounting standards as defined in the Corporations Act and a reference to an accounting term is a reference to that term as it is used in those accounting standards, or, if not inconsistent with those standards, in accounting principles and practices generally accepted in Australia; |
(e) | a reference to Australian dollars, dollars, $ or A$ is a reference to the lawful currency of Australia; |
(f) | a reference to a time of day is a reference to Melbourne time; |
(g) | the word person includes an individual, a firm, a body corporate, an unincorporated association and an authority; |
(h) | a reference to a particular person includes the persons executors, administrators, successors, substitutes (including persons taking by novation) and assigns; |
(i) | the words including, for example or such as when introducing an example, do not limit the meaning of the words to which the example relates to that example or examples of a similar kind; |
(j) | a Termination Event or Potential Termination Event, or Review Event is continuing if it has not been waived by, or remedied to the satisfaction of, Fortrend Securities; |
(k) | a reference to the Corporations Act is a reference to the Corporations Act 2001 (Cwlth). |
1.3 | Number |
The singular includes the plural and vice versa.
1.4 | Headings |
Headings (including those in brackets at the beginning of paragraphs) are for convenience only and do not affect the interpretation of this agreement.
1.5 | Agency for named principal |
Fortrend Securities enters into this agreement as agent for the Subscriber. Fortrend Securities is not liable for any default by the Subscriber.
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
7 |
2 | The Facility and Facility Limits |
2.1 | Subscriber to fund |
The Subscriber agrees to subscribe for Shares if requested by the Company under this agreement. Subject to the terms and conditions of this agreement, the amount to be subscribed on a Drawdown Date is the Drawing requested in the Drawdown Notice for that Drawdown Date.
2.2 | Maximum subscription amount |
The maximum total amount of subscription monies available to the Company under this agreement is the Facility Limit.
3 | Using the Facility |
3.1 | Drawing down |
The Company need not use the Facility. However, if the Company wants to use the Facility, it may do so by one or more drawdowns.
3.2 | Requesting a drawdown |
If the Company wants a drawdown, it agrees to give a Drawdown Notice to Fortrend Securities by 11.00 am on the 5th consecutive Trading Day before the Trading Day on which it wants the drawdown.
A Drawdown Notice may not be given within 5 consecutive Trading Days before or after another Drawdown Notice.
3.3 | Effect of a Drawdown Notice |
A Drawdown Notice is effective when Fortrend Securities actually receives it in legible form. An effective Drawdown Notice is irrevocable.
3.4 | Conditions to first drawdown |
The Company agrees not to request the first drawdown until Fortrend Securities has received every item listed in schedule 1 (Conditions precedent) in form and substance satisfactory to Fortrend Securities. Any item required to be certified must be certified by a secretary or a director of the Company as being true and complete as at a date no earlier than the date of this agreement.
3.5 | Conditions to all drawdowns |
The Subscriber need not subscribe for Shares unless:
(a) | the proposed subscription is to take place during the Availability Period; and |
(b) | Fortrend Securities is satisfied that after subscribing the amount of the proposed drawdown the Facility Limit would not be exceeded; and |
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
8 |
(c) | Fortrend Securities has received a Drawdown Notice in respect of the proposed subscription; and |
(d) | Fortrend Securities is satisfied that the representations and warranties in clause 9 (Representations and warranties) and in the Drawdown Notice and the statements in the Drawdown Notice are correct and not misleading at the date of the Drawdown Notice and at the Drawdown Date; and |
(e) | Fortrend Securities is satisfied that no Termination Event or Potential Termination Event or Review Event has occurred (other than a Termination Event or Potential Termination Event which is capable of remedy and has been remedied to the satisfaction of Fortrend Securities), or would result from the subscription being made; and |
(f) | Fortrend Securities is satisfied that: |
(i) | any offer for sale by the Subscriber of Shares subscribed for as a result of the Drawdown Notice would not need disclosure to investors under Part 6D.2 of the Corporations Act subject only to the Company giving a notice under section 708A(5)(e); |
(ii) | the issue of the Shares on the Drawdown Date would not result in the Company being in breach of the ASX Listing Rules; and |
(iii) | quotation of the Shares to be issued in response to the Drawdown Notice has been approved by the ASX subject only to notification to ASX of their issue; and |
(g) | Fortrend Securities is satisfied that at or immediately after the issue of the Shares to be subscribed for, the Company will give ASX a notice under section 708A(5)(e) and satisfy all conditions of quotation of the Shares. |
(h) | Fortrend Securities has received all other documents and other information it reasonably requests. |
3.6 | Benefit of conditions |
Each condition to drawdown is for the sole benefit of the Subscriber and may be waived on its behalf by Fortrend Securities.
3.7 | Notice to be given by the Company |
The Company undertakes to comply with section 708A(5)(e) of the Corporations Act on the Drawdown Date so as to ensure that any offer for sale by the Subscriber of Shares issued to the Subscriber on that Drawdown Date may be made without disclosure to investors under Part 6D.2 of the Corporations Act or to issue a disclosure document.
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4 | Pricing |
4.1 | Issue Price for Shares |
Subject to this clause, the number of Shares to be issued to the Subscriber in response to a Drawdown Notice will be S where:
S = |
Drawing Issue Price |
rounded up to the nearest whole number of Shares,
and where:
Drawing means | the amount of the drawdown requested under the Drawdown Notice | |||
Issue Price means | 90% of the Market Price. | |||
Market Price means | the average of the VWAP on each Trading Day during the Drawdown Pricing Period for the Drawdown Notice. |
4.2 | Adjustment if trade price below Threshold Price |
If on any Trading Day during the Drawdown Pricing Period the VWAP for that Trading Day multiplied by 90% is less than the Minimum Issue Price (a Relevant Trading Day ):
(a) | the average of the VWAP on each Trading Day during the Drawdown Pricing Period will be calculated by excluding the VWAP for each Relevant Trading Day and the Market Price and the Issue Price will be adjusted accordingly; |
(b) |
the number of shares to be subscribed for by the Subscriber under clause 4.1 will be calculated using the Issue Price adjusted under clause 4.2(a) and after reducing the amount of the Drawing by 1/5 th for each Relevant Trading Day; and |
(c) | the amount to be subscribed by the Subscriber will be the amount of the Drawing less 1/5th for each Relevant Trading Day. |
4.3 | Maximum Number of Shares to be Subscribed for |
The maximum number of Shares which the Subscriber is required to subscribe for under clause 4.1 is S max where:
S max = the lesser of:
(i) | 5 x Average Trading Volume; and |
(ii) | 2% of the Shares on issue immediately prior to subscription by the Subscriber. |
and where:
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Average Trading Volume means the average daily trading volume on the ASX during the 15 Trading Days immediately prior to the Drawdown Notice Date (Relevant Period) provided that if on a Trading Day during the Relevant Period the daily trading volume exceeds 10 times the average daily trading volume on the ASX during the 60 Trading Days immediately prior to the Drawdown Notice Date (the 60 Day Average Daily Trading Volume) the Average Trading Volume will be calculated as if the daily trading volume on that Trading Day was equal to 10 times the 60 Day Average Trading Volume.
If S max is less than S calculated under clause 4.1, the Subscriber shall subscribe for a number of Shares equal to S max at an issue price per share equal to the Issue Price.
4.4 | Shares to rank pari passu with other Shares |
Each Share issued under this agreement must rank pari passu for dividend with all existing fully paid Shares regardless of its date of issue.
5 | Delivery vs Payment |
(a) | Unless otherwise agreed between the Company and Fortrend Securities the issue of Shares and payment of subscription moneys on a Drawdown Date will be effected in accordance with the ASTC Settlement Rules and procedures of CHESS (or such other computer based system which provides for the recording and transfer of title by way of electronic entries, delivery and transfer of title, used by the Company from time to time and approved by Fortrend Securities). |
(b) | Options to be issued under clause 6.2 on a Drawdown Date must be issued to the Subscriber at or prior to the issue of Shares under clause 5(a). |
(c) | Without limiting clause 18.5 (Set-off) the Subscriber may deduct the placement fee payable under clause 6.1 from the amount payable on the first Drawdown Date. Fortrend Securities may effect this set off as agent for the Subscriber. |
6 | Fees |
6.1 | Placement fee |
(a) | The Company agrees to pay the Subscriber a placement fee of one percent (1%) of the Facility Limit. |
(b) | Subject to clause 6.1(c), 50% of the placement fee is payable to Fortrend Securities as agent for the Subscriber on each of the first two Drawdown Dates. |
(c) | The amount of the placement fee remaining unpaid must be paid on the first anniversary of the date of this agreement. |
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6.2 | Options |
(a) | On each Drawdown Date the Company must issue to the Subscriber for no additional payment a number of Options equal to N where: |
N = |
S 4 |
and where:
S means the number of Shares subscribed for by the Subscriber on that Drawdown Date under clause 4.1 (as the same may have been limited under clause 4.3).
(b) | As soon as practicable after each Drawdown Date, the Company must issue an Option Certificate to the Subscriber evidencing the Options referred to in clause 6.2(a). The terms of the Options are set out in the Option Certificate. |
(c) | The exercise price for the Options will be 90% of the Market Price determined under clause 4.1 (adjusted under clause 4.2 where applicable) in respect of the Drawdown Notice for that Drawdown Date. |
7 | Increased costs |
7.1 | Compensation |
The Company agrees to compensate the Subscriber on demand if Fortrend Securities determines that:
(a) | a Directive or change in Directive, in either case applying for the first time after the date of this agreement; or |
(b) | a change in a Directives interpretation or administration by an authority after the date of this agreement; or |
(c) | compliance by the Subscriber, Fortrend Securities or any of its Related Entities with any such Directive, changed Directive or changed interpretation or administration |
directly or indirectly:
(i) | increases the cost of the Facility to the Subscriber, Fortrend Securities or any of its Related Entities; or |
(ii) | reduces any amount received or receivable by the Subscriber, Fortrend Securities, or the effective return to, the Subscriber, Fortrend Securities or any of its Related Entities, in connection with the Facility; or |
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(iii) | reduces the return on capital allocated to the Facility, or the overall return on capital of the Subscriber, Fortrend Securities or any of its Related Entities. |
In this clause 7.1, a reference to a Directive does not include a Directive imposing or changing the basis of a tax on the overall net income of the Subscriber or Fortrend Securities.
Compensation need not be in the form of a lump sum and may be demanded as a series of payments.
7.2 | Possible minimisation |
The Company agrees to compensate the Subscriber and Fortrend Securities whether or not the increase or reduction could have been avoided. However, if the Company asks, Fortrend Securities agrees to consider ways of minimising any increase or reduction.
8 | Illegality or impossibility |
8.1 | Subscribers right to suspend or cancel |
This clause 8 applies if Fortrend Securities determines that:
(a) | a change in a Directive; or |
(b) | a change in the interpretation or administration of a Directive by an authority; or |
(c) | a Directive, |
applying for the first time after the date of this agreement, makes it (or will make it) illegal or impossible in practice for the Subscriber to fund, provide, or continue to fund or provide, financial accommodation under the Transaction Documents. In these circumstances, Fortrend Securities, by giving a notice to the Company, may suspend or cancel some or all of the Subscribers obligations under this agreement as indicated in the notice.
8.2 | Extent and duration |
The suspension or cancellation:
(a) | must apply only to the extent necessary to avoid the illegality or impossibility; and |
(b) | in the case of suspension, may continue only for so long as the illegality or impossibility continues. |
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9 | Representations and warranties |
9.1 | Representations and warranties |
The Company represents and warrants to the Subscriber and Fortrend Securities (except in relation to matters disclosed to Fortrend Securities by the Company and accepted by Fortrend Securities in writing) that:
(a) | (incorporation and existence) it has been incorporated in accordance with the laws of its place of incorporation, is validly existing under those laws and has power and authority to carry on its business as it is now being conducted; and |
(b) | (power) it has power to enter into the Transaction Documents to which it is a party and comply with its obligations under them; and |
(c) | (no contravention or exceeding power) the Transaction Documents and the transactions under them which involve it do not contravene its constituent documents (if any) or any law or obligation by which it is bound or to which any of its assets are subject or cause a limitation on its powers or the powers of its directors to be exceeded; and |
(d) | (authorisations) it has in full force and effect the authorisations necessary for it to enter into the Transaction Documents to which it is a party, to comply with its obligations and exercise its rights under them and to allow them to be enforced; and |
(e) | (validity of obligations) its obligations under the Transaction Documents are valid and binding and are enforceable against it in accordance with their terms; and |
(f) | (benefit) it benefits by entering into the Transaction Documents to which it is a party; and |
(g) | (accounts) its most recent Financial Report given to Fortrend Securities complies with any applicable requirements of the Corporations Act or, if the Corporations Act does not apply to the Financial Report: |
(i) | complies with any applicable accounting standards; and |
(ii) | gives a true and fair view of its financial position and performance or, if it is required to prepare consolidated financial statements, the financial position and performance of the consolidated entity constituted by it and the entities it is required to include in the consolidated financial statements; and |
(h) | (solvency) there are no reasonable grounds to suspect that it or any of its Subsidiaries is unable to pay its debts as and when they become due and payable; and |
(i) | (not a trustee) unless stated in the Details, it does not enter into any Transaction Document as trustee; and |
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(j) | (ownership of property) it is the beneficial owner of and has good title to all property held by it or on its behalf and all undertakings carried on by it free from Encumbrances; |
(k) | (no benefit to related party) no person has contravened or will contravene section 208 or section 209 of the Corporations Act by entering into any Transaction Document or participating in any transaction in connection with a Transaction Document; and |
(l) | (litigation) there is no pending or threatened proceeding affecting it or any of its Subsidiaries or any of their assets before a court, authority, commission or arbitrator in which a decision against it or the Subsidiary (either alone or together with other decisions) is likely to have a Material Adverse Effect; and |
(m) | (Termination Event) no Termination Event or Potential Termination Event is continuing; and |
(n) | (default under law - Material Adverse Effect) neither it nor any of its Subsidiaries is in breach of a law or obligation affecting any of them or their assets in a way which has had, or is likely to have, a Material Adverse Effect; and |
(o) | (no material change) there has been no change in its financial position since the date to which its most recent Financial Report given to Fortrend Securities was prepared which has had, or is likely to have, a Material Adverse Effect; and |
(p) | (no material change to consolidated entity) if it is required to prepare consolidated financial statements, there has been no change in the financial position of the consolidated entity constituted by it and the entities it is required to include in the consolidated financial statements since the date to which its most recent Financial Report given to Fortrend Securities was prepared which has had, or is likely to have, a Material Adverse Effect; and |
(q) | (full disclosure) it has disclosed in writing to Fortrend Securities all facts relating to it and its Subsidiaries, the Transaction Documents and all things in connection with them which are material to the assessment of the nature and amount of the risk undertaken by the Subscriber and Fortrend Securities in entering into the Transaction Documents and doing anything in connection with them; and |
(r) | (no immunity) neither it nor any of its Subsidiaries has immunity from the jurisdiction of a court or from legal process; and |
(s) | (section 708A(1)(c) : no determination by ASIC) no determination has been made by ASIC under section 708A(2) which is in force in relation to the Company; and |
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(t) | (section 708A(5)) the Shares are quoted securities, the Shares issued or to be issued on a Drawdown Date are in a class of securities which have been quoted securities at all times in the 3 months before the day on which those Shares were, or are to be, issued, trading in that class of securities on the ASX has not been suspended for more than a total of five days during the shorter of the period during which the class of securities were quoted, and the period of 12 months before the day on which the relevant securities were issued, no exemption under section 111 AS or 111 AT of the Corporations Act covered the Company, or any person as a director or auditor of the Company at any time during that 12 months, and no order under section 340 or 341 of the Corporations Act covered the Company, or any persons as director or auditor of the Company at any time in that 12 months. |
9.2 | Repetition of representations and warranties |
The representations and warranties in this clause 9 are taken to be also made (by reference to the then current circumstances) on each Drawdown Date.
9.3 | Reliance |
The Company acknowledges that each of the Subscriber and Fortrend Securities has entered into the Transaction Documents in reliance on the representations and warranties in this clause 9.
10 | Undertakings |
The Company undertakes:
(a) | (accounting records) to keep proper accounting records and ensure that each of its Subsidiaries does the same; and |
(b) | (conduct of business) to conduct its business (including collecting debts owed to it) in a proper, orderly and efficient manner; and |
(c) | (no cessation of business) not, without Fortrend Securities consent, to cease conducting any of its business and not to significantly change the general character of any business it conducts; and |
(d) | (information) to give Fortrend Securities any document or other information that Fortrend Securities reasonably requests from time to time; and |
(e) | (status certificates) on request from Fortrend Securities, to give Fortrend Securities a certificate signed by two of its directors which states whether a Termination Event or Potential Termination Event, or Review Event is continuing; and |
(f) | (maintain authorisations) to obtain, renew on time and comply with the terms of each authorisation necessary for it to enter into the Transaction Documents to which it is a party, to comply with its obligations and exercise its rights under them and to allow them to be enforced; and |
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(g) | (continuous disclosure) to comply at all times with its obligations under Chapter 6CA of the Corporations Act and under the ASX Listing Rules and to notify ASX on the date a Drawdown Notice is given of the giving of the Drawdown Notice, the Drawing, the Drawdown Date and reasonable details of the pricing of the Shares to be issued under the Drawdown Notice and, if requested by Fortrend Securities, to immediately disclose to the market any inside information concerning the Company possessed by Fortrend Securities or the Subscriber; and |
(h) | (annual accounts) to give its audited Financial Report for each financial year to Fortrend Securities on the date when the Financial Report is lodged with ASIC or, if earlier, within 120 days after the end of that financial year; and |
(i) | (half yearly accounts) to give its Financial Report (audited or reviewed, if required under the Corporations Act) for the first half of each financial year to Fortrend Securities on the date when the Financial Report is lodged with ASIC or, if earlier, within 75 days after the end of that financial half year; and |
(j) | (incorrect representation or warranty) to notify Fortrend Securities if any representation or warranty made, or taken to be made, by it or on its behalf in connection with a Transaction Document is found to have been incorrect or misleading when made or taken to be made; and |
(k) | (ensure no Termination Event) to do everything necessary to ensure that no Termination Event occurs and ensure that each of its Subsidiaries does the same; and |
(l) | (notify details of Termination Event or Potential Termination Event, or Review Event) if a Termination Event or Potential Termination Event, or Review Event occurs, to notify Fortrend Securities giving full details of the event and any step taken or proposed to remedy it; and |
(m) | (purpose) to use the Facility only for working capital; and |
(n) | (quotation) to procure that all Shares issued under this agreement or upon exercise of an Option are quoted on the ASX from the date of their issue. |
11 | Review |
11.1 | Review Event |
Each of the following is a Review Event:
(a) | (Fortrend Securities determination) an event or circumstance relating to or affecting the Company which Fortrend Securities reasonably determines may warrant a review of the pricing terms or continuation of the Facility; or |
(b) |
(change of key management) any Key Executive ceases to be employed by the Company and a replacement (approved by Fortrend Securities |
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acting reasonably) is not employed by the Company within 90 days after the date on which the Key Executive ceases to be employed. |
In this clause, Key Executive means each of:
Martin Rogers, Executive Director,
any person employed by the Company to replace a Key Executive and any person whom the Company acknowledges in writing to be a Key Executive; or
(c) | (trading in shares generally) trading of all securities quoted on ASX, NYSE or LSE is suspended or limited in a material respect; or |
(d) | (hostilities) hostilities not existing at the date of this agreement commence (whether war has been declared or not) or a major escalation in existing hostilities occurs (whether war has been declared or not) involving any one or more of Australia; New Zealand, the United States of America, any member state of the European Union, the United Kingdom, North or South Korea, Indonesia, Japan, Russia or the Peoples Republic of China, or a national emergency is declared by any of those countries or a major terrorist act is perpetrated in any of those countries; or |
(e) | (change in law) there is introduced into the Parliament of the Commonwealth of Australia or any State or Territory of Australia or the House of Representatives or Senate of the United States of America a law or any new regulation is made under a law or a Government Agency or Regulatory Body adopts a policy and that law, regulation or policy would render any Transaction Document or transaction contemplated by a Transaction Document illegal, void, voidable or unenforceable or would materially adversely affect the Subscribers rights under any Transaction Document or the economics of the transactions contemplated by the Transaction Documents. |
11.2 | Consequences of review |
If a Review Event is continuing, then Fortrend Securities may request amendments to the Transaction Documents by giving notice to the Company no later than 30 days after it becomes aware of the Review Event.
If Fortrend Securities does not give notice on or before the 30th day after it becomes aware of the Review Event, it may not do so afterwards.
If Fortrend Securities gives notice under this clause 11.2, the Company and Fortrend Securities agree to negotiate in good faith those amendments to the Transaction Documents which they determine are appropriate in light of the Review Event. If the Company and Fortrend Securities cannot agree the amendments within 60 days after Fortrend Securities gives notice, Fortrend Securities may declare at any time afterwards by notice to the Company that the Subscribers obligations specified in the notice are terminated.
The making of the declaration gives immediate effect to its provisions.
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Being a Review Event does not prevent that event or circumstance from being a Termination Event. Nothing in this clause 11 affects the operation of clause 12.
12 | Termination |
12.1 | Termination Events |
Each of the following is a Termination Event:
(a) | (non-payment-Transaction Document) the Company does not pay on time any amount payable by it under any Transaction Document in the manner required under it; or |
(b) | (breach of certain undertakings) the Company does not comply with its undertaking in paragraph (g) of clause 10; or |
(c) | (cross default) any present or future monetary obligations of the Company or any of its Subsidiaries for amounts totalling more than $100,000 are not satisfied on time (or at the end of their period of grace) or become prematurely payable. |
(In this clause 12.1(c), a monetary obligation means a monetary obligation in connection with:
(i) | money borrowed or raised; or |
(ii) | any hiring arrangement, redeemable preference share, letter of credit or financial markets transaction (including a swap, option or futures contract), performance bond or guarantee facility; or |
(iii) | a guarantee or indemnity in connection with anything referred to in clauses 12.1(c)(i) or 12.1(c)(ii)); or |
(d) | (enforcement against assets) distress is levied or a judgment, order or Encumbrance is enforced, or becomes enforceable, against any property of the Company or any of its Subsidiaries for amounts totalling more than $100,000; or |
(e) | (incorrect certificate) a certificate given under clause 3.4 (Conditions to first drawdown) is incorrect or misleading; or |
(f) | (incorrect representation or warranty) a representation or warranty made or taken to be made by or for the Company in connection with a Transaction Document is found to have been incorrect or misleading when made or taken to be made; or |
(g) | (Insolvency) the Company or any of its Subsidiaries becomes Insolvent; or |
(h) | (ceasing business) the Company or any of its Subsidiaries stops payment, ceases to carry on its business or a material part of it, or threatens to do either of those things except to reconstruct or amalgamate while solvent on terms approved by Fortrend Securities; or |
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(i) | (voidable Transaction Document) a Transaction Document or a transaction in connection with it is or becomes (or is claimed to be) wholly or partly void, voidable or unenforceable (claimed in this paragraph means claimed by the Company or any of its Related Entities or anyone on behalf of any of them); or |
(j) | (change of Control) the persons who at the date of this agreement have Control of the Company cease to have Control of the Company or one or more persons acquire Control of the Company after the date of this agreement; or |
(k) | (change in group structure) the Company ceases to be a Subsidiary of the company which is its holding company at the date of this agreement or a company ceases to be a Subsidiary of the Company; or |
(l) | (reduction of capital) without the consent of Fortrend Securities, the Company or any of its Subsidiaries takes action to reduce its capital or buy back any of its shares or passes a resolution referred to in section 254N(1) of the Corporations Act (Calls may be limited); or |
(m) | (appointment of manager) a person is appointed under legislation to manage any part of the affairs of the Company or any of its Subsidiaries; or |
(n) | (Material Adverse Effect) an event occurs which has, or is likely to have (or a series of events occur which, together, have, or are likely to have), a Material Adverse Effect; or |
(o) | (breach of undertaking) an undertaking given to the Subscriber or Fortrend Securities or their solicitors by the Company or another person in connection with a Transaction Document is breached or not wholly performed within any period specified in the undertaking or, where no period is specified and the undertaking is not an ongoing undertaking, within seven days after the date of the undertaking; or |
(p) | (default under other Transaction Document) an event occurs which is called an event of default under any Transaction Document other than this agreement; or |
(q) | (Shares) trading in Shares on ASX or another stock exchange is suspended for a period of 3 or more Trading Days (except for a voluntary suspension requested by the Company for the purposes of a capital raising to fund an acquisition) or the Shares cease to be quoted on ASX or another stock exchange; or |
(r) | (Directors) a director of the Company: |
(i) | is charged with an indictable offence relating to any financial or corporate matter or any regulatory body commences any public action against the director in their capacity as a director of the Company or announces that it intends to take such action; or |
(ii) | is disqualified from managing a corporation under section 206B, 206C, 206D, 206E, 206F or 206G of the Corporations Act; or |
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(s) | (non-compliance with other obligations) the Company does not comply with any other obligation under any Transaction Document and, if the non-compliance can be remedied, does not remedy the non-compliance within seven days. |
12.2 | Consequences of default |
If a Termination Event is continuing, then Fortrend Securities may declare at any time by notice to the Company that the Subscribers obligations specified in the notice are terminated.
The making of a declaration gives immediate effect to its provisions.
12.3 | Investigation of default |
If Fortrend Securities reasonably believes that a Termination Event is, or may be, continuing, Fortrend Securities may appoint a person to investigate this. The Company agrees to co-operate with the person and comply with every reasonable request they make. If there is or was a Termination Event, the Company agrees to pay all Costs in connection with the investigation.
13 | Costs and indemnities |
13.1 | What the Company agrees to pay |
The Company agrees to pay or reimburse:
(a) | the Subscribers and Fortrend Securities reasonable Costs in connection with: |
(i) | the negotiation, preparation and execution of any Transaction Document (not exceeding $A25,000); and |
(ii) | the registration of and payment of Taxes on any Transaction Document; and |
(iii) | it being satisfied that conditions to drawdown have been met; and |
(iv) | giving and considering consents, waivers, variations, discharges and releases and producing title documents; and |
(b) | the Costs of each of the Subscriber and Fortrend Securities in otherwise acting in connection with the Transaction Documents, such as exercising, enforcing or preserving rights (or considering doing so), or doing anything in connection with any enquiry by an authority involving the Company or any of its Related Entities; and |
(c) |
Taxes and fees (including registration fees) and fines and penalties in respect of fees paid, or that the Subscriber or Fortrend Securities reasonably believes are payable, in connection with any Transaction Document or a payment or receipt or any other transaction contemplated |
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by any Transaction Document. However, the Company need not pay a fine or penalty in connection with Taxes or fees to the extent that it has placed the Subscriber or Fortrend Securities in sufficient cleared funds for the Subscriber or Fortrend Securities to be able to pay the Taxes or fees by the due date. |
The Company agrees to pay amounts due under this clause on demand from Fortrend Securities.
13.2 | Indemnity |
The Company indemnifies each of the Subscriber and Fortrend Securities against any liability or loss arising from, and any Costs incurred in connection with:
(a) | any subscription amount requested under a Transaction Document not being provided in accordance with the request for any reason except default of the Subscriber; or |
(b) | Shares not being issued on the Drawdown Date in accordance with this agreement for any reason except default of the Subscriber; or |
(c) | the Subscriber or Fortrend Securities acting in connection with a Transaction Document in good faith on fax, telephone, email or written instructions purporting to originate from the offices of the Company or to be given by an Authorised Officer of the Company; or |
(d) | a Termination Event; or |
(e) | the Subscriber or Fortrend Securities exercising or attempting to exercise a right or remedy in connection with a Transaction Document after a Termination Event; or |
(f) | any Transaction Document; or |
(g) | any indemnity the Subscriber or Fortrend Securities gives a Controller or administrator of the Company. |
The Company agrees to pay amounts due under this indemnity on demand from Fortrend Securities.
13.3 | Items included in loss, liability and Costs |
The Company agrees that:
(a) | the Costs referred to in clause 12.3 (Investigation of default) and in clause 13.1 (What the Company agrees to pay), and the liability, loss or Costs referred to in clause 13.2 (Indemnity) include legal Costs in accordance with any written agreement as to legal costs (whether or not the Company is a party to the agreement) or, if no agreement, on whichever is the higher of a full indemnity basis or solicitor and own client basis; and |
(b) |
the Costs referred to in clauses 13.1(a) and 13.1(b) (What the Company agrees to pay) include those paid, or that Fortrend Securities reasonably believes are payable, to persons engaged by the Subscriber or Fortrend |
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Securities in connection with the Transaction Documents (such as consultants); and |
(c) | loss or liability and any Costs in any indemnity under the Transaction Documents may include an amount called break costs. These may be calculated by any method Fortrend Securities reasonably chooses including by reference to any loss the Subscriber incurs because the Subscriber terminates arrangements it has made with others to fund (or to maintain its funding of) financial accommodation under the Transaction Documents. |
13.4 | Payment of third party losses |
The Company agrees to pay an amount equal to any liability or loss and any Costs of the kind referred to in clause 13.2 (Indemnity) suffered or incurred by any employee, officer, agent or contractor of the Subscriber or Fortrend Securities.
13.5 | Currency conversion on judgment debt |
If a judgment, order or proof of debt for an amount in connection with a Transaction Document is expressed in a currency other than that in which the amount is due under the Transaction Document, then the Company indemnifies each of the Subscriber and Fortrend Securities against:
(a) | any difference arising from converting the other currency if the rate of exchange used by Fortrend Securities under clause 15.2 (Currency of payment) for converting currency when it receives a payment in the other currency is less favourable to the Subscriber or Fortrend Securities than the rate of exchange used for the purpose of the judgment, order or acceptance of proof of debt; and |
(b) | the Costs of conversion. |
The Company agrees to pay amounts due under this indemnity on demand from Fortrend Securities.
14 | Interest on overdue amounts |
14.1 | Obligation to pay |
If the Company does not pay any amount under this agreement on the due date for payment, the Company agrees to pay interest on that amount at the Default Rate. The interest accrues daily from (and including) the due date to (but excluding) the date of actual payment and is calculated on actual days elapsed and a year of 365 days.
The Company agrees to pay interest under this clause on demand from Fortrend Securities.
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14.2 | Compounding |
Interest payable under clause 14.1 (Obligation to pay) which is not paid when due for payment may be added to the overdue amount by Fortrend Securities at intervals which Fortrend Securities determines from time to time or, if no determination is made, every 30 days. Interest is payable on the increased overdue amount at the Default Rate in the manner set out in clause 14.1 (Obligation to pay).
14.3 | Interest following judgment |
If a liability becomes merged in a judgment, the Company agrees to pay interest on the amount of that liability as an independent obligation. This interest:
(a) | accrues daily from (and including) the date the liability becomes due for payment both before and after the judgment up to (but excluding) the date the liability is paid; and |
(b) | is calculated at the judgment rate or the Default Rate (whichever is higher). |
The Company agrees to pay interest under this clause on demand from Fortrend Securities.
15 | Payments |
15.1 | Manner of payment |
Unless a provision of a Transaction Document expressly states otherwise, the Company agrees to make payments (including by way of reimbursement) under each Transaction Document:
(a) | on the due date (or, if that is not a Business Day, on the next Business Day); and |
(b) | not later than 10.00 am in the place for payment; and |
(c) | in Australian dollars in immediately available funds; and |
(d) | in full without set-off or counterclaim and without any deduction in respect of Taxes unless prohibited by law; and |
(e) | to the Subscriber by payment into the account nominated by Fortrend Securities, or by payment as Fortrend Securities otherwise directs. |
If Fortrend Securities directs the Company to pay a particular party or in a particular manner, the Company is taken to have satisfied its obligation to the Subscriber by paying in accordance with the direction.
The Company satisfies a payment obligation only when the Subscriber or the person to whom Fortrend Securities has directed payment receives the amount.
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15.2 | Currency of payment |
The Company waives any right it has in any jurisdiction to pay an amount other than in the currency in which it is due. However, if the Subscriber receives an amount in a currency other than that in which it is due:
(a) | it may convert the amount received into the due currency (even though it may be necessary to convert through a third currency to do so) on the day and at such rates (including spot rate, same day value rate or value tomorrow rate) as it reasonably considers appropriate. It may deduct its Costs in connection with the conversion; and |
(b) | the Company satisfies its obligation to pay in the due currency only to the extent of the amount of the due currency obtained from the conversion after deducting the Costs of the conversion. |
15.3 | Application of Payments |
Each of the Subscriber and Fortrend Securities may apply amounts paid by the Company towards satisfaction of the Companys obligations under the Transaction Documents in the manner it sees fit, unless the Transaction Documents expressly provide otherwise. This appropriation overrides any purported appropriation by the Company or any other person.
16 | Dealing with interests |
16.1 | No dealing by parties in the Facility |
Neither party may assign or otherwise deal with its rights under this agreement or allow any interest in it to arise or be varied, in each case, without the prior written consent of the other party.
16.2 | Dealings by the Subscriber |
Nothing in clause 16.1 prevents the Subscriber from assigning, transferring, encumbering or otherwise dealing with its rights under or in connection with any Shares or Options without the consent of any person.
16.3 | Short Selling |
The Subscriber may not short sell any Shares. Nothing in this clause prevents the Subscriber from selling Shares previously issued to it under this agreement.
16.4 | Sales of Shares |
The Subscriber agrees not to sell on any Trading Day during the Drawdown Pricing Period more than 1/5th of the number of Shares estimated by Fortrend Securities to be subscribed for on the Drawdown Date at the end of that Drawdown Pricing Period. Shares sold by the Subscriber during the Drawdown Pricing Period must be Shares already held by the Subscriber.
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16.5 | Holding of Shares |
The Subscriber agrees not to hold at any time more than 4.9% of the total number of Shares then on issue.
17 | Notices and other communications |
17.1 | Formall communications |
Unless expressly stated otherwise in the Transaction Documents, all notices, certificates, consents, approvals, waivers and other communications in connection with a Transaction Document must be in writing, signed by the sender (if an individual) or an Authorised Officer of the sender and marked for the attention of the person identified in the Details or, if the recipient has notified otherwise, then marked for attention in the way last notified.
All communications to the Subscriber are to be given to Fortrend Securities and if given to Fortrend Securities in accordance with this clause, will be taken to have been given to the Subscriber. Any communication given by Fortrend Securities as agent of the Subscriber will be taken to have been given by the Subscriber.
17.2 | Formcommunications sent by email |
Communications sent by email need not be marked for attention in the way stated in clause 17.1 (Formall communications). However, the email must state the first and last name of the sender.
Communications sent by email are taken to be signed by the named sender.
17.3 | Delivery |
Communications must be:
(a) | left at the address set out or referred to in the Details; or |
(b) | sent by prepaid ordinary post (airmail, if appropriate) to the address set out or referred to in the Details; or |
(c) | sent by fax to the fax number set out or referred to in the Details; or |
(d) | sent by email to the address set out or referred to in the Details. |
However, if the intended recipient has notified a changed address or fax number, then communications must be to that address or number.
17.4 | When effective |
Communications take effect from the time they are received or taken to be received under clause 17.5 (When taken to be received) (whichever happens first) unless a later time is specified.
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17.5 | When taken to be received |
Communications are taken to be received:
(a) | if sent by post, three days after posting (or seven days after posting if sent from one country to another); or |
(b) | if sent by fax, at the time shown in the transmission report as the time that the whole fax was sent; or |
(c) | if sent by email: |
(i) | when the sender receives an automated message confirming delivery; or |
(ii) | four hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, |
whichever happens first.
17.6 | Receipt outside business hours |
Despite clauses 17.4 (When effective) and 17.5 (When taken to be received), if communications are received or taken to be received under clause 17.5 after 5.00 pm in the place of receipt or on a non-Business Day, they are taken to be received at 9.00 am on the next Business Day and take effect from that time unless a later time is specified.
17.7 | Waiver of notice period |
Fortrend Securities may waive a period of notice required to be given by the Company under this agreement.
18 | General |
18.1 | Application to Transaction Documents |
If anything in this clause 18 (General) is inconsistent with a provision in another Transaction Document, then the provision in the other Transaction Document prevails for the purposes of that Transaction Document.
18.2 | Prompt performance |
Subject to clause 18.15 (Time of the essence):
(a) | if a Transaction Document specifies when the Company agrees to perform an obligation, the Company agrees to perform it by the time specified; and |
(b) | the Company agrees to perform all other obligations promptly. |
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18.3 | Consents |
The Company agrees to comply with all conditions in any consent Fortrend Securities gives in connection with a Transaction Document.
18.4 | Certificates |
Fortrend Securities may give the Company a certificate about an amount payable or other matter in connection with a Transaction Document. The certificate is sufficient evidence of the amount or matter, unless it is proved to be incorrect.
18.5 | Set-off |
Each of the Subscriber and Fortrend Securities may set off any amount owing by it to the Company (whether or not due for payment) against any amount due for payment by the Company to it under a Transaction Document.
Each of the Subscriber and Fortrend Securities may do anything necessary to effect any set-off under this clause (including varying the date for payment of any amount owing by it to the Company and making currency exchanges). This clause applies despite any other agreement between the Company and the Subscriber or Fortrend Securities.
18.6 | Discretion in exercising rights |
Each of the Subscriber and Fortrend Securities may exercise a right or remedy or give or refuse its consent under a Transaction Document in any way it considers appropriate (including by imposing conditions).
18.7 | Partial exercising of rights |
If the Subscriber or Fortrend Securities does not exercise a right or remedy under a Transaction Document fully or at a given time, it may still exercise it later.
18.8 | No liability for loss |
Neither the Subscriber nor Fortrend Securities is liable for loss caused by the exercise or attempted exercise of, failure to exercise, or delay in exercising, a right or remedy under a Transaction Document.
18.9 | Conflict of interest |
The Subscribers rights and remedies under any Transaction Document may be exercised even if this involves a conflict of duty or the Subscriber or Fortrend Securities has a personal interest in their exercise.
18.10 | Remedies cumulative |
The rights and remedies of each of the Subscriber and Fortrend Securities under any Transaction Document are in addition to other rights and remedies given by law independently of the Transaction Document.
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18.11 | Indemnities |
Any indemnity in a Transaction Document is a continuing obligation, independent of the Companys other obligations under that Transaction Document and continues after the Transaction Document ends. It is not necessary for the Subscriber or Fortrend Securities to incur expense or make payment before enforcing a right of indemnity under a Transaction Document.
18.12 | Rights and obligations are unaffected |
Rights given to the Subscriber or Fortrend Securities under a Transaction Document and the Companys liabilities under it are not affected by anything which might otherwise affect them at law.
18.13 | Inconsistent law |
To the extent permitted by law, each Transaction Document prevails to the extent it is inconsistent with any law.
18.14 | Supervening legislation |
Any present or future legislation which operates to vary the obligations of the Company in connection with a Transaction Document with the result that Fortrend Securities rights, powers or remedies are adversely affected (including by way of delay or postponement) is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.
18.15 | Time of the essence |
Time is of the essence in any Transaction Document in respect of an obligation of the Company to pay money.
18.16 | Variation and waiver |
A provision of a Transaction Document, or right created under it, may not be waived or varied except in writing signed by the party or parties to be bound.
18.17 | Confidentiality |
Each party agrees not to disclose information provided by any other party that is not publicly available (including the existence or contents of any Transaction Document) except:
(a) | to any person in connection with an exercise of rights or a dealing with rights or obligations under a Transaction Document (including in connection with preparatory steps such as negotiating with any potential assignee or potential sub-participant or other person who is considering contracting with the Subscriber or Fortrend Securities in connection with a Transaction Document); or |
(b) | to a person considering entering into (or who enters into) a credit swap with the Subscriber or Fortrend Securities involving credit events relating to the Company or any of its Related Entities; or |
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(c) | to officers, employees, legal and other advisers and auditors of the Company or the Subscriber or Fortrend Securities; or |
(d) | to any party to this agreement or any Related Entity of any party to this agreement, provided the recipient agrees to act consistently with this clause 18.17; or |
(e) | with the consent of the party who provided the information (such consent not to be unreasonably withheld); or |
(f) | as required by any law or stock exchange. |
Each party consents to disclosures made in accordance with this clause 18.17.
18.18 | Counterparts |
This agreement may consist of a number of copies, each signed by one or more parties to the agreement. If so, the signed copies are treated as making up the one document.
18.19 | Governing law |
Each Transaction Document is governed by the law in force in Victoria and the Company, Fortrend Securities and the Subscriber submit to the non-exclusive jurisdiction of the courts of that place.
18.20 | Serving documents |
Without preventing any other method of service, any document in a court action may be served on a party by being delivered to or left at that partys address for service of notices under clause 17.3 (Delivery).
EXECUTED as an agreement
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Standby Subscription Agreement
Schedule 1 Conditions precedent (clause 3.4)
Conditions to first drawdown
|
Each item must be in form and substance satisfactory to Fortrend Securities. |
|
Fortrend Securities may also require other documents and information (see clause 3.5(h)) |
|
Certification is to be by a director or secretary of the Company, that the item is true and complete as at a date no earlier than the date of this agreement. |
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Standby Subscription Agreement
Schedule 2 - Drawdown Notice (clause 3)
To: Fortrend Securities Pty Ltd
Attention: C Holly
[ Date ]
Drawdown NoticeStandby Subscription Agreement between Prima Biomed Limited, the Subscriber and Fortrend Securities Pty Ltd as agent for the Subscriber dated [ ] (Standby Subscription Agreement)
Under clause 3.2 (Requesting a drawdown) of the Standby Subscription Agreement, the Company gives notice as follows. 1
The Company wants to drawdown under the Facility.
|
The requested Drawdown Date is [ ] 2 . |
|
The amount of the proposed drawdown is A$[ ] 3 . |
|
The amount of the proposed drawdown is to be paid to: |
Account number: [ ]
Account name: [ ]
Bank: [ ]
Branch: [ ]
BSB: [ ]
The Company represents and warrants to the Subscriber and Fortrend Securities that the representations and warranties in the Standby Subscription Agreement are correct and not misleading on the date of this notice and that each will be correct and not misleading on the Drawdown Date.
The Interpretation clause of the Standby Subscription Agreement applies to this notice as if it was fully set out in this notice.
[Name of person] being
an Authorised Officer of
[Name of Company]
Instructions for completion
1 | All items must be completed. |
2 | Must be a Trading Day within the Availability Period and 16 Trading Days after the date the Drawdown Notice is given to Fortrend Securities. |
3 | Must not result in total Drawings exceeding the Facility Limit. |
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Standby Subscription Agreement
Schedule 3 - Form of Option Certificate (clause 6.2)
Option Certificate [front page]
Prima Biomed Limited (ACN 009 237 889) (Company)
incorporated under the Corporations Act 2001 in the Commonwealth of Australia
Suite 1, 1233 High Street
Armadale, Victoria 3143
Name and Address |
Date | |
Fortrend Small Cap Investors Limited C/- Fortrend Securities, Level 42, 55 Collins Street Melbourne, Victoria, 3000 |
||
Register |
This is to certify that the person named above is the registered holder of [ insert number ] of Options for ordinary shares in the capital of the Company. The terms of the Options are set out on the back of this certificate.
In this Option Certificate:
Drawdown Date means [ insert ]
Market Price means [ insert ]
Except where expressly defined otherwise, terms defined in the Interpretation clause of the Standby Subscription Agreement between Prima Biomed Limited, the Subscriber and Fortrend Securities Pty Ltd as agent for the Subscriber dated [ insert ], have the same meanings when used in this certificate.
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Standby Subscription Agreement 28 September 2010 900999 v1/HN |
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Option Certificate [back pages]
1 | Entitlement |
1.1 | Subscription |
Each Option entitles the holder to subscribe for and be allotted one ordinary share in the capital of the Company, credited as fully paid, at an exercise price ( Exercise Price ) equal to the 90% of the Market Price.
1.2 | Issue |
The Company will allot and issue Shares on exercise of an Option.
1.3 | Ranking |
Shares issued on the exercise of Options will rank pari passu with all existing Shares in the capital of the Company from the date of issue.
2 | Exercise of Options |
2.1 | Notice of exercise of Option |
An Option is exercisable by the holder lodging with the Company the Notice of Exercise of Option and Application for Shares in the form set out below, together with payment of the Exercise Price. Remittances must be made payable to the Company and cheques should be crossed not negotiable.
2.2 | Exercise |
Each Option may be exercised by the holder at any time on or before 5.00 pm on the date which is three (3) years after the Drawdown Date on which it was issued.
3 | Transfer |
3.1 | Transfer |
Options may be transferred at any time before lapsing. Options are transferable by any standard form of transfer.
3.2 | Option register |
The Company will maintain a register of Option holders in accordance with section 170 of the Corporations Act and may not refuse to register any transfer nor charge any fee for registration. Executed transfers (stamped if required) will be recorded in the Companys Option register on lodgment of the transfer with the Company.
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4 | Reorganisation |
4.1 | Reorganisation of Issued Options |
If, following the issue of any Options to the Subscriber ( Issued Options ) there is a reorganisation of the capital of the Company ( Reorganisation ), the Issued Options will be reconstructed in the manner specified below:
(a) | in a consolidation of capital, the number of Issued Options must be consolidated in the same ratio as the Shares and the Exercise Price must be amended in inverse proportion to that ratio; |
(b) | in a sub-division of capital, the number of Issued Options must be sub-divided in the same ratio as the Shares and the Exercise Price must be amended in inverse proportion to that ratio; |
(c) | in a return of capital, the number of Issued Options must remain the same, and the Exercise Price of each Issued Option must be reduced by the same amount as the amount returned in relation to each ordinary security; |
(d) | in a reduction of capital by cancellation of capital paid up on Shares that is lost or not represented by available assets where no Shares are cancelled, the number of Issued Options and the Exercise Price of each Issued Option must remain unaltered; |
(e) | in a pro rata cancellation of Shares, the number of Issued Options must be reduced in the same ratio as the Shares and Exercise Price of each Issued Option must be amended in inverse proportion to that ratio; and |
(f) | in any other case, the number of Issued Options, or the Exercise Price, or both, must be reorganised so that the Subscriber will not receive a benefit that holders of Shares do not receive. Nothing in this clause prevents a rounding up of the number of Shares to be received on exercise if the rounding up is approved at the shareholders meeting that approves the Reorganisation. |
and the terms of the Issued Options will be construed accordingly.
4.2 | Inconsistency with the ASX Listing Rules |
In the event of any Reorganisation of capital of the Company prior to the exercise of the then outstanding Issued Options in accordance with these terms, clause 4.1 will be amended to the extent necessary to comply with the ASX Listing Rules applicable to the reorganisation of capital at the time of the Reorganisation.
4.3 | Independent expert |
The Company agrees to the appointment by the Subscriber (at the Companys expense) of an independent expert, for the purposes of determining any reorganisation of Issued Options required to give effect to clause 4.1(c). The Company agrees to be bound by such determination.
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5 | Option Certificates |
5.1 | Surrender |
No exercise or transfer of an Option represented by an Option Certificate may be registered until the Option Certificate for that Option is surrendered to the Company or the Option holder provides the Company with a statutory declaration, in a form satisfactory to the Company, to the effect that the certificate has been lost or destroyed and indemnifies the Company against any loss or damage if the original certificate is found.
5.2 | New certificates |
If an Option holder exercises or transfers less than all Options represented by an Option Certificate then the Company will cancel the Option Certificate and issue a new Option Certificate to the Option holder for the balance.
6 | Quotation |
Quotation of the Options on the ASX will not be sought by the Company. The Company will make application to the ASX for official quotation of Shares issued on the exercise of Options.
7 | Notices |
Notices may be given by the Company to the Option holder in the manner prescribed by the constitution of the Company for the giving of notices to members of the Company and the relevant provisions of the constitution of the Company apply with all necessary modification to notices to Option holders.
8 | Rights to Accounts |
Option holders will be sent all reports and accounts to be laid before members in general meeting and all notices of general meetings of members but will not have any right to attend or vote at those meetings by virtue only of being the holder of an Option.
9 | Participation in new issues |
The holder or an Option cannot participate in any new issues by the Company without exercising the Option.
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Standby Subscription Agreement
Form of Notice of Exercise of Options and Application for Shares
To: The Directors
Prima Biomed Limited (ACN 009 237 889)
Notice of exercise of options and application for shares
We, Fortrend Small Cap Investors Limited
of C/- Fortrend Securities
Level 42, 55 Collins Street
Melbourne, Victoria, 3000
are the registered holder(s) of options.
We hereby exercise options to subscribe for fully paid ordinary shares in the capital of the Company.
We enclose application moneys of A$[ ], calculated at A[$ ] per share.
We request registration as the holder(s) of the shares on the Company register in the name of Fortrend Small Cap Investors Limited. Our address to be shown on the register is Level 42, 55 Collins Street, Melbourne, Victoria, 3000.
We agree to be bound by the constitution of the Company.
Dated: .
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
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Standby Subscription Agreement
Signing page
DATED: 10 th March 2009
EXECUTED by PRIMA BIOMED LIMITED in accordance with section 127(1) of the Corporations Act in the presence of: |
)
) ) ) |
|||
/s/ Martin Rogers |
/s/ Ata Gokyildirim | |||
Executive Director Martin Rogers |
Chairman Ata Gokyildirim |
SIGNED for and on behalf of FORTREND SECURITIES PTY LTD (for itself and as agent for and |
)
) ) |
|||
|
||||
on behalf of the Subscriber): | ) | |||
|
||||
Name/Title |
Standby Subscription Agreement 28 September 2010 900999 v1/HN |
39 |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
E XHIBIT 4.4
Deed of Variation
The Austin Research Institute
ACN 007 418 224
and
OncoMab Pty Ltd
ACN 101 431 814
and
Ilexus Pty Ltd
ACN 064 772 103
and
Prima Biomed Ltd
ACN 009 237 889
Middletons Lawyers
Melbourne office
Ref: SRM.PTH.1759898
Table of Contents
1. | Definitions and interpretation | 1 | ||||
1.1 | Definitions | 1 | ||||
1.2 | Interpretation | 1 | ||||
2. | Variation of Licence Deed | 2 | ||||
2.1 | Variation | 2 | ||||
2.2 | Confirmation of Licence Deed | 2 | ||||
2.3 | Prior rights not affected | 2 | ||||
2.4 | Retrospective Operation | 2 | ||||
3. | Inconsistency | 2 | ||||
4. | Warranty | 2 | ||||
5. | General | 2 | ||||
5.1 | Nature of obligations | 2 | ||||
5.2 | No adverse construction | 3 | ||||
5.3 | Further assurances | 3 | ||||
5.4 | Severability | 3 | ||||
5.5 | Successors and assigns | 3 | ||||
5.6 | No variation | 3 | ||||
5.7 | Costs | 3 | ||||
5.8 | Duty | 3 | ||||
5.9 | Governing law and jurisdiction | 3 | ||||
5.10 | Counterparts | 4 | ||||
Annexure | 7 |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Deed of Variation
Date 24 August 2005
Parties
1. |
The Austin Research Institute ACN 007 418 224 of Kronheimer Building, Austin Hospital, Studley Road, Heidelberg, Victoria 3084 ( ARI ) |
2. |
Ilexus Pty Ltd ACN 064 772 103 of Kronheimer Building, A&RMC, Studley Road, Heidelberg, Victoria 3084 ( Ilexus ) |
3. |
OncoMab Pty Ltd ACN 101 431 814 of Suite 1, 1233 High Street, Armadale, Victoria 3143 ( OncoMab ) |
4. |
Prima Biomed Ltd ACN 009 237 889 of Suite 1, 1233 High Street, Armadale, Victoria 3143 ( Prima ) |
Background
A. |
The parties are parties to the Licence Deed. |
B. |
The parties wish to vary the Licence Deed as set out in this Deed. |
Operative Provisions
1. |
Definitions and interpretation |
1.1 |
Definitions |
In this Deed: |
Effective Date means the date of execution of this Deed; and |
Licence Deed means the Technology Licence Deed between the parties dated 20 November 2002 in respect of technology licensed from ARI; |
1.2 |
Interpretation |
In this Deed, unless the context requires otherwise: |
(a) |
words or expressions defined in the Licence Deed have the same meaning when used in this Deed; |
(b) |
the singular includes the plural and vice versa; |
(c) |
a gender includes the other genders; |
(d) |
the headings are used for convenience only and do not affect the interpretation of this Deed; |
(e) |
other grammatical forms of defined words or expressions have corresponding meanings; and |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(f) |
a reference to a document includes the document as modified from time to time and any document replacing it. |
2. |
Variation of Licence Deed |
2.1 |
Variation |
Subject to clause 2.4, with effect on and from the Effective Date, the Licence Deed is varied by: |
(a) |
deleting each word, number or character that is struck out in the marked up copy of the Licence Deed set out in the Annexure; and |
(b) |
inserting each word, number or character that is underlined in the marked up copy of the Licence Deed set out in the Annexure. |
2.2 |
Confirmation of Licence Deed |
All provisions of the Licence Deed other than those varied by clause 2.1 remain unchanged and continue in full force. |
2.3 |
Prior rights not affected |
Subject to clause 2.4, this Deed does not affect the rights and obligations of the parties to the extent that they relate to the period prior to the Effective Date. |
2.4 |
Retrospective Operation |
The following variations apply and shall be deemed to have taken effect on and from 20 November 2002: |
[ * ] |
3. |
Inconsistency |
If there is any inconsistency between the provisions of this Deed and the provisions of the Licence Deed, then the provisions of this Deed prevail. |
4. |
Warranty |
ARI represents and warrants that it has full power and authority at the Effective Date to agree to the amendments to the Licence Deed on the Effective Date and to agree to those amendments that are expressed to take effect on and from the Commencement Date (20 November 2002) and that the grant of the additional rights to OncoMab under the amended licence does not to the best of the actual knowledge and belief of ARI infringe the Intellectual Property or other rights of a third party. |
5. |
General |
5.1 |
Nature of obligations |
(a) |
Any provision in this Deed which binds more than one person binds all of those persons jointly and each of them severally. |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
2
(b) |
Each obligation imposed on a party by this Deed in favour of another is a separate obligation. |
5.2 |
No adverse construction |
This Deed is not to be construed to the disadvantage of a party because that party was responsible for its preparation. |
5.3 |
Further assurances |
A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Deed. |
5.4 |
Severability |
If any provision of this Deed offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then: |
(a) |
where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature, it must be read down to the minimum extent necessary to achieve that result; and |
(b) |
in any other case the offending provision must be severed from this Deed, in which event the remaining provisions of the Deed operate as if the severed provision had not been included. |
5.5 |
Successors and assigns |
This Deed binds and benefits the parties and their respective successors and permitted assigns. |
5.6 |
No variation |
This Deed cannot be amended or varied except in writing signed by the parties. |
5.7 |
Costs |
Each party must pay its own legal costs of and incidental to the preparation and completion of this Deed. |
5.8 |
Duty |
(a) |
Any duty (including related interest or penalties) payable in respect of this Deed or any instrument created in connection with it must be paid by OncoMab and Prima. |
(b) |
OncoMab and Prima jointly and severally undertake to keep ARI and Ilexus indemnified against all liability relating to the duty, fines and penalties. |
5.9 |
Governing law and jurisdiction |
(a) |
This Deed is governed by and must be construed in accordance with the laws in force in Victoria. |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
3
(b) |
The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Deed, its performance or subject matter. |
5.10 |
Counterparts |
If this Deed consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document. |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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Executed as a deed
Executed by The Austin Research Institute | ) | |
ACN 007 418 224 in accordance with section | ) | |
127(1) of the Corporations Act 2001 (Cth) : | ) | |
) | ||
) |
/s/ P.M. Hogarth | /s/ Rob Tanner | |||
Signature of director |
Signature of company secretary* *delete whichever does not apply |
P.M. Hogarth | Rob Tanner | |||
Name (please print) | Name (please print) |
Executed by Ilexus Pty Ltd ACN 064 772 103 |
) | |
in accordance with section 127(1) of the |
) | |
Corporations Act 2001 (Cth) : |
) | |
) | ||
) |
/s/ P.M. Hogarth | /s/ Mauro Sandrin | |||
Signature of director |
Signature of director* *delete whichever does not apply |
P.M. Hogarth | Mauro Sandrin | |||
Name (please print) | Name (please print) |
Executed by OncoMab Pty Ltd ACN 101 431 | ) | |
814 in accordance with section 127(1) of the | ) | |
Corporations Act 2001 (Cth) : | ) | |
) | ||
) |
/s/ Eugene Kopp | /s/ Marcus Clark | |||
Signature of director |
Signature of director or company secretary* *delete whichever does not apply |
Eugene Kopp | Marcus Clark | |||
Name (please print) | Name (please print) |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
5
Executed by Prima Biomed Ltd ACN 009 |
) | |
237 889 in accordance with section 127(1) of |
) | |
the Corporations Act 2001 (Cth) : |
) | |
) | ||
) |
/s/ Eugene Kopp | /s/ Marcus Clark | |||
Signature of director |
Signature of director or company secretary* *delete whichever does not apply |
|||
Eugene Kopp | Marcus Clark | |||
Name (please print) | Name (please print) |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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Annexure
Clause 2 Marked up copy of the Licence Deed
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
7
Technology Licence Deed
Ilexus Pty Ltd
The Austin Research Institute
OncoMab Pty Ltd
Prima Biomed Ltd
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
1. |
INTERPRETATION | 6 | ||||
1.1 |
Definitions |
6 | ||||
1.2 |
General |
11 | ||||
1.3 |
Headings |
11 | ||||
1.4 |
Business Day |
12 | ||||
2. |
TERM | 12 | ||||
2.1 |
Duration |
12 | ||||
3. |
RESEARCH AND DEVELOPMENT LICENCE | 12 | ||||
3.1 |
Licence Grant |
12 | ||||
3.2 |
Intellectual Property in Research Results |
12 | ||||
3.3 |
Reservation of Rights of ARI |
12 | ||||
3.4 |
Background Technology Research Funding Mechanism |
12 | ||||
3.5 |
ARIs Rights |
13 | ||||
4. |
COMMERCIALISATION LICENCE | 13 | ||||
4.1 |
Licence Grant |
13 | ||||
4.2 |
Sub-Licensing |
13 | ||||
4.3 |
OncoMabs Rights to ARIs BTI |
14 | ||||
4.4 |
Reservation of Rights of ARI |
14 | ||||
4.5 |
Research Results Research Funding Mechanism |
14 | ||||
4.6 |
Licence Outside the Agreed Field |
15 | ||||
4.7 |
Technological Developments |
15 | ||||
5. |
COMMERCIALISATION BENEFITS | 15 | ||||
5.1 |
Royalty and Securities |
15 | ||||
5.2 |
Royalty Calculation |
16 | ||||
5.3 |
Trade Sale |
16 | ||||
6. |
GST | 16 | ||||
6.1 |
Definitions |
16 | ||||
6.2 |
Consideration is GST exclusive |
16 | ||||
6.3 |
Payment of GST |
17 | ||||
6.4 |
Reimbursement of expenses |
17 | ||||
7. |
AUDIT | 17 | ||||
7.1 |
OncoMab to Retain Records |
17 | ||||
7.2 |
ARIs Right to Inspect the Records |
17 | ||||
8. |
TITLE OF ARI IN BACKGROUND TECHNOLOGY | 18 | ||||
8.1 |
Background Technology Not Owned by OncoMab |
18 | ||||
8.2 |
Warranty by ARI |
18 | ||||
8.3 |
OncoMab Due Diligence |
18 | ||||
8.4 |
Warranty on ARI BTI |
19 | ||||
9. |
ONCOMAB PERFORMANCE | 19 | ||||
9.1 |
Research and Development |
19 | ||||
9.2 |
Performance Review |
19 |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
2
9.3 |
Dispute Resolution Procedure |
19 | ||||
10. |
INSURANCE & INDEMNITY | 19 | ||||
10.1 |
Insurance |
20 | ||||
10.2 |
Indemnity |
20 | ||||
11. |
UNDERTAKINGS BY ARI | 20 | ||||
11.1 |
Restriction on Dealings with Background Technology |
20 | ||||
11.2 |
Indemnity by ARI |
20 | ||||
11.3 |
OncoMab Due Diligence |
20 | ||||
12. |
INTELLECTUAL PROPERTY PROTECTION | 20 | ||||
12.1 |
Background Technology |
20 | ||||
12.2 |
Research Results |
21 | ||||
12.3 |
Coordination on Patent Protection |
21 | ||||
12.4 |
Infringement |
21 | ||||
13. |
CONFIDENTIALITY AND PUBLICATION | 21 | ||||
13.1 |
Publication |
21 | ||||
13.2 |
Confidentiality |
22 | ||||
14. |
TERMINATION | 22 | ||||
14.1 |
Termination for Due Cause |
22 | ||||
14.2 |
Consequences of Termination |
22 | ||||
14.3 |
Rights Prior to Termination |
22 | ||||
15. |
FORCE MAJEURE | 22 | ||||
15.1 |
Effect of Force Majeure |
22 | ||||
15.2 |
Remedial Action |
23 | ||||
16. |
DISPUTE RESOLUTION | 23 | ||||
16.1 |
Good Faith Negotiation |
23 | ||||
16.2 |
OncoMab Performance |
23 | ||||
16.3 |
Disputes Generally |
23 | ||||
16.4 |
Mediation |
23 | ||||
17. |
NOTICES | 24 | ||||
18. |
AMENDMENT AND ASSIGNMENT | 24 | ||||
18.1 |
Amendment |
24 | ||||
18.2 |
Assignment and Subcontracting |
24 | ||||
19. |
GENERAL | 25 | ||||
19.1 |
Governing Law |
25 | ||||
19.2 |
Liability for Expenses |
25 | ||||
19.3 |
Giving Effect to this Deed |
25 | ||||
19.4 |
Waiver of Rights |
25 | ||||
19.5 |
Operation of this Deed |
26 | ||||
19.6 |
Consents |
26 | ||||
19.7 |
Exclusion of Agency, Partnership, Joint Venture |
26 |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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19.8 |
Rights and Obligations of ARI |
26 | ||||
19.9 |
Counterparts |
26 | ||||
19.10 |
Attorneys |
26 | ||||
20. |
ACKNOWLEDGEMENT | 26 |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
4
TECHNOLOGY LICENCE DEED
DATE
BETWEEN
The Austin Research Institute ACN 007 418 224 of Kronheimer Building, Austin Hospital, Studley Road, Heidelberg in the State of Victoria (the ARI )
AND
Ilexus Pty Ltd ACN 064 772 130 of Kronheimer Building, A&RMC, Studley Road, Heidelberg, Victoria 3084 ( Ilexus )
AND
OncoMab Pty Ltd ACN 101 431 814 of Suite 1, 1233 High St, Armadale, Victoria 3143( OncoMab )
AND
Prima Biomed Ltd ACN 009 237 889 of Suite 1, 1233 High St Armadale, Victoria 3143 ( Prima )
RECITALS
A. |
ARI owns and/or holds all rights to the Background Technology as described in Schedule 1. |
B. |
ARI is entitled to license the Background Technology as described in Schedule 1. |
C. |
OncoMab wishes to conduct Research and Development with a view to obtaining Research Results and opportunities for Commercialisation. |
D. |
Ilexus is a wholly owned subsidiary of ARI and enters this Deed solely to provide the acknowledgement contained in clause 20 hereof. |
E. |
ARI has agreed to license the Background Technology to OncoMab, on the terms and conditions of this Deed. |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
5
OPERATIVE PROVISIONS
1. |
INTERPRETATION |
1.1 |
Definitions |
In this Deed, unless the context otherwise requires:
Adjustments means any expenses, costs, commissions paid in securing and obtaining the Revenue including without limitation legal, accounting and finance adviser costs [ * ].
Agreed Field means the development of cripto-1 antibodies for the diagnosis and treatment of cancer.
ARI BTI means any Improvements of the Background Technology made or developed by or on behalf of ARI which is not funded by Prima or OncoMab.
Background Technology means all drawings, specifications, processes, techniques, samples, specimens, prototypes, designs, research and development results, test results, and other technical and scientific information relating to the anti-cripto antibody technology specified in Schedule 1 (or any related patent applications or patents including any national phase patent applications, divisionals or continuation-in part) and includes ARI BTI and the antibodies specified in Schedule 1.
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne.
Commencement Date means the date of execution of this Deed (or such other date as mutually agreed in writing by the parties).
Commercialise or Commercialisation means
(a) |
to develop, manufacture, use and market the Background Technology and Research Results; |
(b) |
to use, manufacture, market, sell or otherwise dispose of any product or process resulting from the Commercialisation of the Background Technology and Research Results; or |
(c) |
to licence any third party to do any of the things referred to in (a) or (b) above; |
Confidential Information means any information, in any form or media relating to or representing the Background Technology, Intellectual Property rights, Research Program, research or Research Results, information submitted by ARI to OncoMab pursuant to Clauses 3.4(a), 4.5(a) or 4.5(b), any sub-licence submitted by OncoMab to ARI pursuant to Clause 4.2(d) or other confidential information of either party other than information which:
(a) |
was in the public domain at the time of its disclosure; |
(b) |
came into the hands of the receiving party by lawful means and without breach of any obligation of confidentiality by any third party; or |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
6
(c) |
was in fact known to the receiving party prior to its disclosure to that party. |
Due Cause means the other party:
(a) |
fails to pay when due any sum payable under this Deed and such default continues for a period of [ * ] after receipt of a notice requiring payment; |
(b) |
is in material breach of any of its other obligations under this Deed or the Research Agreement and, if that breach is capable of remedy, does not rectify that breach within [ * ] after receipt of a notice to remedy that breach; |
(c) |
is unable to pay its debts as they fall due, makes or commences negotiations with a view to making a general re-scheduling of its indebtedness, a general assignment, scheme of arrangement or composition with its creditors; |
(d) |
ceases to carry on business or disposes of the whole or a material part of its business other than in those circumstances described in Clause 18; |
(e) |
takes any corporate action or any steps are taken or legal proceedings are started for: |
(i) |
its winding-up, dissolution, liquidation, or re-organisation, other than in those circumstances described in Clause 18; or |
(ii) |
the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or |
(f) |
seeks protection or is granted protection from its creditors, under any applicable legislation. |
Enabling Technology means all associated or connected Intellectual Property owned by ARI (or which ARI is entitled to use and provide to OncoMab on the terms of this Deed (if any)) that is associated or connected with or concerns the Background Technology.
Exempt Payments means the following:
(a) |
any payments made to Prima or OncoMab before the Effective Date [ * ] and [ * ]; or |
(b) |
any payments received by Prima or OncoMab from a third party for [ * ] and [ * ] or [ * ]; or |
(c) |
any payments received by Prima or OncoMab from a third party by way of [ * ] and [ * ]; or |
(d) |
any payments received by Prima or OncoMab from a third party as [ * ] for the [ * ] and [ * ] for [ * ]. |
Force Majeure means any cause which is not reasonably within the control of the party affected, including without limitation an act of God, strike, lockout or other interference with work, war (declared or undeclared), blockade, disturbance, lightning,
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
7
fire, earthquake, storm, flood, explosion, governmental or quasi governmental restraint, expropriation, prohibition, intervention, direction or embargo, unavailability or delay in availability of materials, equipment or transport, inability or delay in obtaining governmental or quasi governmental approvals, consents, permits, licenses, authorities or allocations.
Improvements means any improvement, enhancement, development, modification or adaptation of any Background Technology or Research Results.
Independent Expert means an independent expert appointed by the President for the time being of the Licensing Executives Society of Australia and New Zealand.
Intellectual Property includes all copyright and industrial and intellectual property rights, including without limitation all rights in relation to inventions, plant varieties, registered and unregistered trade marks (including service marks), registered designs, confidential information and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Loss or Claim means, in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, howsoever arising and whether present or future, fixed or unascertained, actual or contingent.
Merger means an arrangement, transaction or event (in whatever form) under which or as a result of which the operations of the ARI (whether alone or with those of another entity) are or will be:
(a) |
disposed of to or assumed by a Merger Party; or |
(b) |
combined with the operations of a Merger Party, and |
includes a disposal by the ARI of its main undertaking and Merge shall have a corresponding meaning.
Merger Party means a person (which for the purposes of this definition shall also include a body politic or corporate, an a agency, an organisation whether or not incorporated or registered under an statute, order or proclamation and which also includes a statutory authority, government department or business unit, an educational, religious or charitable institution or a corporation sole) by which as a result of any arrangement transaction or event an operations of the ARI at the a applicable time pertaining to the rights granted to Prima by this Deed may be:
(a) |
acquired, whether alone or in combination with the operations of others; or |
(b) |
assumed or carried on other than solely by ARI, and |
for the avoidance of doubt, includes a person coming into existence for the purposes of acquiring, assuming or carrying on the operations of the ARI or the existence of which commences upon or as a result of an arrangement transaction or event involving or concerning the operations of the ARI.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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OncoMag BTI mean any Improvement of the Background Technology (including any Improvements of any Background Technology made by ARI but funded by either OncoMab or Prima) made or developed by or on behalf of OncoMab or Prima.
Product means any product, article or thing that incorporates any of the Background Technology or Research Results.
Quarter means a period of 3 months ending on a Quarterly Date.
Quarterly Date means the last day of March, June, September and December during each year of the Term.
Relevant Authority means government bodies (including government or semi-governmental) or any public, statutory, judicial body, entity, department or authority including any self-regulatory organisation established under statute in any jurisdiction in the world responsible for registering, approving or authorising the sale of Products.
Research Agreement means the agreement dated 20 November 2002 through which OncoMab engages ARI to undertake research work in the Agreed Field utilising the Background Technology.
Research Organisation means any research organisation performing work or contracted by OncoMab to perform work as part of the Research and Development.
Research Program means the program of research and development work to be conducted by ARI in accordance with the Research Agreement.
Research and Development means research into the Background Technology and development of opportunities arising out of that research.
Research Results means all data, research papers, test results, experiments, products and any Intellectual Property and items incorporating Intellectual Property arising out of the Research and Development, including any OncoMab BTI.
Royalty means:
(a) |
where the payment is made [ * ], [ * ]% of Revenues or |
(b) |
where the payment is made [ * ], [ * ]% of Revenue. |
Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth.)
Revenue means all Commercialisation benefits of any kind received by Prima or OncoMab from a Third Party in connection with Commercialisation of all or part of the Background Technology or Research Results, whether received in cash or Securities, and includes, without limitation, revenue received by Prima or OncoMab or Related Bodies Corporate for sales of Product, including any lump-sum payments, royalties or other payments and any sub-licensing payments made to Prima or OncoMab or Related Bodies Corporate, less Adjustments and excluding the Exempt Payments. For the avoidance of doubt, revenue is determined net of any GST.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
9
Securities will have the same meaning as in the Corporations Act 2001 (Cth) as specified in section 92(1).
Successor Body Corporate means a successor body corporate to OncoMab (but expressly not a sub-licensee), where such body corporate derives rights from the Technology Licence.
Technology Licence means the licence granted to OncoMab by this Deed.
Term means in respect of each patent granted or to be granted in respect of the patent application specified in Schedule 1 (or any related patent applications or patents, including any national phase patent applications, divisionals or continuation-in-part) in each country in the Territory, the period commencing on the Commencement Date and ending on the date such patent expires, lapses or ceases to have effect in a particular country, or in respect of non-patented technology in any country, the later of the date the last patent expires, lapses or ceases to have effect or twenty (20) years from the date of filing the provisional patent application on 26 March 2001.
Territory means the world.
Third Party means an unrelated person or other entity dealt with on arms-length terms, and without limitation expressly does not include a party to this Deed, a Successor Body Corporate wholly owned by Prima or OncoMab, or a wholly owned Related Body Corporate of a party to this Deed or of a Successor Body Corporate wholly owned by Prima or OncoMab.
Trade Sale means any of the following transactions involving one or more Third Parties:
(a) |
the disposition to a Third Party of some or all of the shares of OncoMab held by Prima at the applicable time; |
(b) |
the disposition to a Third Party of some or all of the shares of a Successor Body Corporate held by Prima at the applicable time; |
(c) |
the disposition to a Third Party of some or all or any of the assets of OncoMab or a Successor Body Corporate where the assets disposed of include the Technology Licence or rights deriving from the Technology Licence; or |
(d) |
the assignment or novation of the Technology Licence to a Third Party such that OncoMab or a Successor Body Corporate no longer has rights in respect of the Technology Licence or assignment or novation of part of the Technology Licence such that OncoMab or a Successor Body Corporate no longer has rights in respect of that part of the Technology Licence which is the subject of the assignment or novation. |
Trade Sale Fee means an amount equal to [ * ]% of the Trade Sale Consideration received by Prima or a Related Body Corporate of Prima or OncoMab for a Trade Sale.
Trade Sale Consideration means any payments, shares or ongoing commercial return (including royalties or other periodic payments) received from a Third Party by Prima or
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
10
OncoMab or a Related Body Corporate of Prima or OncoMab for a Trade Sale less any expenses, costs, commissions paid in securing and obtaining the Trade Sale Consideration including without limitation legal, accounting and finance adviser costs [ * ].
1.2 |
General |
In this Deed, unless the context otherwise requires:
(a) |
a reference to: |
(i) |
legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it; |
(ii) |
a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated; |
(iii) |
a party to this document 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) |
the singular includes the plural and vice versa; |
(c) |
a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa; |
(d) |
a reference to any gender includes all genders; |
(e) |
a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to this Deed; |
(f) |
a recital, schedule, annexure or a description of the parties forms part of this Deed; |
(g) |
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; |
(h) |
a reference to dollars or $ is to Australian currency; |
(i) |
The words subsidiary , has the same meanings as in the Corporations Act 2001 Cth . |
1.3 |
Headings |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
11
In this Deed, headings are for convenience of reference only and do not affect interpretation.
1.4 |
Business Day |
If the day on which any act, matter or thing is to be done under this Deed is not a Business Day, that act, matter or thing:
(a) |
if it involves a payment other than a payment which is due on demand, must be done on the preceding Business Day; and |
(b) |
in all other cases, may be done on the next Business Day. |
2. |
TERM |
2.1 |
Duration |
This Deed will commence operation on the Commencement Date and shall continue for the Term.
3. |
RESEARCH AND DEVELOPMENT LICENCE |
3.1 |
Licence Grant |
ARI grants to OncoMab an exclusive royalty free licence of the Background Technology within the Agreed Field in the Territory for the Term to conduct the Research and Development including without limitation the Research Program.
3.2 |
Intellectual Property in Research Results |
ARI acknowledges that OncoMab will be the owner of all Intellectual Property in the Research Results.
3.3 |
Reservation of Rights of ARI |
Despite anything in this Deed, but subject to ARI complying with the applicable obligations under Clauses 12 (Intellectual Property Protection) and 13 (Confidentiality and Publication), ARI may use the Background Technology for the purposes of internal research and teaching within ARI but not for commercial purposes.
3.4 |
Background Technology Research Funding Mechanism |
(a) |
Before commencing research on the Background Technology pursuant to the licence granted to ARI by Clause 3.3, ARI may, but is not obliged to, make a written request to OncoMab to fund the research ( BT Funding Request ). The BT Funding Request will provide OncoMab with such information concerning the proposed research as is reasonably necessary to allow OncoMab to evaluate the proposed research including (without limitation) the researchs objectives, costs, funding sources, milestones and duration and likely research and intellectual property outcomes. |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
12
(b) |
OncoMab will have [ * ] from the date of receipt of the BT Funding Request to confirm in writing with ARI whether it elects (at its absolute discretion) to fund the research project on the Background Technology. |
(c) |
Where OncoMab fails to respond within the period set out in Clause 3.4(b) or indicates in writing it does not intend to fund the research project, ARI may seek funding for the research on the Background Technology from a third party, provided that [ * ]. |
3.5 |
ARIs Rights |
During the Term OncoMab will as far as reasonably practicable, use ARI to carry out any research requirements of OncoMab for contract Research and Development on competitive commercial terms where OncoMabs proposed research is within ARIs field of expertise.
4. |
COMMERCIALISATION LICENCE |
4.1 |
Licence Grant |
(a) |
In consideration of OncoMab paying the Royalty, ARI grants to OncoMab an exclusive licence of the Background Technology in the Territory for the Term to: |
(i) |
Commercialise the Background Technology (and any Intellectual Property subsisting therein) within the Agreed Field; and |
(ii) |
to the extent necessary, Commercialise the Research Results (and any Intellectual Property subsisting therein) |
(b) |
To the extent necessary to facilitate the licence contained in Clause 4.1(a), ARI grants to OncoMab a non-exclusive royalty free sub licensable licence of the Enabling Technology in the Territory for the Term. |
4.2 |
Sub-Licensing |
(a) |
OncoMab is permitted to sub-license its rights under Clauses 3.1 and 4, subject to compliance with this Clause 4.2. |
(b) |
OncoMab will, as far as reasonably practicable consult with ARI concerning any proposed sub-licensing of its rights under Clauses 3.1 or 4.1. |
(c) |
OncoMab will use its reasonable endeavours to ensure that any proposed sub-licensee is solvent and of good reputation in the field covered by the sub-licence. |
(d) |
OncoMab will, within [ * ] of receipt of a written request from ARI, deliver a copy of the sub-licence agreement to ARI for the sole purpose of allowing ARI to confirm that the sub-licence is consistent with the rights granted to OncoMab under this Deed provided nothing in this Clause 4.2(d) obliges OncoMab to provide ARI with any confidential information of the sub-licensee. |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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(e) |
For the avoidance of doubt, nothing in this Deed requires OncoMab to obtain the consent or approval of ARI before sub-licensing all or part of its rights under Clauses 3.1 or 4.1. |
4.3 |
OncoMabs Rights to ARIs BTI |
OncoMab acknowledges that ARI will be the owner of Intellectual Property rights in ARI BTI (other than Improvements to the Research Results which will be owned b OncoMab in accordance Clause 4.4). ARI will disclose to OncoMab ARI BTI developed or acquired by ARI as soon as reasonably practicable after development of ARI BTI during the Term.
4.4 |
Reservation of Rights of ARI |
(a) |
Despite anything in this Deed, but subject to ARI complying with the applicable obligations under Clauses 12 (Intellectual Property Protection) and 13 (Confidentiality and Publication), ARI may use the Research Results arising from the Research Program for the purposes of internal research and teaching within ARI but not for commercial purposes. |
(b) |
If any Improvements to the Research Results are made or developed by or on behalf of ARI pursuant to the licence granted to ARI under Clause 4.4(a), any and all Intellectual Property in the Improvements to the Research Results shall belong to and remain vested in OncoMab. |
(c) |
ARI hereby assigns to OncoMab absolutely and beneficially the whole of the right, title and interest, whether presently existing or which arises at a date after the Effective Date, in and to any Intellectual Property in relation to the Improvements to the Research Results made or developed by or on behalf of ARI pursuant to the licence granted to ARI under Clause 4.4(a) including (without limitation) the right to apply for and register in an country such Intellectual Property. |
(d) |
At the reasonable cost of OncoMab, ARI agrees to promptly execute all documents, forms and authorisations and do all acts and things that OncoMab reasonably considers to be necessary or desirable to give effect to Clause 4.4(c) and to absolutely vest in OncoMab full right, title and interest in and to all of the Improvements in the Research Results made or developed by or on behalf of ARI pursuant to the licence granted to ARI under Clause 4.4(a). |
4.5 |
Research Results Research Funding Mechanism |
(a) |
ARI must notify OncoMab of any proposed research on the Research Results not less than [ * ] before the proposed research is due to commence. ARIs notification must contain such reasonable information as is necessary to allow OncoMab to assess the proposed research including the research program and research objectives. |
(b) |
Before commencing research on the Research Results pursuant to the licence granted to ARI by Clause 4.4, ARI may make a written request to OncoMab to fund the research ( RR Funding Request ). The RR Funding Request will |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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provide OncoMab with such information concerning the proposed research as is reasonably necessary to allow OncoMab to evaluate the proposed research including (without limitation) the researchs objectives costs funding sources, milestones and duration and likely research and intellectual property outcomes. |
(c) |
OncoMab will have [ * ] from the date of receipt of the RR Funding Request to confirm in writing with ARI whether it elects (at it absolute discretion) to fund the research project on the Research Results. |
(d) |
Where OncoMab fails to respond within the period set out in Clause 4.5(c) or indicates in writing it does not intend to fund the research project, ARI may seek funding for the research on the Research Result from a third party provided that [ * ]. |
(e) |
Notwithstanding anything else in this Deed, ARI warrants that an agreement entered by ARI with a third party to conduct research on the Research Results will provide that any and all research results (including Intellectual Property subsisting in the research results) arising from that research will be assigned to ARI to allow ARI to effect the assignment specified in Clause 4.4(c). |
4.6 |
Licence Outside the Agreed Field |
(a) |
Provided that ARI demonstrates to OncoMab and Primas reasonable satisfaction that ARI properly holds and properly exercises the right to Commercialise the Background Technology outside the Agreed Field and provided further ARI has fulfilled its obligations (if any) to Prima (whether or not in this Deed or otherwise) with respect to Commercialisation of the Background Technology outside the Agreed Field, ARI is hereby granted an option to negotiate a non-exclusive licence to use the Research Results solely to the extent necessary for ARI to commercialise the Background Technology outside the Agreed Field. |
(b) |
ARI will exercise the option by notice in writing to OncoMab and OncoMab and ARI will use their reasonable endeavours to agree normal commercial terms of the licence within [ * ] on and from the date OncoMab receives the written notice from ARI ( Negotiation Period ). |
(c) |
Those terms and conditions of the licence under which ARI will use the Research Results which are not agreed between OncoMab and ARI at the expiry of the Negotiation Period will be [ * ]. The parties agree that [ * ]. |
4.7 |
Technological Developments |
The parties will disclose to each other any developments in competing technology that may impact upon the Commercialisation of the Background Technology or the Research Results and will consult as to appropriate action.
5. |
Commercialisation Benefits |
5.1 |
Royalty and Securities |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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(a) |
Subject to Clause 5.1(b), OncoMab must pay to ARI the Royalty for each Quarter during the Term within [ * ] of the Quarterly Date. |
(b) |
Where Revenue includes Securities in a third party received by Prima or OncoMab or Related Bodies Corporate, OncoMab or Prima as the case may be will [ * ] or [ * ] or [ * ]. |
(c) |
OncoMab and Prima agree to promptly [ * ] and [ * ] necessary or desirable to give effect to Clause 5.1(b) and to [ * ] and [ * ] and [ * ] in Clause 5.1(b). |
5.2 |
Royalty Calculation |
OncoMab must calculate the Royalty within [ * ] after each Quarterly Date.
5.3 |
Trade Sale |
(a) |
Subject to Prima paying all amounts due under this Clause 5.3 in full, in the event of a Trade Sale, the obligations contained in Clause 5.1 will terminate on and from the date of the Trade Sale, provided that: |
(i) |
if the Trade Sale does not involve Prima or a Successor Body Corporate disposing of all or some of its shares held in OncoMab or a Successor Body Corporate at the applicable time; and |
(ii) |
OncoMab or the Successor Body Corporate retains rights in respect of the Technology Licence. |
then the obligations contained in Clause 5.1 will continue to apply in respect of the retained rights (including the obligation to pay the Royalty calculated by reference to Revenue derived by OncoMab or the Successor Body Corporate from the retained rights).
(b) |
In the event of a Trade Sale, Prima will pay ARI the Trade Sale Fee within 30 days of receiving the Trade Sale Consideration from the third party. |
(c) |
Notwithstanding anything to the contrary in this Deed, neither ARI or Ilexus will be entitled to terminate this Deed for Due Cause in the event of a Trade Sale. |
6. |
GST |
6.1 |
Definitions |
In this Clause the expressions Consideration, GST, Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 ( GST Act ). A Supplier means any party treated by the GST Act as making a Supply under this Deed.
6.2 |
Consideration is GST exclusive |
Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Deed are exclusive of GST.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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6.3 |
Payment of GST |
(a) |
If GST is imposed on any Supply made under or in accordance with this Deed, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment. |
(b) |
Payment of the additional amount must be made at the same time as payment for the Taxable Supply is required to be made in accordance with this Deed or at an earlier time provided a Tax Invoice is provided to the payer (or representative member if applicable) at least [ * ] prior to such date. |
6.4 |
Reimbursement of expenses |
If this Deed requires a party (the First Party ) to pay for, reimburse, set off or contribute to any expense, loss or outgoing ( Reimbursable Expense ) suffered or incurred by the other party (the Other Party ) the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
(a) |
the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense ( Net Amount ); and |
(b) |
if the Other Partys recovery from the First Party is a Taxable Supply, any GST payable in respect of that Supply, such that after the Other Party meets the GST liability, it retains the Net Amount. |
7. |
AUDIT |
7.1 |
OncoMab to Retain Records |
OncoMab must maintain separate and accurate records of;
(a) |
the Revenue; |
(b) |
the Exempt Payments; |
(c) |
the Adjustments; |
(d) |
the working papers OncoMab used to calculate the Royalty; |
(e) |
each Royalty report. |
The records must be maintained for [ * ] after payment of the Royalty in such reasonable manner as ARI approve in writing-from time to time.
7.2 |
ARIs Right to Inspect the Records |
OncoMab must:
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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(a) |
permit ARIs accountant or auditor, from time to time, on reasonable notice and during ordinary business hours to inspect and verify the records specified in Clause 7.1; and |
(b) |
give ARI all reasonable help in any inspection and verification and permit ARIs accountant or auditor to take copies of the records specified in Clause 7.1 solely for the purpose of verifying the accuracy of the Royalty calculation. |
(c) |
pay the costs of the auditor if the accountant identifies a deviation equal to or greater than [ * ] in the amounts payable to ARI pursuant to Clause 5.1. |
8. |
TITLE OF ARI IN BACKGROUND TECHNOLOGY |
8.1 |
Background Technology Not Owned by OncoMab |
OncoMab will not represent that it has any ownership interest in the Intellectual Property in the Background Technology. OncoMabs use of the Background Technology under this Deed is subject to the right, title and interest of ARI in the Background Technology. OncoMab will not contest or impair the right, title or interest of ARI in the Background Technology either during or after the Term.
8.2 |
Warranty by ARI |
ARI represents and warrants that:
(a) |
the Background Technology created by ARI represents the original work of ARI; |
(b) |
the Background Technology does not to the best of the knowledge and belief of ARI infringe any third party rights other than has already been disclosed in writing by ARI or Ilexus to OncoMab; |
(c) |
it holds the exclusive rights to conduct Research and Development and Commercialisation in relation to the Background Technology; |
(d) |
the grant of licences to OncoMab pursuant to this Deed in relation to Research and Development do not to the best of the knowledge and belief of ARI infringe Intellectual Property or other rights of any third party in relation to the Background Technology; and |
(e) |
to the best of ARIs actual belief and knowledge on the Commencement Date (20 November 2002), ARI is the beneficial owner of the Background Technology, free from any encumbrances other than any relevant or existing licences or agreements expressly disclosed to Prima or OncoMab prior to that date, and neither the Background Technology nor the grant of the licences contemplated by this Deed knowingly infringes the Intellectual Property Rights of any third party other than has already been disclosed in writing by ARI or Ilexus to OncoMab. |
8.3 |
OncoMab Due Diligence |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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ARI makes no representation and gives no warranty or indemnity that Commercialisation of the Research Results and Background Technology will be free of infringement of third party rights. OncoMab acknowledges that it has and will undertake due diligence in this regard.
8.4 |
Warranty on ARI BTI |
Unless ARI advises OncoMab in writing otherwise at the time of disclosing any item of ARI BTI in accordance with Clause 4.3, ARI will be taken to make the same representations and warranties in relation to each item of ARI BTI at the time of such disclosure as are referred to in Clause 8.2.
9. |
ONCOMAB PERFORMANCE |
9.1 |
Research and Development |
OncoMab must use reasonable endeavours to carry out the Research and Development of the Background Technology and Commercialise the Research Results and Background Technology in the Agreed Field except to the extent prevented by the act or default of ARI under the Research Agreement, in which case OncoMab shall be entitled to a reasonable extension of time to complete the relevant milestone.
9.2 |
Performance Review |
(a) |
The parties will meet to review OncoMab performance in carrying out the Research and Development and Commercialisation of the Background Technology [ * ] during the Research Program, and following completion of the Research Program [ * ], or otherwise as agreed in writing. The parties will disclose to each other any developments in competing technology that may impact upon the Research and Development of the Background Technology and Commercialisation of the Research Results or Background Technology and will consult as to appropriate action. |
(b) |
In the event ARI is dissatisfied with the performance by OncoMab of its obligations under this Clause, as disclosed by any review or by reason of any other matter coming to the attention of ARI, ARI will draw its concerns to the attention of OncoMab. The parties will consult in good faith as to how the performance issues may be resolved in the best interest of those parties to facilitate the Research and Development of the Background Technology and Commercialisation of Research Results or Background Technology. |
(c) |
OncoMab will use its reasonable endeavours to address any concerns of ARI and may, in its discretion, prepare a strategy to be provided to ARI, having regard to the good faith consultations between the parties. |
9.3 |
Dispute Resolution Procedure |
For the avoidance of doubt, the procedure under Clause 16 applies to any dispute regarding the operation or effect of this Clause 9.
10. |
INSURANCE & INDEMNITY |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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10.1 |
Insurance |
OncoMab must maintain adequate product liability, third party liability and other reasonable insurance cover during the Term (in the joint names of OncoMab and ARI if reasonably required). OncoMab must provide adequate evidence of cover.
10.2 |
Indemnity |
OncoMab shall indemnify ARI and Ilexus and keep them indemnified from and against any Loss or Claim suffered or incurred by either of them as a result of or arising out of or in respect of the Research and Development and Commercialisation of the Research Results and Background Technology (excluding any Loss or Claim attributable to the default of ARI and Ilexus).
11. |
UNDERTAKINGS BY ARI |
11.1 |
Restriction on Dealings with Background Technology |
Subject to Clause 18.2(c) ARI must not dispose of its interests in the Background Technology or any part of it during the Term without the prior consent of OncoMab (which must not be unreasonably withheld).
11.2 |
Indemnity by ARI |
ARI indemnifies OncoMab from any Loss or Claim suffered or incurred by OncoMab as a result of or arising out of or in respect of:
(a) |
the Background Technology created by ARI not representing the original work of ARI; |
(b) |
the Background Technology to the knowledge and belief of ARI at the date of signing this Deed infringing the rights of a third party except where details of the infringement or alleged infringement have been expressly notified in writing by ARI or Ilexus to OncoMab prior to the execution of this Deed; |
(c) |
ARI not being entitled to license the Background Technology to OncoMab; |
(d) |
any default by ARI in the performance or observance of its obligations under this Deed. |
11.3 |
OncoMab Due Diligence |
Despite anything in Clause 11.2, ARI makes no representation and gives no warranty that patent applications comprised in the Background Technology will be granted or if granted will be valid. The indemnity under Clause 11.2 does not cover OncoMab against these risks. OncoMab acknowledges that it has and will undertake due diligence in this regard.
12. |
INTELLECTUAL PROPERTY PROTECTION |
12.1 |
Background Technology |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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The copyright in all documents (whether written, electronic or otherwise) embodying the Background Technology belongs to ARI. OncoMab is responsible for applying for or obtaining a grant of a patent in the name of ARI in respect of any of the Background Technology and ARI must provide reasonable assistance to OncoMab for this purpose. [ * ] shall pay all patent costs in respect of the Background Technology and Research Results during the Term. If OncoMab does not pursue patent protection with regard to the Background Technology that ARI considers adequate, ARI may take over prosecution of those patents [ * ] and in the name of ARI.
12.2 |
Research Results |
The Research Results will be the property of OncoMab. ARI will execute all documents and do all other things necessary to confirm OncoMabs rights to the Research Results. If OncoMab considers that intellectual property protection is desirable in respect of any part of the Research Results, it will notify ARI. OncoMab is responsible for applying for or obtaining a grant of a patent in the name of OncoMab in respect of any of the Research Results and ARI must provide reasonable assistance to OncoMab for this purpose.
12.3 |
Coordination on Patent Protection |
ARI and OncoMab will consult and coordinate regarding patent protection in Australia and elsewhere for the Background Technology and any Research Results.
12.4 |
Infringement |
ARI and OncoMab will disclose to each other any events that may involve a third party infringing the Background Technology and any Research Results and will consult as to appropriate action. OncoMab shall control any proceedings and settlement but will consult with ARI and will [ * ]. If OncoMab does not take proceedings, ARI shall be at liberty to do so. OncoMab shall bear the cost of proceedings to protect its rights in the Background Technology and any Research Results. In the event that either ARI or Ilexus or both are indispensable parties to any proceedings brought by OncoMab in any jurisdiction, either ARI or Ilexus or both will join as parties in such infringement actions involving OncoMab, [ * ].
13. |
CONFIDENTIALITY AND PUBLICATION |
13.1 |
Publication |
If ARI wishes to make any public statement or publication in respect of the Background Technology or any Research Results, it will:
(i) |
forward a copy of the proposed public statement or publication to OncoMab; |
(ii) |
allow OncoMab [ * ] (or such further time as OncoMab may reasonably require) to seek such legal protection of the Research Results and/or material contained in the proposed public statement or publication as it considers necessary; |
(iii) |
obtain the prior written consent of OncoMab (which shall not be unreasonably withheld); and |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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(iv) |
in the event that OncoMab does not advise the party that it objects to any proposed publication or the making of a public statement within [ * ] the consent of OncoMab will be deemed to have been obtained. |
13.2 |
Confidentiality |
Subject to this Clause 13, no party may disclose any Confidential Information of the other to any third party or use any Confidential Information other than for the purpose for which it was disclosed, except for disclosures:
(i) |
required by law or government authorities; or |
(ii) |
to employees or financial or legal advisers on a need to know basis. |
The parties shall ensure that their staff sign all necessary confidentiality undertakings to protect the rights of the other party.
14. |
TERMINATION |
14.1 |
Termination for Due Cause |
Without limiting any other rights it may have, subject to Clause 5.3(c), a party may terminate this Deed by written notice to the other if Due Cause has arisen.
14.2 |
Consequences of Termination |
Subject to this Clause and Clause 5.3(c), upon termination of this Deed, all further rights and obligations under this Deed (other than those contained in Clauses 4.1(a)(ii), 4.1(b), 4.4, 4.6, 10.2, 11.2, 12.2, 13, 14.2, 14.3 and 19 shall terminate.
14.3 |
Rights Prior to Termination |
Any termination of this Deed will not affect the enforceability of any other obligations of a party, in whole or in part, or rights against a party accrued prior to termination, or which relate in any way to an event or matter on or before the effective date (notwithstanding that the event or matter comes to the attention of a party after the termination of this Deed).
15. FORCE MAJEURE
15.1 |
Effect of Force Majeure |
Where a party is unable, wholly or in part, by reason of Force Majeure, to carry out any obligation under this Deed, and that party:
(a) |
gives the other party prompt notice of that Force Majeure including reasonable particulars and anticipated extent to which it will be unable to perform or be delayed in performing that obligation; and |
(b) |
does what it reasonably can to remove that Force Majeure as quickly as possible (this does not require the settlement of strikes, lockouts or other labour disputes |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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or claims or demands by any government on terms contrary to the wishes of the party affected), |
that obligation is suspended so far as it is affected by Force Majeure during the continuance of that Force Majeure and that party shall be allowed a reasonable extension of time to perform its obligations.
15.2 |
Remedial Action |
If, after [ * ], the Force Majeure has not ceased, the parties shall meet in good faith to discuss the situation and endeavour to achieve a mutually satisfactory resolution to the problem.
16. |
DISPUTE RESOLUTION |
16.1 |
Good Faith Negotiation |
The parties shall without delay and in good faith attempt to resolve any dispute or difference that may arise between them in relation to this Deed.
16.2 |
OncoMab Performance |
Any dispute or difference arising between the parties relating to OncoMab performance in Clause 9.2 which cannot be resolved between them may, if the parties agree, be finally resolved by expert determination undertaken at the shared expense of the parties by an independent expert to be agreed or in default of agreement appointed by the President or Acting President of the Licensing Executives Society or his nominee. The determination of the expert shall be final and binding. The person shall be acting as an expert and not an arbitrator.
16.3 |
Disputes Generally |
Any dispute or difference relating to a matter (other than which is resolved under Clause 16.2) shall be resolved in accordance with the following procedure:
(a) |
the party claiming that a dispute exists shall notify the other party that a dispute exists and forthwith submit such dispute or difference to the respective chief executives for resolution; |
(b) |
if the chief executives are unable to resolve the dispute or difference within a reasonable time, a meeting shall be convened forthwith between the Chairmen of the respective Boards of the disputing parties for resolution of the dispute or difference; and |
(c) |
if the dispute or difference is not resolved by the persons referred to in paragraph (b) above, within such time as they agree but not being more than [ * ], Subclause 16.4 (mediation) shall apply. |
16.4 |
Mediation |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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If any dispute or difference is not resolved by negotiation in accordance with the above procedure, the parties agree that it shall first be referred to mediation before either of them shall be entitled to commence any proceedings in a court of competent jurisdiction or otherwise in respect of such dispute or difference. However this shall not preclude a party from seeking urgent interlocutory relief in a court of competent jurisdiction.
17. |
NOTICES |
(a) |
A notice, consent or other communication under this Deed is only effective if it is in writing and either left at the addressees address or sent to the addressee by mail or fax. If it is sent by mail, it is taken to have been received three (3) Business Days after it is posted. If it is sent by fax, it is taken to have been received at the time indicated on the transmission report of the machine from which the fax was sent in its entirety to the fax number of the recipient. However, if transmission is completed after 5:00pm on a Business Day or is sent on a day that is not a Business Day, the message is taken to have been received at 9:00am on the next Business Day. |
(b) |
A persons address and fax number are those set out below, or as the person notifies the sender: |
ARI | ||||
Address: |
Kronheimer Building, A&RMC, Studley Road, Heidelberg, Victoria, 3084 |
|||
Fax number: | (03) 9287 0639 | |||
Attention: | Professor Mark Hogarth | |||
OncoMab | ||||
Address: |
Suite 1, 1233 High St, Armadale, Victoria, 3143 |
|||
Fax number: | (03) 9854 5777 | |||
Attention: | Mr Marcus Clark | |||
Prima | ||||
Address: |
Suite 1, 1233 High St, Armadale, Victoria, 3143 |
|||
Fax Number: | (03) 9854 5777 | |||
Attention: | Mr. Marcus Clark |
18. |
AMENDMENT AND ASSIGNMENT |
18.1 |
Amendment |
This Deed can only be amended, supplemented, replaced or novated by another agreement signed by the parties.
18.2 |
Assignment and Subcontracting |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
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(a) |
OncoMab may not assign its rights under this Deed without the consent of ARI (such consent not to be unreasonably withheld), except where the assignment is: |
(i) |
to a Related Body Corporate; or |
(ii) |
is in the event of a Trade Sale. |
(b) |
Any assignment under Clause 18.2(a) will not take effect until the Related Body Corporate or Third Party executes a deed in favour of ARI and Ilexus agreeing to be bound by the terms of this Deed. |
(c) |
ARI and Ilexus may assign any or all of their rights (if any) under this Deed for the purpose of solvent reconstruction or merger, without the need for consent of OncoMab, subject to an assignee taking an assignment of all rights in the Background Technology and agreeing in writing to be bound by this Deed as licensor. ARI and Ilexus shall be released from obligations accruing after the effective date of the assignment provided that those obligations did not accrue in whole or in part before the effective date or if accruing after the effective date relate in any way to any event or matter occurring on or before the effective date. Except as provided above, ARI and Ilexus may not assign their rights under this Deed without the consent of OncoMab (which shall not be unreasonably withheld). |
19. |
GENERAL |
19.1 |
Governing Law |
This Deed is governed by the law in force in Victoria.
19.2 |
Liability for Expenses |
Unless otherwise agreed, each party shall bear its own costs in relation to the preparation and execution of this Deed.
19.3 |
Giving Effect to this Deed |
Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this Deed.
19.4 |
Waiver of Rights |
A right may only be waived in writing, signed by the party giving the waiver, and:
(a) |
no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right; |
(b) |
a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
25
(c) |
the exercise of a right does not prevent any further exercise of that right or of any other right. |
19.5 |
Operation of this Deed |
(a) |
This Deed 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 Deed and has no further effect. |
(b) |
Any right that a person may have under this Deed is in addition to, and does not replace or limit, any other right that the person may have. |
(c) |
Any provision of this Deed which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Deed enforceable, unless this would materially change the intended effect of this Deed. |
19.6 |
Consents |
Where this Deed contemplates that a party may agree or consent to something (however it is described), the party may:
(a) |
agree or consent, or not agree or consent, in its absolute discretion; and |
(b) |
agree or consent subject to conditions, |
unless this Deed expressly contemplates otherwise.
19.7 |
Exclusion of Agency, Partnership, Joint Venture |
Nothing in this Deed is to be treated as creating a partnership or joint venture between the parties under the laws of any applicable jurisdiction and no party may act or has any authority to act as agent of or in any way bind or commit the another party to any obligation.
19.8 |
Rights and Obligations of ARI |
Any rights conferred on ARI under this Deed will be held by Ilexus on its behalf. Any obligation imposed on ARI under this Deed will be construed as an obligation on Ilexus to procure ARI to fulfil the obligation. This does not prevent ARI directly asserting or enforcing its rights under this Deed upon and after becoming a party to this Deed.
19.9 |
Counterparts |
This Deed may be executed in counterparts.
19.10 |
Attorneys |
Each person who executes this Deed on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.
20. |
ACKNOWLEDGEMENT |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
26
(a) |
Despite anything else contained herein, Ilexus acknowledges and confirms that it has no rights to that part of the intellectual property the subject of this Deed or to that technology the parties have otherwise described as the anti-cripto antibody technology and that ARI has the rights to licence the Background Technology to OncoMab. |
(b) |
If contrary to the preceding statement, Ilexus would, but for this clause: |
(i) |
retain any rights as licensee of ARI to sub-licence any party of the Background Technology to the extent necessary to give effect to this Clause 20, Ilexus assigns such rights in favour of ARI with effect from the Commencement Date; or |
(ii) |
beneficially owns any Intellectual Property rights in any party of the Background Technology to the extent necessary to give effect to this Clause 20, Ilexus assigns all its rights, title and interest in the Background Technology to ARI with effect from the Commencement Date. |
and ARI acknowledges that the Background Technology shall be taken to be subject to the licence granted by ARI to OncoMab in accordance with this Deed with effect from the Commencement Date.
EXECUTED as a Deed.
EXECUTED by ILEXUS PTY LTD ACN 064 772 130 in a manner authorised by the Corporations Act with the authority of the director(s): |
) ) ) ) |
|||||
Signature of Director/Secretary |
Name of Director/Secretary in full | |||||
[ ] Tick here if sole Director and Sole Secretary |
||||||
Signature of Director/Secretary |
||||||
Name of Director/Secretary in full
[Delete if not applicable] |
||||||
EXECUTED by THE AUSTIN ) RESEARCH INSTITUTE ACN 007 418 224 in a manner authorised by the Corporations Act with the authority of the director(s): |
) ) ) ) |
|||||
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
27
Signature of Director/Secretary | Name of Director/Secretary in full | |||||
[ ] Tick here if sole Director and Sole Secretary | ||||||
Signature of Director/Secretary | ||||||
Name of Director/Secretary in full
[Delete if not applicable] |
||||||
EXECUTED by ONCOMAB PTY LTD ACN 101 431 814 in a manner authorised by the Corporations Act with the authority of the director(s): |
) ) ) ) |
|||||
Signature of Director/Secretary |
Name of Director/Secretary in full | |||||
[ ] Tick here if sole Director and Sole Secretary | ||||||
Signature of Director/Secretary |
||||||
Name of Director/Secretary in full
[Delete if not applicable] |
||||||
EXECUTED by PRIMA BIOMED LTD ACN 009 237 889 in a manner authorised by the Corporations Act with the authority of the director(s): |
) ) ) ) |
|||||
Signature of Director/Secretary | Name of Director/Secretary in full | |||||
[ ] Tick here if sole Director and Sole Secretary | ||||||
Signature of Director/Secretary | ||||||
Name of Director/Secretary in full
[Delete if not applicable] |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
28
SCHEDULE 1
BACKGROUND TECHNOLOGY
1. |
ANTIBODY TECHNOLOGY |
PCT APPLICATION
Entitled: Antibodies Against Cancer
Application No.: PCT/AUO2/00362
Date of Filing: PCT Application 26 March 2002
Priority: PR3958 - 26th March 2001
Inventors: Ian McKenzie
Applicant: The Austin Research Institute
This application describes a binding partner of Cripto-1 protein, Pim-1 protein or an antigen in a colon cancer cell lysate, the binding partner having the ability to inhibit growth of colon cancer cells, prostate cancer cells and/or breast cancer cells. Anti-cancer agents comprising the binding partners and methods of treating cancer comprising administration of the agents are also disclosed, together with cancer vaccines containing the various proteins or antigens, and a method of treating cancer by administration of the vaccines.
2. |
ANTIBODIES |
Anti-cripto-1 antibodies that recognise the Cripto-1 [ * ] as described in [ * ] and including be not limited to the following [ * ] antibodies:
Antibody
|
Immunoglobulin
Isotype |
Reactivity | ||||||
[ * ] | [ | * ] | [ | * ] |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
29
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
E XHIBIT 4.5
Deed of Variation
The Austin Research Institute
ACN 007 418 224
and
Cancer Vac Pty Ltd
ACN 096 859 513
and
Ilexus Pty Ltd
ACN 064 772 103
and
Prima Biomed Ltd
ACN 009 237 889
Middletons Lawyers
Melbourne office
Ref: SRM.PTH.1759898
Table of Contents
1. |
Definitions and interpretation | 2 | ||||
1.1 |
Definitions | 2 | ||||
1.2 |
Interpretation | 2 | ||||
2. |
Variation of Licence Agreement | 3 | ||||
2.1 |
Variation | 3 | ||||
2.2 |
Confirmation of Licence Agreement | 3 | ||||
2.3 |
Prior rights not affected | 3 | ||||
2.4 |
Retrospective Operation | 3 | ||||
2.5 |
Ilexus | 3 | ||||
3. |
Inconsistency | 4 | ||||
4. |
Warranty | 4 | ||||
5. |
General | 4 | ||||
5.1 |
Nature of obligations | 4 | ||||
5.2 |
No adverse construction | 4 | ||||
5.3 |
Further assurances | 4 | ||||
5.4 |
Severability | 5 | ||||
5.5 |
Successors and assigns | 5 | ||||
5.6 |
No variation | 5 | ||||
5.7 |
Costs | 5 | ||||
5.8 |
Duty | 5 | ||||
5.9 |
Governing law and jurisdiction | 5 | ||||
5.10 |
Counterparts | 6 | ||||
Annexure |
9 |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Deed of Variation
Date 24 August 2005
Parties
1. |
The Austin Research Institute ACN 007 418 224 of Kronheimer Building, Austin Hospital, Studley Road, Heidelberg, Victoria 3084 ( ARI ) |
2. |
Ilexus Pty Ltd ACN 064 772 103 of Kronheimer Building, A&RMC, Studley Road, Heidelberg, Victoria 3084 ( Ilexus ) |
(collectively referred to as Licensors )
3. |
Cancer Vac Pty Ltd ACN of Suite 1, 1233 High Street, Armadale, Victoria 3143 ( Cancer Vac ) |
4. |
Prima Biomed Ltd ACN 009 237 889 of Suite 1, 1233 High Street, Armadale, Victoria 3143 ( Prima ) |
Background
A. |
The parties are parties to the Licence Agreement. |
B. |
The parties wish to vary the Licence Agreement as set out in this Deed. |
Operative Provisions
1. |
Definitions and interpretation |
1.1 |
Definitions |
In this Deed:
Effective Date means the date of execution of this Deed; and
Licence Agreement means the Technology Licence Agreement between the parties dated 31 May 2001 in respect of technology licensed from the Licensors;
1.2 |
Interpretation |
In this Deed, unless the context requires otherwise:
(a) |
words or expressions defined in the Licence Agreement have the same meaning when used in this Deed; |
(b) |
the singular includes the plural and vice versa; |
2.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(c) |
a gender includes the other genders; |
(d) |
the headings are used for convenience only and do not affect the interpretation of this Deed; |
(e) |
other grammatical forms of defined words or expressions have corresponding meanings; and |
(f) |
a reference to a document includes the document as modified from time to time and any document replacing it. |
2. |
Variation of Licence Agreement |
2.1 |
Variation |
Subject to clause 2.4, with effect on and from the Effective Date, the Licence Agreement is varied by:
(a) |
deleting each word, number or character that is struck out in the marked up copy of the Licence Agreement set out in the Annexure; and |
(b) |
inserting each word, number or character that is underlined in the marked up copy of the Licence Agreement set out in the Annexure. |
2.2 |
Confirmation of Licence Agreement |
(a) |
All provisions of the Licence Agreement other than those varied by clause 2.1 remain unchanged and continue in full force. |
(b) |
The parties acknowledge and agree that the Conditions Precedent to the Licence Agreement, have been satisfied. |
2.3 |
Prior rights not affected |
Subject to clause 2.4, this Deed does not affect the rights and obligations of the parties to the extent that they relate to the period prior to the Effective Date.
2.4 |
Retrospective Operation |
The following variations apply and shall be deemed to have taken effect on and from 31 May 2001: [ * ]
2.5 |
Ilexus |
The parties acknowledge that the right of Ilexus to grant, by way of the Licence Agreement as amended by this Deed, the new or amended rights is subject to the prior consent of ARI. The consent of ARI is provided, as evidenced by its execution of this Deed, upon the following conditions:
3.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(a) |
the right conferred by ARI on Ilexus to enter into this Deed is taken to be granted effective upon execution of this Deed, and ARI confirms the right of Ilexus to enter into this Deed; |
(b) |
in consideration of ARIs consent to the above, the amounts referred to clause 5.1 (Commercialisation Benefits) of the Licence Agreement as amended by this Deed, are payable to ARI, and in addition Ilexus shall pay or satisfy any upfront fee agreed in writing between ARI and Ilexus contemporaneously with the execution of this Deed. |
3. |
Inconsistency |
If there is any inconsistency between the provisions of this Deed and the provisions of the Licence Agreement, then the provisions of this Deed prevail.
4. |
Warranty |
The Licensors represent and warrant that they have full power and authority at the Effective Date to agree to the amendments to the Licence Agreement on the Effective Date and to agree to those amendments that are expressed to take effect on and from the Commencement Date (31 May 2001) and that the grant of the additional rights to Cancer Vac under the amended licence does not to the best of the actual knowledge and belief of the Licensors infringe the Intellectual Property or other rights of a third party.
5. |
General |
5.1 |
Nature of obligations |
(a) |
Any provision in this Deed which binds more than one person binds all of those persons jointly and each of them severally. |
(b) |
Each obligation imposed on a party by this Deed in favour of another is a separate obligation. |
5.2 |
No adverse construction |
This Deed is not to be construed to the disadvantage of a party because that party was responsible for its preparation.
5.3 |
Further assurances |
A party, at its own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Deed.
4.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
5.4 |
Severability |
If any provision of this Deed offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then:
(a) |
where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature, it must be read down to the minimum extent necessary to achieve that result; and |
(b) |
in any other case the offending provision must be severed from this Deed, in which event the remaining provisions of the Deed operate as if the severed provision had not been included. |
5.5 |
Successors and assigns |
This Deed binds and benefits the parties and their respective successors and permitted assigns.
5.6 |
No variation |
This Deed cannot be amended or varied except in writing signed by the parties.
5.7 |
Costs |
Each party must pay its own legal costs of and incidental to the preparation and completion of this Deed.
5.8 |
Duty |
(a) |
Any duty (including related interest or penalties) payable in respect of this Deed or any instrument created in connection with it must be paid by Cancer Vac and Prima. |
(b) |
Cancer Vac and Prima jointly and severally undertake to keep the Licensors indemnified against all liability relating to the duty, fines and penalties. |
5.9 |
Governing law and jurisdiction |
(a) |
This Deed is governed by and must be construed in accordance with the laws in force in Victoria. |
(b) |
The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Deed, its performance or subject matter. |
5.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
5.10 |
Counterparts |
If this Deed consists of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document.
6.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Executed as a deed | ||||
Executed by The Austin Research Institute | ) | |||
ACN 007 418 224 in accordance with section | ) | |||
127(1) of the Corporations Act 2001 (Cth) : | ) | |||
) | ||||
) | ||||
/s/ P.M. Hogarth | /s/ Rob Tanner | |||
Signature of director | Signature of company secretary* | |||
*delete whichever does not apply | ||||
P.M. HOGARTH | ROB TANNER | |||
Name (please print) | Name (please print) | |||
Executed by Ilexus Pty Ltd ACN 064 772 | ) | |||
103 in accordance with section 127(1) of the | ) | |||
Corporations Act 2001 (Cth) : | ) | |||
) | ||||
) | ||||
/s/ P.M. Hogarth | /s/ Mauro Sandrin | |||
Signature of director | Signature of director* | |||
*delete whichever does not apply | ||||
P.M. HOGARTH | MAURO SANDRIN | |||
Name (please print) | Name (please print) | |||
Executed by Cancer Vac Pty Ltd ACN 096 | ) | |||
859 513 in accordance with section 127(1) of | ) | |||
the Corporations Act 2001 (Cth) : | ) | |||
) | ||||
) | ||||
/s/ Eugene Kopp | /s/ Marcus Clark | |||
Signature of director | Signature of director or company secretary* | |||
*delete whichever does not apply | ||||
EUGENE KOPP | MARCUS CLARK | |||
Name (please print) | Name (please print) |
7.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Executed by Prima Biomed Ltd ACN 009 | ) | |||
237 889 in accordance with section 127(1) of | ) | |||
the Corporations Act 2001 (Cth): | ) | |||
) | ||||
) | ||||
/s/ Eugene Kopp | /s/ Marcus Clark | |||
Signature of director | Signature of director or company secretary* | |||
*delete whichever does not apply | ||||
EUGENE KOPP | MARCUS CLARK | |||
Name (please print) | Name (please print) |
8.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Annexure
Clause 2 Marked up copy of the Licence Agreement
9.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Technology Licence
Agreement
Ilexus Pty Ltd
The Austin Research Institute
Cancer Vac Pty Ltd
Prima Biomed Ltd
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Table of Contents
-i-
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Table of Contents
(continued)
-ii-
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Table of Contents
(continued)
Page | ||||||||
18. |
AMENDMENT AND ASSIGNMENT |
22 | ||||||
18.1 |
Amendment | 22 | ||||||
18.2 | Assignment and sub-contracting | 23 | ||||||
19. |
GENERAL |
23 | ||||||
19.1 |
Governing law | 23 | ||||||
19.2 | Liability for expenses | 23 | ||||||
19.3 | Giving effect to this agreement | 23 | ||||||
19.4 | Waiver of rights | 23 | ||||||
19.5 | Operation of this agreement | 24 | ||||||
19.6 | Consents | 24 | ||||||
19.7 | Exclusion of agency, partnership, joint venture | 24 | ||||||
19.8 | Rights and Obligations of ARI | 24 | ||||||
19.9 | Counterparts | 25 | ||||||
19.10 | Attorneys | 25 |
-iii-
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
TECHNOLOGY LICENCE AGREEMENT
DATE
BETWEEN
The Austin Research Institute ACN 007 418 224 of Kronheimer Building, Austin Hospital, Studley Road, Heidelberg in the State of Victoria ( ARI ) and Ilexus Pty Ltd ACN 064 772 130 of Kronheimer Building, A&RMC, Studley Road, Heidelberg, Victoria 3084 ( Ilexus )
(collectively referred to as Licensors )
AND
Cancer Vac Pty Ltd ACN 096 859 513 of Suite 1, 1233 High St, Armadale, Victoria 3143 (Cancer Vac)
AND
Prima Biomed Ltd ACN 009 237 889 of Suite 1, 1233 High St, Armadale, Victoria 3143 (Prima)
RECITALS
A. |
The Licensors own the Background Technology in Patent Family 1 (Schedule 1 items 1A) and as described in Attachments la. |
B. |
The Licensors are entitled to license the Background Technology of Patent Family 2, Patent Family 3 and Patent Family 4 (Schedule 1 items 1B, 1C and 1D) and as described in Attachment lb and lc. |
C. |
Cancer Vac wishes to conduct Research and Development with a view to obtaining Research Results and opportunities for Commercialisation. |
D. |
Ilexus is the wholly-owned subsidiary of the Austin Research Institute, the principal researcher to be engaged by Cancer Vac for the Research and Development. |
E. |
The Licensors have agreed to license the Background Technology to Cancer Vac, on the terms and conditions of this agreement. |
F. |
Prima has acquired rights from ARI and Ilexus to develop and commercialise the Background Technology outside the Agreed Field. |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
OPERATIVE PROVISIONS
1. |
INTERPRETATION |
1.1 |
Definitions |
In this Agreement, unless the context otherwise requires:
Adjustments means any expenses, costs, commissions paid in securing and obtaining the Revenue including without limitation legal, accounting and finance adviser costs [ * ].
Agreed Field means the treatment of cancer.
ARI BTI means any Improvements of the Background Technology made or developed by or on behalf of ARI which is not funded by Prima or Cancer Vac.
Background Technology means all drawings, specifications, processes, techniques, samples, specimens, prototypes, designs, research and development results, test results, and other technical and scientific information relating to the development of an ex-vivo, mannan-based as specified in Schedule 1, items 1A, 1B, 1C, and 1D (or any related patent applications or patents including any national phase patent applications divisionals or continuation-in-part) and includes ARI BTI.
Business Day means a day that is not a Saturday, Sunday or public holiday in Melbourne.
Cancer Vac BTI means any Improvement of the Background Technology (including any Improvement of any Background Technology made by ARI but funded by either Cancer Vac or Prima) made or developed by or on behalf of Cancer Vac or Prima.
Commencement Date means the date the Conditions Precedent have been satisfied in full or waived by the parties in writing (or other date mutually agreed in writing).
Commercialise or Commercialisation means:
(a) |
to develop, manufacture, use and market the Background Technology and Research Results; |
(b) |
to use, manufacture, market, sell or otherwise dispose of any product or process resulting from the Commercialisation of the Background Technology and Research Results; or |
(c) |
to licence any third party to do any of the things referred to in (a) or (b) above. |
Conditions precedent mean the following: [ * ]
Confidential Information means any information, in any form or media relating to or representing the Background Technology, Intellectual Property rights, Research Program,
2.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
research or Research Results, information submitted by ARI to Cancer Vac pursuant to Clauses 3.4(a), 4.5(a) or 4.5(b), any sub-licence submitted by Cancer Vac to ARI pursuant to Clause 4.2(d) or other confidential information of either party other than information which:
(a) |
was in the public domain at the time of its disclosure; |
(b) |
came into the hands of the receiving party by lawful means and without breach of any obligation of confidentiality by any third party; or |
(c) |
was in fact known to the receiving party prior to its disclosure to that party. |
Due Cause means the other party:
(a) |
fails to pay when due any sum payable under this Agreement and such default continues for a period of [ * ] after receipt of a notice requiring payment; |
(b) |
is in material breach of any of its other obligations under this Agreement or the Research Agreement and, if that breach is capable of remedy, does not rectify that breach within [ * ] after receipt of a notice to remedy that breach; |
(c) |
is unable to pay its debts as they fall due, makes or commences negotiations with a view to making a general re-scheduling of its indebtedness, a general assignment, scheme of arrangement or composition with its creditors; |
(d) |
ceases to carry on business or disposes of the whole or a material part of its business other than in those circumstances described in Clause 18; |
(e) |
takes any corporate action or any steps are taken or legal proceedings are started for: |
(i) |
its winding-up, dissolution, liquidation, or re-organisation, other than in those circumstances described in Clause 18; or |
(ii) |
the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or |
(f) |
seeks protection or is granted protection from its creditors, under any applicable legislation. |
Enabling Technology means all associated or connected Intellectual Property owned by ARI (or which ARI is entitled to use and provide to Cancer Vac on the terms of this Agreement (if any)) that is associated, connected with or concerns the Background Technology.
Exempt Payments means the following:
3.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(a) |
any payments made to Prima or Cancer Vac before the Effective Date [ * ] and [ * ]; or |
(b) |
any payments received by Prima or Cancer Vac from a third party for [ * ] and [ * ]; or |
(c) |
any payments received by Prima or Cancer Vac from a third party by way of [ * ] and [ * ]; or |
(d) |
any payments received by Prima or Cancer Vac from a third party as [ * ] for the [ * ] and [ * ]. |
Force Majeure means any cause which is not reasonably within the control of the party affected, including without limitation an act of God, strike, lockout or other interference with work, war (declared or undeclared), blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi governmental restraint, expropriation, prohibition, intervention, direction or embargo, unavailability or delay in availability of materials, equipment or transport, inability or delay in obtaining governmental or quasi governmental approvals, consents, permits, licenses, authorities or allocations.
Improvements means any improvement, enhancement, development, modification or adaptation of any Background Technology or Research Results.
Independent Expert means an independent expert appointed by the President for the time being of the Licensing Executives Society of Australia and New Zealand.
Intellectual Property includes all copyright and industrial and intellectual property rights, including without limitation all rights in relation to inventions, plant varieties, registered and unregistered trade marks (including service marks), registered designs, confidential information and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
Loss or Claim means, in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, howsoever arising and whether present or future, fixed or unascertained, actual or contingent.
Merger means an arrangement, transaction or event (in whatever form) under which or as a result of which the operations of the ARI (whether alone or with those of another entity) are or will be:
(a) |
disposed of to or assumed by a Merger Party; or |
(b) |
combined with the operations of a Merger Party, and |
4.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
includes a disposal by the ARI of its main undertaking, and Merge shall have a corresponding meaning.
Merger Party means a person (which for the purposes of this definition shall also include a body politic or corporate, an agency, an organisation whether or not incorporated or unincorporated existing or registered under any statute order or proclamation, and which also includes a statutory authority, government department or business unit, an educational, religious or charitable institution, or a corporation sole) by which as a result of any arrangement, transaction or event any operations of the ARI at the applicable time pertaining to the rights granted to Prima by this Agreement may be:
(a) |
acquired, whether alone or in combination with the operations of others; or |
(b) |
assumed or carried on other than solely by ARI, and |
for the avoidance of doubt, includes a person coming into existence for the purposes of acquiring, assuming or carrying on the operations of the ARI, or the existence of which commences upon or as a result of an arrangement, transaction or event involving or concerning the operations of the ARI.
Product means any product, article or thing that incorporates any of the Background Technology or Research Results.
Quarter means a period of 3 months ending on a Quarterly Date.
Quarterly Date means the last day of March, June, September and December during each year of the Term.
Relevant Authority means government bodies (including local government or semi-governmental) or any public, statutory, judicial body, entity, department or authority including any self-regulatory organisation established under statute in any jurisdiction in the world responsible for registering, approving or authorising the sale of Products.
Research Agreement means the agreement of even date between the Cancer Vac and ARI.
Research Organisation means any research organisation performing work or contracted by Cancer Vac to perform work as part of the Research and Development.
Research Program means the program of research and development work to be conducted by ARI in accordance with the Research Agreement.
Research and Development means research into the Background Technology and development of opportunities arising out of that research.
Research Results means all data, research papers, test results, experiments, products and any Intellectual Property and items incorporating Intellectual Property arising out of the Research and Development including any Cancer Vac BTI.
5.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Royalty means:
(a) |
where the payment is made [ * ], [ * ]% of Revenue; or |
(b) |
where the payment is made [ * ], [ * ]% of Revenue. |
Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth.).
Revenue means all Commercialisation benefits of any kind received by Prima or Cancer Vac from a Third Party in connection with Commercialisation of all or part of the Background Technology or Research Results whether received in cash or Securities, and includes, without limitation, revenue received by Prima or Cancer Vac or Related Bodies Corporate for sales of Product including any lump-sum payments, royalties or other payments and any sub-licensing payments made to Prima or Cancer Vac or Related Bodies Corporate, less Adjustments and excluding the Exempt Payments. For the avoidance of doubt, revenue is determined net of any GST.
Securities will have the same meaning as in the Corporations Act 2001 (Cth) as specified in section 92(1).
Successor Body Corporate mean a successor body corporate to Cancer Vac (but expressly not a sub-licensee), where such body corporate derives rights from the Technology Licence.
Technology Licence means the licence granted to Cancer Vac by this Agreement.
Term means in respect of each patent granted or to be granted in respect of the patent application identified in Schedule 1, items 1A, 1B, 1C, and 1D (or any related patent applications or patents including any national phase patent applications, divisionals or continuation-in-part) in each country in the Territory, the period commencing on the Commencement Date and ending on the date such patent expires, lapses or ceases to have effect in a particular country.
Territory means the world.
Third Party means an unrelated person or other entity dealt with on arms-length terms, and without limitation expressly does not include a party to this Agreement, a Successor Body Corporate wholly owned by Prima or Cancer Vac, or a wholly owned Related Body Corporate of a party to this Agreement or of a Successor Body Corporate wholly owned by Prima or Cancer Vac.
Trade Sale means any of the following transactions involving one or more Third Parties:
(a) |
the disposition to a Third Party of some or all of the shares of Cancer Vac held by Prima at the applicable time; |
6.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(b) |
the disposition to a Third Party of some or all of the shares of a Successor Body Corporate held by Prima at the applicable time; |
(c) |
the disposition to a Third Party of some or all or any of the assets of Cancer Vac or a Successor Body Corporate where the assets disposed of include the Technology Licence or rights deriving from the Technology Licence; or |
(d) |
the assignment or novation of the Technology Licence to a Third Party such that Cancer Vac or a Successor Body Corporate no longer has rights in respect of the Technology Licence or assignment or novation of part of the Technology Licence such that Cancer Vac or a Successor Body Corporate no longer has rights in respect of that part of the Technology Licence which is the subject of the assignment or novation. |
Trade Sale Fee means an amount equal to [ * ]% of the Trade Sale Consideration received by Prima or a Related Body Corporate of Prima or Cancer Vac for a Trade Sale.
Trade Sale Consideration means any payments shares or ongoing commercial return (including royalties or other periodic payments) received from a Third Party by Prima or Cancer Vac a Related Body Corporate of Prima or Cancer Vac for a Trade Sale less any expenses, costs commissions paid in securing and obtaining the Trade Sale Consideration including without limitation legal, accounting and finance adviser costs [ * ].
1.2 |
General |
In this agreement, unless the context otherwise requires:
(a) |
a reference to: |
(i) |
legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it; |
(ii) |
a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated; |
(iii) |
a party to this document 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) |
the singular includes the plural and vice versa; |
7.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(c) |
a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa; |
(d) |
a reference to any gender includes all genders; |
(e) |
a reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to this Agreement; |
(f) |
a recital, schedule, annexure or a description of the parties forms part of this Agreement; |
(g) |
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; |
(h) |
a reference to dollars or $ is to Australian currency; |
(i) |
The word subsidiary has the same meaning as in the Corporations Act 2001 (Cth). |
1.3 |
Headings |
In this agreement, headings are for convenience of reference only and do not affect interpretation.
1.4 |
Business Day |
If the day on which any act, matter or thing is to be done under this agreement is not a Business Day, that act, matter or thing:
(a) |
if it involves a payment other than a payment which is due on demand, must be done on the preceding Business Day; and |
(b) |
in all other cases, may be done on the next Business Day. |
2. |
TERM |
2.1 |
Conditions Precedent |
This Agreement shall not commence until the Conditions Precedent have been satisfied in full or waived by the parties in writing.
2.2 |
Duration |
This Agreement will commence operation on the Commencement Date and shall continue for the Term.
8.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
3. |
RESEARCH AND DEVELOPMENT LICENCE |
3.1 |
Licence grant |
The Licensors grant to Cancer Vac an exclusive royalty free licence of the Background Technology within the Agreed Field in the Territory for the Term to conduct the Research and Development including without limitation the Research Program.
3.2 |
Intellectual Property in Research Results |
The Licensors acknowledge that Cancer Vac will be the owner of all Intellectual Property in the Research Results.
3.3 |
Reservation of rights of ARI |
Despite anything in this Agreement, but subject to ARI complying with the applicable obligations under Clauses 12 (Intellectual Property Protection) and 13 (Confidentiality and Publication), ARI may use the Background Technology for the purposes of internal research and teaching within ARI but not for commercial purposes.
3.4 |
Background Technology Research Funding Mechanism |
(a) |
Before commencing research on the Background Technology pursuant to the licence granted to ARI by Clause 3.3, ARI may, but is not obliged to, make a written request to Cancer Vac to fund the research ( BT Funding Request ). The BT Funding Request will provide Cancer Vac with such information concerning the proposed research as is reasonably necessary to allow Cancer Vac to evaluate the proposed research including (without limitation) the researchs objectives, costs, funding sources, milestones and duration and likely research and intellectual property outcomes. |
(b) |
Cancer Vac will have [ * ] from the date of receipt of the BT Funding Request to confirm in writing with ARI whether it elects (at its absolute discretion) to fund the research project on the Background Technology. |
(c) |
Where Cancer Vac fails to respond within the period set out in Clause 3.4(b) or indicates in writing it does not intend to fund the research project, ARI may seek funding for the research on the Background Technology from a third party provided that [ * ]. |
3.5 |
ARIs rights |
During the Term Cancer Vac will as far as reasonably practicable, use ARI to carry out any research requirements of Cancer Vac for contract Research and Development on competitive commercial terms where Cancer Vacs proposed research is within ARIs field of expertise.
9.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
4. |
COMMERCIALISATION LICENCE |
4.1 |
Licence grant |
(a) |
In consideration of Cancer Vac paying the Royalty the Licensors grant to Cancer Vac an exclusive licence of the Background Technology in the Territory for the Term to: |
(i) |
Commercialise the Background Technology (and any Intellectual Property subsisting therein) within the Agreed Field; and |
(ii) |
to the extent necessary, Commercialise the Research Results (and any Intellectual Property subsisting therein). |
(b) |
To the extent necessary to facilitate the licence contained in Clause 4.1(a), the Licensors grant to Cancer Vac a non-exclusive, royalty free sub licensable licence of the Enabling Technology in the Territory for the Term. |
4.2 |
Sub-licensing |
(a) |
Cancer Vac is permitted to sub-license its rights under Clauses 3.1 and 4.1, subject to compliance with this Clause 4.2. |
(b) |
Cancer Vac will, as far as reasonably practicable, consult with ARI concerning any proposed sub-licensing of its rights under Clauses 3.1 or 4.1. |
(c) |
Cancer Vac will use its reasonable endeavours to ensure that any proposed sub-licensee is solvent and of good reputation in the field covered by the sub-licence. |
(d) |
Cancer Vac will, within [ * ] of receipt of a written request from ARI, deliver a copy the sub-licence agreement to ARI for the sole purpose of allowing ARI to confirm that the sub-licence is consistent with the rights granted to Cancer Vac under this Agreement provided nothing in this Clause 4.2(d) obliges Cancer Vac to provide ARI with any confidential information of the sub-licensee. |
(e) |
For the avoidance of doubt, nothing in this Agreement requires Cancer Vac to obtain the consent or approval of ARI before sub-licensing all or part of its rights under Clauses 3.1 or 4.1. |
4.3 |
Cancer Vacs rights to ARI BTI |
Cancer Vac acknowledges that ARI will be the owner of Intellectual Property rights in ARI BTI (other than Improvements to the Research Results which will owned by Cancer Vac in accordance with Clause 4.4). ARI will disclose to Cancer Vac ARI BTI developed or acquired by ARI as soon as reasonably practicable after the development of the ARI BTI during the Term.
10.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
4.4 |
Reservation of rights of ARI |
(a) |
Despite anything in this Agreement, but subject to ARI complying with the applicable obligations under Clauses 12 (Intellectual Property Protection) and 13 (Confidentiality and Publication), ARI may use the Research Results arising from the Research Program for the purposes of internal research and teaching within ARI but not for commercial purposes. |
(b) |
If any Improvements to the Research Results are made or developed by or on behalf of ARI pursuant to the licence granted to ARI under Clause 4.4(a), any and all Intellectual Property in the Improvements to the Research Results shall belong to and remain vested in Cancer Vac. |
(c) |
ARI hereby assigns to Cancer Vac absolutely and beneficially the whole of the right, title and interest, whether presently existing or which arises at a date after the Effective Date, in and to any Intellectual Property in relation to the Improvements to the Research Results made or developed by or on behalf of ARI pursuant to the licence granted to ARI under Clause 4.4(a) including without limitation the right to apply for and register in any country such Intellectual Property. |
(d) |
At the reasonable cost of Cancer Vac, ARI agrees to promptly execute all documents, forms and authorisations and do all acts and things that Cancer Vac reasonably considers to be necessary or desirable to give effect to Clause 4.4(c) and to absolutely vest in Cancer Vac full right, title and interest in and to all of the Improvements in the Research Results made or developed by or on behalf of ARI pursuant to the licence granted to ARI under Clause 4.4(a). |
4.5 |
Research Results Research Funding Mechanism |
(a) |
ARI must notify Cancer Vac of any proposed research on the Research Results not less than [ * ] before the proposed research is due to commence. ARIs notification must contain such reasonable information as is necessary to allow Cancer Vac to assess the proposed research including the research program and research objectives. |
(b) |
Before commencing research on the Research Results pursuant to the licence granted to ARI by Clause 4.4, ARI may make a written request to Cancer Vac to fund the research ( RR Funding Request ). The RR Funding Request will provide Cancer Vac with such information concerning the proposed research as is reasonably necessary to allow Cancer Vac to evaluate the proposed research including (without limitation) the researchs objectives, costs, funding sources, milestones and duration and likely research and intellectual property outcomes. |
(c) |
Cancer Vac will have [ * ] from the date of receipt of the RR Funding Request to confirm in writing with ARI whether it elects (at its absolute discretion) to fund the research project on the Research Results. |
11.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(d) |
Where Cancer Vac fails to respond within the period set out in Clause 4.5(c) or indicates in writing it does not intend to fund the research project, ARI may seek funding for the research on the Research Results from a third party provided that [ * ]. |
(e) |
Notwithstanding anything else in this Agreement, ARI warrants that any agreement entered by ARI with a third party to conduct research on the Research Results will provide that any and all research results (including Intellectual Property subsisting in the research results) arising from that research will be assigned to ARI to allow ARI to effect the assignment specified in Clause 4.4(c). |
4.6 |
Licence Outside the Agreed Field |
(a) |
Provided that ARI demonstrates to Cancer Vac and Primas reasonable satisfaction that ARI properly holds and properly exercises the right to Commercialise the Background Technology outside the Agreed Field and provided further ARI has fulfilled its obligations (if any) to Prima (whether or not in this Agreement or otherwise) with respect to Commercialisation of the Background Technology outside the Agreed Field, ARI is hereby granted an option to negotiate a non-exclusive licence to use the Research Results solely to the extent necessary for ARI to commercialise the Background Technology outside the Agreed Field. |
(b) |
ARI will exercise the option by notice in writing to Cancer Vac and Cancer Vac and ARI will use their reasonable endeavours to agree normal commercial terms of the licence within [ * ] on and from the date Cancer Vac receives the written notice from ARI ( Negotiation Period ). |
(c) |
Those terms and conditions of the licence under which ARI will use the Research Results which are not agreed between Cancer Vac and ARI at the expiry of the Negotiation Period will be [ * ]. The parties agree that [ * ]. |
4.7 |
Technological Developments |
The parties will disclose to each other any developments in competing technology that may impact upon the Commercialisation of the Background Technology or the Research Results and will consult as to appropriate action.
5. |
Commercialisation Benefits |
5.1 |
Royalty and Securities |
(a) |
Subject to Clause 5.1(b), Cancer Vac must pay to ARI the Royalty for each Quarter during the Term within [ * ] of the Quarterly Date. |
12.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(b) |
Where Revenue includes Securities in a third party received by Prima or Cancer Vac or Related Bodies Corporate, Cancer Vac or Prima as the case may be will [ * ] or [ * ] or [ * ]. |
(c) |
Cancer Vac and Prima agree to promptly [ * ] and [ * ] necessary or desirable to give effect to Clause 5.1(b) and to [ * ] and [ * ] and [ * ] in Clause 5.1(b). |
5.2 |
Royalty Calculation |
Cancer Vac must calculate the Royalty within [ * ] after each Quarterly Date.
5.3 |
Trade Sale |
(a) |
Subject to Prima paying all amounts due under this Clause 5.3 in full, in the event of a Trade Sale, the obligations contained in Clause 5.1 will terminate on and from the date of the Trade Sale, provided that: |
(i) |
if the Trade Sale does not involve Prima or a Successor Body Corporate disposing of all or some of its shares held in Cancer Vac or a Successor Body Corporate at the applicable time; and |
(ii) |
Cancer Vac or the Successor Body Corporate retains rights in respect of the Technology Licence, |
then the obligations contained in Clause 5.1 will continue to apply in respect of the retained rights (including the obligation to pay the Royalty calculated by reference to Revenue derived by Cancer Vac or the Successor Body Corporate from the retained rights).
(b) |
In the event of a Trade Sale, Prima will pay ARI the Trade Sale Fee within 30 days of receiving the Trade Sale Consideration from the third party. |
(c) |
Notwithstanding anything to the contrary in this Agreement, the Licensors will not be entitled to terminate this Agreement for Due Cause in the event of a Trade Sale. |
6. |
GST |
6.1 |
Definitions |
In this Clause the expressions Consideration, GST Input Tax Credit, Recipient, Supply, Tax Invoice and Taxable Supply have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 ( GST Act ). A Supplier means any party treated by the GST Act as making a Supply under this Agreement.
13.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
6.2 |
Consideration is GST exclusive |
Unless otherwise expressly stated all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.
6.3 |
Payment of GST |
(a) |
If GST is imposed on any Supply made under or in accordance with this Agreement, the Recipient of the Taxable Supply must pay to the Supplier an additional amount equal to the GST payable on or for the Taxable Supply, subject to the Recipient receiving a valid Tax Invoice in respect of the Supply at or before the time of payment. |
(b) |
Payment of the additional amount must be made at the same time as payment for the Taxable Supply is required to be made in accordance with this Agreement or at an earlier time provided a Tax Invoice is provided to the payer (or representative member if applicable) at least [ * ] prior to such date. |
6.4 |
Reimbursement of expenses |
If this Agreement requires a party (the First Party ) to pay for, reimburse, set off or contribute to any expense, loss or outgoing ( Reimbursable Expense ) suffered or incurred by the other party (the Other Party ), the amount required to be paid, reimbursed, set off or contributed by the First Party will be the sum of:
(a) |
the amount of the Reimbursable Expense net of Input Tax Credits (if any) to which the Other Party is entitled in respect of the Reimbursable Expense ( Net Amount ); and |
(b) |
if the Other Partys recovery from the First Party is a Taxable Supply any GST payable in respect of that Supply, |
such |
that after the Other Party meets the GST liability, it retains the Net Amount. |
7. |
AUDIT |
7.1 |
Cancer Vac to Retain Records |
Cancer Vac must maintain separate and accurate records of:
(a) |
the Revenue; |
(b) |
the Exempt Payments; |
(c) |
the Adjustments; |
(d) |
the working papers Cancer Vac used to calculate the Royalty; |
14.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(e) |
each Royalty report. |
The records must be maintained for [ * ] after payment of the Royalty in such reasonable manner as ARI approve in writing from time to time.
7.2 |
The ARIs Right to Inspect the Records |
Cancer Vac must:
(a) |
permit ARIs accountant or auditor, from time to time, on reasonable notice and during ordinary business hours, to inspect and verify the records specified in Clause 7.1; and |
(b) |
give ARI all reasonable help in any inspection and verification and permit ARIs accountant or auditor to take copies of the records specified in Clause 7.1 solely for the purpose of verifying the accuracy of the Royalty calculation. |
(c) |
pay the costs of the auditor if the accountant identifies a deviation equal to or greater that [ * ] in the amounts payable to ARI pursuant to Clause 5.1. |
8. |
TITLE OF LICENSORS IN BACKGROUND TECHNOLOGY |
8.1 |
Background Technology not owned by Cancer Vac |
Cancer Vac will not represent that it has any ownership interest in the Intellectual Property in the Background Technology. Cancer Vacs use of the Background Technology under this Agreement is subject to the right, title and interest of the Licensors in the Background Technology. Cancer Vac will not contest or impair the right, title or interest of the Licensors in the Background Technology either during or after the Term.
8.2 |
Warranty by Licensors |
The |
Licensors represent and warrant that: |
(a) |
the Background Technology created by ARI represents the original work of ARI; |
(b) |
the Background Technology does not to the best of the knowledge and belief of Licensors infringe any third party rights; |
(c) |
they hold the exclusive rights to conduct Research and Development and Commercialisation in relation to the Background Technology; |
(d) |
the grant of licences to Cancer Vac pursuant to this Agreement in relation to Research and Development do not to the best of the knowledge and belief of the Licensors infringe Intellectual Property or other rights of any third party in relation to the Background Technology; and |
15.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(e) |
to the best of the Licensors actual belief and knowledge at the Commencement Date (31 May 2001) the Licensors are the beneficial owners of the Background Technology, free from any encumbrances other than under any relevant or existing licences or agreements expressly disclosed to Prima or Cancer Vac prior to that date, and neither the Background Technology nor the grant of the licences contemplated by this Agreement knowingly infringes the Intellectual Property rights of any third party. |
8.3 |
Cancer Vac due diligence |
The Licensors make no representation and give no warranty or indemnity that Commercialisation of the Research Results and Background Technology will be free of infringement of third party rights. Cancer Vac acknowledges that it has and will undertake due diligence in this regard.
8.4 |
Warranty on ARI BTI |
Unless the Licensors advise Cancer Vac in writing otherwise at the time of disclosing any item of ARI BTI in accordance with Clause 4.3, the Licensors will be taken to make the same representations and warranties in relation to each item of ARI BTI at the time of such disclosure as are referred to in Clause 8.2.
9. |
CANCER VAC PERFORMANCE |
9.1 |
Research and Development |
Cancer Vac must use reasonable endeavours to carry out the Research and Development of the Background Technology and Commercialise Background Technology in the Agreed Field
except to the extent prevented by the act or default of ARI under the Research Agreement, in which case Cancer Vac shall be entitled to a reasonable extension of time to complete the relevant milestone.
9.2 |
Performance review |
(a) |
The parties will meet to review Cancer Vac performance in carrying out the Research and Development and Commercialisation of the Background Technology [ * ] during the Research Program, and following completion of the Research Program [ * ], or otherwise as agreed in writing. The parties will disclose to each other any developments in competing technology that may impact upon the Research and Development of the Background Technology and Commercialisation of the Research Results or Background Technology and will consult as to appropriate action. |
(b) |
In the event the Licensors are dissatisfied with the performance by Cancer Vac of its obligations under this Clause, as disclosed by any review or by reason of any |
16.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
other matter coming to the attention of the Licensors, the Licensors will draw their concerns to the attention of the Cancer Vac. The parties will consult in good faith as to how the performance issues may be resolved in the best interest of those parties to facilitate the Research and Development of the Background Technology and Commercialisation of the Research Results or Background Technology. |
(c) |
Cancer Vac will use its reasonable endeavours to address an concerns of ARI and may, in its discretion, prepare a strategy to be provided to ARI, having regard to the good faith consultations between the parties. |
9.3 |
Dispute resolution procedure |
For the avoidance of doubt, the procedure under Clause 16 applies to any dispute regarding the operation or effect of this Clause 9.
10. |
INSURANCE & INDEMNITY |
10.1 |
Insurance |
Cancer Vac must maintain adequate product liability, third party liability and other reasonable insurance cover during the Term (in the joint names of Cancer Vac and the Licensors if reasonably required). Cancer Vac must provide adequate evidence of cover.
10.2 |
Indemnity |
Cancer Vac shall indemnify the Licensors and keep them indemnified from and against any Loss or Claim suffered or incurred by the either of them as a result of or arising out of or in respect of the Research and Development and Commercialisation of the Research Results and Background Technology (excluding any Loss or Claim attributable to the default of the Licensors).
11. |
UNDERTAKINGS BY LICENSORS |
11.1 |
Restriction on dealings with Background Technology |
Subject to Clause 18.2(c) the Licensors must not dispose of their respective interests in the Background Technology or any part of it during the Term without the prior consent of Cancer Vac (which must not be unreasonably withheld).
11.2 |
Indemnity by Licensors |
The Licensors indemnify Cancer Vac from any Loss or Claim suffered or incurred by Cancer Vac as a result of or arising out of or in respect of:
(a) |
the Background Technology created by ARI not representing the original work of ARI; |
17.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(b) |
the Background Technology to the knowledge and belief of the Licensors at the date of signing this Agreement infringing the rights of a third party; |
(c) |
the Licensors not being entitled to license the Background Technology to Cancer Vac; |
(d) |
any default by the Licensors in the performance or observance of their obligations under this Agreement. |
11.3 |
Cancer Vac due diligence |
Despite anything in Clause 11.2, the Licensors make no representation and give no warranty that patent applications comprised in the Background Technology will be granted or if granted will be valid. The indemnity under Clause 11.2 does not cover Cancer Vac against this risk. Cancer Vac acknowledges that it has and will undertake due diligence in this regard.
12. |
INTELLECTUAL PROPERTY PROTECTION |
12.1 |
Background Technology |
The copyright in all documents (whether written, electronic or otherwise) embodying the Background Technology belongs to the Licensors. Cancer Vac is responsible for applying for or obtaining a grant of a patent in the name of the Licensors in respect of any of the Background Technology and the Licensors must provide reasonable assistance to Cancer Vac for this purpose. [ * ] shall pay all patent costs in respect of the Background Technology and Research Results during the Term. If Cancer Vac does not pursue patent protection with regard to the Background Technology that the Licensors considers adequate, the Licensors may take over prosecution of those patents [ * ] and in the name of the Licensors.
12.2 |
Research Results |
The Research Results will be the property of Cancer Vac. The Licensors will execute all documents and do all other things necessary to confirm Cancer Vacs rights to the Research Results. If Cancer Vac considers that intellectual property protection is desirable in respect of any part of the Research Results, it will notify the Licensors. Cancer Vac is responsible for applying for or obtaining a grant of a patent in the name of Cancer Vac in respect of any of the Research Results and Licensors must provide reasonable assistance to Cancer Vac for this purpose.
12.3 |
Coordination on patent protection |
The Licensors and Cancer Vac will consult and coordinate regarding patent protection in Australia and elsewhere for the Background Technology and any Research Results.
18.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
12.4 |
Infringement |
The Licensors and Cancer Vac will disclose to each other any events which may involve a third party infringing the Background Technology and any Research Results and will consult as to appropriate action. Cancer Vac shall control any proceedings and settlement but will consult with the Licensors and will [ * ]. If Cancer Vac does not take proceedings, the Licensors shall be at liberty to do so. Cancer Vac shall bear the cost of proceedings to protect its rights in the Background Technology and any Research Results. In the event that either or both the Licensors are indispensable parties to any proceedings brought by Cancer Vac in any jurisdiction either or both Licensors will join as parties in such infringement actions involving Cancer Vac, [ * ].
13. |
CONFIDENTIALITY AND PUBLICATION |
13.1 |
Publication |
If the Licensors wish to make any public statement or publication in respect of the Background Technology or any Research Results, they will:
(a) |
forward a copy of the proposed public statement or publication to Cancer Vac; |
(b) |
allow Cancer Vac [ * ] (or such further time as Cancer Vac may reasonably require) to seek such legal protection of the Research Results and/or material contained in the proposed public statement or publication as it considers necessary; |
(c) |
obtain the prior written consent of Cancer Vac (which shall not be unreasonably withheld); and |
(d) |
in the event that Cancer Vac does not advise the party that it objects to any proposed publication or the making of a public statement within [ * ] the consent of Cancer Vac will be deemed to have been obtained. |
13.2 |
Confidentiality |
Subject to this Clause 13, no party may disclose any Confidential Information of the other to any third party or use any Confidential Information other than for the purpose for which it was disclosed, except for disclosures:
(a) |
required by law or government authorities; or |
(b) |
to employees or financial or legal advisers on a need to know basis. |
The parties shall ensure that their staff sign all necessary confidentiality undertakings to protect the rights of the other party.
19.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
14. |
TERMINATION |
14.1 |
Termination for Due Cause |
Without limiting any other rights it may have, subject to Clause 5.3(c) a party may terminate this Agreement by written notice to the other if Due Cause has arisen.
14.2 |
Consequences of Termination |
Subject to this Clause and Clause 5.3(c), upon termination of this Agreement, all further rights and obligations under this Agreement (other than those contained in Clauses 4.1(a)(ii), 4.1(b), 4.4, 4.6, 10.2, 11.2, 12.2, 13, 14.2, 14.3 and 19 shall terminate.
14.3 |
Rights prior to Termination |
Any termination of this Agreement will not affect the enforceability of any other obligations of a party, in whole or in part or rights against a party accrued prior to termination or which relate in any way to an event or matter on or before the effective date (notwithstanding that the event or matter comes to the attention of a party after the termination of this Agreement).
15. |
FORCE MAJEURE |
15.1 |
Effect of Force Majeure |
Where a party is unable, wholly or in part, by reason of Force Majeure, to carry out any obligation under this Agreement, and that party:
(a) |
gives the other party prompt notice of that Force Majeure including reasonable particulars and anticipated extent to which it will be unable to perform or be delayed in performing that obligation; and |
(b) |
does what it reasonably can to remove that Force Majeure as quickly as possible (this does not require the settlement of strikes, lockouts or other labour disputes or claims or demands by any government on terms contrary to the wishes of the party affected), |
that obligation is suspended so far as it is affected by Force Majeure during the continuance of that Force Majeure and that party shall be allowed a reasonable extension of time to perform its obligations.
15.2 |
Remedial action |
If, after [ * ], the Force Majeure has not ceased, the parties shall meet in good faith to discuss the situation and endeavour to achieve a mutually satisfactory resolution to the problem.
20.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
16. |
DISPUTE RESOLUTION |
16.1 |
Good faith negotiation |
The parties shall without delay and in good faith attempt to resolve any dispute or difference which may arise between them in relation to this Agreement.
16.2 |
Cancer Vac performance |
Any dispute or difference arising between the parties relating to Cancer Vac performance in Clause 9.2 which cannot be resolved between them may, if the parties agree, be finally resolved by expert determination undertaken at the shared expense of the parties by an independent expert to be agreed or in default of agreement appointed by the President or Acting President of the Licensing Executives Society or his nominee The determination of the expert shall be final and binding. The person shall be acting as an expert and not an arbitrator.
16.3 |
Disputes generally |
Any dispute or difference relating to a matter (other than which is resolved under Clause 16.2) shall be resolved in accordance with the following procedure:
(a) |
the party claiming that a dispute exists shall notify the other party that a dispute exists and forthwith submit such dispute or difference to the respective chief executives for resolution; |
(b) |
if the chief executives are unable to resolve the dispute or difference within a reasonable time, a meeting shall be convened forthwith between the Chairmen of the respective Boards of the disputing parties for resolution of the dispute or difference; and |
(c) |
if the dispute or difference is not resolved by the persons referred to in paragraph (b) above, within such time as they agree but not being more than [ * ], Clause 16.4 (mediation) shall apply. |
16.4 |
Mediation |
If any dispute or difference is not resolved by negotiation in accordance with the above procedure, the parties agree that it shall first be referred to mediation before either of them shall be entitled to commence any proceedings in a court of competent jurisdiction or otherwise in respect of such dispute or difference. However this shall not preclude a party from seeking urgent interlocutory relief in a court of competent jurisdiction.
17. |
NOTICES |
(a) |
A notice, consent or other communication under this Agreement is only effective if it is in writing and either left at the addressees address or sent to the addressee by mail or fax. If it is sent by mail, it is taken to have been received 3 working |
21.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
days after it is posted. If it is sent by fax, it is taken to have been received at the time indicated on the transmission report of the machine from which the fax was sent in its entirety to the fax number of the recipient. However, if transmission is completed after 5.00pm on a Business Day or is sent on a day that is not a Business Day, the message is taken to have been received at 9.00am on the next Business Day. |
(b) |
A persons address and fax number are those set out below, or as the person notifies the sender: |
Licensors | ||
Address: | Kronheimer Building, A&RMC, Studley Road, | |
Heidelberg, Victoria, 3084 | ||
Fax number: | (03) 9287 0639 | |
Attention: | Professor Mark Hogarth | |
Cancer Vac | ||
Address: | Suite 1, 1233 High St, | |
Armadale, Victoria 3143 | ||
Fax number: | (03) 9854 5777 | |
Attention: | Mr. Marcus Clark | |
Prima | ||
Address: | Suite 1, 1233 High St, | |
Armadale, Victoria, 3143 | ||
Fax Number: | (03) 9854 5777 | |
Attention: | Mr. Marcus Clark |
18. |
AMENDMENT AND ASSIGNMENT |
18.1 |
Amendment |
This Agreement can only be amended, supplemented, replaced or novated by another agreement signed by the parties.
22.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
18.2 |
Assignment and sub-contracting |
(a) |
Cancer Vac may not assign its rights under this Agreement without the consent of ARI (such consent not to be unreasonably withheld) except where the assignment is: |
(i) |
to a Related Body Corporate; or |
(ii) |
is in the event of a Trade Sale. |
(b) |
Any assignment under Clause 18.2(a) will not take effect until the Related Body Corporate or Third Party executes a deed in favour of the Licensors agreeing to be bound by the terms of this Agreement. |
(c) |
The Licensors may assign any or all of their rights under this Agreement for the purpose of solvent reconstruction or merger, without the need for consent of Cancer Vac, subject to an assignee taking an assignment of all rights in the Background Technology and agreeing in writing to be bound by this Agreement as licensor. The Licensors shall be released from obligations accruing after the effective date of the assignment provided that those obligations did not accrue in whole or in part before the effective date or if accruing after the effective date relate in any way to any event or matter occurring on or before the effective date. Except as provided above, the Licensors may not assign their rights under this Agreement without the consent of Cancer Vac (which shall not be unreasonably withheld). |
19. |
GENERAL |
19.1 |
Governing law |
This Agreement is governed by the law in force in Victoria.
19.2 |
Liability for expenses |
Unless otherwise agreed, each party shall bear its own costs in relation to the preparation and execution of this Agreement.
19.3 |
Giving effect to this agreement |
Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this Agreement.
19.4 |
Waiver of rights |
A right may only be waived in writing, signed by the party giving the waiver, and:
23.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(a) |
no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right; |
(b) |
a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and |
(c) |
the exercise of a right does not prevent any further exercise of that right or of any other right. |
19.5 |
Operation of this agreement |
(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 Agreement and has no further effect. |
(b) |
Any right that a person may have under this agreement is in addition to, and does not replace or limit, any other right that the person may have. |
(c) |
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. |
1 9.6 |
Consents |
Where this Agreement contemplates that a party may agree or consent to something (however it is described), the party may:
(a) |
agree or consent, or not agree or consent, in its absolute discretion; and |
(b) |
agree or consent subject to conditions, |
unless this Agreement expressly contemplates otherwise.
19.7 |
Exclusion of agency, partnership, joint venture |
Nothing in this Agreement is to be treated as creating a partnership or joint venture between the parties under the laws of any applicable jurisdiction and no party may act or has any authority to act as agent of or in any way bind or commit the another party to any obligation.
19.8 |
Rights and Obligations of ARI |
Any rights conferred on ARI under this Agreement will be held by Ilexus on its behalf. Any obligation imposed on ARI under this Agreement will be construed as an obligation on Ilexus to procure ARI to fulfil the obligation. This does not prevent ARI directly
24.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
asserting or enforcing its rights under this Agreement upon and after becoming a party to this Agreement.
19.9 |
Counterparts |
This Agreement may be executed in counterparts.
19.10 |
Attorneys |
Each person who executes this Agreement on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney.
Executed as an agreement
25.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
SIGNED for and on behalf of Prima Biomed Ltd ACN 009 237 889 by: |
) ) ) ) ) |
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Signed: Director |
Signed: Director/Secretary |
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Print name: |
Print name: |
SIGNED for and on behalf of The Austin Research Institute ACN 007 418 224 by: |
) ) ) ) ) |
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Signed: Director |
Signed: Director/Secretary |
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Name (printed): |
Name (printed): |
26.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
SCHEDULE 1
BACKGROUND TECHNOLOGY
TECHNOLOGY DESCRIPTION | ||
A | Family 1: RDS1 core technology as described in patent application PCT/AU 94/00789 relating to MUCl-mannan fusion proteins (MFP) as cancer vaccines # | |
B | Family 2: RDS1 core technology as described in patent application PCT/AU 96/00617 relating to synthetic MUC1 peptide technology (mimicks) | |
C | Family 3: Stimulation of mannose receptor bearing cells with mannan conjugated constructs (patent application PCT/IB 98/01718 and USSN 09/163,089) | |
D | Family 4: Non-VNTR immunogenic peptides as described in PCT/AU 01/00090 and CIP USSN 09/593,870 in USA. |
# |
The PCT/AU 94/00789 was assigned by the ARI to Ilexus however, to date only the Australian and European Patent documentation reflects the assignment to Ilexus. The change is a matter of formality in notifying the Patent Offices of the USA, Japan and Canada and is being managed by Callinan Lawrie (external patent attorneys). |
27.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
28.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
29.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
E XHIBIT 4.6
McCabe Terrill Lawyers Pty Limited ACN 122 850 033 130 Elizabeth Street (Level 14) Sydney NSW 2000 GPO Box 235 Sydney NSW 2001 DX 145 Sydney |
T +61 2 9261 1211 F +61 2 9261 2336 W www.mccabeterrill.com.au |
Table of Contents
1. |
Definition and Interpretation |
3 | ||||
2. |
Intellectual Property |
9 | ||||
3. |
Representatives |
10 | ||||
4. |
Program Responsibilities until Sunset Date |
11 | ||||
5. |
Buy-out Option |
12 | ||||
6. |
Continuation or Termination after the Sunset Date |
13 | ||||
7. |
Records, Audit and access rights |
14 | ||||
8. |
Confidentiality |
15 | ||||
9. |
Insurance |
15 | ||||
10. |
Warranties |
16 | ||||
11. |
Indemnities |
17 | ||||
12. |
Term and Termination |
18 | ||||
13. |
Disputes |
20 | ||||
14. |
Taxes |
20 | ||||
15. |
Relief from obligations |
21 | ||||
16. |
Relationship |
22 | ||||
17. |
Notices |
22 | ||||
18. |
General |
22 | ||||
Schedule 1 |
26 | |||||
Schedule 2 |
27 | |||||
Schedule 3 |
29 |
2
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Dated
August 09, 2010
Parties
Prima BioMed Limited ACN 009 237 889 |
||
Address: |
Suite 1,1233 High Street, Armadale, VIC, 3143, Australia |
|
Facsimile: |
+61 3 9822 7735 |
|
Attention: |
Martin Rogers |
|
Hereinafter referred to as Prima BioMed |
Background
A |
Prima BioMed is in the business of developing new anti-cancer therapeutics based on the emerging technology of immunotherapy. |
B |
Bioceros is in the business of preclinical development for monoclonal antibodies for the biotechnology industry. |
C |
Prima BioMed and Bioceros wish to jointly develop a monoclonal therapeutic C3 anti-Cripto-1 antibody, using Prima BioMeds Patents and Bioceros proprietary CHO technology platform, under the terms and conditions set out in this Agreement. |
Operative Provisions
1. |
Definition and Interpretation |
1.1 |
Definitions |
In this Agreement, unless the contrary intention appears, the following words have the following meanings:
Term: | Definition: | |
ACDC |
the Australian Commercial Disputes Centre Limited, Level 6, 50 Park Street, Sydney, New South Wales, Australia. |
|
Affiliate |
any person who, directly or indirectly, Controls, is Controlled by or is under common Control with a Party. |
|
Agreement |
This written Agreement, as amended in writing from time to time, and including all Schedules and Attachments hereto. |
3
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Bioceros IP |
(a) Intellectual Property Rights and Know-how owned by or licensed to Bioceros at the Commencement Date;
(b) Intellectual Property Rights and Know-how acquired or developed by Bioceros during the Term independently of the Research Program, including but not limited to improvements to Bioceros proprietary CHO technology platform; and
(c) Intellectual Property Rights and Know-how developed solely by Bioceros in the course of and arising from the Program that constitute an improvement, modification or enhancement of the CHO technology platform. |
|
Bioceros Representative |
the person(s) appointed by Bioceros to be the Bioceros Representatives in accordance with Section 3.1(a) and specified in item 5 of Schedule 1. |
|
Business Day |
a day that is not a Saturday, a Sunday or a public holiday or bank holiday in Sydney, Australia or the Netherlands. |
|
Buy-out Amount |
the amount specified in item 7 of Schedule 1. |
|
Buy-out Option |
the right of Prima BioMed to buy out all of Bioceros interests in the Program IP and Products according to Section 5.1. |
|
Claim |
includes any allegation, action, demand, cause of action, suit, proceeding, judgement, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, under statute or otherwise. |
|
Commencement Date |
the date specified in item 1 of Schedule 1. |
|
Confidential Information |
(a) the terms of this Agreement;
(b) all information in whatever form belonging to a Party and disclosed to the other Party under this Agreement, including without limitation all information relating to or in any way connected with a Partys business, officers, employees, suppliers, contractors, finances, customers, products and services, strategies and plans, technical information, know-how or Intellectual Property Rights, |
|
but does not include information which:
(a) is generally publicly available otherwise than through a default of the recipient Party or any person acquiring the information from the recipient Party;
(b) is already known by the recipient Party at the time it is disclosed to the recipient Party;
(c) is disclosed to the recipient Party by a third party without involving any breach of confidence. |
||
Control |
(a) the ability to cast or control the casting of more than 50% of the maximum number of votes that might be cast at any general meeting (or equivalent) of an entity; |
4
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
5
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(i) the Party enters into or resolves to enter into any arrangement, composition or compromise with or assignment for the benefit of its creditors generally or any class of its creditors; or
(ii) the Party proposes a reorganisation, moratorium or other form of administration involving any such arrangement, composition, compromise or assignment, begins any negotiations for any such purpose or for the purpose of any re-scheduling or re-adjustment of all or a material part of its monetary obligations;
(f) the Party takes any steps to obtain protection or is granted protection from its creditors under the Laws of any applicable jurisdiction;
(g) an External Administrator is appointed to the Party, over any of the Partys assets or the Party requests such appointment;
(h) the Party is deregistered, a similar occurrence occurs, in the jurisdiction in which the it was registered; or
(i) the Party stops or threatens to stop carrying on its business or a material part of it. |
||
Intellectual Property Rights |
statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions, patents, plant varieties, registered and unregistered trademarks, registered and unregistered designs and circuit layouts, and all other rights (including improvements to the foregoing) as defined by Article 2 of the Convention establishing the World Intellectual Property Organization of July 1967, and all rights to apply for any of the above. |
|
Joint Venture |
A legal entity envisioned in this Agreement to be formed jointly by Prima BioMed and Bioceros to facilitate the further development and commercialization of the Program IP, under the general terms described in this Agreement. |
|
Joint Venture Agreement |
A written agreement to govern the terms and conditions of the envisioned Joint Venture. |
|
Know-how |
all ideas, technologies, and processes disclosed and claimed in the Patents and any know-how, devices, substances, methodologies and processes related to the Patents or developed by virtue of use of the Patents. |
|
Law |
in Australia or any other relevant jurisdiction, any law, regulation, authorisation, ruling, judgment, order or decree of any Governmental Agency and any statute, regulation, proclamation, ordinance or bylaw. |
|
Party |
Prima BioMed or, as the case may be, Bioceros. Collectively referred to as Parties. |
|
Platform License Agreement |
license agreement for Prima BioMed to utilize Bioceros CHO Platform, as stipulated in this Agreement, and as specified in Schedule 3. |
|
Prima BioMed IP |
(a) Intellectual Property Rights and Know-how owned by or licensed to |
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Prima BioMed at the Commencement Date;
(b) Intellectual Property Rights and Know-how acquired or developed by Prima BioMed during the Term independently of the Research Program, which Prima BioMed has the right to license to third parties and which is necessary for the conduct of the Program; and
(c) Program IP, unless otherwise specified in this Agreement.. |
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Prima BioMeds Representative |
the person(s) appointed by Prima BioMed to be the Prima BioMed Representatives in accordance with Section 3.1(b) and specified in item 6 of Schedule 1. |
|
Patents |
(a) the patents and patent applications specified in item 2 of Schedule 1;
(b) all patent applications that may be filed by or on behalf of Prima BioMed or its Affiliates which are based on, claim priority from, are divided from or are continuations of any patent application, specified in item 2 of Schedule 1;
(c) all patent applications that may be filed by or on behalf of Prima BioMed or its Affiliates which are based, in whole or in part, on Intellectual Property Rights that resultant of the Program IP; and
(d) all patents which may be granted pursuant to any of the patent applications referred to in paragraphs (a) (b) and (c). |
|
Program IP |
Intellectual Property Rights and Know-how, whether patentable or not, developed, produced, or improved upon by either or both Parties in conjunction with the Program, including but not limited to Intellectual Property Rights and Know-how related to any Product, but excluding Bioceros IP. For the avoidance of doubt, Program IP and any resultant Patents thereto, is owned exclusively by Prima BioMed unless otherwise specified in this Agreement. |
|
Product(s) |
any product(s) containing C3 anti-Cripto-1 monoclonal antibody that is expressed or produced by use of Bioceros proprietary CHO technology platform. |
|
Quarter |
(a) the period of three Months commencing on each 1 January, 1 April, 1 July, and 1 October in each year during the Term; and
(b) any part of a three Month period referred to in paragraph (a) falling at the beginning or end of the Term. |
|
Representatives |
Bioceros Representative and Prima BioMeds Representative. |
|
Research and Development Program (Program) |
the program of basic research and nonclinical studies to be conducted in connection with the Parties IP and/or Products, the results of which are intended to produce an economic benefit for the Parties, initially the program set out in Schedule 2 and as amended from time to time in accordance with Section 3.3. |
|
Sunset Date |
the date specified in item 8 of Schedule 1. |
|
Technical Failure |
A technical failure of the Program as defined in 4.2(c). |
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Term |
the period starting on the Commencement Date and ending on the Termination Date. |
|
Termination Date |
the effective date of termination of this Agreement. |
|
Territory |
the territory specified in item 4 of Schedule 1. |
|
Third Party Claim |
has the meaning specified in Section 11.3(b)(i). |
|
Winding Up |
includes dissolution, liquidation, provisional liquidation and bankruptcy and any analogous or equivalent procedure in any jurisdiction. |
1.2 |
Interpretation |
In this Agreement, unless the context otherwise requires:
(a) |
headings are for ease of reference only and do not affect the interpretation of this Agreement; |
(b) |
singular words include plural words and vice versa; |
(c) |
gender neutral or gender specific words include all genders; |
(d) |
another grammatical form of a defined word or expression has a corresponding meaning; |
(e) |
the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; |
(f) |
a reference to a thing includes a part of that thing; |
(g) |
a reference to conduct includes any omission and any statement or undertaking, whether or not in writing; |
(h) |
a reference to a Section, paragraph or schedule is to a Section or paragraph of or schedule to this Agreement and a reference to this Agreement includes any schedule or annexure; |
(i) |
a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time; |
(j) |
a reference to A$, dollar or $ is to Australian currency; |
(k) |
a reference to time is to Sydney time; |
(l) |
a reference to day, week, month, or year means a calendar day, week, month, or year; |
(m) |
a reference to a Party to this Agreement, and a reference to a party to a document includes the Partys administrators, successors and permitted assigns and substitutes; |
(n) |
a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; |
(o) |
a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
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(p) |
a rule of construction does not apply to the disadvantage of a Party because the Party was responsible for the preparation of this Agreement or any part of it; |
(q) |
if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day. |
2. |
Intellectual Property |
2.1 |
Ownership of Prima BioMed IP |
(a) |
Bioceros acknowledges that all Prima BioMed IP remains the sole property of Prima BioMed and it acquires no right, title or interest in or to the Prima BioMed IP by virtue of this Agreement or the disclosure or use of the Prima BioMed IP in the course of the Program. |
(b) |
Prima BioMed grants to Bioceros during the Program a non-exclusive, non-transferable licence to access and use the Prima BioMed IP to conduct the Program in the Field, and for no other purpose. |
2.2 |
Ownership of Bioceros Background IP |
(a) |
Prima BioMed acknowledges that all Bioceros IP remains the sole property of Bioceros and it acquires no right, title or interest in or to the Bioceros IP by virtue of this Agreement or the disclosure or use of the Bioceros IP in the course of the Program. |
(b) |
Bioceros grants to Prima Biomed during the Program a non-exclusive licence to access and use the Bioceros Background IP to conduct the Program in the Field and for no other purpose. |
2.3 |
Ownership of Program IP and Products |
(a) |
All right, title and interest in the Program IP is the sole property of and vested in Prima Biomed, unless otherwise specified in this Agreement. |
(b) |
Prima BioMed grants to Bioceros, free of charge, during the Program a non-exclusive, non-transferable license to access and use the Program IP and Products to conduct the Program in the Field and for no other purpose. |
2.4 |
Assistance |
Upon request, each Party shall do all things (including requiring its officers, employees and contractors to sign documents) as may be necessary or desirable to vest, confirm, perfect and record the ownership rights of Prima BioMed to the Program IP and Products under this Section 2.
2.5 |
No challenge |
Neither Party shall directly or indirectly engage in any conduct which may endanger the capacity of any IP of the other Party or the Parties jointly to be protected or challenge its ownership or validity.
2.6 |
Prohibitions |
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(a) |
Bioceros must not: |
(i) |
[ * ] or [ * ] in any way related to the Program IP or Products, other than [ * ] within the context of this Agreement; |
(ii) |
act or conduct itself in any way as if it owns the Prima Biomed IP or has any right, title or interest in, or to use, the Prima Biomed IP, the Program IP, or Products, other than as expressly set out in this Agreement; |
(iii) |
register or attempt to register anywhere in the world the Prima Biomed IP or any part of the Program IP or Products, or any similar Intellectual Property Rights as the whole or part of any trademark, copyright, domain name, electronic mail address or any analogous right; or |
(iv) |
raise or caused to be raised any questions concerning, or challenge, the validity or ownership of any part of the Prima Biomed IP. |
(b) |
Prima Biomed must not: |
(i) |
act or conduct itself in any way as if it owns the Bioceros IP or has any right, title or interest in, or to use, the Bioceros IP other than as expressly set out in this Agreement; |
(ii) |
register or attempt to register anywhere in the world the Bioceros IP or any part of the Bioceros IP or any similar Intellectual Property Rights as the whole or part of any trademark, copyright, domain name, electronic mail address or any analogous right; or |
(iii) |
raise or caused to be raised any questions concerning, or challenge, the validity or ownership of any part of the Bioceros IP. |
3. |
Representatives |
3.1 |
Appointment |
On the date of this Agreement:
(a) |
Bioceros must appoint the Bioceros Representatives; and |
(b) |
Prima BioMed must appoint the Prima BioMeds Representatives. |
3.2 |
Contact between the Parties |
All communication between the Parties under this Agreement will, at first instance, be initiated and conducted between the Representatives.
3.3 |
Meeting of the Representatives |
(a) |
The Representatives must meet (by such means as agreed) at least [ * ] during the Term to discuss any matters arising in respect of this Agreement. |
(b) |
After each such meeting, any agreed changes to the Program shall be specified in a written amendment to the Program. |
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(c) |
At each such meeting, the Bioceros Representative and the Prima Biomed Representative must report any IP or Products developed or improved upon during the previous month. |
(d) |
The Representatives may from time to time, by notice in writing, alter the frequency of meetings referred to in Section 3.3(a). |
(e) |
Minutes of meeting are to be taken at each meeting of the Representatives. The minutes are to be distributed to each Party within [ * ] of the date of the meeting between the Representatives. |
3.4 |
Changing the Representatives |
(a) |
Each Party may remove and replace any Representative that has been appointed by them. |
(b) |
Upon changing the Representatives appointed by them Bioceros or Prima BioMed (as applicable) must notify the other Party as to the identity and contact details of the replacement Representative. |
4. |
Program Responsibilities until Sunset Date |
4.1 |
Mutual Responsibilities |
(a) |
Bioceros is, from the Commencement Date until the Sunset Date, responsible for the preclinical research and development work as set out in this Section 4.1(a), and which is further defined in the program in Schedule 2. This work is deemed completed as soon as [ * ] and [ * ] are completed according to the Program in Schedule 2. |
[ * ]
(b) |
Prima BioMed is, during the period until the Sunset Date, responsible for, and shall bear the costs for: |
(i) |
providing [ * ] to Bioceros and providing [ * ] to assist Bioceros with its responsibilities Section 4.1(a); and |
(ii) |
all research, development, legal, business development, and other activities related to the Program IP or Products, other than Bioceros responsibilities set forth in Section 4.1(a). |
(c) |
Bioceros and Prima BioMed will provide all reasonable mutual support and assistance with each Partys responsibilities within the context of the Program; however, it is expressly acknowledged and agreed that Prima BioMed shall, at all times, maintain control over the Program. |
4.2 |
Uncertain nature of research & Termination for Technical Failure |
(a) |
Each Party acknowledges and agrees that: |
(i) |
research and development activities are uncertain and accordingly, the Program may take longer than anticipated; and |
(ii) |
the Program may: |
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(A) |
produce no results, or unpredictable or inaccurate results; and |
(B) |
need to be amended from time to time in accordance with Section 3.3 to improve the likelihood of results. |
(b) |
Neither Party gives to the other any warranty or assurance that the Program will have any particular result or give rise to any particular Product or any Intellectual Property Rights, or any Product having any particular attributes. |
(c) |
lf, in good faith, either Party determines, or both Parties mutually determine, that no substantial progress is made on the Program and there does not appear to be a reasonable chance of completing the Program responsibilities listed in Section 4.1(a) within [ * ] of the Commencement Date (Technical Failure), either Party may terminate its activities under the Program and terminate this Agreement with immediate effect. In such case: |
(i) |
The Bioceros IP remains owned by Bioceros and Prima BioMed IP remains owned by Prima BioMed. Bioceros cannot conduct any activities that would infringe upon the intellectual Property rights of Prima BioMed and Prima BioMed may not conduct any activities that would infringe upon Intellectual Property Rights of Bioceros; |
(ii) |
Any and all data or documents resultant from the work performed by Bioceros shall be returned to Prima BioMed. |
4.3 |
Consideration for work under Section 4.1(a) |
(a) |
Prima BioMed shall pay Bioceros A$500,000 in consideration of the work to be executed as assigned to Bioceros under Section 4.1(a) and further defined in the Program in Schedule 2. Payment shall take place in the following instalments: |
(i) |
A$250,000 shall be paid in Immediately Available Funds within [ * ] after the Commencement Date. |
(ii) |
A$250,000 shall be paid within [ * ] after [ * ]. |
(b) |
Bioceros shall be wholly responsible for, and must indemnify Prima BioMed against, all costs and expenses in excess of A$500,000 associated with the preclinical development work assigned to Bioceros in Section 4.1(a) and further defined in the Program in Schedule 2. |
5. |
Buy-out Option |
5.1 |
Buy-out Option |
(a) |
Prima BioMed has the right, until 5:00pm on the Sunset Date, to buy out all of Bioceros interests in the Program, including all rights, privileges, and obligations related to the Program IP and any Products, including any potential future revenues that would otherwise be entitled to Bioceros, but excluding any right to the Bioceros IP, (Buy-out Option) for a price of the Buy-out Amount. |
5.2 |
Exercise of Buy-out Option |
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(a) |
Prima BioMed shall notify Bioceros of its intention to exercise its Buy-out Option according to the Notice provisions of Section 17. |
(b) |
Upon receipt of Notice that Prima BioMed exercises its Buy-out Option, this Agreement is deemed to have been terminated. Within [ * ] from the date of exercising its Buy-out Option: |
(i) |
Prima BioMed shall pay in Immediately Available Funds the Buy-out Amount; and |
(ii) |
any Program revenues received and Program expenses incurred until the date that Prima BioMed exercises its Buy-out Option shall be reconciled and appropriately settled with Immediately Available Funds according to the terms of this Agreement; and |
(iii) |
if Prima BioMed wishes to license Bioceros CHO technology platform (included in the Bioceros IP) to produce or have a third party engaged by Prima BioMed to produce the Products, the Parties shall enter into a license Agreement as specified in Schedule 3. |
6. |
Continuation or Termination after the Sunset Date |
6.1 |
Joint Venture for Continued Development and Commercialization: |
(a) |
In the event that Prima BioMed has not exercised the Buy-out Option in time and neither Party has exercised its right to terminate the Agreement pursuant to Section 6.2 in time, the Parties will, from the Sunset Date on, jointly further develop, manufacture and commercialize the Product in respect to which the Parties will enter into a joint venture agreement (the Joint Venture Agreement) to be negotiated in good faith but based on the following principles: |
(i) |
All costs for the further (preclinical and clinical) development, regulatory clearance, manufacture, and commercialization of the Program IP and Products will be borne in a [ * ]% (Bioceros) / [ * ]% (Prima Biomed) ratio, save for costs of defence of the Prima BioMed IP which will be borne exclusively by Prima BioMed and save for the costs of defence of the Bioceros IP which will be exclusively borne by Bioceros; |
(ii) |
All revenues, income and other proceeds, from whatever kind and in whatever form generated from the sale of Product and/or the licensing of Program IP or Products will be shared in a ratio [ * ]% (Bioceros) / [ * ]% (Prima BioMed); |
(iii) |
Prima BioMed and Bioceros will become joint owners of a venture in a ratio [ * ]% Bioceros and [ * ]% Prima BioMed (Joint Venture). The Parties will have decision making rights with regards to the Joint Venture, [ * ] regarding filing, prosecution, maintenance, enforcement, and defence of Program IP and Products, as well as continued development, manufacture, and commercialization activities related to the Program IP and Products. All decisions regarding the further development, manufacture and commercialization shall be made in the context of a meeting or teleconference where both Parties are represented. Unless otherwise specified in writing, the Parties shall meet or hold a teleconference regarding the Joint Venture no less than [ * ]. |
(iv) |
Bioceros will contribute to the Joint Venture the Bioceros IP, and Prima BioMed will contribute to the Joint Venture the Prima BioMed IP, to the extent required for the continued development, manufacture, and commercialization of the Program |
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IP and Products. The Parties shall contribute their mutual relevant Intellectual Property Rights and Know-how to the Joint Venture in exchange for the equity consideration described in clause 6.1(a)(iii) and at no additional charge to the Joint Venture. |
(v) |
It is acknowledged that any continued costs of defence of the Prima BioMed IP will be borne exclusively by Prima BioMed and the costs of defence of the Bioceros IP which will be exclusively borne by Bioceros; |
(vi) |
Program expenses shall be reviewed and reconciled no less frequently than [ * ]. No later than [ * ] after the end of each [ * ], the owing Party shall pay the other Party in Immediately Available Funds an amount such that the Program expenses are substantially shared according to this Section 6.1. |
(vii) |
If either Party fails to pay any amount under this Section 6.1 within [ * ] after the due date, interest may be charged on such overdue payments at [ * ], calculated daily from the due date until the date of repayment. Alternatively, the non-defaulting Party may decide to assume such part of the defaulting Partys costs itself, in exchange for additional ownership of the Joint Venture based on a fair valuation of the Joint Venture at the time of the default. |
6.2 |
Termination of the Agreement without a Joint Venture: |
(a) |
If Prima BioMed has not timely exercised the Buy-out Option, either Party or both Parties may, for any or no reason, terminate its activities under the Program and terminate this Agreement with immediate effect within [ * ] of the Sunset Date. In such event the following applies: |
(i) |
The Bioceros IP remains owned by Bioceros and Prima BioMed IP remains owned by Prima BioMed. Bioceros cannot conduct any activities that would infringe upon the Intellectual Property rights of Prima BioMed and Prima BioMed may not conduct any activities that would infringe upon Intellectual Property Rights of Bioceros; |
(ii) |
If Prima BioMed would at any time after the termination of this Agreement nevertheless elect to further pursue development, manufacture, or commercialization of the Program IP or a Product, Bioceros is entitled to a royalty of [ * ]% of revenues actually received by Prima BioMed for sales, royalties, or licensing fees related to the Program IP or Product. If such continued development requires the use of Bioceros IP (i.e. CHO platform), Prima BioMed shall also license the technology as specified in Schedule 3. |
7. |
Records, Audit and access rights |
7.1 |
Records |
Both Parties shall retain for [ * ] from the date of creation of the relevant auditable records, or for a longer period if so required by a Governmental Agency regulation, all relevant auditable records related to this Program. Notwithstanding the foregoing, Bioceros shall not destroy any records without the prior consent of Prima BioMed
7.2 |
Prima BioMed Audit Rights |
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Prima BioMed at any time, with reasonable advance notice, has the right to access and audit the records and facilities of Bioceros to assure its compliance with this Agreement, applicable Governmental Agency requirements, and industry standards.
7.3 |
Bioceros Audit Rights |
Bioceros may at any time, with reasonable advance notice, audit Prima BioMeds financial records to assure its compliance with this Agreement.
7.4 |
Access |
Both Parties must, in respect of the conduct of an audit, promptly provide all reasonable access, documents, and assistance to, and answer any reasonable queries of, the auditor.
7.5 |
Costs |
Each Party is responsible for its own costs related to audits; audit costs and expenses shall be excluded from Program expenses.
8. |
Confidentiality |
8.1 |
Confidential Information |
(a) |
Subject to Section 8.1(b), a Party ( Recipient Party ) must keep confidential any Confidential Information disclosed to it by the other Party ( Disclosing Party ) and must not, and must not permit any of its officers, employees, agents or contractors to disclose such information to any person. |
(b) |
A Recipient Party may disclose Confidential information disclosed to it by the Disclosing Party: |
(i) |
to its officers, employees or financial, legal or other advisers who have a need to know for the purposes of this Agreement and undertake to the Disclosing Party a corresponding obligation of confidentiality to that undertaken by the Recipient Party under this Section 8; |
(ii) |
only as is absolutely necessary in order to carry out its obligations pursuant to this Agreement; |
(iii) |
if required by Law, to the extent reasonably required by Law after first consulting with the Disclosing Party about the form and content of the disclosure. |
8.2 |
Avoiding disclosure |
The Recipient Party will take all necessary precautions to prevent from disclosure to third parties of any Confidential Information disclosed to it by the Disclosing Party.
9. |
Insurance |
9.1 |
Parties to take out insurance |
Each Party must effect, and maintain in effect at all times during the Term, reasonable and customary insurance in accordance with industry and regional standards, in respect of all Claims arising, whether at common law or under statute, relating to:
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(a) |
Professional errors and omissions; |
(b) |
Workers compensation or employers liability, from any accident or injury to any person employed by that Party; and |
(c) |
Property and casualty. |
9.2 |
Evidence |
If requested, a Party must produce evidence to the other Party of the insurance required under this Section 9.
10. |
Warranties |
10.1 |
Bioceros warranties |
Bioceros warrants to Prima BioMed that:
(a) |
it has the relevant expertise, experience, skill and resources required to adequately develop the necessary infrastructure in order to carry out its obligations under this Agreement; and |
(b) |
The use of Bioceros IP and related materials does not require consent, permission, or authorization of any person and will not infringe on Intellectual Property Rights or other rights of any person. |
10.2 |
Prima BioMed warranties |
Prima BioMed, to the best of its abilities, warrants to Bioceros that:
(a) |
it is entitled to supply the IP and associated materials to Bioceros; |
(b) |
the use of IP and related materials by Bioceros in connection with the Program is lawful, does not require the consent, permission or authorisation of any person and will not infringe the Intellectual Property Rights or other rights of any person; |
(c) |
it has obtained and grants to Bioceros all necessary authorities for the use, reproduction or adaptation of the Prima BioMed Materials in connection with the performance of the Program; |
(d) |
all information provided by or on behalf of it to Bioceros in relation to the Prima BioMed Materials is accurate, complete and up to date; and |
(e) |
unless expressly specified by written notice to Bioceros, the Prima BioMed Materials are not capable of constituting a threat to safety, health, life, property or the environment and it has given written notice to Bioceros prior to supplying the Prima BioMed Materials to Bioceros or its contractors of any matters affecting the safe, secure and appropriate transportation, use, storage and disposal of the Prima BioMed Materials. |
10.3 |
Mutual warranties |
Each Party represents and warrants to the other that each of the following statements is true, accurate and not misleading as at the date of this Agreement and will be true and accurate on each day during the Term:
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(a) |
it has and will at all times during the Term have the corporate power to enter into and perform its obligations under this Agreement and to carry out the transactions contemplated by this Agreement; |
(b) |
there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this Agreement; and |
(c) |
it holds any and all necessary licences required under, and has otherwise complied in all material respects with the requirements of, all Laws applicable to the arrangements contemplated by this Agreement and any third party licences or authorities granted to it to enable it to enter into and perform its obligations under this Agreement. |
10.4 |
Inaccurate warranties |
If a warranty given by a Party to this Agreement ceases to be accurate, that Party must immediately advise the other Party in writing.
11. |
Indemnities |
11.1 |
Bioceros to indemnify Prima BioMed |
Bioceros agrees to indemnify and will keep indemnified Prima BioMed, its Affiliates, and their directors, officers, employees and agents against any Claim incurred or suffered by Prima BioMed or its Affiliates, arising from:
(a) |
any breach of a term of this Agreement by Bioceros; and |
(b) |
its own negligence, fraud or wilful misconduct, or that of its employees, agents or sub-contractors, |
provided that Bioceros will not be liable under this Section 11.1 to the extent to which the Claim arises from the error, omission, negligence, fraud or wilful misconduct of Prima BioMed.
11.2 |
Prima BioMed to indemnify Bioceros |
Prima BioMed agrees to indemnify and will keep indemnified Bioceros, its Affiliates, and their directors, officers, employees and agents against any Claim incurred or suffered by Bioceros or its Affiliates arising from:
(a) |
any breach of a term of this Agreement by Prima BioMed; |
(b) |
its own negligence, fraud or wilful misconduct, or that of its employees, agents or sub-contractors, |
(c) |
claims from third parties (including but not limited to patients) in relation to the development, manufacture or commercialization of the Products. |
provided that Prima BioMed will not be liable under this Section 11.2 to the extent to which the Claim arises from the error, omission, negligence, fraud or wilful misconduct of Bioceros.
11.3 |
Conduct of claims and protection of rights |
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(a) |
The Parties acknowledge and agree that each Party is entering into this Agreement and obtaining the benefit of this Section 11 both on its own behalf and on behalf of each of its directors, officers, employees, contractors, agents. |
(b) |
All indemnities in this Agreement are given in each case by the indemnifying Party to the indemnified Party on the conditions that: |
(i) |
the indemnified Party promptly notifies the indemnifying Party in writing of any infringement, allegation of infringement, dispute or claim of which the indemnified Party is aware, which could give rise to a liability or alleged liability to a third party under an indemnity in this Agreement (Third Party Claim); |
(ii) |
the indemnified Party keeps the indemnifying Party fully informed in relation to any Third Party Claim; |
(iii) |
the indemnified Party allows the indemnifying Party to direct all negotiations and proceedings relating to the Third Party Claim (provided that such negotiations and proceedings will be in the indemnified Partys name) and gives the indemnifying Party all reasonable assistance in relation to the Third Party Claim, each at the indemnifying Partys cost; |
(iv) |
the indemnified Party makes no admission, compromise or settlement relating to the Third Party Claim without the agreement of the indemnifying Party; |
(v) |
the indemnifying Party will conduct any litigation arising as a result of any Third Party Claim, diligently using competent counsel and in such a way as not to bring the reputation or good name of the indemnified Party into disrepute; |
(vi) |
the indemnifying Party will have full authority to compromise or settle any Third Party Claim. |
(vii) |
No consequential loss |
(c) |
Notwithstanding any other provision of this Agreement and to the fullest extent permitted by Law, neither Party will be liable for any consequential, indirect or special losses or damages of any kind (including, without limitation, loss of profit, loss or corruption of data, business interruption or indirect costs) suffered by the other or any third party. |
12. |
Term and Termination |
12.1 |
Term |
This Agreement shall commence on the Commencement Date and continue in full force until termination according to this Section 12.
12.2 |
Termination |
(a) |
This Agreement may be terminated by: |
(i) |
any Party, prior to the Sunset Date, for Technical Failure according to 4.2(c). |
(ii) |
both Parties upon the execution of a final Joint Venture Agreement according to Section 6.1. |
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(iii) |
any Party, within [ * ] of the Sunset Date, according to Section 6.2. |
(iv) |
any Party in accordance with Section 15.1(b) (Force Majeur); |
(v) |
by Prima BioMed immediately: |
(A) |
upon Notice of its intention to exercise its Buy-out Option prior to or on the Sunset Date according to Section 5; |
(B) |
if Bioceros: |
(i) |
suffers an Insolvency Event; |
(ii) |
has not paid any amount due under the terms of this Agreement within [ * ] of the date such payment was due, and such breach is not cured within [ * ] following receipt of written notice from Prima BioMed; or |
(III) |
otherwise commits a material breach of any of its obligations under this Agreement, which breach is not cured within [ * ] following receipt of written notice from Prima BioMed, or by its nature or timing cannot be cured within such time period; or |
(vi) |
by Bioceros immediately, if Prima BioMed: |
(A) |
suffers an Insolvency Event; or |
(B) |
has not paid any amount due under the terms of this Agreement within [ * ] of the date such payment was due, and such breach is not cured within [ * ] following receipt of written notice from Bioceros; or |
(C) |
commits a material breach of any of its obligations under this Agreement, which breach is not cured within [ * ] following receipt of written notice from Bioceros, or by its nature or timing cannot be cured within such time period. |
(b) |
Where a Party has the right to terminate this Agreement under this Section 12.2 that right for all purposes will be validly exercised if that Party gives a Notice in writing to the other Parties stating that it terminates this Agreement. |
12.3 |
Consequences of termination |
Upon termination of this Agreement for any reason:
(a) |
both Parties are subject to the terms and conditions governing the terminating circumstances, including payment of any amounts due, according to this Agreement; |
(b) |
the obligations set out in the Sections 8, 10, 11 and 14 will remain in force after termination; |
(c) |
other than any Claims arising before termination, neither Party will have any Claim against the other for indemnification or compensation as a result of the termination unless the termination was in breach of this Agreement; and |
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(d) |
all other obligations of the Parties under this Agreement will immediately cease to be of further force or effect, without further liability of any Party to the others, provided that nothing in this Section 12.3 will release any Party from liability arising from any pre-termination beach of any provisions of this Agreement. |
13. |
Disputes |
13.1 |
Court proceedings |
Nothing in this Section 13 prevents a Party seeking urgent injunctive or other interim relief from a court, or from continuing existing court proceedings.
13.2 |
Discussion between Parties |
(a) |
A Party claiming that a dispute has arisen out of or in connection with this Agreement (Dispute) must provide the other Party with written notice of the nature of the Dispute and the relevant facts. |
(b) |
In the first instance, the Dispute will be referred to the Representatives. |
(c) |
A meeting of the Representatives must be convened and held by the Parties as soon as reasonably practicable to attempt to resolve the Dispute. |
13.3 |
Referral to Chief Executive Officers |
(a) |
If the Dispute is not resolved by the Representatives within [ * ] or such other period as the Parties agree, a Party to the Dispute may refer it to the Chief Executive Officer or President (as the case may be) or a person designated by the Chief Executive Officer or President of the Parties to the Dispute by notice in writing. |
(b) |
The Chief Executive Officer or President (as the case may be) of the Parties must meet within [ * ] of receipt of notification of the Dispute under Section 13.3(a) with a view to attempting to resolve the Dispute in good faith. |
13.4 |
Mediation |
(a) |
Failing resolution of the Dispute under Section 13.3, a Party to the Dispute may submit it to mediation in Sydney in accordance with the ACDC Guidelines for Commercial Mediation (except that no further period of negotiation is necessary before commencing mediation). |
(b) |
The Parties must agree on the appointment of the mediator. |
(c) |
If the Parties do not agree on the mediator to be appointed within [ * ] of a Party referring the Dispute to mediation, then the mediator will be appointed in accordance with the ACDC Guidelines for Commercial Mediation. |
(d) |
The mediation process above will terminate within [ * ] of the appointment of the mediator. |
14. |
Taxes |
14.1 |
Income and Corporate Taxes |
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Each Party shall be separately responsible for its own corporate income and other corporate tax obligations. Tax liabilities and assets shall not be considered Program expenses or revenues.
14.2 |
Sales and Value-added taxes |
Any sales or value-added tax, or similar tax payable by either Party in relation to Program expenses incurred shall be considered part of the Program expenses. Any sales or value-added, or similar tax credit due to either Party shall be credited back to the Program expenses. For the avoidance of doubt, the amounts set forth in Section 4.3 are exclusive VAT.
15. |
Relief from obligations |
15.1 |
Force Majeure |
(a) |
If a Party is unable, wholly or in part, by reason of a Force Majeure Event, to perform an obligation under this Agreement, the affected Party will not be liable to the other Party for a failure to perform that obligation and that obligation will be suspended to the extent and for the duration of the Force Majeure Event provided that the affected Party gives the other Party prompt notice with sufficient details of the relevant Force Majeure Event, including, to the extent known: |
(i) |
the obligation the affected Party cannot perform; |
(ii) |
a full description of the Force Majeure Event; |
(iii) |
an estimate of the time during which the effects of the Force Majeure Event will continue; and |
(iv) |
any measures proposed to be adopted to remedy or abate the Force Majeure Event. |
(b) |
If a Force Majeure Event prevents a Party from substantially performing its material obligations under this Agreement for longer than [ * ], then the other Party may at the expiry of that period, provided the effects of the event of Force Majeure are still subsisting, give notice in writing to the affected Party immediately terminating this Agreement. |
15.2 |
Mitigation |
Despite Section 15.1, the Party affected by the Force Majeure Event must:
(a) |
use reasonable endeavours to mitigate the effect upon its performance of this Agreement and to fulfil its obligations under this Agreement (but without prejudice to any Partys right to terminate this Agreement); |
(b) |
keep the other Party informed of the steps being taken to mitigate the effect upon that Partys performance of this Agreement; and |
(c) |
when the period for which its obligations are affected by the Force Majeure Event ceases, recommence performance of all its affected obligations under this Agreement the subject of its original notice under Section 15.1. |
15.3 |
Default |
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Section 15.1 does not apply to the extent that any Force Majeure Event is caused or contributed to by a breach of this Agreement by the Party claiming to be affected by the Force Majeure Event.
16. |
Relationship |
The Parties acknowledge and agree that:
(a) |
nothing in this Agreement constitutes a relationship of employer and employee, principal and agent, franchisor and franchisee, joint venturers or partnership between the Parties; and |
(b) |
neither Party will have any authority to bind the other Party or to accept any order binding on the other Party or to enter into an agreement in the name of the other Party other than in accordance with the terms of this Agreement. |
17. |
Notices |
17.1 |
Service and notices |
A notice, demand, consent, approval or communication under this agreement ( Notice ) must be in writing and hand delivered or sent by prepaid post or facsimile to the recipients address for Notices specified in the Parties section of this Agreement, as varied by any Notice given by the recipient to the sender.
17.2 |
Effective on receipt |
A Notice is deemed to be received:
(a) |
if hand delivered, on delivery; |
(b) |
if sent by prepaid post, seven Business Days after the date of posting to the address mentioned under the Parties; or |
(c) |
if sent by facsimile to the fax number mentioned under the Parties, when the senders facsimile system generates a message confirming successful transmission of the entire Notice, but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm local time of the recipient on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day. |
18. |
General |
18.1 |
Entire Agreement |
This Agreement constitutes the entire Agreement between the Parties in relation to its subject matter and supersedes all prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter.
18.2 |
No merger |
The provisions of this Agreement will not merge on completion of any transaction contemplated in this Agreement and, to the extent any provision has not been fulfilled, will remain in force.
18.3 |
Assignment |
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Neither Party may assign this Agreement without the prior written consent of the other Party.
18.4 |
Attorneys |
Each person who executes this Agreement on behalf of a Party under a power of attorney warrants that it or she has no notice of the revocation of that power or of any fact or circumstance that might affect its or her authority to execute this Agreement under that power.
18.5 |
Amendment |
This Agreement may be amended or varied only in writing signed by both Parties.
18.6 |
Approvals and consents |
Except where this Agreement expressly states otherwise, a Party may, in its discretion, give conditionally or unconditionally any approval or consent under this Agreement.
18.7 |
Severability |
A Section or part of a Section that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the Section continue in force.
18.8 |
Waiver |
Waiver of any power or right under this Agreement must be in writing signed by the Party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.
18.9 |
Rights, remedies additional |
Any rights and remedies that a person may have under this Agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
18.10 |
Further assurances |
Each Party must do or cause to be done all things necessary or reasonably desirable to give full effect to this Agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).
18.11 |
Survival |
Any indemnity or obligation of confidence under this Agreement is independent and survives termination of this Agreement.
18.12 |
Costs |
Except where this Agreement expressly states otherwise, each Party must bear its own legal, accounting and other costs of negotiating, preparing and executing this Agreement.
18.13 |
Counterparts |
This Agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
18.14 |
Governing law and jurisdiction |
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This Agreement will be governed by and construed in accordance with the Laws in force in the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State.
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Executed as an agreement | ||||
Executed by Prima BioMed Limited ACN 009 237 889 in accordance with section 127 of the Corporations Act 2001 |
) ) ) ) ) |
|||
/s/ Martin Rogers | /s/ Albert YL Wong | |||
Signature of Director |
Signature of Director |
|||
MARTIN ROGERS | ALBERT YL WONG | |||
Name of Director |
Name of Director |
Executed by Bioceros B.V. in a company seated in Utrecht, The Netherlands, Chamber of commerce registration number 34189380 by its duly authorised representatives |
) ) ) ) ) |
|||
/s/ Bram Bout | /s/ Remco M. Brandt | |||
Signature of Authorised Representative |
Signature of Authorised Representative |
|||
BRAM BOUT, CEO | REMCO M. BRANDT, COO | |||
Name of Authorised Representative |
Name of Authorised Representative |
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Schedule 1
Details
____________________________________
Item |
Detail |
|||||
1. Commencement Date |
August 09, 2010 |
|||||
2. Patents |
||||||
Country |
Application/ Patent No. |
Prosecution Status |
||||
[ * ] |
[ * ] |
[ * ] |
||||
3. Field |
The development of cripto-1 antibodies for the diagnosis and treatment of cancer |
|||||
4. Territory |
Worldwide |
|||||
5. Bioceros Representatives |
[ * ] |
|||||
6. Prima BioMeds Representatives |
[ * ] |
|||||
7. Buy-out Amount |
an amount calculated in accordance with the following formula:
[ * ]
where:
B is [ * ];
and
P is [ * ] |
|||||
8. Sunset Date |
[ * ] after the date upon which Bioceros has completed its responsibilities under Section 4.1(a) and which are further clarified in the Program in Schedule 2. |
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Schedule 2
Program
____________________________________
The Anti-Cripto-1 Monoclonal Antibody Research & Development Program signed by the Representatives, and as amended from time to time, is incorporated herein and binding hereto by reference.
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Bioceros BV
Anti-Cripto-1 Mab
Pre-clinical Plan
AUGUST 2010
Final Document
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Table of Contents
Page | ||||||
1. |
INTRODUCTION |
1 | ||||
2. |
ANTI-CRIPTO-1 MONOCLONAL ANTIBODY |
1 | ||||
[ * ] |
||||||
3. |
TIME SCHEDULE OF EVENTS |
1 |
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1. |
Introduction |
[ * ]
2. |
Anti-Cripto-1 Monoclonal Antibody |
[ * ]
3. |
Time schedule of events |
[ * ]
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Schedule 3
Platform License Agreement
The Platform License Agreement, attached hereto, is a license and use agreement, under which Prima BioMed may utilize Bioceros CHO Platform according to the terms and conditions therein. The Platform License Agreement shall be signed by the Parties authorized Representatives and becomes effective at such time(s) and under such condition(s) as specified in clause 6.2(a)(ii) of this Agreement.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
PLATFORM LICENSE AGREEMENT
This Platform License Agreement ( Agreement ), dated as of [ ] ( Effective Date ) is made between Bioceros B.V., a company with limited liability organized under the laws of The Netherlands, having its principal place of business at Yalelaan 46, 3584 CM Utrecht, The Netherlands ( Bioceros ) and Prima Biomed LTD., a company organized under the laws of Australia, having its principal place of business at Suite 1, 1233 High Street, Armadale, VIC, 3143, Australia ( Prima BioMed ).
Each of the above may also be referred to as Party and, collectively, as the Parties.
RECITALS
(1) |
Whereas Bioceros is a contract research organization with expertise and proprietary technology to select high producing cell lines for the manufacturing of therapeutic proteins; |
(2) |
Bioceros has developed and is continuing to develop a proprietary CHO BC ® cell line platform; |
(3) |
Bioceros is the exclusive owner of any and all present and/or future Intellectual Property Rights with respect to its proprietary CHO BC ® cell line platform; |
(4) |
Whereas Prima BioMed is a company with the aim to generate, develop and commercialize monoclonal antibody products (Products as further defined below); |
(5) |
Prima BioMed wishes to obtain a non-exclusive license from Bioceros under the Bioceros CHO BC ® Platform for the development, manufacture and commercialization of Product(s) and Bioceros is willing to grant to Prima BioMed such right and license, all under the terms and conditions set forth below; |
Now, therefore , in consideration of the premises and mutual covenants and agreements contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby, do hereby agree as follows:
1. |
DEFINITIONS |
For purposes of this Agreement, the terms defined in this Section 1 shall have the meanings specified below. Certain terms are defined in other sections of this Agreement.
1.1 Affiliate shall mean any corporation or other entity that controls, is controlled by or under common control with a Party. A corporation or other entity shall be regarded as controlled by a Party if such Party owns or directly or indirectly controls more than fifty percent (50%) of the voting stock or other ownership interest of the other corporation or entity, or if such Party possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the corporation or other entity or the power to elect or appoint more than fifty percent (50%) of the members of the governing body of the corporation or other entity.
1.2 Agreement shall mean this Platform License Agreement.
1.3 Bioceros CHO BC ® Platform means Bioceros proprietary CHO BC ® cell line platform, together will all inventions, tangible materials, associated know how, data and other information (and all Intellectual Property Rights associated therewith) that are developed by Bioceros before the Effective Date or thereafter, to the extent they relate to the CHO BC ® cell line and are useful for the development and/or manufacture of Products.
1
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1.4 Clinical Trial Approval shall mean the approval by the FDA of an investigational new drug application, as defined in the U.S. Federal Food, Drug and Cosmetic Act and the regulations promulgated thereunder and/or within the EU the approval by a competent authority of a comparable filing in the EU or an EU country or the approval by another competent authority outside the US and Europe of a comparable filing in such country, in each case with respect to a Product.
1.5 Confidential Information shall have the meaning assigned to it in Section 6.1 hereof.
1.6 Effective Date shall mean the date appearing on the first line of this Agreement.
1.7 EMA means the European Medicines Agency.
1.8 FDA means the US Food and Drug Administration.
1.9 Fees means all amounts due to Bioceros.
1.10 Intellectual Property Rights shall mean any inventions, patents, registered and unregistered design rights and trade marks, domain names, copyright, trade secrets, know how, computer programs, plant variety rights, semiconductor topographies including all pending applications, derivatives and extensions for the above and any foreign counterparts thereof.
1.11 Marketing Approval means approval by the FDA of a new drug application (NDA) or abbreviated new drug application (ANDA) or filed with the FDA after completion of human clinical trials to obtain marketing approval for a Product in the United States or the approval by EMA or any other national or international (EU or non EU) competent regulatory authority of any application comparable with a NDA or an ANDA, filed with such authority to obtain marketing approval for a Product.
1.12 Prima BioMed Platform License shall have the meaning assigned to it in Section 2.1 hereof.
1.13 Product shall mean any product(s) containing C3 anti-Cripto-1 monoclonal antibody that is expressed or produced by use of Bioceros proprietary CHO technology platform.
1.14 Third Party shall mean any entity other than the Parties and their respective Affiliates.
1.15 Term shall have the meaning assigned to it in Section 8.1 hereof.
2. |
PRIMA BIOMED CHO BC ® PLATFORM LICENSE |
2.1 Grant of License . Subject to all terms and conditions of this Agreement, Bioceros hereby grants to Prima BioMed, subject to Section 3 hereof, a license under the Bioceros CHO BC ® Platform to develop, make, have made, use, offer for sale, sell, have sold, import and export Product (the Prima BioMed Platform License). For clarity, the license is intended for the transfer of CHO BC ® cell lines expressing Product and which cell lines have been generated as part of the Research and Development Partnership Agreement between Prima BioMed and Bioceros with commencement date 09 August 2010.
2.2 Sublicensing . Prima BioMed shall have the right to grant sublicenses of its rights hereunder to Affiliates and Third Parties without the prior consent of Bioceros. Prima BioMed will however inform Bioceros in full on any deal with a Third Party to allow Bioceros to verify that such sublicense is granted in accordance with the license granted to Prima BioMed.
2.3 No contract services / reservation of rights . The Prima BioMed Platform License does not include the offering by Prima BioMed, its Affiliates or licensees of cell line generation contract services to
2
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Third Parties nor the use of the Bioceros CHO BC ® Platform itself. These rights are expressly reserved by Bioceros. The Bioceros CHO BC ® Platform at all times remains the exclusive property of Bioceros.
2.4 Registration . Prima BioMed shall have the right to register, at its own expense, the license granted to it under this Agreement. Bioceros hereby agrees to reasonably cooperate with Prima BioMed and its counsel in connection with such registrations and to promptly execute such summaries of this Agreement and other documents and instruments as may be required by the applicable governmental or regulatory authorities in connection with such registrations or transfers and requested by Prima BioMed or its counsel.
3. |
CONSIDERATION FOR PLATFORM LICENSE |
3.1 General . Prima BioMed shall, in consideration of the grant of the Prima BioMed Platform License, pay to Bioceros the amounts set forth in this Article 3.
3.2 License Maintenance Fees until [ * ] . Prima BioMed shall pay to Bioceros an annual license maintenance fee in the amount of [ * ] ([ * ] euro), due on the day, the cell lines are transferred to Prima BioMed or a designated Third Party for GMP manufacturing of clinical trial material for or on behalf of Prima BioMed.
3.3 License Maintenance Fees after [ * ] . Starting on the Effective Date that occurs after [ * ], and subsequently each anniversary of the Effective Date thereafter, Prima BioMed shall, in order to maintain the Prima BioMed Platform License, pay to Bioceros annual license maintenance fee in the amount of [ * ] ([ * ] euro).
3.4 Milestone Payments . In addition to the license maintenance fees set forth in 3.2 and 3.3 hereof, Prima BioMed shall make to Bioceros a one time milestone payment in the amount of [ * ] ([ * ] euro) for [ * ]. Prima BioMed shall promptly notify Bioceros of the achievement of each such milestone. Bioceros shall issue an invoice to Prima BioMed for the amount indicated and the invoiced amount shall be payable within [ * ] of receipt of that invoice.
3.5 VAT . The maintenance Fees, milestones and other Fees mentioned in this Agreement are exclusive of VAT. To the extent required by law Prima BioMed shall be responsible for paying VAT on each payment made by it to Bioceros hereunder. In turn Bioceros shall pay any VAT amounts paid by Prima BioMed to Bioceros under this Agreement to the relevant tax authorities.
3.6 Platform Documentation . Bioceros shall give access rights to Prima BioMed to the Bioceros Platform Documentation, if and to the extent required by Prima BioMed to obtain Clinical Trial Approval and/or Marketing Approval for its Products.
4. |
PAYMENT |
4.1 Notification of milestones . Prima BioMed shall promptly notify Bioceros of the achievement of each milestone hereunder. Bioceros shall issue an invoice to Prima BioMed for the amount indicated and the invoiced amount shall be payable within [ * ] of receipt of that invoice.
4.2 Mechanism of Payment . All payments due to Bioceros (including annual maintenance license fees and milestone payments) shall be made in Euro by wire transfer or electronic fund transfer to the credit and account of Bioceros as follows (unless Bioceros in its invoice or otherwise indicates that payment should be made to another account): [ * ].
4.3 Interest on late payments . Any payments to be made hereunder (including annual maintenance license fees and milestone payments) that are not paid on or before the date such
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payments are due under this Agreement, shall bear interest at the rate of [ * ], without prejudice to Bioceros right to terminate this Agreement as per Section 8.2.1 hereof.
4.4 Records and Audit . Bioceros shall, [ * ], have the right to have an independent, external auditor review the records of Prima BioMed and its Affiliates, to the extent relevant for Bioceros to verify whether all milestone payments due to Bioceros under this Agreement have been paid to it. Such independent auditor shall be bound by confidentiality terms at least as restrictive as the terms of Article 6 of this Agreement and shall be authorized to disclose to Bioceros only the results of its audit. The costs of such audit shall be borne by Bioceros unless such audit reveals a difference (being an underpayment by Prima BioMed) between the amount due to Bioceros and the amount actually paid to it of more than [ * ] in which event the costs of such audit shall be borne by Prima BioMed. Prima BioMed shall maintain and keep (and shall require that its Affiliates and sublicensees to maintain, keep and make available to Prima BioMed for such purpose) accurate books and records which enable verification of the calculation of royalties payable hereunder.
5. |
INTELLECTUAL PROPERTY |
5.1 Ownership . All right, title and interest in the Bioceros CHO BC ® Platform shall remain with Bioceros but is subject to the Prima BioMed Platform License. All right, title and interest in the Product shall be solely owned by Prima BioMed.
5.2 Filing, Prosecution and Maintenance of Patent Rights . Bioceros shall be responsible for the filing, prosecution, maintenance, enforcement and defense of all patent applications and patents included in the Bioceros CHO BC ® Platform at its sole discretion and shall bear the costs thereof provided, however, that Bioceros shall not abandon or allow to lapse any patent or patent application in the Bioceros CHO BC ® Platform without notifying Prima BioMed thereof sufficiently in advance in order to allow Prima BioMed to assume such prosecution and maintenance at its expense.
6. |
CONFIDENTIALITY / PRESS RELEASE |
6.1 Obligations . Each Party agrees (a) to use the other Partys Confidential Information solely for the purposes of, and in accordance with, this Agreement; and (b) except as otherwise expressly permitted in this Agreement, to not disclose the other Partys Confidential Information to any Third Party. Confidential Information means a Partys nonpublic information that is disclosed to the other Party in connection with, and related to the performance of, this Agreement (including, without limitation, information regarding such Partys research, technology, assays, protocols, methods, processes, data, products, business information or objectives), provided that any such information disclosed in written, electronic or other tangible form is marked as confidential or with a similar legend. Nonpublic information of a Party that is disclosed other than in tangible form (e.g., disclosed orally or by observation of the other Party) shall be considered Confidential Information of such Party only if so identified in writing to the other Party within [ * ] after initial disclosure and such writing identifies such Confidential Information with particularity.
6.2 The following information shall not be considered Confidential Information: Information disclosed by one Party to the other Party that:
(a) was in the possession of the receiving Party prior to disclosure thereof by the other Party, or
(b) is or becomes, through no fault of the receiving Party, part of the public knowledge or literature, including the publication of any patent or patent applications filed in accordance with this agreement, or
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(c) has been lawfully made available to the receiving Party by a Third Party without restriction as to its disclosure, or
(d) the receiving Party can prove that the knowledge was developed by it independently of any information received from the other Party; or
(e) is disclosed by the recipient with the prior written approval of the disclosing Party, wherein the material to be disclosed has been submitted in written form to the other Party for approval, at the absolute discretion of the other Party, at least [ * ] days before such contemplated disclosure.
The receiving Party is entitled to disclose Confidential Information to the extent that is required to do so by law or by any securities exchange or regulatory body having jurisdiction over it whether or not such requirement has the force of law, provided that such requirement and the information to be disclosed shall be communicated in writing to the other Party prior to such disclosure so as to afford the other Party the opportunity to seek an appropriate order to protect its interests in the information in question.
6.3 Continuing Obligation . The confidentiality and non-use provisions of this Article 6 shall continue for a period of [ * ] after termination or expiration of this Agreement
6.4 Press Release . Except as expressly provided, neither Party shall issue press releases or make any public announcements relating to this Agreement for any purpose whatsoever without the other Partys prior written approval. Neither Party shall disclose the activities being performed by the Parties hereunder or the terms and conditions of this Agreement (including, without limitation, the financial terms) to any Third Party without the other Partys prior written consent; provided, however, such consent shall not be unreasonably withheld.
6.5 No use of other Partys name . Except as expressly provided herein, no right, express or implied, is granted to a Party under the Agreement to use the other Partys name or any trade name or trademark of the other Party in connection with the performance of this Agreement.
7. |
REPRESENTATIONS, WARRANTIES AND INDEMNITIES |
7.1 Authorization . Each Party warrants and represents to the other Party that (a) it has the legal right and power to enter into this Agreement, to extend the rights granted to the other in this Agreement, and to perform fully its obligations hereunder, (b) this Agreement has been duly executed and delivered and is a valid and binding agreement of such Party, enforceable in accordance with its terms (subject to applicable insolvency regulations), (c) such Party has obtained all necessary approvals to the transactions contemplated hereby, (d) such Party has not made and will not make any commitments to others in conflict with or in derogation of such rights or this Agreement, (e) in performing the Pre-clinical Work Plan and/or any CLG Program such Party will not be in violation of any state or local laws, requirements or regulations and (f) such party shall provide personnel, as necessary, to perform its obligations hereunder.
7.2 Warranties by Bioceros . Bioceros hereby represents and warrants as of the Effective Date (a) that it has not received any notification from any Third Party that the Bioceros CHO BC ® Platform infringes Third Party intellectual property rights, (b) that it is entitled to grant the rights granted to Prima BioMed hereunder.
7.3 Limitation of Liability . Save for Sections 7.5 and 7.6 hereof, neither Party will be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for (a) any indirect, incidental, consequential or punitive damages, or (b) lost profits, or (c) cost of procurement of substitute goods, technology or services.
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7.4 Disclaimer of Representations and Warranties . EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PRIMA BIOMED NOR BIOCEROS MAKES ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND THE NON-INFRINGEMENT OF ANY THIRD PARTY PATENTS OR PROPRIETARY RIGHTS.
7.5 Bioceros Indemnification . Bioceros shall indemnify, defend and hold harmless Prima BioMed, its Affiliates and their respective directors, officers, employees, and agents and their respective successors, heirs and assigns (the Prima BioMed Indemnitees ), against any liability, damage, loss or expense (including reasonable attorneys fees and expenses of litigation) incurred by or imposed upon the Prima BioMeds Indemnitees, or any of them, in connection with any claims, suits, actions, demands or judgments of Third Parties arising out of or relating to (i) any alleged or actual intellectual property infringement related to Bioceros CHO BC ® Platform; and/or (ii) any breach by Bioceros of its representations and warranties set out in article 7.2.
7.6 Prima BioMed Indemnification . Prima BioMed shall indemnify, defend and hold harmless Bioceros, its Affiliates and their respective directors, officers, employees, and agents and their respective successors, heirs and assigns (the Bioceros Indemnitees ), against any liability, damage, loss or expense (including reasonable attorneys fees and expenses of litigation) incurred by or imposed upon the Bioceros Indemnitees, or any of them, in connection with any claims, suits, actions, demands or judgments of Third Parties, including without limitation personal injury and product liability matters arising out of or relating to (i) breach by Prima BioMed of its representations and warranties set forth herein, and/or (ii) resulting from Products brought on the market (for clinical trial purposes, commercial purposes or otherwise) by Prima BioMed, its Affiliates or its sublicensees, including but not limited to claims alleging that the Products (or the sequences used for such Products) infringe intellectual property rights of Third Parties), save to the extent that the foregoing are due to challenges of the intellectual property rights related to Bioceros CHO BC ® Platform and/or gross negligence or willful misconduct of Bioceros. The Bioceros Indemnitees shall promptly notify Prima BioMed of any action or claim for which it is to be indemnified.
8. |
TERM AND TERMINATION |
8.1 Term . This Agreement shall enter into effect on the Effective Date. Unless terminated pursuant to Article 8.2, this Agreement shall not expire (such period, the Term ).
8.2 Termination . This Agreement may be terminated in the following circumstances (notwithstanding any other remedy right the termination Party may have in addition thereto, by law or by contract):
8.2.1 For breach . If a Party commits a breach of a material obligation under this Agreement, and such breach can either not be remedied or, if eligible for remedy, is not cured within [ * ] of written notice thereof from the non-breaching Party, the non-breaching Party may elect, in its sole discretion, to terminate this Agreement with immediate effect in writing. In the event that any payment by Prima BioMed is not paid by the due date thereof, Prima BioMed shall be deemed in default without any further notice and such breach shall be deemed not eligible for remedy.
8.2.2 Upon Bankruptcy . A Party may terminate this Agreement upon the bankruptcy, insolvency, dissolution or winding-up of the other Party, except in the case of a petition in bankruptcy filed involuntarily against the other Party if such petition is dismissed within [ * ] of the date of its filing.
8.2.3 By Bioceros for [ * ] . Bioceros may forthwith terminate this Agreement in the event that [ * ].
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8.2.4 By Prima BioMed for Convenience . Prima BioMed may terminate this Agreement after the first anniversary for convenience upon [ * ] written notice.
8.2.5 With Mutual Consent . The Parties may at any time terminate this Agreement by mutual written consent.
8.3 Effect of Termination . Upon termination of this Agreement by Bioceros pursuant to Section 8.2.1, 8.2.2 or 8.2.3 or by Prima BioMed pursuant to Section 8.2.4.
The Prima BioMed Platform License shall cease to have effect as from the effective date of termination of this Agreement, provided, however, that Prima BioMed shall have the right for a period of [ * ] thereafter (i) to continue use of any Product in any clinical trials underway at the effective date of termination but shall during that time wind down any such trials, if not prohibited by law, where their continuation is dependent on use of such Product and (ii) to sell off any inventory stock of Products it retains at the effective date of termination.
8.4 Sections 1, 4.4, 5, 6, 7, 8 and 9 shall survive any expiration or termination of this Agreement. Except as otherwise expressly provided herein, termination of this Agreement shall not affect the rights and obligations of the Parties that accrued prior to the effective date of such termination.
9. |
MISCELLANEOUS |
9.1 Force Majeure . Neither Party shall be held liable or responsible to the other Party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from Force Majeure; provided, however, that the Party so affected shall use commercially reasonable and diligent efforts to avoid or remove such causes of non-performances, and shall continue performance hereunder with reasonable dispatch wherever such causes are removed. Each Party shall provide the other Party with prompt written notice of any delay or failure to perform that occurs by reason of Force Majeure. The Parties shall mutually seek a resolution of the delay or the failure to perform in good faith. If any Force Majeure delays or prevents the performance of the obligations of either party for a continuous period in excess of [ * ], the Party not so affected shall then be entitled to give notice to the affected Party to terminate this Agreement, specifying the date (which shall not be less than [ * ] after the date on which the notice is given) on which termination will take effect.
9.2 Assignment . This Agreement may not be assigned or otherwise transferred by any Party without the consent of the other Party; provided, however, that (i) either Party may, without such consent, assign its rights and obligations under this Agreement (a) in connection with a corporate reorganization, to an Affiliate or (b) in connection with a merger, consolidation or sale of all or substantially all of such Partys assets to a Third Party.
9.3 Severability . Each Party hereby agrees that it does not intend to violate any public policy, statutory or common laws, rules, regulations, treaty or decision of any government agency or executive body thereof of any country or community or association of countries. Should one or more provisions of this Agreement be or become invalid, the Parties hereto shall substitute, by mutual consent, valid provisions for such invalid provisions which valid provisions in their economic effect are sufficiently similar to the invalid provisions that it can be reasonably assumed that the Parties would have entered into this Agreement with such valid provisions. In case such valid provisions cannot be agreed upon, the invalidity of one or several provisions of this Agreement shall not affect the validity of this Agreement as a whole, unless the invalid provisions are of such essential importance to this Agreement that it is to be reasonably assumed that the Parties would not have entered into this Agreement without the invalid provisions.
9.4 Notices . Any consent, notice or report required or permitted to be given or made under this Agreement by one of the Parties hereto to the other shall be in writing (by courier, facsimile, registered mail or electronic mail), for each Party to the address indicated below, or to such other address
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as the addressee shall have last furnished in writing to the addressor in accordance with this Section 9.5 and shall be effective upon receipt by the addressee:
If to Bioceros: |
Bioceros B.V. |
|
Yalelaan 46 |
||
(3584 CM) Utrecht |
||
The Netherlands |
||
Attention: Dr. B. Bout |
||
Telefax: +31 30 253 2288 |
||
Email: b.bout@bioceros.com |
||
If to Prima BioMed: |
Prima BioMed Ltd. |
|
Suite 1, 1233 High Street |
||
Armadale, VIC, 3143, Australia |
||
Attention: Dr. M. Rogers |
||
Telefax: + 61 2 9276 1266 |
||
Email: martin.rogers@primabiomed.com.au |
9.5 Entire Agreement . This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof. All express or implied agreements and understandings, either oral or written, heretofore made are expressly merged in and made a part of this Agreement and this Agreement, therefore, sets asides any and all of such earlier agreements and understandings. This Agreement may not be amended other than with the written consent of both Parties.
9.6 Costs . Each Party shall bear its own costs in connection with the drafting and negotiating of this Agreement.
9.7 Headings . The headings to Articles and Sections in this Agreement are merely guides to assist in locating the Articles and Sections hereof and shall not affect the interpretation of those Articles and Sections.
9.8 Waiver . Except as expressly provided herein, the waiver by either Party hereto of any right hereunder or of any failure to perform or any breach by the other Party shall not be deemed a waiver of any other right hereunder or of any other failure to perform or breach by said other Party, whether of a similar nature or otherwise.
9.9 Non-sollicit. For a period of [ * ], neither Party shall directly or indirectly endeavor to entice away from the other Party or hire (as employee, consultant or otherwise) any employees of the other Party without the other Partys prior written consent, which consent shall not be unreasonably withheld.
9.10 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Netherlands.
9.11 Arbitration . Any dispute arising out of or in connection with this Agreement or any agreement arising out of this Agreement shall be referred to arbitration in accordance with the Arbitration Rules of the Netherlands Arbitration Institute ( Nederlands Arbitrage Instituut, NAI ). The arbitral tribunal shall be composed of three arbitrators and shall make its decision in accordance with the rules of law. The place of arbitration shall be The Hague. The language shall be English or, if Parties so decide, Dutch.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above by their duly authorized representatives.
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BIOCEROS B.V. |
PRIMA BIOMED Ltd. |
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Signature: |
Signature: |
|||
Name: Abraham Bout |
Name: Martin Rogers |
|||
Title: CEO |
Title: CEO |
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By: |
By: |
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Dated: | 9 March 2004 |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
E XHIBIT 4.7
BIOMIRA, INC.
and
CANCER VAC PTY LTD ACN 096 859 513
and
PRIMA BIOMED LIMITED ACN 009 237 889
LICENSE AND DEVELOPMENT
AGREEMENT
OAKLEY THOMPSON & Co
Solicitors & Consultants
Level 17
500 Collins Street
MELBOURNE VIC 3000
AUSTRALIA
Tel: +61 3 9614 3771
Fax: +61 3 9629 2883
DX 30975 STOCK EXCHANGE
Ref: MJQ:JP:20030691
LICENSE AND DEVELOPMENT AGREEMENT
This Agreement made as of the 9 th day of March, 2004.
AMONG:
BIOMIRA INC. , a corporation incorporated under the laws of Canada
(hereinafter referred to as Biomira)
- and -
CANCER VAC PTY LTD ACN 096 859 513 , a corporation incorporated under the laws of Australia (hereinafter referred to as Cancer Vac)
- and -
PRIMA BIOMED LIMITED ACN 009 237 889 , a corporation incorporated under the laws of Australia (hereinafter referred to as Prima Biomed)
WHEREAS Biomira, Cancer Vac and Prima Biomed are interested in forming an arrangement concerning the development and commercialization of Cancer Vacs mannan-MUC1 fusion protein therapeutic vaccine delivered via ex-vivo dendritic cells, all upon the terms and subject to the conditions set forth in this Agreement and will, inter alia , enter into a subscription agreement and a shareholder agreement;
NOW, THEREFORE, in consideration of the premises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed to by the parties, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Definitions
In this Agreement, unless otherwise provided, the following terms shall have the following meanings:
1.1.1 |
Affiliate means any Person that directly or indirectly controls, is controlled by, or is under common control with another Person. A Person shall be deemed to control another Person if the Person owns, directly or indirectly, more than fifty percent (50%) of the outstanding voting securities, capital stock, or other comparable equity or ownership interest of such Person. If the laws of the jurisdiction in which such Person operates prohibit ownership of more than fifty percent (50%), control shall be deemed to exist at the maximum level of |
1.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
ownership allowed by such jurisdiction; |
1.1.2 |
Agreement means this license and development agreement, together with all schedules hereto and any amendments to or restatements of this license and development agreement; |
1.1.3 |
ARI License Agreements means: |
1.1.3.1 |
that certain license agreement among Cancer Vac, Prima Biomed and Ilexus Pty Ltd ACN 064 772 130 dated May 31, 2001; and |
1.1.3.2 |
that certain license agreement between The Austin Research Institute ACN 007 418 224 and Ilexus Pty Ltd ACN 064 772 103 dated April 4, 2001; |
together with all schedules thereto and any amendments to or restatements of such license agreements;
1.1.4 |
Biomira End User shall, for purposes of section 1.1.5 of this Agreement, mean, with respect to a Product, the first purchaser at arms length (or, if not at arms length, as provided for in section 1.1.5 of this Agreement) with Biomira, an Affiliate of Biomira or a sublicensee of any of them, as the case may be, that acquires such Product in final form for end use, including physicians, hospitals and wholesalers, provided that [ * ] such Product is sold to such person [ * ] such Product in the country in question; |
1.1.5 |
Biomira Net Sales shall mean, with respect to a Product in a particular country, the sum of the gross amounts received for all Sales (directly or indirectly) by Biomira, its Affiliates and their respective sublicensees, assignees and transferees of such Product to Biomira End Users, less the following deductions from such amounts invoiced which are actually and properly incurred in accordance with GAAP: |
1.1.5.1 |
credits or allowances actually granted for damaged Product, returns or rejections of Product; |
1.1.5.2 |
normal and customary trade, cash and quantity discounts, allowances and credits actually allowed; |
1.1.5.3 |
sales, value added or similar taxes measured by the billing amount, when included in billing; |
1.1.5.4 |
freight, postage, shipping, and insurance charges related to delivery of Product measured by the billing amount, when included in billing; and |
1.1.5.5 |
import and export duties actually paid. |
Any refund or reimbursement of any of the foregoing amounts previously
2.
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deducted from Biomira Net Sales shall be appropriately credited upon receipt thereof (as Biomira Net Sales earned in the calendar quarter in which such refund or reimbursement was received).
In circumstances where there is a Sale between Biomira and its Affiliates, where Biomira or its Affiliate is a Biomira End User, the amount received with respect to such Sale shall, for purposes of calculating Biomira Net Sales, be the greater of (a) the actual amount received with respect to such Sale, and (b) the amount which the amount received would have been had such Sale been to a Person at arms length with Biomira or such Affiliate.
If Product is Sold in combination with another product or products (e.g., in the same kit or package) and each such product has a separate and distinguishable list price, then Biomira Net Sales under such circumstances shall be calculated by multiplying the Biomira Net Sales for the combined product by the fraction A/(A+B), in which A is the existing list price for the Product when Sold separately, and B is the existing list price for any other product or products in combination when Sold separately. For greater certainty, the incorporation of a Product into another product shall not be considered another product for purposes of this final paragraph of this section 1.1.5 and Biomira Net Sales under such circumstances shall be based on the gross amount received for the combined product.
If Product is Sold to a Biomira End User [ * ] such Product in the country in question, then, for purposes of this section 1.1.5, the gross amounts received from such Sales shall be [ * ] of such Product in the country in question;
1.1.6 |
Biomira Territory means the territory applicable to the license granted by Cancer Vac to Biomira and its Affiliates pursuant to section 3.1.1 of this Agreement, all as determined in accordance with section 3.1.3 of this Agreement; |
1.1.7 |
Cancer Vac End User shall, for purposes of section 1.1.10 of this Agreement, mean, with respect to a Product, the first purchaser at arms length (or, if not at arms length, as provided for in section 1.1.10 of this Agreement) with Cancer Vac, an Affiliate of Cancer Vac or a sublicensee of any of them, as the case may be, that acquires such Product in final form for end use, including physicians, hospitals and wholesalers, provided that [ * ] such Product is sold to such person [ * ] such Product in the country in question; |
1.1.8 |
Cancer Vac Improvements has the meaning attributed to that term in section 6.2 of this Agreement; |
1.1.9 |
Cancer Vac Know-How means all proprietary information and data in the Field including but not limited to compounds, formulae, protocols, methods, techniques and results of experimentation and testing, which, except for published patent applications which are also included within this definition, is generally not known to the public, and which are owned by Cancer Vac or licensed in by Cancer Vac |
3.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
(including without limitation pursuant to the ARI License Agreements), and which relate to research, development, manufacture, use and/or sale of Product including without limitation the know-how set forth in Schedule A to this Agreement. For greater certainty, Cancer Vac Know-How shall include Cancer Vac Improvements and Improvements licensed in by Cancer Vac which arise or occur after the Effective Date and which fall within the ambit of the preceding sentence; |
1.1.10 |
Cancer Vac Net Sales shall mean, with respect to a Product in a particular country, the sum of the gross amounts received for all Sales (directly or indirectly) by Cancer Vac, its Affiliates and their respective sublicensees, assignees and transferees of such Product to Cancer Vac End Users, less the following deductions from such amounts invoiced which are actually and properly incurred in accordance with GAAP: |
1.1.10.1 |
credits or allowances actually granted for damaged Product, returns or rejections of Product; |
1.1.10.2 |
normal and customary trade, cash and quantity discounts, allowances and credits actually allowed; |
1.1.10.3 |
sales, value added or similar taxes measured by the billing amount, when included in billing; |
1.1.10.4 |
freight, postage, shipping, and insurance charges related to delivery of Product measured by the billing amount, when included in billing; and |
1.1.10.5 |
import and export duties actually paid. |
Any refund or reimbursement of any of the foregoing amounts previously deducted from Cancer Vac Net Sales shall be appropriately credited upon receipt thereof (as Cancer Vac Net Sales earned in the calendar quarter in which such refund or reimbursement was received).
In circumstances where there is a Sale between Cancer Vac and its Affiliates, where Cancer Vac or its Affiliate is a Cancer Vac End User, the amount received with respect to such Sale shall, for purposes of calculating Cancer Vac Net Sales, be the greater of (a) the actual amount received with respect to such Sale, and (b) the amount which the amount received would have been had such Sale been to a Person at arms length with Cancer Vac or such Affiliate.
If Product is Sold in combination with another product or products (e.g., in the same kit or package) and each such product has a separate and distinguishable list price, then Cancer Vac Net Sales under such circumstances shall be calculated by multiplying the Cancer Vac Net Sales for the combined product by the fraction A/(A+B), in which A is the existing list price for the Product when Sold separately, and B is the existing list price for any other product or products in
4.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
combination when Sold separately. For greater certainty, the incorporation of a Product into another product shall not be considered another product for purposes of this final paragraph of this section 1.1.10 and Cancer Vac Net Sales under such circumstances shall be based on the gross amount received for the combined product.
If Product is Sold to a Cancer Vac End User [ * ] such Product in the country in question, then, for purposes of this section 1.1.5, the gross amounts received from such Sales shall be [ * ] of such Product in the country in question;
1.1.11 |
Cancer Vac Patent Rights means all rights applicable in the Field owned by or licensed in by Cancer Vac including without limitation the following: |
1.1.11.1 |
the patents listed on Schedule B of this Agreement; |
1.1.11.2 |
any patent issuing on any patent application identified in Schedule B of this Agreement; and |
1.1.11.3 |
any patent issuing from any continuing applications of those patents or patent applications, including any divisions, continuations, and continuation-in-part applications, as well as any patents issuing on any reissue and/or reexamination application, and including any patent term restoration of any such patents. |
Cancer Vac Patent Rights also includes all rights applicable in the Field owned by or licensed in by Cancer Vac in any foreign patents and patent applications which correspond to those described in the preceding sentence and in any patents or patent applications that claim Cancer Vac Improvements and which fall within the Field;
1.1.12 |
Cancer Vac Technology means all Cancer Vac Patent Rights and Cancer Vac Know-How; |
1.1.13 |
Cancer Vac Territory means Australia, New Zealand and, except to the extent that Biomira elects in accordance with section 3.1.2 of this Agreement to receive a license to all or a portion thereof (and has not rescinded such election), the Territory; |
1.1.14 |
Clinical Development means all activities required for Market Approval of Product (including without limitation non-clinical and clinical trials, including but not limited to, toxicology and absorption, distribution, metabolism and elimination studies), as well as all clinical activities desirable for optimized marketing of Product (including without limitation Phase IIIb and Phase IV studies). This term does not include any activities necessary for manufacture and/or supply of Product; |
1.1.15 |
Commercial Manufacturing Plan has the meaning attributed to that term in |
5.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
section 4.2.2; |
1.1.16 |
Confidential Information has the meaning attributed to that term in section 5.1; |
1.1.17 |
CRTL means Cancer Research Technology Limited and any successor corporation; |
1.1.18 |
CRTL License Agreement means that certain amended and restated license agreement between CRTL and Biomira dated November 14, 2000, together with all schedules thereto and any amendments to or restatements of such amended and restated license agreement; |
1.1.19 |
CRTL Technology means the know-how and patent rights specified in Schedule C to this Agreement licensed by CRTL to Biomira under the CRTL License Agreement and which are in the Field; |
1.1.20 |
Development Costs means, following the Phase IIb trial referred to in section 3.1.3.2 of this Agreement, the direct costs and expenses (which shall be burdened and allocated as determined by the Steering Committee or failing the Steering Committee addressing such issues, in accordance with GAAP) incurred by or on behalf of a party pursuant to, and within the budgeted amounts set forth in, an approved Development Plan, or otherwise approved by the Steering Committee, in connection with the Clinical Development of Products, including but not limited to the cost of studies on the toxicological, pharmacokinetic, metabolic or clinical aspects of a Product, for preparing, submitting, reviewing or developing data or information for the purpose of submission to a governmental authority to obtain and/or maintain approval of a Product, costs of post-Launch clinical studies in support of a Product, costs of data management, statistical designs and studies, document preparation and other expenses associated with Clinical Development, but excluding for greater certainty any indirect costs (including administration, support, depreciation, facility rental, repair and maintenance, utilities, insurance, taxes, cost of capital, and the like) except to the extent that the Steering Committee determines that to exclude a particular indirect cost is inequitable as between Biomira and Cancer Vac; |
1.1.21 |
Development Plan has the meaning attributed to that term in section 4.2.1; |
1.1.22 |
Effective Date shall mean the 9 th day of March, 2004, or such other date as the parties to this Agreement may agree upon in writing; |
1.1.23 |
EMEA means the European Medicines Evaluation Agency, or any successor organization; |
1.1.24 |
FDA means the United States Food and Drug Administration, or any successor organization; |
1.1.25 |
Field means the use of a Product for the treatment of cancer; |
6.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
1.1.26 |
Force Majeure has the meaning as set out in section 11.1; |
1.1.27 |
GAAP means Canadian generally accepted accounting principles, consistently applied; |
1.1.28 |
Improvements has the meaning attributed to that term in section 6.1; |
1.1.29 |
Joint Improvements has the meaning attributed to that term in section 6.1; |
1.1.30 |
Launch shall mean, with respect to a particular Product in a particular country, the date of the first arms length sale of such Product in such country after receipt of Market Approval for such Product in such country; |
1.1.31 |
Major Market shall mean any one of [ * ] or [ * ] and Major Markets shall mean all of such countries; |
1.1.32 |
Market Approval shall mean, with respect to a particular Product in a particular country, the date upon which the last of all governmental or regulatory approvals required for the sale of such Product in that country has been granted, including price approval for such Product (if required); |
1.1.33 |
Marketing Plan has the meaning attributed to that term in section 4.2.3; |
1.1.34 |
North American Territory means Canada, the United States of America and Mexico; |
1.1.35 |
Person means an individual, corporation, company, cooperative, partnership, trust, unincorporated association, entity with juridical personality or a governmental authority or body, and pronouns which refer to a Person have a similar extended meaning; |
1.1.36 |
Product means Cancer Vacs mannan-MUC1 fusion protein therapeutic vaccine delivered via ex-vivo dendritic cells, [ * ]; |
1.1.37 |
Prodrug means a chemical precursor of a Product which is to be cleaved in a human being directly into a Product and/or a metabolic intermediate thereof, [ * ]; |
1.1.38 |
Project Team has the meaning attributed to that term in section 4.2.6 of this Agreement; |
1.1.39 |
Put Agreement means that certain put option deed of even date herewith between Biomira and Prima Biomed, together with all schedules thereto and any amendments to or restatements of such put option deed; |
1.1.40 |
Regulatory Authority means, with respect to a particular Product Sold or to be Sold in a particular country, those government agencies or authorities responsible for the approval and regulation of such Product and the Sale thereof in such country; |
7.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
1.1.41 |
ROW Territory shall mean all countries of the world except Canada, the United States of America, Mexico, Australia and New Zealand; |
1.1.42 |
Sale includes, with respect to a particular Product, the sale or other disposition thereof and Sell or Sold have corresponding meanings; |
1.1.43 |
Shared Costs means Development Costs and all other costs and expenses designated under this Agreement or by the Steering Committee as Shared Costs, but excluding for greater certainty any indirect costs (including administration, support, depreciation, facility rental, repair and maintenance, utilities, insurance, taxes, cost of capital, and the like) except to the extent that the Steering Committee determines that to exclude a particular indirect cost is inequitable as between Biomira and Cancer Vac; |
1.1.44 |
Shareholder Agreement means that certain shareholders deed of even date herewith among Cancer Vac, Biomira, Prima Biomed and Ilexus Pty Ltd, together with all schedules thereto and any amendments to or restatements of such shareholders deed; |
1.1.45 |
Steering Committee has the meaning attributed to that term in section 4.1.1; |
1.1.46 |
Subscription Agreement means that certain subscription deed of even date herewith between Cancer Vac and Biomira, together with all schedules thereto and any amendments to or restatements of such subscription deed; |
1.1.47 |
Term means the term of this Agreement as specified in section 9.1; |
1.1.48 |
Territory shall mean, collectively, the North American Territory and the ROW Territory; and |
1.1.49 |
Valid Claim means, with respect to a particular Product in a particular country, a claim of a pending and unexpired or issued and unexpired patent [ * ] which has not been held unenforceable, unpatentable or invalid by a decision of a court or other governmental agency of competent jurisdiction, unappealable or unappealed within the time allowed for appeal, and which has not been admitted to be invalid or unenforceable through reissue, disclaimer or otherwise; |
Section 1.2 Number and Gender
Words importing the singular number only in this Agreement shall include the plural number and vice versa and words importing one gender only in this Agreement shall include all genders and words importing Persons in this Agreement shall include individuals, partnerships, corporations and any other entities, legal or otherwise.
Section 1.3 Headings
The headings used in this Agreement are for ease of reference only and shall not affect the meaning or the interpretation of this Agreement. References to sections and articles are to sections and articles of this Agreement.
8.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Section 1.4 Schedules
The following Schedules attached to this Agreement shall form part of this Agreement:
Schedule A - Cancer Vac Know-How
Schedule B - Cancer Vac Patent Rights
Schedule C - CRTL Know-How and Patent Rights
Section 1.5 Effective Date
This Agreement shall commence as of the Effective Date.
Section 1.6 Legislation
Any reference in this Agreement to legislation or a statute includes, unless otherwise indicated, rules and regulations passed or in force as at the date of this Agreement and any amendments to such rules or regulations from time to time, and any legislation or regulations substantially replacing the same.
ARTICLE 2
GRANT OF SUBLICENSE
Section 2.1 Biomira Grant of Sublicense
2.1.1 |
Subject to the terms and conditions of this Agreement and the CRTL License Agreement, Biomira hereby grants to Cancer Vac a sublicense under the CRTL Technology to use, develop, market, promote, distribute and sell Product in the Field in the Cancer Vac Territory and, subject to the written approval of the Steering Committee (or, if there is no Steering Committee, the written approval of Biomira and Cancer Vac, acting reasonably), to manufacture or have manufactured anywhere in the world Product for use in the Field, which sublicense shall be exclusive of Biomira, CRTL and all other Persons subject to the rights specifically reserved to Biomira, CRTL and their respective Affiliates under this Agreement and the CRTL License Agreement and to the extent otherwise required by applicable law or regulation (as, for example, in the European Union under applicable competition law). |
2.1.2 |
Nothing in this Agreement shall in any way limit the right of Biomira, CRTL and their respective Affiliates and licensees to use or exploit the CRTL Technology outside of the Field. |
Section 2.2 Sublicenses
Cancer Vac shall have no right to grant sublicenses under the sublicense set forth in section 2.1 of this Agreement without the prior written consent of Biomira and CRTL (such consent not to be unreasonably withheld) and, to the extent applicable, complying with the provisions of this Agreement and the CRTL License Agreement. Cancer Vac shall at least [ * ] prior to the execution of any proposed sublicense agreement provide a complete copy thereof to Biomira for review by Biomira and CRTL. In any such sublicense agreement Cancer Vac shall ensure that the sublicensee is legally bound by the provisions of this Agreement relating to the use and safeguarding of the licensed technology including the confidentiality provisions in article 5 of this Agreement. No such sublicensee shall grant any further license of such licensed technology
9.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
to any other Person. Cancer Vac shall be responsible for diligently enforcing the provisions of any such sublicense agreement and for the acts and omissions of the sublicensee and all such acts and omissions of the sublicensee shall be regarded for purposes of this Agreement as the acts and omissions of Cancer Vac.
Section 2.3 Term of Grant
Subject to the terms and conditions of the CRTL License Agreement, the sublicense granted under section 2.1 of this Agreement shall remain in force and effect on a Product-by-Product and country-by-country basis until the later of:
2.3.1 |
the expiration or termination of the last to expire or terminate of Valid Claims that cover such Product in such country; |
2.3.2 |
the expiration or termination of the last to expire or terminate of the exclusivity periods that cover such Product in such country; [ * ] |
Section 2.4 Biomira Clinical Trial Data
Cancer Vac shall have the right during the Term to use Biomira clinical trial data specifically relating to Product and developed by or on behalf of Biomira for purposes of this Agreement to develop, market, promote and sell Product in the Field in the Cancer Vac Territory.
Section 2.5 Bankruptcy or Insolvency
All rights and licenses granted to Cancer Vac under this article 2 are, and shall be deemed to be, for purposes of applicable bankruptcy law (including section 365(n) of the United States Bankruptcy Code), licenses of rights to intellectual property (including as such term is defined under section 101(35A) of the United States Bankruptcy Code).
Section 2.6 Biomira and CRTL Rights
Notwithstanding any provision to the contrary in this Agreement, Biomira, CRTL and their respective Affiliates shall have the right to carry out research and development in the Field for purposes of developing Improvements.
Section 2.7 Up-Front Payment
In partial consideration of the grant of the sublicense referred to in section 2.1.1 of this Agreement and in addition to the milestone payments provided for in section 2.8 of this Agreement and the royalty payments provided for in section 2.9 of this Agreement, each of Cancer Vac, Prima Biomed and Ilexus Pty Ltd shall (to the extent they are parties thereto) execute and deliver to Biomira (at the time of execution and delivery of this Agreement) the Subscription Agreement, the Shareholder Agreement and the Put Agreement.
Section 2.8 Milestone Payments
2.8.1 |
Subject to section 2.8.2 of this Agreement, in partial consideration for the grant of the sublicense referred to in section 2.1.1 of this Agreement and in addition to the up-front payment provided for in section 2.7 of this Agreement and the royalty payments provided for in section 2.9 of this Agreement, Cancer Vac shall pay to Biomira the following milestone payments within [ * ] of the occurrence of the applicable event specified below: |
10.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
2.8.1.1 |
$[ * ] upon [ * ]; |
2.8.1.2 |
$[ * ] upon [ * ]; |
2.8.1.3 |
$[ * ] upon [ * ]; |
2.8.1.4 |
$[ * ] upon [ * ]; |
2.8.1.5 |
$[ * ] upon [ * ]; and |
2.8.1.6 |
$[ * ] upon [ * ]. |
2.8.2 |
If, in relation to the [ * ], [ * ] are [ * ] under section [ * ] of this Agreement [ * ] for the [ * ] or [ * ] for the [ * ], there shall be [ * ] under section [ * ] of this Agreement. |
Section 2.9 Royalty Payments
In partial consideration for the grant of the sublicense referred to in section 2.1.1 of this Agreement and in addition to the up-front payment provided for in section 2.7 of this Agreement and the milestone payments provided for in section 2.8.1 of this Agreement, Cancer Vac shall pay to Biomira quarterly during the Term, within [ * ] after the end of each calendar quarter, a royalty based on Cancer Vac Net Sales of Product at a rate of:
2.9.1 |
at any time when [ * ] under section [ * ] of this Agreement [ * ] in relation to the [ * ]: |
2.9.1.1 |
[ * ] percent ([ * ]%) for Cancer Vac Net Sales of Product in the [ * ]; and |
2.9.1.2 |
[ * ] percent ([ * ]%) for Cancer Vac Net Sales of Product in the [ * ]; |
provided that [ * ] shall be [ * ] and [ * ], respectively, for any Product Sold in a particular country which at the time of such Sale [ * ] in such country;
2.9.2 |
at any time when [ * ] under section [ * ] of this Agreement [ * ] in relation to the [ * ] the [ * ], [ * ] percent ([ * ]%) for Cancer Vac Net Sales in the [ * ], provided that [ * ] shall be [ * ] for any Product Sold in a particular country which at the time of such Sale [ * ] in such country; |
2.9.3 |
at any time when [ * ] under section [ * ] of this Agreement [ * ] in relation to the [ * ] the [ * ], [ * ] percent ([ * ]%) for Cancer Vac Net Sales in [ * ], provided that [ * ] shall be [ * ] for any Product Sold in a particular country which at the time of such Sale [ * ] in such country; and |
2.9.4 |
if, during its term, the license provided by CRTL to Biomira under the CRTL License Agreement [ * ], Biomira and Cancer Vac shall review in a spirit of reasonableness and cooperation the [ * ]. |
11.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Section 2.10 Sales Report
Within [ * ] after the end of each calendar quarter during the Term, Cancer Vac shall provide Biomira with a detailed report consistent with GAAP and the accounting records and principles of Cancer Vac showing in reasonable detail on a Product-by-Product basis:
2.10.1 |
the number of units of such Product sold during such calendar quarter; |
2.10.2 |
to the extent practicable, the total billings for such Product during such calendar quarter; |
2.10.3 |
to the extent practicable, the deductions applicable to the determination of Cancer Vac Net Sales with respect to such Product during such calendar quarter; |
2.10.4 |
the Cancer Vac Net Sales with respect to such Product during such calendar quarter; |
2.10.5 |
the average sales price of such Product during such calendar quarter; and |
2.10.6 |
the total royalties due and the basis of the calculation thereof. |
Section 2.11 Records and Audits
Cancer Vac will keep and maintain proper and complete records and books of account in such form and detail as is necessary for the determination of the amounts payable by Cancer Vac (on behalf of itself and its Affiliates and permitted licensees and distributors) to Biomira under this Agreement and Cancer Vac shall during normal business hours upon [ * ] prior notice from Biomira make those records available for audit by an internationally recognized accounting firm designated by Biomira (except one to which Cancer Vac shall have objection, acting reasonably) for the sole purpose of, and Cancer Vac will only be required to disclose information related to; verifying such payments, revenues, Cancer Vac Net Sales, costs, expenses and deductions and the correctness of calculations and classifications in respect thereof. Cancer Vac shall preserve such records made in any calendar year for a period of [ * ] following the close of that calendar year. In the event that such audit discloses that the actual royalties or other amounts payable by Cancer Vac to Biomira are greater than the royalties or other amounts paid by Cancer Vac, then Cancer Vac shall pay to Biomira any additional royalties and other amounts based on the results disclosed by such audit plus interest as provided for in section 2.14 of this Agreement. In the event that such audit discloses that the actual royalties or other amounts payable by Cancer Vac to Biomira pursuant to this article 2 are less than the royalties or other amounts paid by Cancer Vac, then Biomira shall reimburse Cancer Vac for any such overpayment based on the results disclosed by such audit less Biomiras reasonable costs of such audit. The cost of such audit shall be borne by Biomira unless such audit discloses that the actual royalties and other amounts payable by Cancer Vac to Biomira are greater by [ * ] or more than the royalties and other amounts paid by Cancer Vac, or such audit discloses that the actual royalties and other amounts payable by Cancer Vac to Biomira are less than the royalties and other amounts paid by Cancer Vac, in which case Cancer Vac shall be responsible for payment of all reasonable costs of such audit to a maximum of the amount of any overpayment by Cancer Vac to Biomira due to an incorrect calculation of royalties and other amounts payable by Cancer Vac and Biomira shall be responsible for payment of all other costs of such audit. Notwithstanding the foregoing, Biomira
12.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
shall not have the right to conduct more than once, for the same purpose, an audit of the same information, books and records; provided, however that if any such audit discloses that the actual royalties or other amounts payable by Cancer Vac to Biomira hereunder was calculated incorrectly such that a payment by Cancer Vac or a reimbursement by Biomira is required pursuant to this section 2.11, then Biomira shall have a further right to audit the same information, books and records for the same purpose until such time as no further errors are found.
Section 2.12 Currency and Conversion
All payments made under this Agreement shall be in United States dollars. With respect to any payment based on Cancer Vac Net Sales made in a currency other than U.S. dollars, Cancer Vac shall convert such Cancer Vac Net Sales to U.S. dollars using the applicable average rate of exchange for U.S. dollars for the prior quarter quoted as local currency per US $1, published in The Financial Times (London edition).
Section 2.13 Bank Accounts
All payments hereunder shall be made by wire transfer of immediately available funds to such bank account as may be designated in writing from time to time by Biomira.
Section 2.14 Late Payments
Any late payments of any nature made under this Agreement shall bear interest, running from the date such payment was due until such payment is made, at a rate per annum equal to the average thirty (30) day U.S. dollar LIBOR rate (as published from time to time by Reuters) [ * ].
Section 2.15 Commercialization and Marketing Diligence
2.15.1 |
Cancer Vac agrees to use all reasonable commercial efforts to commercialize the Cancer Vac Technology and the CRTL Technology in the Cancer Vac Territory and bring Products to the marketplace in the Cancer Vac Territory in a timely manner and to keep such Products competitive with other similar products in the Cancer Vac Territory. |
2.15.2 |
Cancer Vac shall keep Biomira fully advised (on [ * ] basis or more frequently if circumstances warrant) as to its progress in the development and commercialization of the Cancer Vac Technology and CRTL Technology and of any Products, and shall provide such additional information to Biomira as Biomira may from time to time reasonably request in connection with the foregoing. |
2.15.3 |
If Biomira reasonably believes that Cancer Vac is not meeting its diligence obligations under section 2.15.1 of this Agreement, then Biomira may provide Cancer Vac with written notice of such deficiency. If, within [ * ] following receipt by Cancer Vac of such notice, Biomira has not been provided with either evidence satisfactory to Biomira, acting reasonably, that the specified deficiency has been rectified or a detailed plan of action satisfactory to Biomira, acting reasonably, for Cancer Vac to fully meet its obligations under section 2.15.1 of this Agreement, then Biomira may, at its option, terminate the sublicense granted to Cancer Vac under this article 2 by providing at least [ * ] further written notice |
13.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
to Cancer Vac of such termination. If Biomira seeks to terminate the sublicense granted to Cancer Vac pursuant to this section 2.15 as aforesaid and Cancer Vac disputes the basis for such termination, then the issue shall be resolved in accordance with section 11.4 of this Agreement. |
ARTICLE 3
GRANT OF LICENSE
Section 3.1 Cancer Vac Grant of License
3.1.1 |
Cancer Vac hereby grants to Biomira and its Affiliates a license (with the right to sublicense) under the Cancer Vac Technology (exercisable in the manner set forth in section 3.1.3 of this Agreement) to use, develop, market, promote, distribute and sell Product in the Field in the Biomira Territory and, subject to the written approval of the Steering Committee (or, if there is no Steering Committee, the written approval of Biomira and Cancer Vac, acting reasonably) to manufacture or have manufactured anywhere in the world Product for use in the Field, which license shall be exclusive of Cancer Vac and all other Persons subject to the rights specifically reserved to Cancer Vac under this Agreement and to the extent otherwise required by applicable law or regulation (as, for example, in the European Union under applicable competition law). |
3.1.2 |
In any sublicense by Biomira of the Cancer Vac Technology, Biomira shall ensure that the sublicensee is legally bound by the provisions of this Agreement relating to the use and safeguarding of the licensed technology including the confidentiality provisions in article 5 of this Agreement. No such sublicensee shall grant any further license of such licensed technology to any other Person. Biomira shall be responsible for diligently enforcing the provisions of any such sublicense agreement and for the acts and omissions of the sublicensee and all such acts and omissions of the sublicensee shall be regarded for purposes of this Agreement as the acts and omissions of Biomira. |
3.1.3 |
Biomira may exercise the license rights granted by Cancer Vac to Biomira and its Affiliates in section 3.1.1 of this Agreement in the following manner and circumstances: |
3.1.3.1 |
for the [ * ], if Biomira elects by written notice to Cancer Vac (within [ * ] of the [ * ] being made available by Cancer Vac to Biomira) to undertake and fund [ * ] of the costs of the Phase IIb trial of the Product; or |
3.1.3.2 |
for the [ * ], if Biomira elects by written notice to Cancer Vac (within [ * ] of the [ * ] being made available by Cancer Vac to Biomira) to undertake and fund [ * ] of the costs of the Phase IIb trial of the Product. In circumstances where Biomira elects to fund [ * ] of the costs of the Phase IIb trial of the Product pursuant to this section 3.1.3.2, Cancer Vac shall (within [ * ] of Biomira making its election under this section 3.1.3.2) provide to Biomira such [ * ] as Biomira |
14.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
may reasonably request in order to [ * ] that [ * ]. Further, if at any time Cancer Vac fails to [ * ] the Phase IIb trial of the Product, Biomira may, [ * ], by written notice to Cancer Vac, (a) [ * ] the Phase IIb trial [ * ] and otherwise [ * ] with respect thereto; or (b) [ * ] the Phase IIb trial. If Biomira elects to [ * ] the Phase IIb trial of the Product, Biomira shall receive the rights specified in section [ * ] of this Agreement, as well as being entitled to [ * ] such Phase IIb trial [ * ] which Biomira is required to [ * ] under [ * ]. |
3.1.4 |
To the extent that Biomira provides funding or incurs costs in relation to any clinical trials of Product, Cancer Vac shall: |
3.1.4.1 |
if Biomira relinquishes [ * ] the license rights with respect to such Product granted under this section 3.1, reimburse Biomira for the aggregate amount of such funding and/or costs by providing to Biomira [ * ] of any and all third party up-front, milestone, royalty or other amounts received by Cancer Vac in relation to the Product and/or the Cancer Vac Technology or, if Cancer Vac itself develops the Product, by providing to Biomira [ * ] of any and all gross revenue received by Cancer Vac in relation to the Product and/or the Cancer Vac Technology; |
3.1.4.2 |
if Biomira retains the license provided for in section 3.1.1 of this Agreement for the [ * ] and Biomira provides funding or incurs costs in relation to any clinical trials of Product in excess of [ * ], reimburse Biomira for the aggregate amount of any such funding and/or costs in excess of [ * ] by providing to Biomira [ * ] of any and all third party up-front, milestone, royalty or other amounts received by Cancer Vac in relation to the Product and/or the Cancer Vac Technology or, if Cancer Vac itself develops the Product, by providing to Biomira [ * ] of any and all gross revenue received by Cancer Vac in relation to the Product and/or the Cancer Vac Technology. |
3.1.5 |
Nothing in this Agreement shall in any way limit the right of Cancer Vac and its Affiliates and licensees to use or exploit the Cancer Vac Technology outside of the Field. |
Section 3.2 Term of Grant
The license granted under section 3.1 of this Agreement shall remain in force and effect on a Product-by-Product and country-by-country basis until the later of:
3.2.1 |
the expiration or termination of the last to expire or terminate of Valid Claims that cover such Product in such country; |
3.2.2 |
the expiration or termination of the last to expire or terminate of the exclusivity periods that cover such Product in such country; [ * ] |
15.
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Notwithstanding any other provision in this Agreement to the contrary, Biomira shall have the right to terminate the license granted under section 3.1 of this Agreement (and be relieved, inter alia , of its payment and funding obligations under this article 3) at any time prior to Launch by Biomira of a Product in a Major Market, provided that Biomira, except in circumstances where Cancer Vac has failed to fulfill any of its obligations under this Agreement, provides to Cancer Vac at least [ * ] prior written notice of such termination.
Section 3.3 Cancer Vac Clinical Trial Data
Biomira shall have the right during the Term to use Cancer Vac clinical trial data specifically relating to Product and developed by or on behalf of Cancer Vac for purposes of this Agreement to develop, market, promote, and sell Product in the Field in the Biomira Territory.
Section 3.4 Bankruptcy or Insolvency
All rights and licenses granted to Biomira and its Affiliates under this article 3 are, and shall be deemed to be, for purposes of applicable bankruptcy law (including section 365(n) of the United States Bankruptcy Code ), licenses of rights to intellectual property (including as such term is defined under section 101(35A) of the United States Bankruptcy Code ).
Section 3.5 Cancer Vac Rights
Notwithstanding any provision to the contrary in this Agreement, Cancer Vac and its Affiliates shall have the right to carry out research and development in the Field for purposes of developing Improvements.
Section 3.6 Up-front Payment
In partial consideration for the grant of the license referred to in section 3.1.1 of this Agreement and in addition to the milestone payments provided for in section 3.7 of this Agreement and the royalty payments provided for in section 3.8 of this Agreement, Biomira shall pay to Cancer Vac within [ * ] of the occurrence of the applicable event specified below an up-front fee of:
3.6.1 |
$[ * ], if Biomira elects under section 3.1.3 of this Agreement to receive from Cancer Vac [ * ]; |
3.6.2 |
$[ * ], if Biomira elects under section 3.1.3 of this Agreement to receive from Cancer Vac [ * ]; or |
3.6.3 |
there shall be no up-front fee, if Biomira does not request any license rights from Cancer Vac with respect to Product under section 3.1.3 of this Agreement. |
Section 3.7 Milestone Payments
3.7.1 |
Subject to section 3.7.2 of this Agreement, in partial consideration for the grant of the license referred to in section 3.1.1 of this Agreement and in addition to the up-front payment provided for in section 3.6 of this Agreement and the royalty payments provided for in section 3.8 of this Agreement, Biomira shall pay to Cancer Vac the following milestone payments within [ * ] of the occurrence of the applicable event specified below: |
3.7.1.1 |
$[ * ] upon [ * ]; |
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[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
3.7.1.2 |
$[ * ] upon [ * ]; |
3.7.1.3 |
$[ * ] upon [ * ]; |
3.7.1.4 |
$[ * ] upon [ * ]; |
3.7.1.5 |
$[ * ] upon [ * ]; and |
3.7.1.6 |
$[ * ] upon [ * ]. |
3.7.2 |
If, in relation to the [ * ], [ * ] are [ * ] under section [ * ] of this Agreement [ * ] for the [ * ] or [ * ], there shall be [ * ] under section [ * ] of this Agreement. |
Section 3.8 Royalty Payments
Subject to section 3.8.3 of this Agreement, in partial consideration for the grant of the license referred to in section 3.1.1 of this Agreement and in addition to the up-front payment provided for in section 3.6 of this Agreement and the milestone payments provided for in section 3.7.1 of this Agreement, Biomira shall pay to Cancer Vac quarterly during the Term, within [ * ] after the end of each calendar quarter, a royalty based on Biomira Net Sales of Product at a rate of:
3.8.1 |
at any time when [ * ] under section [ * ] of this Agreement [ * ] in relation to the [ * ]: |
3.8.1.1 |
[ * ] percent ([ * ]%) for Biomira Net Sales of Product in the [ * ]; and |
3.8.1.2 |
[ * ] percent ([ * ]%) for Biomira Net Sales of Product in the [ * ]; |
provided that [ * ] shall be [ * ] and [ * ], respectively, for any Product Sold in a particular country which at the time of such Sale [ * ] in such country; |
3.8.2 |
at any time when [ * ] under section [ * ] of this Agreement [ * ] in relation to the [ * ] the [ * ], [ * ] percent ([ * ]%) for Biomira Net Sales in the [ * ], provided that [ * ] shall be [ * ] for any Product Sold in a particular country which at the time of such Sale [ * ] in such country; |
3.8.3 |
at any time when [ * ] under section [ * ] of this Agreement [ * ] in relation to the [ * ], [ * ] shall be [ * ] under this section 3.8; and |
3.8.4 |
if, during its term, the license provided by Ilexus Pty Ltd to Cancer Vac under the license agreement described in section 1.1.3.1 of this Agreement [ * ], Biomira and Cancer Vac shall review in a spirit of reasonableness and cooperation the [ * ]. |
Section 3.9 Sales Report
Within [ * ] after the end of each calendar quarter during the Term, Biomira shall provide Cancer Vac with a detailed report consistent with GAAP and the accounting records and principles of Biomira showing in reasonable detail on a Product-by-Product basis:
17.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
3.9.1 |
the number of units of such Product sold during such calendar quarter; |
3.9.2 |
to the extent practicable, the total billings for such Product during such calendar quarter; |
3.9.3 |
to the extent practicable, the deductions applicable to the determination of Biomira Net Sales with respect to such Product during such calendar quarter; |
3.9.4 |
the Biomira Net Sales with respect to such Product during such calendar quarter; |
3.9.5 |
the average sales price of such Product during such calendar quarter; and |
3.9.6 |
the total royalties due and the basis of the calculation thereof. |
Section 3.10 Records and Audits
Biomira will keep and maintain proper and complete records and books of account in such form and detail as is necessary for the determination of the amounts payable by Biomira (on behalf of itself and its Affiliates and permitted licensees and distributors) to Cancer Vac under this Agreement and Biomira shall during normal business hours upon [ * ] prior notice from Cancer Vac make those records available for audit by an internationally recognized accounting firm designated by Cancer Vac (except one to which Biomira shall have objection, acting reasonably) for the sole purpose of, and Biomira will only be required to disclose information related to, verifying such payments, revenues, Biomira Net Sales, costs, expenses and deductions and the correctness of calculations and classifications in respect thereof. Biomira shall preserve such records made in any calendar year for a period of [ * ] following the close of that calendar year. In the event that such audit discloses that the actual royalties or other amounts payable by Biomira to Cancer Vac are greater than the royalties or other amounts paid by Biomira, then Biomira shall pay to Cancer Vac any additional royalties and other amounts based on the results disclosed by such audit plus interest as provided for in section 3.13 of this Agreement. In the event that such audit discloses that the actual royalties or other amounts payable by Biomira to Cancer Vac pursuant to this article 3 are less than the royalties or other amounts paid by Biomira, then Cancer Vac shall reimburse Biomira for any such overpayment based on the results disclosed by such audit less Cancer Vacs reasonable costs of such audit. The cost of such audit shall be borne by Cancer Vac unless such audit discloses that the actual royalties and other amounts payable by Biomira to Cancer Vac are greater by [ * ] or more than the royalties and other amounts paid by Biomira, or such audit discloses that the actual royalties and other amounts payable by Biomira to Cancer Vac are less than the royalties and other amounts paid by Biomira, in which case Biomira shall be responsible for payment of all reasonable costs of such audit to a maximum of the amount of any overpayment by Biomira to Cancer Vac due to an incorrect calculation of royalties and other amounts payable by Biomira and Cancer Vac shall be responsible for payment of all other costs of such audit. Notwithstanding the foregoing, Cancer Vac shall not have the right to conduct more than once, for the same purpose, an audit of the same information, books and records; provided, however that if any such audit discloses that the actual royalties or other amounts payable by Biomira to Cancer Vac hereunder was calculated incorrectly such that a payment by Biomira or a reimbursement by Cancer Vac is required pursuant to this section 3.10, then Cancer Vac shall have a further right to audit the same
18.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
information, books and records for the same purpose until such time as no further errors are found.
Section 3.11 Currency and Conversion
All payments made under this Agreement shall be in United States dollars. With respect to any payment based on Biomira Net Sales made in a currency other than U.S. dollars, Biomira shall convert such Biomira Net Sales to U.S. dollars using the applicable average rate of exchange for U.S. dollars for the prior quarter quoted as local currency per US $1, published in The Financial Times (London edition).
Section 3.12 Bank Accounts
All payments hereunder shall be made by wire transfer of immediately available funds to such bank account as may be designated in writing from time to time by Cancer Vac.
Section 3.13 Late Payments
Any late payments of any nature made under this Agreement shall bear interest, running from the date such payment was due until such payment is made, at a rate per annum equal to the average thirty (30) day U.S. dollar LIBOR rate (as published from time to time by Reuters) [ * ].
Section 3.14 Commercialization and Marketing Diligence
3.14.1 |
Biomira agrees to use all reasonable commercial efforts to commercialize the Cancer Vac Technology in the Biomira Territory and bring Products to the marketplace in the Biomira Territory in a timely manner and to keep such Products competitive with other similar products in the Biomira Territory. |
3.14.2 |
Biomira shall keep Cancer Vac fully advised (on [ * ] basis or more frequently if circumstances warrant) as to its progress in the development and commercialization of the Cancer Vac Technology and of any Products, and shall provide such additional information to Cancer Vac as Cancer Vac may from time to time reasonably request in connection with the foregoing. |
3.14.3 |
If Cancer Vac reasonably believes that Biomira is not meeting its diligence obligations under section 3.14.1 of this Agreement, then Cancer Vac may provide Biomira with written notice of such deficiency. If, within [ * ] following receipt by Biomira of such notice, Cancer Vac has not been provided with either evidence satisfactory to Cancer Vac, acting reasonably, that the specified deficiency has been rectified or a detailed plan of action satisfactory to Cancer Vac, acting reasonably, for Biomira to fully meet its obligations under section 3.14.1 of this Agreement, then Cancer Vac may, at its option, terminate the sublicense granted to Biomira under this article 3 by providing at least [ * ] further written notice to Biomira of such termination. If Cancer Vac seeks to terminate the sublicense granted by Biomira pursuant to this section 3.14 as aforesaid and Biomira disputes the basis for such termination, then the issue shall be resolved in accordance with section 11.4 of this Agreement. |
ARTICLE 4
DEVELOPMENT, MANUFACTURING AND MARKETING OVERSIGHT
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Section 4.1 Steering Committee
4.1.1 |
Formation . Within [ * ] after the Effective Date, the parties shall form a steering committee (the Steering Committee) for the purpose of overseeing and managing the development, (including Clinical Development), manufacturing, marketing and Sale of Product(s) throughout the world, all as hereinafter specified in this article 4. |
4.1.2 |
Membership . The Steering Committee shall be composed of two (2) representatives of Biomira and its Affiliates and two (2) representatives of Cancer Vac and its Affiliates, unless otherwise agreed to in writing by Biomira and Cancer Vac (but the number of representatives of Biomira and its Affiliates and the number of representatives of Cancer Vac and its Affiliates shall always be equal). The initial chair of the Steering Committee shall be a representative of Cancer Vac, and thereafter the chair of the Steering Committee shall alternate on the anniversary of the Effective Date between a representative of Biomira and a representative of Cancer Vac (i.e., the second chair shall be a representative of Biomira, the third a representative of Cancer Vac, and so on). Each party shall notify the other party in writing of its representatives to the Steering Committee and of any changes in its representatives to the Steering Committee. |
4.1.3 |
Voting Powers . Each representative on the Steering Committee shall be entitled to exercise one (1) vote with respect to matters coming before the Steering Committee. Any action authorized by the Steering Committee must be authorized by the affirmative vote of a majority of the members of the Steering Committee and shall be recorded in the meeting minutes following such authorization. |
4.1.4 |
Meetings . The Steering Committee shall meet not less than [ * ] during the period of Clinical Development of any Product and during the period of Sale of any Product, on such dates and at such times and places as are agreed to by the members of the Steering Committee, acting reasonably. Responsibility for arranging such meetings, including, at a minimum, providing notice and an agenda and providing minutes of the meeting, shall alternate between the parties. The first meeting will take place as soon as practicable after the Effective Date, but in no event later than [ * ] after the Effective Date, and will be organized by Biomira. Meetings may be conducted in person or by telephone or video conference, and the Steering Committee may act without a meeting if, prior to such action, a written consent thereto is signed by each member of the Steering Committee. Except for section 4.1.3, the Steering Committee may amend or expand upon the foregoing procedures for its internal operation by written agreement of Biomira and Cancer Vac. |
4.1.5 |
Disagreements . Unless expressly provided to the contrary in this article 4 or otherwise agreed to in writing by Cancer Vac and Biomira, all disagreements within the Steering Committee with respect to a material issue within the purview of the Steering Committees authority shall be resolved in accordance with section 11.4 of this Agreement. |
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4.1.6 |
Expenses . Each party shall be responsible for the costs and expenses (including travel, lodging and other such costs and expenses) associated with the participation of its representatives on the Steering Committee. |
4.1.7 |
Minutes . The party responsible for arranging a meeting of the Steering Committee as provided for in section 4.1.4 of this Agreement shall promptly prepare and deliver to the other party within [ * ] after the date of each meeting, minutes of such meeting setting forth all decisions of the Steering Committee in form and content reasonably acceptable to both parties. Such minutes shall become official only upon written approval by the Steering Committee. |
Section 4.2 Functions and Authority
4.2.1 |
Development Plans . The Steering Committee shall oversee the development (including Clinical Development) of each Product designated by the Steering Committee to be commercialized. The Steering Committee shall review and approve written Development Plans and shall approve conduct and review progress under any such Development Plan(s) including budgets therefor, material supply procedures and capacities, and other matters necessary to development (including Clinical Development) of each Product. Such approved plans and budgets shall be memorialized as an approved plan or budget in the Steering Committee meeting minutes. In the event that the Steering Committee fails to reach agreement with respect to that portion of any Development Plan which relates solely to country specific requirements in the Cancer Vac Territory, Cancer Vac will consider seriously and in good faith any comments that Biomira representatives to the Steering Committee may have with respect to such portion (i.e., country specific requirements in the Cancer Vac Territory) of such Development Plan, provided, however , that the final decision with respect to any such portion shall be made by Cancer Vac. In the event that the Steering Committee fails to reach agreement with respect to that portion of any Development Plan which relates solely to country specific requirements in the Biomira Territory, Biomira will consider seriously and in good faith any comments that Cancer Vac representatives to the Steering Committee may have with respect to such portion (i.e., country specific requirements in the Biomira Territory) of such Development Plan, provided, however , that the final decision with respect to any such portion shall be made by Biomira. |
4.2.2 |
Manufacturing . The parties acknowledge that the Steering Committee will be responsible for determining the person(s) responsible for the manufacture and supply (clinical and commercial) of all Products, all upon such terms and conditions as are established from time to time by the Steering Committee. The person(s) responsible for manufacturing shall present to the Steering Committee [ * ] for its review and consultation a Commercial Manufacturing Plan. |
4.2.3 |
Marketing . The parties acknowledge that, with respect to the Cancer Vac Territory, Cancer Vac will be responsible for the Sales and marketing of Products. Notwithstanding the foregoing, Cancer Vac shall present to the Steering |
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Committee [ * ] for its review and consultation, beginning a reasonable period of time prior to Launch of a particular Product in the Cancer Vac Territory, a Marketing Plan, and will not make any material revisions to a previously reviewed Marketing Plan without prior consultation with the Steering Committee. Cancer Vac will consider seriously and in good faith any comments that Biomira representatives to the Steering Committee may have with respect to any such Marketing Plan or material revision thereto, provided, however , that the final decision on any such matter shall be made by Cancer Vac. Similarly, the parties acknowledge that, with respect to the Biomira Territory, Biomira will be responsible for the Sales and marketing of Products. Notwithstanding the foregoing, Biomira shall present to the Steering Committee [ * ] for its review and consultation, beginning a reasonable period of time prior to Launch of a particular Product in the Biomira Territory, a Marketing Plan, and will not make any material revisions to a previously reviewed Marketing Plan without prior consultation with the Steering Committee. Biomira will consider seriously and in good faith any comments that Cancer Vac representatives to the Steering Committee may have with respect to any such Marketing Plan or material revision thereto, provided, however , that the final decision on any such matter shall be made by Biomira. |
4.2.4 |
Plan Amendments . Subject to the limitations set forth in the last two sentences of section 4.2.1, the Steering Committee has the authority to amend the Development Plans approved previously on the basis of new information, if necessary, according to its best judgment. To be authorized, any amendment to previously approved Development Plans and budgets shall be memorialized as an approved amended plan or budget in the Steering Committee meeting minutes. |
4.2.5 |
Effect of Approved Minutes : Except to the extent otherwise specifically provided in this Agreement, each party agrees to be bound by each approved and approved-amended Development Plan or budget therefor as of the date of the Steering Committees approval thereof. |
4.2.6 |
Project Team : The Steering Committee will approve the members of a Project Team comprising an equal number of individuals from Biomira and its Affiliates and from Cancer Vac and its Affiliates. The Project Team will develop, implement and manage all Development Plans approved by the Steering Committee. The Project Team will provide the Steering Committee with such expertise and recommendations for development (including Clinical Development), manufacturing, marketing, supply and Sale of Product, as requested by the Steering Committee. In the event the Project Team cannot agree to a unified recommendation to bring to the Steering Committee, it may bring the issue to the Steering Committee for resolution. The Project Team may be further divided into additional subteams, in each case (unless otherwise authorized in writing by the Steering Committee) comprising an equal number of individuals (with the required expertise) from Biomira and its Affiliates and from Cancer Vac and its Affiliates. |
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[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
4.2.7 |
Other functions : As to those Steering Committee procedures to which this Agreement does not speak, the Steering Committee may freely choose what procedure to follow as long as it does not conflict with any term of this Agreement. |
4.2.8 |
Disbanding : The Steering Committee shall remain in full force and effect for as long as any Product is or may be in Clinical Development under this Agreement or is being Sold anywhere in the world pursuant to this Agreement, provided that the Steering Committee will be disbanded in circumstances where either the Biomira Territory is the Territory (and not just the North American Territory) or the Cancer Vac Territory is the entire world and Biomira has no residual rights under article 3 of this Agreement. Notwithstanding that the Steering Committee may be disbanded in the circumstances specified in this section 4.2.8, the parties shall nevertheless communicate and cooperate with each other so as to facilitate the development and commercialization of the technology which is the subject of this Agreement. |
Section 4.3 Development Tasks
4.3.1 |
With respect to the Biomira Territory, Biomira (or its designated Affiliate) will be responsible for conducting, or having conducted, those development (including Clinical Development) and Market Approval (including the preparation, submission and prosecution of all regulatory authority filings and applications required to obtain all necessary Market Approvals to sell Product in each country in the Biomira Territory) tasks identified as its obligation under the applicable Steering Committee-approved Development Plan. Biomira shall use all commercially reasonable efforts to perform the development (including Clinical Development) and Market Approval tasks assigned to it in a prudent and skilful manner in accordance, in all material respects, with the Development Plans then in effect and applicable laws and regulations. |
4.3.2 |
With respect to the Cancer Vac Territory, Cancer Vac (or its designated Affiliate) will be responsible for conducting, or having conducted, those development (including Clinical Development) and Market Approval (including the preparation, submission and prosecution of all regulatory authority filings and applications required to obtain all necessary Market Approvals to sell Product in each country in the Cancer Vac Territory) tasks identified as its obligation under the applicable Steering Committee-approved Development Plan. Cancer Vac shall use all commercially reasonable efforts to perform the development (including Clinical Development) and Market Approval tasks assigned to it in a prudent and skilful manner in accordance, in all material respects, with the Development Plans then in effect and applicable laws and regulations. |
4.3.3 |
Unless otherwise determined by the Steering Committee or agreed in writing by Biomira and Cancer Vac, all Development Costs shall be deemed to be Shared Costs for purposes of this Agreement. |
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4.3.4 |
Unless otherwise specifically required by a regulatory authority of competent jurisdiction, Biomira or its designated Affiliate shall be the record owner of all Market Approvals required for Sale of the Product(s) in the Biomira Territory. Unless otherwise specifically required by a regulatory authority of competent jurisdiction, Cancer Vac or its designated Affiliate shall be the record owner of all Market Approvals required for Sale of the Product(s) in the Cancer Vac Territory. In the event that the area of the Biomira Territory or the Cancer Vac Territory, as the case may be, changes in accordance with this Agreement and as a result it is necessary or desirable to change the record owner of the Market Approvals required for Sale of the Product(s) in the countries which are affected by such change, the then current record owner of the Market Approvals in question shall in a timely manner transfer such Market Approvals to the other party and/or permit the other party to utilize such Market Approvals, file duplicate Market Approvals, cross-reference such Market Approvals, and the like. |
Section 4.4 Product Price
Except as otherwise provided by law, [ * ] and [ * ] under this Agreement in relation to the [ * ] shall determine the Sales price for Product(s) Sold in the [ * ], provided that [ * ] shall ensure that the Sales price for Product(s) Sold in [ * ] the Sales price for Product(s) Sold outside of [ * ].
Section 4.5 Advertising and Promotion
Biomira (or its designated Affiliate) shall be responsible for advertising and promotion of Product(s) in the Biomira Territory and Cancer Vac shall be responsible for advertising and promotion of Product(s) in the Cancer Vac Territory. Biomira and Cancer Vac shall on a regular basis consult, coordinate and cooperate in the advertising and promotion of Product(s) including, without limitation, the sharing of advertising and promotion materials.
Section 4.6 Distribution
Biomira shall have the sole responsibility for distribution of Product(s) in the Biomira Territory. Cancer Vac shall have the sole responsibility for distribution of Product(s) in the Cancer Vac Territory.
Section 4.7 Customer Complaints and Medical Inquiries
[ * ] and [ * ] under this Agreement in relation to the [ * ] shall be responsible for handling all customer complaints and inquiries regarding the Product(s) [ * ]. All complaints and inquiries received by the other parties or their agents shall be promptly referred to [ * ] to the [ * ] for response according to applicable law. [ * ] to the [ * ] shall use commercially reasonable efforts to handle such matters in a timely manner, in compliance with applicable laws, regulations, rules, policies and regulatory requirements and in accord with [ * ] standard operating procedures. [ * ] shall keep the other informed in a timely manner with respect to such [ * ] activities in regard to customer complaints and inquiries for Products. All costs incurred in responding to customer complaints and inquiries shall be deemed to be Shared Costs for purposes of this Agreement.
Section 4.8 Adverse Event Reporting
[ * ] and [ * ] under this Agreement in relation to the [ * ] shall be responsible for reporting all adverse events regarding Product(s) [ * ]. All information received by the other party or their
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agents shall be promptly transferred according to applicable law to [ * ] to the [ * ] for handling. [ * ] to the [ * ] shall handle such matter in a timely manner, in compliance with applicable laws and regulations, and in accord with [ * ] standard operating procedures. [ * ] shall keep the other informed in a timely manner with respect to such [ * ] activities with respect to adverse event reporting for Products. All costs incurred in responding to and reporting adverse events regarding Product(s) shall be deemed to be Shared Costs for purposes of this Agreement.
Section 4.9 Product Recall
[ * ] and [ * ] under this Agreement in relation to the [ * ] shall be responsible for initiating and implementing all Product recalls required by controlling regulatory agencies [ * ] and for all voluntary Product market withdrawals. [ * ] to the [ * ] shall handle such matters in a timely manner, in compliance with applicable laws and regulations, and in accord with [ * ] standard operating procedures. [ * ] shall keep the other informed in a timely manner with respect to such [ * ] activities in regard to recalls and market withdrawals. [ * ] shall use commercially reasonable efforts to cooperate with such [ * ] with respect to the implementation of any such recall or market withdrawal. All costs incurred in responding to recalls and market withdrawals shall be deemed to be Shared Costs for purposes of this Agreement.
Section 4.10 Trademarks, Branding and Labelling
Except in circumstances where one party has marketing and other rights under this Agreement to the entire Territory (in which case such party shall be solely responsible for determining the strategy and policies to be followed in relation to branding, labelling and trademarking of Product in the Territory), the Steering Committee shall be responsible for determining the strategy and policies to be followed in relation to the branding and labelling of Product(s) in compliance with applicable law and the development, prosecution, licensing, maintenance and defense of trademarks for Product(s) and for determining the allocation of costs and expenses with respect thereto.
Section 4.11 Shared Costs
4.11.1 |
Unless otherwise determined by the Steering Committee or agreed in writing by Biomira and Cancer Vac, all Shared Costs shall be borne by Biomira and Cancer Vac on the following basis: |
4.11.1.1 |
so long as the Cancer Vac Territory is the entire world, one hundred percent (100%) by Cancer Vac; |
4.11.1.2 |
so long as the Biomira Territory is [ * ], [ * ] percent ([ * ]%) by Biomira and two percent ([ * ]%) by Cancer Vac; or |
4.11.1.3 |
so long as the Biomira Territory is [ * ], [ * ] percent ([ * ]%) by Biomira and [ * ] percent ([ * ]%) by Cancer Vac. |
4.11.2 |
From and after the Effective Date and for so long as there are Shared Costs, each of Biomira and Cancer Vac shall, within [ * ] of the close of every [ * ], provide the other with a detailed report (a Cost Report, the form of which shall be agreed upon by Biomira and Cancer Vac within [ * ] of the Effective Date) of its Shared Costs actually incurred during such [ * ] period, together with reasonable |
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supporting documentation. If the Cost Reports of the two parties indicate that one party has incurred more of the Shared Costs during such [ * ] period than is its proper share pursuant to section 4.11.1, the other party shall pay the party who incurred such excess costs the amount of such excess costs within [ * ] of receiving the Cost Report of the other party. |
ARTICLE 5
CONFIDENTIALITY
Section 5.1 Confidentiality
The parties to this Agreement recognize that from time to time one party may disclose to another party(ies) information which is of a confidential nature (Confidential Information) and it is therefore agreed that:
5.1.1 |
Except as otherwise expressly authorized in writing by the discloser or specifically provided for in this Agreement, all Confidential Information of the disclosing party shall be held in strict confidence by the receiving party and the receiving party shall employ or cause to be employed diligent efforts and reasonable care in order to ensure that such Confidential Information is not made available to any third party, excepting only as required under this Agreement or to the directors, officers, employees, agents and consultants of the receiving party whose duties require disclosure of the same or as expressly authorized in writing and then (in any such case) only if the parties to whom such Confidential Information is being disclosed have given to the disclosing party an enforceable undertaking (in a form of contract used by the disclosing party in its normal course of business and that that deals with equivalently sensitive information) not to disclose such Confidential Information to any other party. |
5.1.2 |
Subject to section 5.1.3, Confidential Information shall not include information that is in the public domain at the time of disclosure, that the recipient can demonstrate based on written records was lawfully already in its possession, that is approved in writing for release by the discloser or that is obtained by any party to this Agreement from a third party without obligation of confidence (provided, however, that no third party from which the information is obtained has any obligation of confidence to any parties to this Agreement) or that becomes public knowledge otherwise than through the fault of the recipient or any Person to whom it has disclosed the Confidential Information. |
5.1.3 |
Disclosure of Confidential Information shall not be precluded if such disclosure is in response to a valid order of a court or other governmental body or of any political subdivision thereof or is otherwise required to be disclosed by law. Notwithstanding the foregoing, in the event that a party is required to make a disclosure of the other partys Confidential Information pursuant to this section 5.1.3, it will, except where impractical, give reasonable advance written notice to the other party of such disclosure and use reasonable commercial efforts to secure confidential treatment of such information. |
26.
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5.1.4 |
Confidential Information that is specific shall not be deemed to be within the public domain merely because it is embraced by general knowledge in the public domain. Further, any Confidential Information dealing with any combination of features of a specific matter shall not be deemed to be within the public domain, unless the combination of features and the principle of operation are in the public domain. |
5.1.5 |
Each party to this Agreement shall, upon the termination of this Agreement, return all corporeal Confidential Information to the owner of such Confidential Information with a written undertaking that no copies (electronic or otherwise) have been retained, except that the receiving party may retain one (1) copy in its legal files solely to allow it to monitor its obligations hereunder. |
5.1.6 |
Each of the parties to this Agreement acknowledge that the other party to this Agreement would suffer irreparable harm as a result of the breach of any of the non-disclosure and confidentiality obligations set forth in this section 5.1 and that legal remedies are inadequate; therefore, each of the parties to this Agreement agrees that, in addition to any damages and other remedies that the other party to this Agreement may be entitled to as a result of such a breach, the other party to this Agreement shall be entitled to seek an order from a court of competent jurisdiction restraining such party from breaching or continuing to breach any of the provisions of this section 5.1. |
5.1.7 |
The covenants of the parties under this section 5.1 shall continue in full force and effect notwithstanding the termination of this Agreement by effluxion of time or otherwise. |
Section 5.2 No Disclosure
Except as required by law or any applicable regulatory authority or as otherwise provided herein, the parties agree that the existence of this Agreement and the contents of this Agreement shall not be disclosed to any third party without the prior written consent of the other parties. Notwithstanding the foregoing, in the event that a party is required to make a disclosure of the other partys Confidential Information pursuant to this section 5.2, it will, except where impractical, give reasonable advance written notice to the other party of such disclosure and use reasonable commercial efforts to secure confidential treatment of such information.
Section 5.3 Press Releases
Except as required by law or any applicable regulatory authority, any press releases or public statements relating to this Agreement or the subject matter hereof shall prior to being released or made final be provided to the other party for comment in a timely manner.
ARTICLE 6
INVENTIONS AND PATENTS
Section 6.1 Joint Improvements
All inventions, discoveries, improvements or other technology to the extent specifically applicable in the Field and all processes or uses relating thereto, which are capable of protection
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as proprietary intellectual property (including for greater certainty trade secrets), that arise after the Effective Date as a result of conduct under this Agreement shall be regarded as improvements (Improvements) and Improvements made jointly by employees or others acting on behalf of Biomira and Cancer Vac (the Joint Improvements) shall be jointly owned by Biomira and Cancer Vac, each to an undivided one-half interest, and shall be managed in accordance with section 6.5.
Section 6.2 Cancer Vac Improvements
Improvements made solely by employees of Cancer Vac in the course of their employment or others acting on behalf of Cancer Vac who have assigned their rights with respect thereto to Cancer Vac (the Cancer Vac Improvements) shall be owned solely by Cancer Vac and, to the extent applicable, shall be subject to the license granted to Biomira in article 3. Cancer Vac shall have the first right to tile, prosecute, and maintain patent protection for Cancer Vac Improvements. If Cancer Vac at any time during the Term fails to file, prosecute or maintain patent protection in any jurisdiction for a Cancer Vac Improvement that has specific application within the Field in circumstances where Biomira intends to develop, market and sell a Product utilizing such Cancer Vac Improvement and has so advised Cancer Vac in writing, Biomira shall, upon [ * ] prior written notice to Cancer Vac, have the right (if Cancer Vac does not agree to file, prosecute or maintain such patent protection in such jurisdiction during such [ * ] period), on behalf of Cancer Vac, to file, prosecute, and maintain patent protection for that Cancer Vac Improvement in that jurisdiction and Cancer Vac shall cooperate with Biomira with respect thereto, including the execution and delivery of any further instruments or documents and taking all such further actions and providing all such further information as Biomira may reasonably request in that regard. Biomira shall be entitled to deduct its costs and expenses in such regard from any payments which Biomira is required to make to Cancer Vac under this Agreement.
Section 6.3 Determination of Inventorship
Inventorship shall be determined in accordance with the Canadian patent law rules and inventorship shall determine whether or not an Improvement is made solely by employees or others acting on behalf of Biomira or on behalf of Cancer Vac.
Section 6.4 Invention Disclosure
Biomira shall promptly disclose to Cancer Vac and Cancer Vac shall promptly disclose to Biomira details of any Joint Improvements or Cancer Vac Improvements, as the case may be, which such party has developed and such details shall be treated as Confidential Information.
Section 6.5 Independent Use of Joint Improvements
Within the Field, the use of Joint Improvements shall only be for purposes of and pursuant to the terms and conditions of this Agreement. Outside of the Field, Biomira and Cancer Vac shall each be entitled to use Joint Improvements as such party determines, provided that prior to any such party licensing any such Joint Improvement to a third party such party shall consult with the other with the aim of jointly licensing such Joint Improvement to such third party. In the absence of a joint license, neither Biomira nor Cancer Vac may license a Joint Improvement to a third party without the prior written consent of the other.
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Section 6.6 Prosecution and Maintenance of Joint Patents
6.6.1 |
Filing, Prosecution and Maintenance . Biomira and Cancer Vac shall determine, with respect to each Joint Improvement, the procedure and responsibility for filing, prosecuting and maintaining patent applications with respect to such Joint Improvements. Unless otherwise agreed in writing, all reasonable costs incurred with respect to the filing, prosecution and maintenance of patent applications and patents covering Joint Improvements, including fees and expenses of patent counsel, shall be borne equally by the parties. Notwithstanding that one party may be delegated responsibility for filing, prosecuting and maintaining patent applications with respect to a particular Joint Improvement, the other party must approve in writing the taking of any material action with respect thereto including without limitation approving any patent application prior to filing. Both Biomira and Cancer Vac shall have the right to participate fully in the formation and implementation of patent strategy. |
6.6.2 |
Cooperation . Each party shall reasonably make available to the other party or its authorized attorneys, agents or representatives, its employees, agents or consultants necessary or appropriate to enable the appropriate party to file, prosecute and maintain patent applications and resulting patents with respect to all Joint Improvements, for a period of time sufficient for such party to obtain the assistance it needs from such personnel. All reasonable costs incurred by either party in providing such cooperation shall be shared equally by the parties. |
6.6.3 |
Failure to Agree . In the case of a failure of Biomira and Cancer Vac to agree upon whether or in which countries patent applications should be filed and prosecuted for Joint Improvements, the party which desires to proceed may file and prosecute the patent applications at its own expense, and shall maintain such patents at its own expense, provided that if such Joint Improvement has specific application within the Field in circumstances where Biomira intends to develop, market and sell a Product utilizing such Joint Improvement and has so advised Cancer Vac in writing, Biomira shall be entitled to deduct all costs and expenses which Biomira incurs in connection with the prosecution, maintenance, and defence of such patent applications from the milestone and royalty payments payable by Biomira to Cancer Vac under article 3 of this Agreement. If either Biomira or Cancer Vac wishes to discontinue its portion of payment for maintenance of any patent on the Joint Improvements, such party may do so with prior written notice to the other party, and the other party may maintain such patent on the Joint Improvements at its own expense. Notwithstanding the foregoing, either party may reacquire its rights in any patents or patent applications in any country relating to the Joint Improvements by paying its portion of any costs incurred by the other party to such other party. |
Section 6.7 No Waiver
For the avoidance of doubt, by entering into this Agreement, and subject to the licenses granted in this Agreement, no party waives or forfeits any of its rights to any intellectual property that it owns and that exists at or after the Effective Date.
29.
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Section 6.8 Cooperation with respect to Patents
The parties acknowledge and agree that it is in their mutual interest to cooperate with respect to the filing, prosecution and maintenance of the Cancer Vac Patent Rights in the Field. Therefore, with respect to the Cancer Vac Patent Rights in the Field, Cancer Vac agrees to keep Biomira informed on a regular basis of its patent strategy, proposed new patent applications and the filing and status of any patent application or patent and to consider in good faith any comments or suggestions of Biomira with respect thereto. Cancer Vac agrees not to consent to any amendment to the ARI License Agreement which may in any way adversely effect Biomiras rights under this Agreement and further agrees to fully comply with its obligations and enforce its rights under the ARI License Agreement so as to avoid any adverse effect on Biomiras rights under this Agreement. Biomira agrees not to consent to any amendment to the CRTL License Agreement which may in any way adversely effect Cancer Vacs rights under this Agreement and further agrees to fully comply with its obligations and enforce its rights under the CRTL License Agreement so as to avoid any adverse effect on Cancer Vacs rights under this Agreement.
ARTICLE 7
PATENT INFRINGEMENT
Section 7.1 Infringement by Third Parties
7.1.1 |
If any party becomes aware of any facts that indicate the likelihood that any intellectual property in any Product or Joint Improvement is being infringed by any Person, or if any Person wrongfully engages in any activity that is covered by the Cancer Vac Technology and/or the CRTL Technology, that party shall inform Biomira and Cancer Vac in writing of those facts in reasonable detail. |
7.1.2 |
If the perceived infringing activity relates primarily to the Cancer Vac Technology, then Cancer Vac shall have the primary right, but not the obligation, to initiate, prosecute and control any action or proceeding with respect to such perceived infringement at its own cost, provided that if Cancer Vac fails to initiate proceedings and attend to remedy such infringement within [ * ] of receiving written notice of such infringement then Biomira may bring and control any such action. If the perceived infringing activity relates primarily to the CRTL Technology, then Biomira shall (subject to the terms of the CRTL License Agreement) have the primary right but not the obligation, to initiate, prosecute and control any action or proceeding with respect to any such infringement at its own cost, provided that if Biomira fails to initiate proceedings or attend to remedy such infringement within [ * ] of receiving written notice of such infringement then, subject to the terms of the CRTL License Agreement, Cancer Vac may bring and control any such action. In either case if one party initiates proceedings and attends to remedy such infringement then it shall keep the other party informed with respect to such proceedings and shall permit the other party to participate in all material discussions concerning such proceedings and the other party shall cooperate and give reasonable assistance in this regard to the party. |
7.1.3 |
Subject to the CRTL License Agreement, any monetary award received as a result |
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of proceedings contemplated by this section 7.1 shall be first used to compensate: |
7.1.3.1 |
the party who has primary control over the action for its costs relating to the action; and |
7.1.3.2 |
the other party for its costs relating to the action. |
Any award monies remaining after such reimbursement shall (to the extent such award monies [ * ]) be [ * ] or [ * ], as the case may be, [ * ] and then [ * ] for [ * ] or [ * ]. Any remaining award monies which [ * ] shall be [ * ].
7.1.4 |
No settlement or consent judgment or other voluntary final disposition of a suit under this section 7.1 may be entered into by either party without the prior consent of the other party, such consent not to be unreasonably withheld, and provided further that any settlement or consent judgment or voluntary final disposition of a suit under this section 7.1 in relation to the CRTL Technology shall be subject to the terms of the CRTL License Agreement. |
Section 7.2 Claims Against Cancer Vac Technology, CRTL Technology and Joint Technology
7.2.1 |
Notice. |
7.2.1.1 |
If a third party asserts that a patent or other right owned by it is infringed by Biomiras and/or Cancer Vacs use in the manner prescribed in this Agreement of any Cancer Vac Technology, the party first obtaining knowledge of such claim shall immediately provide the other party with written notice of such claim and the related facts as are then known, in reasonable detail. Cancer Vac shall have the obligation to control the defence and settlement of any such claim in relation to the Cancer Vac Technology. If Cancer Vac fails to assume the control and settlement of any such claim within [ * ] of receiving written notice thereof, then Biomira may control the defence and settlement of such action. The controlling party shall keep the non-controlling party fully informed with respect to all matters in relation to such claim and shall consult with the non-controlling party in relation to all material decisions concerning such claim and the defence thereof. The non-controlling party agrees to cooperate and provide reasonable assistance in defending such claims. No settlement shall be entered into without the prior written consent of the other party, such consent not to be unreasonably withheld. |
7.2.1.2 |
If a third party asserts that a patent or other right owned by it is infringed by Biomiras and/or Cancer Vacs use in the manner prescribed in this Agreement of any CRTL Technology, the party first obtaining knowledge of such claim shall immediately provide the other party with written notice of such claim and the related facts as are then known, in reasonable detail. Subject to the terms of the CRTL License |
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Agreement, Biomira shall have the obligation to control the defence and settlement of any such claim in relation to the CRTL Technology. Subject to the provisions of the CRTL License Agreement, if Biomira fails to assume the control and settlement of any such claim within [ * ] of receiving written notice thereof, then Cancer Vac may control the defence and settlement of such action. The controlling party shall keep the non-controlling party fully informed with respect to all matters in relation to such claim and shall consult with the non-controlling party in relation to all material decisions concerning such claim and the defence thereof. The non-controlling party agrees to cooperate and provide reasonable assistance in defending such claims. Subject to the provisions of the CRTL License Agreement, no settlement shall be entered into without the prior written consent of the other party, such consent not to be unreasonably withheld. |
7.2.1.3 |
If a third party asserts that a patent or other right owned by it is infringed by the use, in the manner prescribed in this Agreement, of any Joint Improvements, the party first obtaining knowledge of such claim shall immediately provide the other party with written notice of such claim and the related facts as are then known, in reasonable detail. Both parties shall share in the control of the defense and settlement of any such claim. Each party shall keep the other party fully informed with respect to all matters in relation to such claim and shall consult with the other party in relation to all material discussions concerning such claim and the defense thereof. The parties agree to cooperate and provide reasonable assistance to the other in defending such claims. No settlement shall be entered into without the prior written consent of Biomira and Cancer Vac, such consent not to be unreasonably withheld. |
7.2.2 |
Damages |
7.2.2.1 |
After complying fully with the procedures set forth in section 7.2.1, any damages or other payments that result from a claim of infringement as specified in section 7.2.1 or that are required to be paid as a result of reaching a settlement with a third party in the manner prescribed in section 7.2.1 or is the result of a judgment from a competent court (which is unappealable or with respect to which the appeal period has expired) shall be paid: |
7.2.2.1.1 |
to the extent that [ * ]; |
7.2.2.1.2 |
to the extent that [ * ]; or |
7.2.2.1.3 |
to the extent that [ * ]. |
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Finally, the reasonable costs and expenses of Biomira and Cancer Vac in defending and settling any such action shall be also dealt with accordingly. |
ARTICLE 8
INDEMNIFICATION
Section 8.1 Indemnification by Biomira
Biomira shall indemnify and hold Cancer Vac (its affiliates and their respective officers, directors, shareholders, employees, agents and their successors and permitted assigns) (collectively the Cancer Vac Indemnitees) free and harmless from any claims, demands, liabilities, losses, actions or causes of actions, and any and all expenses associated therewith (including without limiting the generality of the foregoing, reasonable defence costs and legal fees), arising out of or in connection with, or that are the result of, or are otherwise related to: (i) any claim, suit, proceeding or cause of action against any of the Cancer Vac Indemnitees alleging physical injury (including death) or property damage as a result of the acts or omissions of Biomira or its officers, directors, shareholders, employees or agents, except to the extent attributable to any one or more of the Cancer Vac Indemnitees; (ii) any failure of Biomira to perform, in whole or in part, any covenants or obligations under this Agreement, except to the extent attributable to any one or more of the Cancer Vac Indemnitees; (iii) Biomiras non-compliance with any applicable national, federal, provincial or state laws or regulations, except to the extent attributable to any one or more of the Cancer Vac Indemnitees; (iv) any breach by Biomira of any of its representations or warranties under this Agreement; or (v) Biomiras marketing and Sale of Product, except to the extent attributable to any one or more of the Cancer Vac Indemnitees.
Section 8.2 Indemnification by Cancer Vac
Cancer Vac shall indemnify and hold Biomira (its affiliates and their respective officers, directors, shareholders, employees, agents and their successors and permitted assigns) (collectively the Biomira Indemnitees) free and harmless from any claims, demands, liabilities, losses, actions or causes of actions, and any and all expenses associated therewith (including without limiting the generality of the foregoing, reasonable defence costs and legal fees), arising out of or in connection with, or that are the result of, or are otherwise related to: (i) any claim, suit, proceeding or cause of action against any of the Biomira Indemnitees alleging physical injury (including death) or property damage as a result of the acts or omissions of Cancer Vac or its officers, directors, shareholders, employees or agents, except to the extent attributable to any one or more of the Biomira Indemnitees; (ii) any failure of Cancer Vac to perform, in whole or in part, any covenants or obligations under this Agreement except to the extent attributable to any one or more of the Biomira Indemnitees; (iii) Cancer Vacs non-compliance with any applicable national, federal, provincial or state laws or regulations, except to the extent attributable to any one or more of the Biomira Indemnitees; (iv) any breach by Cancer Vac of any of its representations or warranties under this Agreement; or (v) Cancer Vacs marketing and Sale of Product, except to the extent attributable to any one or more of the Biomira Indemnities. To the extent that Cancer Vac does not fulfill in a timely manner its indemnification obligations under this section 8.2, Prima Biomed covenants and agrees to fulfill such obligations on behalf of Cancer Vac.
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Section 8.3 Procedure
The indemnified party shall give prompt written notice to the indemnifying party(ies) of any suits, claims or demands by third parties (Claim) which may give rise to any loss for which indemnification may be required under this article 8, provided, however that failure to give such notice shall not impair the obligation of the indemnifying party to provide indemnification hereunder except if and to the extent that such failure materially impairs the ability of the indemnifying party to defend the Claim. The indemnifying party shall be entitled to assume the control, defence and settlement of any Claim or demand of any third party at its own cost and expense; provided, however, that the other party shall have the right to be represented by its own counsel at its own cost in such matters. In the event that the indemnifying party shall decline to assume control of any such Claim, the party entitled to indemnification shall be entitled to assume such defence of and settle such Claim, all at the sole cost and expense of the indemnifying party. Neither the indemnifying party nor the indemnified party shall settle or dispose of any such matter in any manner which would adversely impact the rights and interests of the other party without the prior written consent of the indemnified party, which shall not be unreasonably withheld. Each party shall cooperate with the other party and its counsel in the course of the defence of any such Claim, such cooperation to include using reasonable efforts to provide or make available documents, information and witnesses.
ARTICLE 9
TERM AND TERMINATION
Section 9.1 Term and Expiration
This Agreement shall be effective as of the Effective Date and, unless terminated earlier pursuant to this article 9, this Agreement shall remain in force and effect on a Product-by-Product and country-by-country basis until the later of (a) the expiration or termination of the last to expire or terminate of Valid Claims that cover such Product in such country, (b) the expiration or termination of the last to expire or terminate of the exclusivity periods that cover such Product in such country, [ * ] or such later date as Biomira and Cancer Vac may agree upon in writing.
Section 9.2 Early Termination
Upon the happening of any of the following events with respect to a party:
9.2.1 |
such party defaults in the due and punctual payment of any amount payable under this Agreement, when and as due, and such default continues for a period of [ * ] or such longer period as the non-default party may agree to in writing after written notice thereof has been received by such party from the non-defaulting party; |
9.2.2 |
such party fails to perform or observe any material covenant, condition or provision of, or fails to rectify a material breach of, this Agreement, and such default continues for a period of [ * ] (or such longer period as the non-defaulting party may agree to in writing) after written notice thereof has been received by such party from the non-defaulting party; |
9.2.3 |
such party ceases to carry on business, or takes any action to liquidate its assets, stops making payments in the usual course of business, or voluntarily suspends for more than [ * ] all or substantially all of its business operations, other than |
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suspensions of a temporary nature resulting from Force Majeure; |
9.2.4 |
such party institutes any proceedings under any statute or otherwise relating to insolvency or bankruptcy, or should any proceedings under any such statute or otherwise be instituted against such party and not be dismissed or vacated within [ * ] of the date of commencement of such proceedings; |
9.2.5 |
a custodian, receiver, manager or any other Person with like powers is appointed to take charge of all or any part of such partys undertaking, business, property or assets; or |
9.2.6 |
an order is made or a resolution passed for the winding up or liquidation of such party, |
the non-defaulting party may immediately terminate this Agreement and the rights and licenses granted hereunder by giving a written notice to that effect to the defaulting party.
Section 9.3 Survival of Obligations and Disposition of Inventory
Such provisions of this Agreement that, by their nature, would be expected to survive termination of this Agreement, including without limitation sections 2.5, 2.11, 3.4 and 3.10 and articles 5, 6, 7, 8 and 10, shall survive any such termination. Subject to being in compliance with all applicable laws and regulatory requirements, Cancer Vac or Biomira, as the case may be, may sell any Products which are in its inventory at the time of termination, provided that such party shall pay the royalties thereon (and any other payments) as required under this Agreement and shall submit the reports required by this Agreement, and provided further that the event giving rise to termination was not a failure to pay.
Section 9.4 Continuing Liability
Termination of this Agreement for any reason shall not release any party from any liability, obligation or agreement which has already accrued nor affect the survival of any provision hereof which is expressly stated to survive such termination. Termination of this Agreement for any reason shall not constitute a waiver or release of, or otherwise be deemed to prejudice or adversely affect, any rights, remedies or claims, whether for damages or otherwise, which a party may have hereunder or which may arise out of or in connection with such termination.
Section 9.5 Return of Confidential Information
Upon termination of this Agreement, each party shall return to the other all Confidential Information of such other party that remains in its possession, except that each party shall be entitled to retain one copy of any such information for archival purposes.
ARTICLE 10
REPRESENTATIONS AND WARRANTIES
Section 10.1 Corporate Existence and Power
Each party represents and warrants to the other parties that (a) it is a corporation duly organized and validly existing and in good standing, under the laws of the jurisdiction of its incorporation; (b) it has the corporate power and authority and the legal right to own its property and assets, to
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lease the property and assets it operates under lease, and to carry on its business as it is now being conducted; and (c) it is in compliance with all requirements of applicable law, except to the extent that any non-compliance would not have a material adverse effect on the properties, business, financial or other condition of such party and would not materially adversely affect such partys ability to perform its obligations under this Agreement.
Section 10.2 Authorization and Enforcement of Obligations
Each party represents and warrants to the other parties that it has the corporate power and authority and legal right to enter into this Agreement and to perform its obligations hereunder; and that this Agreement has been duly executed and delivered on behalf of each party and, except as it may be limited by applicable law, constitutes a legal, valid, binding obligation, according to its terms.
Section 10.3 Consents
Each party represents and warrants to the other parties that all necessary consents, approvals and authorizations of all governmental authorities and others required to be obtained by such party in connection with this Agreement have been obtained.
Section 10.4 No Conflict
Each party represents and warrants to the other parties that the execution and delivery of this Agreement and the performance of such partys obligations hereunder do not conflict with or violate any requirement of applicable laws or regulations, and do not conflict with, or constitute a default under any contractual obligation of such party.
Section 10.5 Authorization of Obligations
Each party represents and warrants to the other parties that the execution, delivery and performance by such party of this Agreement have been duly authorized by all necessary corporate action and do not and will not (a) require any consent or approval of its stockholders or any other third party that has not been received by the Effective Date, (b) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect that have applicability to it or any provision of its charter documents or (c) result in a breach of or constitute a default under any material agreement, mortgage, lease, license, permit or other instrument or obligation to which it is a party or by which it or its properties may be bound or affected.
Section 10.6 Cancer Vac Representations
Cancer Vac represents and warrants to Biomira that as of the date of this Agreement:
10.6.1 |
Cancer Vac is the sole owner and/or is the exclusive licensee under a valid and subsisting license of the Cancer Vac Technology and that such rights are unencumbered by any lien, security interest or other right granted by Cancer Vac or otherwise and that all formal requirements in connection with the maintenance and continuation of the patents and other proprietary rights included in the Cancer Vac Technology (including without limitation the payment of fees and taxes necessary for the continued use of and/or registration thereof) have been complied with as at the Effective Date. Cancer Vac has no Knowledge of any reason why any patent or other proprietary right included in the Cancer Vac Technology could |
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be held to be invalid or otherwise unenforceable, of any reason why any patent application or other application included in the Cancer Vac Technology could be refused or withdrawn, of any reason why any Person could claim that the development, manufacture, production, design, marketing, distribution, use or sale of Products could infringe its intellectual property rights or that any trade secret of another Person has been or could be appropriated as a result of the development, manufacture, production, design, marketing, distribution, use or sale of Products. Cancer Vac has taken all reasonable measures to avoid misappropriation of trade secrets or infringement of copyright. |
10.6.2 |
Cancer Vac has not assigned or conveyed, as at the Effective Date, any interest in Cancer Vac Technology to any third party other than Biomira, or entered into any agreement or made any commitment which is inconsistent with or in derogation of the rights granted to Biomira hereunder. |
Section 10.7 Certain Covenants of Biomira and Cancer Vac
10.7.1 |
Throughout the term of this Agreement, for the benefit of the other party, Biomira and Cancer Vac each shall: |
10.7.1.1 |
maintain and preserve its corporate existence, rights, franchises and privileges in the jurisdictions of its formation; and |
10.7.1.2 |
comply in all material respects with the requirements of all applicable laws, rules, regulations and orders of any government authority to the extent necessary to perform its obligations hereunder, except for those laws, rules, regulations, and orders it may be contesting in good faith. |
10.7.2 |
Cancer Vac covenants and agrees for the benefit of Biomira and its Affiliates to take all actions necessary or desirable to preserve the rights under the ARI License Agreements sublicensed to Biomira and its Affiliates under this Agreement and to not agree to any amendment of the ARI License Agreements which would materially and adversely affect the rights of Biomira and its Affiliates under this Agreement. |
10.7.3 |
Biomira covenants and agrees for the benefit of Cancer Vac to take all actions necessary or desirable to preserve the rights under the CRTL License Agreement sublicensed to Cancer Vac under this Agreement and to not agree to any amendment of the CRTL License Agreement which would materially and adversely affect the rights of Cancer Vac under this Agreement. |
10.7.4 |
Cancer Vac shall provide to Biomira in a timely manner any and all reports and information relating to the Cancer Vac Territory which Biomira is required to provide to CRTL under the CRTL License Agreement. |
Section 10.8 Biomira Representation
Biomira represents and warrants to Cancer Vac that as of the date of this Agreement it has no Knowledge of any issue concerning the invalidity of any claims of the CRTL Technology nor
37.
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does it have any Knowledge of any potential infringement by making, using and/or selling the Products of the proprietary rights of any third parties.
Section 10.9 No Further Representations or Warranties
Except as expressly provided in this article 10 or any other provision of this Agreement, neither party makes any representation or warranty of any kind to the other party, express or implied.
Section 10.10 Knowledge
Knowledge of Cancer Vac shall [ * ]. Knowledge of Biomira shall be [ * ].
ARTICLE 11
MISCELLANEOUS
Section 11.1 Force Majeure
11.1.1 |
Means an event, the cause of which is beyond the reasonable control of the party affected thereby and which could not reasonably have been foreseen and provided against, including, without limitation, acts of God, strikes, lock-outs or other labour or industrial disturbances, accidents, fires, explosions, weather conditions materially affecting or preventing work, inability to secure fuel, power, materials, contractors or labour, mechanical breakdown, failure of equipment or machinery, delays in transportation, wars, civil commotion, riot, sabotage, interruptions by government, court orders, or orders or rulings by regulatory bodies; provided that an event caused by or materially contributed to by a partys financial difficulty shall not be included as a force majeure event. |
11.1.2 |
Notwithstanding any other provision of this Agreement, if by reason of Force Majeure, either party is wholly or partly unable to perform certain of its obligations under this Agreement, it shall be relieved of those obligations to the extent, and for the period, that it is affected by Force Majeure, provided that the affected party gives the other party prompt notice of such inability and nature, cause and expected duration of the Force Majeure. The party affected by Force Majeure shall use all reasonable efforts to remedy the situation and remove, so far as possible and with reasonable dispatch, the cause of its inability to perform, provided that there shall be no obligation on a party so affected to settle labour disputes or to test or to refrain from testing the validity of any order, regulation or law in any court having jurisdiction. The party affected by Force Majeure shall give prompt notice of the cessation and the cause thereof, and shall provide reports at least every [ * ] as to its progress in dealing with the Force Majeure. Should the Force Majeure event continue for a period longer than [ * ], the party shall no longer be relieved of its obligations under this Agreement. |
Section 11.2 Notice
Any notice or other communication required or permitted to be given hereunder shall be in writing and shall be delivered in Person, transmitted by facsimile or similar means of recorded electronic communication or sent by registered mail, charges prepaid, addressed as follows:
if to Biomira Inc.
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Biomira Inc.
2011 94 Street
Edmonton, Alberta T6N 1H1
Canada
Attention: President
Facsimile: (780) 450-4772
if to Cancer Vac Pty Ltd:
Cancer Vac Pty Ltd
Suite 7, 79-83 High Street
Kew, Victoria, 3101
Australia
Attention: Marcus Clark
Facsimile: +61 3 9854 5777
if to Prima Biomed Limited:
Prima Biomed Limited
Suite 7, 79-83 High Street
Kew, Victoria, 3101
Australia
Attention: Marcus Clark
Facsimile: +61 3 9854 5777
Any such notice or other communication shall be deemed to have been given and received on the day on which it was delivered or transmitted (or, if such day is not a business day, on the next following business day) or, if mailed, on the fifth (5th) business day following the date of mailing; provided, however, that if at the time of mailing or within five (5) business days thereafter there is or occurs a labour dispute or other event that might reasonably be expected to disrupt the delivery of documents by mail, any notice or other communication hereunder shall be delivered or transmitted by means of recorded electronic communication as aforesaid. Either party may at any time change its address for service from time to time giving notice to the other party in accordance with this section 11.2.
Section 11.3 Waivers
No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be construed as a further or continuing waiver of any such term, provision, or condition of this Agreement unless reduced to writing signed by an authorized representative of each party.
Section 11.4 Dispute Resolution
Should any dispute arise between the parties concerning this Agreement, the parties agree to first attempt to resolve the dispute in good faith. If within [ * ] of one party providing written notice of such dispute to the other party such dispute is not resolved as aforesaid, then the dispute shall immediately thereafter be referred for resolution to the Chairman of Cancer Vac and the President of Biomira before resorting to any other forum for a remedy. If resolution of the dispute is not reached between the Presidents within [ * ] of such dispute being referred to the
39.
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Presidents, then the parties shall refer the dispute to binding arbitration by a single arbitrator under the Arbitration Act (British Columbia) which shall be held at a neutral site in Vancouver, British Columbia, Canada.
Section 11.5 Assignment
No party to this Agreement shall be entitled to assign its rights or obligations under this Agreement to any Person without the prior written consent of the other parties (such consent not to be unreasonably withheld), provided that (subject to the second sentence of this section 11.5) any party may, without such consent, assign or novate this Agreement and its rights and obligations hereunder in connection with the transfer or sale of all or substantially all of its business after first giving the other parties written notice of such event and further provided that Biomira shall be entitled, without such consent, to assign or transfer its rights and obligations hereunder to any Affiliate of Biomira. Notwithstanding the foregoing, no assignment of any rights or obligations in relation to the CRTL Technology may be made without the prior written consent of CRTL, such consent not to be unreasonably withheld.
Section 11.6 Taxes
Each of Biomira and Cancer Vac shall be responsible for any and all taxes and other similar levies or charges properly assessed against payments received by such party from the other party under this Agreement. If applicable laws or regulations require the taxes be withheld on such payments, the withholding party will in a timely manner notify the other party in writing specifying the details thereof and shall:
11.6.1 |
deduct those taxes from the amount of such payment due to the receiving party; |
11.6.2 |
pay the taxes to the proper taxing authority in a timely manner; and |
11.6.3 |
send proof of payment to the receiving party within [ * ] following that payment. |
The parties agree to cooperate to reduce the amount of any such deductions and to obtain the benefit of any tax treaty with respect to such deductions. Further, the withholding party shall cooperate with the receiving party in obtaining for the receiving party the credit or refund for any such taxes, levies or charges. Neither party shall be required under this concluding paragraph of section 11.6 to act in a manner which is financially detrimental from a taxation perspective to such party.
Section 11.7 Integration Clause
This Agreement is the sole agreement with respect to the subject matter hereof, and supersedes all proposals, negotiations, conversations, discussions, agreements and/or representations, whether oral or written, including any industry custom or past dealing between the parties relating to the subject matter of this Agreement. The parties agree that any and all obligations between the parties that are outside the terms of this Agreement and that relate to the subject matter of this Agreement that preceded the Effective Date of this Agreement have been satisfactorily executed or are null and void.
Section 11.8 Independent Contractors
11.8.1 |
This Agreement shall not constitute or give rise to an agency, partnership or joint |
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venture between the parties and each partys performance hereunder is that of a separate, independent entity. |
11.8.2 |
Nothing in this Agreement shall be deemed to be the grant by either party to the other of any right, title or interest in any product, material or proprietary rights of the other except as may be expressly provided for in this Agreement. |
Section 11.9 Severability and Survival
To the extent that any provision of this Agreement shall be prohibited by or held to be invalid or unenforceable under applicable law, such provision shall be ineffective to the extent of such prohibition, invalidity or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 11.10 Dollars
Unless otherwise provided, any reference in this Agreement to dollars shall be to U.S. dollars.
Section 11.11 Amendment of Agreement
No change, modification, extension, termination, waiver or other amendment of this Agreement or any of the provisions contained herein, shall be valid unless made in writing and signed by a duly authorized representative of each party.
Section 11.12 Governing Law and Attornment
This Agreement is subject to and shall be governed by the laws of the Province of Alberta and the laws of Canada applicable therein (without giving effect to the conflict of law provisions thereof) and the parties agree to irrevocably attorn to the exclusive jurisdiction of the courts of Alberta.
Section 11.13 Non-Solicitation
Except as otherwise agreed to in writing by Biomira and Cancer Vac, during the Term, Cancer Vac shall not solicit to employ any employees of Biomira or any of its Affiliates, nor shall Biomira solicit to employ any employees of Cancer Vac or its Affiliates, unless an employee responds directly to a general advertisement for employment that is posted in a newspaper or on a website or any other form of publication directed at the public in general.
Section 11.14 Counterparts
This Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original and shall have the same force and effect as an original but such counterparts together shall constitute but one and the same instrument.
41.
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IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to be executed by their duly authorized representatives as of the date first above written.
BIOMIRA, INC. | ||
Per: | /s/ Edward A. Taylor Mar 09 2004 | |
Edward A. Taylor | ||
Per: | /s/ Robert D. Aubrey Mar 09 2004 | |
Robert D. Aubrey |
EXECUTED by CANCER VAC PTY LTD ACN 096 859 513 in a manner authorized by the Corporations Act with the authority of the director(s): |
) ) ) |
|||
/s/ Marcs Clark | Marcs Clark | |||
Signature of Director/Secretary | Name of Director/Secretary in full | |||
/s/ Richard Revelins | Richard Revelins | |||
Signature of Director/Secretary |
Name of Director/Secretary in full | |||
EXECUTED by PRIMA BIOMED LIMITED ACN 009 237 889 in a manner authorized by the Corporations Act with the authority of the director(s): |
) ) ) |
|||
/s/ Bryan John Frost |
Bryan John Frost |
|||
Signature of Director/Secretary |
Name of Director/Secretary in full |
|||
/s/ Richard Revelins |
Richard Revelins |
|||
Signature of Director/Secretary |
Name of Director/Secretary in full |
42.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
SCHEDULE A
CancerVac Know How Schedule
Know How:
CancerVac Know How as defined in this Agreement is inclusive of all protocols, data and reports pertaining to current product candidate as well as information and data from ongoing research and development in the following areas:
[ * ]
43.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
CONFIDENTIAL
SCHEDULE B
Cancer Vac Patent Schedule
Patents/applications: 2 Families
The following table indicates the status of each Patent/application in each family.
FAMILY A : MFP (Mann-Mucl Fusion Protein); priority: 23/12/93
COUNTRY |
PATENT/APPLICATION # |
STATUS |
||
Australia |
685539 | Granted ; expires 24/12/14 | ||
Canada |
2135833 | Pending | ||
Europe |
94303817.4 | Pending | ||
Japan |
6-137976 | Pending | ||
United States |
5,989,552 | Issued (parent claiming immunogenic conjugates); expires 16/11/14 | ||
United States |
6,177,256 | Issued (divisional claiming vaccines); expires 16/11/14 |
FAMILY B : Mannose receptor bearing cells from PCT/IB98/01718 (priority: 29/9/97)
COUNTRY |
PATENT/APPLICATION # |
STATUS |
||
Australia |
754065 (94555/98) | Granted ; expires 29/9/18 | ||
Canada |
2304952 | Pending | ||
Europe |
98947738.5/1027063 | Pending | ||
Japan |
2000-513589 | Pending | ||
United States |
09/163,089 | Pending |
44.
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SCHEDULE C
BIOMIRA PATENT AND KNOW HOW SCHEDULE
Note that the list represents currently active members of the pertinent patent family licensed by Biomira from CRTL, however not all patents/pending applications will contain claims covering the CRTL technology licensed under this Agreement
Application/patent number | Status | |||||||
US: |
5,683,674 | Granted | ||||||
6,222,020 | Granted | |||||||
6,054,438 | Granted | |||||||
09/729,226 | Pending | |||||||
Europe: |
0,341,252 | Granted | ||||||
00127074.3 | Pending | |||||||
Japan: |
36592/98 | Pending | ||||||
125724/00 | Pending | |||||||
Canada: |
1,339,204 | Granted |
The CRTL Technology also includes know how and other rights granted by CRTL to Biomira under the CRTL License Agreement
[ * ].
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DEED OF VARIATION OF LICENSE AND DEVELOPMENT AGREEMENT
This deed (this Variation) made as of the 5th day of February, 2007
AMONG:
BIOMIRA INC ., a corporation incorporated under the laws of Canada
(hereinafter referred to as Biomira)
- and -
CANCER VAC PTY LTD [ACN 096 859 513] , a corporation incorporated under the laws of Australia (hereinafter referred to as Cancer Vac)
- and-
PRIMA BIOMED LIMITED [ACN 009 237 889] , a corporation incorporated under the laws of Australia (hereinafter referred to as Prima Biomed)
WHEREAS Biomira, Cancer Vac and Prima Biomed are parties to an agreement entitled License and Development Agreement dated 9 March 2004 (the Agreement);
AND WHEREAS Biomira, Cancer Vac and Prima Biomed have agreed to vary the Agreement as set out in this Variation;
NOW, THEREFORE , in consideration of the premises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed to by the parties, and intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1 Terms Defined in Agreement
Subject to Section 1.2, unless otherwise provided, terms defined in the Agreement (as amended by this Variation, if applicable) have the same meaning in this Variation.
Section 1.2 Terms Defined in this Variation
Despite Section 1.1, in this Variation the following terms shall have the following meanings:
1.2.1 |
Agreement means the agreement entitled License and Development Agreement between Biomira, Cancer Vac and Prima Biomed dated 9 March 2004, together with all schedules thereto and any amendments to or restatements of that agreement prior to the entry into this Variation by the parties; |
1.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
1.2.2 |
Effective Date means February 5, 2007; |
1.2.3 |
PRR Shares means all ordinary fully paid shares held by Biomira in the capital of Prima Biomed as at the Effective Date, of which there are approximately [ * ]; |
1.2.4 |
Reimbursement Amount means the amount [ * ]; |
1.2.5 |
Variation means this deed of variation of license and development agreement, together with all schedules hereto and any amendments to or restatements of this variation of license and development agreement. |
Section 1.3 Number and Gender
Words importing the singular number only in this Variation shall include the plural number and vice versa and words importing one gender only in this Variation shall include all genders and words importing Persons in this Variation shall include individuals, partnerships, corporations and any other entities, legal or otherwise.
Section 1.4 Headings
The headings used in this Variation are for ease of reference only and shall not affect the meaning or the interpretation of this Variation. References to sections and articles are to sections and articles of this Variation unless the context otherwise requires.
Section 1.5 Schedule
The following Schedule attached to this Variation shall form part of this Variation:
Schedule D - Additional Cancer Vac Territory Countries
Section 1.6 Annexure
The consolidated copy of the Agreement as varied by this Variation annexed to this Variation as Annexure 1 shall form part of this Variation, and shall apply and be interpreted as provided for in Section 2.6.
Section 1.7 Effective Date
This Variation shall have effect on and from the Effective Date.
Section 1.8 Legislation
Any reference in this Variation to legislation or a statute includes, unless otherwise indicated, rules and regulations passed or in force as at the date of this Variation and any amendments to such rules or regulations from time to time, and any legislation or regulations substantially replacing the same.
2.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
ARTICLE 2
VARIATION OF LICENSE AND DEVELOPMENT AGREEMENT
Section 2.1 Substitution of Provisions
The Agreement is varied, with effect on and from the Effective Date, by substituting the text set out in the second column of the table below for the text of the article, section, sub-section, clause or provision in the Agreement identified in the first column of the table:
Article, Section, Sub- Section,
clause or
|
Delete text as appearing and substitute with the text set out below: |
|
1.1.7 |
Cancer Vac End User shall, for purposes of section 1.1.10 of this Agreement, mean, with respect to a Product, the first purchaser at arms length (or, if not at arms length, as provided for in section 1.1.10 of this Agreement) with Cancer Vac, an Affiliate of Cancer Vac or any sublicensee (including, without limitation, any sublicensee of a sublicensee), as the case may be, that acquires such Product in final form for end use, including physicians, hospitals and wholesalers, provided that [ * ] such Product is sold to such person [ * ] such Product in the country in question; | |
1.1.10 |
Replace the initial paragraph of 1.1.10 with the following: Cancer Vac Net Sales shall mean, with respect to a Product in a particular country, the sum of the gross amounts received for all Sales (directly or indirectly) by Cancer Vac, its Affiliates and all sublicensees (including, without limitation, any sublicensee of a sublicensee), assignees and transferees of such Product to Cancer Vac End Users, less the following deductions from such amounts invoiced which are actually and properly incurred in accordance with GAAP; |
|
1.1.13 |
Cancer Vac Territory means Australia, New Zealand, the countries set out in Schedule D and, except to the extent that Biomira elects in accordance with section 3.1.3 of this Agreement to receive a license to all or a portion thereof (and has not rescinded such election), the Territory; | |
1.1.41 |
ROW Territory shall mean all countries of the world except Canada, the United States of America, Mexico, Australia, New Zealand and the countries set out in Schedule D; | |
1.1.48 |
Territory shall mean, collectively, the North American Territory and the ROW Territory; | |
1.4 Schedules |
The following Schedules attached to this Agreement shall form part of this Agreement: |
3.
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Article, Section, Sub- Section,
clause or
|
Delete text as appearing and substitute with the text set out below: |
|
Schedule A Cancer Vac Know-How Schedule B Cancer Vac Patent Rights Schedule C CRTL Know-How and Patent Rights Schedule D Additional Cancer Vac Territory Countries |
||
2.2 |
(a) Subject to section 2.2(b) of this Agreement, Cancer Vac shall have no right to grant sublicenses under the sublicense set forth in section 2.1 of this Agreement without the prior written consent of Biomira and CRTL (such consent not to be unreasonably withheld) and, to the extent applicable, complying with the provisions of this Agreement and the CRTL License Agreement. Cancer Vac shall at least [ * ] prior to the execution of any proposed sublicense agreement provide a complete copy thereof to Biomira for review by Biomira and CRTL. In any such sublicense agreement Cancer Vac shall ensure that the sublicensee is legally bound by the provisions of this Agreement relating to the use and safeguarding of the licensed technology including the confidentiality provisions in article 5 of this Agreement. No such sublicensee shall grant any further license of such licensed technology to any other Person. Cancer Vac shall be responsible for diligently enforcing the provisions of any such sublicense agreement and for the acts and omissions of the sublicensee and all such acts and omissions of the sublicensee shall be regarded for purposes of this Agreement as the acts and omissions of Cancer Vac.
(b) Commencing [ * ], Cancer Vac may (and any sublicensee of Cancer Vac may) grant one or more sublicenses under the sublicense set forth in section 2.1 of this Agreement in respect of the Cancer Vac Territory outside of the North American Territory. Cancer Vac shall, at least [ * ] prior to the execution of any such proposed sublicense agreement, provide a complete copy thereof to Biomira. Further, any such sublicense agreement shall comply with the terms of this Agreement and Cancer Vac shall ensure that the sublicensee is legally bound by the provisions of this Agreement relating to the use and safeguarding of the licensed technology, including the confidentiality provisions in article 5 of this Agreement. Cancer Vac shall be responsible for diligently enforcing or causing the diligent enforcement of the provisions of any such sublicense agreement and for the acts and omissions of any such sublicensee and all acts and omissions of any such sublicensee shall be regarded for the purposes of this Agreement as the acts and omissions of Cancer Vac. |
4.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Article, Section, Sub- Section,
clause or
|
Delete text as appearing and substitute with the text set out below: |
|
2.3 |
Subject to the terms and conditions of the CRTL License Agreement, the sublicense granted under section 2.1 of this Agreement shall remain in force and effect on a Product-by Product and country-by-country basis until the later of:
2.3.1 the expiration or termination of the last to expire or terminate of Valid Claims that cover such Product in such country; and
2.3.2 the expiration or termination of the last to expire or terminate of the Exclusivity Period(s) that cover such Product in such country. |
|
2.8.1.1 |
$[ * ] upon [ * ]; | |
2.8.1.2 |
$[ * ] upon [ * ]; | |
2.9.1.1 |
[ * ] percent ([ * ]%) for Cancer Vac Net Sales of Product in the [ * ]; and | |
2.9.1.2 |
[ * ] percent ([ * ]%) for Cancer Vac Net Sales of Product in the [ * ]; | |
2.9.2 |
at any time when [ * ] under section [ * ] of this Agreement [ * ] in relation to the [ * ] the [ * ], [ * ] percent ([ * ]%) for Cancer Vac Net Sales in the [ * ]; | |
2.9.3 |
at any time when [ * ] under section [ * ] of this Agreement [ * ] in relation to the [ * ] the [ * ], [ * ] percent ([ * ]%) for Cancer Vac Net Sales in [ * ]; and | |
4.11.1.1 |
so long as the Cancer Vac Territory includes the Territory, one hundred percent (100%) by Cancer Vac; | |
4.2.8 |
Disbanding : the Steering Committee shall remain in full force and effect for as long as any Product is or may be in Clinical Development under this Agreement, provided that the Steering Committee will be disbanded in circumstances where either the Biomira Territory is the Territory (and not just the North American Territory) or the Cancer Vac Territory is the entire world and Biomira has no residual rights under article 3 of this Agreement. | |
4.4 |
Except as otherwise provided by law, [ * ] and [ * ] under this Agreement in relation to the [ * ] shall determine the Sales price for Product(s) Sold in the [ * ], provided that [ * ] shall ensure that the Sales price for Product(s) Sold in [ * ] the Sales price for Product(s) Sold outside of [ * ]. |
5.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Article, Section, Sub- Section,
clause or
|
Delete text as appearing and substitute with the text set out below: |
|
4.5 |
Biomira (or its designated Affiliate) shall be responsible for advertising and promotion of Product(s) in the Biomira Territory and Cancer Vac shall be responsible for advertising and promotion of Product(s) in the Cancer Vac Territory. | |
4.7 |
[ * ] and [ * ] under this Agreement in relation to the [ * ] shall be responsible for handling all customer complaints and inquiries regarding the Product(s) [ * ]. All complaints and inquiries received by the other parties or their agents shall be promptly referred to [ * ] to the [ * ] for response according to applicable law. [ * ] to the [ * ] shall use commercially reasonable efforts to handle such matters in a timely manner, in compliance with applicable laws, regulations, rules, policies and regulatory requirements and in accord with [ * ] standard operating procedures. All costs incurred in responding to customer complaints and inquiries shall be deemed to be Shared Costs for purposes of this Agreement. | |
4.8 |
[ * ] and [ * ] under this Agreement in relation to the [ * ] shall be responsible for reporting all adverse events regarding Product(s) [ * ]. All information received by the other party or their agents shall be promptly transferred according to applicable law to [ * ] to the [ * ] for handling. [ * ] to the [ * ] shall handle such matter in a timely manner, in compliance with applicable laws and regulations, and in accord with [ * ] standard operating procedures. All costs incurred in responding to and reporting adverse events regarding Product(s) shall be deemed to be Shared Costs for purposes of this Agreement. | |
4.9 |
[ * ] and [ * ] under this Agreement in relation to the [ * ] shall be responsible for initiating and implementing all Product recalls required by controlling regulatory agencies [ * ] and for all voluntary Product market withdrawals. [ * ] to the [ * ] shall handle such matters in a timely manner, in compliance with applicable laws and regulations, and in accord with [ * ] standard operating procedures. [ * ] shall use commercially reasonable efforts to cooperate with such [ * ] with respect to the implementation of any such recall or market withdrawal. All costs incurred in responding to recalls and market withdrawals shall be deemed to be Shared Costs for purposes of this Agreement. |
6.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Article, Section, Sub- Section,
clause or
|
Delete text as appearing and substitute with the text set out below: |
|
6.1 (including sub-heading amendment) |
Improvements All inventions, discoveries, improvements or other technology to the extent specifically applicable in the Field and all processes or uses relating thereto, which are capable of protection as proprietary intellectual property (including for greater certainty trade secrets), that arise after the Effective Date as a result of conduct under this Agreement shall be regarded as improvements (Improvements). |
|
6.8 |
Biomira agrees not to consent to any amendment to the CRTL License Agreement which may in any way adversely effect Cancer Vacs rights under this Agreement and further agrees to fully comply with its obligations and enforce its rights under the CRTL License Agreement so as to avoid any adverse effect on Cancer Vacs rights under this Agreement. | |
7.1.1 |
If any party becomes aware of any facts that indicate the likelihood that any intellectual property in any Product is being infringed by any Person, or if any Person wrongfully engages in any activity that is covered by the Cancer Vac Technology and/or the CRTL Technology, that party shall inform Biomira and Cancer Vac in writing of those facts in reasonable detail. | |
7.2 |
The title of Section 7.2 shall read as follows: Claims Against Cancer Vac Technology and CRTL Technology |
7.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Article, Section, Sub- Section,
clause or
|
Delete text as appearing and substitute with the text set out below: |
|
8.2 |
Cancer Vac shall indemnify and hold Biomira (its affiliates and their respective officers, directors, shareholders, employees, agents and their successors and permitted assigns) (collectively the Biomira Indemnitees) free and harmless from any claims, demands, liabilities, losses, actions or causes of actions, and any and all expenses associated therewith (including without limiting the generality of the foregoing, reasonable defense costs and legal fees), arising out of or in connection with, or that are the result of, or are otherwise related to: (i) any claim, suit, proceeding or cause of action against any of the Biomira Indemnitees alleging physical injury (including death) or property damage as a result of the acts or omissions of Cancer Vac or any sublicensee (including, without limitation, any sublicensee of a sublicensee) or their respective officers, directors, shareholders, employees or agents, except to the extent attributable to any one or more of the Biomira Indemnitees; (ii) any failure of Cancer Vac to perform, in whole or in part, any covenants or obligations under this Agreement except to the extent attributable to any one or more of the Biomira Indemnitees; (iii) Cancer Vacs or any sublicensees (including, without limitation, any sublicensee of a sublicensee) non-compliance with any applicable national, federal, provincial or state laws or regulations, except to the extent attributable to any one or more of the Biomira Indemnitees; (iv) any breach by Cancer Vac of any of its representations or warranties under this Agreement; or (v) Cancer Vacs or any sublicensees (including, without limitation, any sublicensee or a sublicensee) marketing and Sale of Product, except to the extent attributable to any one or more of the Biomira Indemnities. To the extent that Cancer Vac does not fulfill in a timely manner its indemnification obligations under this section 8.2, Prima Biomed covenants and agrees to fulfill such obligations on behalf of Cancer Vac. | |
9.1 |
This Agreement shall be effective as of the Effective Date and, unless terminated earlier pursuant to this article 9, shall remain in force, and effect, on a Product-by-Product and country-by-country basis until the later of:
9.1.1 the expiration or termination of the last to expire or terminate of Valid Claims that cover such Product in such country; and
9.1.2 the expiration or termination of the last to expire of the Exclusivity Period(s) that cover such Product in such country. |
8.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Section 2.2 Addition of new Provisions
In addition to the variations effected by section 2.1, the Agreement shall be further varied, with effect on and from the Effective Date, by inserting the text set out in the second column of the table below as article, section, sub-section, clause or provision in the Agreement identified in the first column of the table:
Article, Section, Sub- Section,
clause or
|
Amend existing numbering as appearing (where indicated) and insert as new the text set out below: |
|
1.1.23a |
Exclusivity Period means, with respect to a particular Product in a particular country, the period for which such Product is protected by a Valid Claim or any applicable extension to a Valid Claim or any applicable marketing exclusivity period (examples of applicable extensions and/or marketing exclusivity periods include, without limitation, orphan drug status (e.g., United States), first approval of a new class of biological product (e.g., European Union) and safety reporting period (e.g., Japan)). |
|
2.9.5 |
Add the following as a new sub-clause 2.9.5: For greater certainty, the parties acknowledge that the provisions of this Agreement (including, without limitation, the provisions of this section 2.9) shall apply to all Sales (directly or indirectly) of Product by Cancer Vac, its affiliates and all sublicensees (including any sublicensee of a sublicensee), assignees and transferees, but the granting by Cancer Vac of a sublicense pursuant to section 2.2 of this Agreement shall not, in and of itself, cause Cancer Vac to incur any additional liabilities beyond those specified in this Agreement merely as a result of the grant of such sublicense . |
Section 2.3 Deletion of Provisions
In addition to the variations effected by section 2.1, and the addition of new provisions effected by section 2.2, the Agreement shall be further varied, with effect on and from the Effective Date, by deleting the text of the provisions set out in the table below, and inserting the word deleted adjacent to the provision reference, (thereby retaining, to the extent possible, existing number integrity in the Agreement):
Article, Section, Sub-Section, clause or provision: |
Article, Section, Sub-Section, clause or provision (sub) heading: |
|
1.1.29 |
Definitions (Joint Improvements) | |
2.8.1.4 |
Milestone Payment | |
2.8.1.6 |
Milestone Payment |
9.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Article, Section, Sub-Section, clause or provision: |
Article, Section, Sub-Section, clause or provision (sub) heading: |
|
2.9.1 (last paragraph of text forming part of sub-section 2.9.1 appearing directly under clause 2.9.1.2) |
Royalty Payments | |
6.4 |
Invention Disclosure | |
6.5 |
Independent Use of Joint Improvements | |
6.6 |
Prosecution and Maintenance of Joint Patents | |
7.2.1.3 |
Claims Against Cancer Vac Technology, CRTL Technology and Joint Technology | |
7.2.2.1.3 |
Damages |
Section 2.4 Definition of Cancer Vac Territory
The parties confirm:
2.4.1 |
the intention of the parties to extend the Cancer Vac Territory to expressly include the countries set out in Schedule D to this Variation in addition to Australia and New Zealand; and |
2.4.2 |
the reference to section 3.1.2 in the definition of Cancer Vac Territory in section 1.1.13 of the Agreement is to have been at all times substituted with and read as a reference to section 3.1.3, and section 1.1.13 of the Agreement is amended accordingly from the date of execution of the Agreement. |
Section 2.5 Schedule D
Schedule D to this Variation is inserted after Schedule C of the Agreement as an additional Schedule D attached to the Agreement.
Section 2.6 Consolidation
For the avoidance of doubt (and expressly not as a novation or restatement, nor as a further or repeat grant of rights) a consolidated copy of the Agreement as varied by this Variation is exhibited for reference as Annexure 1 to this Variation. To the extent of any inconsistency between the variations of the Agreement set out in this ARTICLE 2 and the consolidation in Annexure 1, the variations set out in this ARTICLE 2 shall prevail.
ARTICLE 3
PRESERVATION AND CONFIRMATION
10.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Section 3.1 Agreement otherwise unaltered
Except to the extent necessary to give effect to the variations set out in this Variation, in all other respects, but subject to this Variation, the Agreement remains unaltered and continues in full force and effect.
Section 3.2 No Restatement
The parties confirm that this Variation is supplemental and collateral to the Agreement, notwithstanding that it may contain provisions independent of the Agreement, and that it is intended to record the agreed amendment(s) of the rights of the parties, and acknowledge and confirm the respective positions of the parties in relation to the rights arising by virtue of the Agreement, as varied by this Variation. This Variation, and the variations made by it, expressly are not a novation or restatement of the rights or obligations of the parties, nor a repeat grant of rights.
Section 3.3 Biomira Election
The parties confirm Biomira has not elected under section 3.1.3 of the Agreement, and shall not hereafter elect, to receive a license to all or a portion of the Territory. Without limiting the foregoing in any manner whatsoever, and for the avoidance of doubt, the countries set out in Schedule D to this Variation, together with Australia and New Zealand, are excluded from the countries in respect of which Biomira may have been able to elect to receive a license under section 3.1.3 of the Agreement, but for this Section 3.3. The parties acknowledge that this Section 3.3 exists for the benefit of Cancer Vac and Prima Biomed, and may be waived by those parties, acting jointly in their absolute discretion, by notice in writing to Biomira.
Section 3.4 CRTL Technology outside of the Field
Nothing in this Variation shall in any way limit the right of Biomira, CRTL and their respective Affiliates and licensees to use or exploit the CRTL Technology outside of the Field.
Section 3.5 Cancer Vac Technology outside of the Field
Nothing in this Variation shall in any way limit the right of Cancer Vac and its Affiliates and licensees to use or exploit the Cancer Vac Technology outside of the Field.
ARTICLE 4
REIMBURSEMENT
Section 4.1 Cancer Vac Reimbursement
Cancer Vac shall pay to Biomira, within [ * ] of the Effective Date, the Reimbursement Amount.
Section 4.2 Cancer Vac procurement of sales
Cancer Vac may, within [ * ] of the Effective Date, at its own cost and on such terms as Cancer Vac shall consider appropriate, procure the purchase from Biomira of the PRR Shares, or any part thereof, and shall otherwise use its best endeavours to provide such assistance to Biomira as may be necessary to effect the transfer of all right, title and interest in the PRR Shares, or any part thereof, to such third parties who shall do all things necessary at law to receive the right, title and interest in the said PRR Shares. Any funds received from such third parties by Biomira in consideration of the transfer of the PRR Shares to such third parties shall, [ * ], be paid-over by Biomira to Cancer Vac, provided that in no circumstances shall the aggregate amount of the
11.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
monies (i) [ * ] and/or (ii) paid or payable by Biomira to Cancer Vac under this section 4.2 exceed $US [ * ].
Section 4.3 Sale of PRR Shares
Biomira shall, on and from the Effective Date, or from such earlier date as the parties may agree, execute such documents as may be necessary to transfer all right, title and interest in the PRR Shares, or any part thereof, pursuant to section 4.2.
ARTICLE 5
CONFIDENTIALITY
Section 5.1 Confidentiality
The covenants of the parties under Article 5 of the Agreement and this ARTICLE 5 of this Variation shall continue in full force and effect notwithstanding the termination of the Agreement or of this Variation by effluxion of time or otherwise.
Section 5.2 No Disclosure
Except as required by law or any applicable regulatory authority or as otherwise provided herein, the parties agree that the existence of this Variation and the contents of this Variation and the Agreement as varied by this Variation shall not be disclosed to any third party without the prior written consent of the other parties. Notwithstanding the foregoing, in the event that a party is required to make a disclosure of the other partys Confidential Information pursuant to section 5.2 of the Agreement, it will, except where impractical, give reasonable advance written notice to the other party of such disclosure and use reasonable commercial efforts to secure confidential treatment of such information.
Section 5.3 Press Releases
Except as required by law or any applicable regulatory authority, any press releases or public statements relating to this Variation or the Agreement as varied by this Variation or the subject matter of either shall prior to being released or made final be provided to the other party for comment in a timely manner.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
Section 6.1 Corporate Existence and Power
Each party represents and warrants to the other parties that (a) it is a corporation duly organized and validly existing and in good standing, under the laws of the jurisdiction of its incorporation; (b) it has the corporate power and authority and the legal right to own its property and assets, to lease the property and assets it operates under lease, and to carry on its business as it is now being conducted; and (c) it is in compliance with all requirements of applicable law, except to the extent that any non-compliance would not have a material adverse effect on the properties, business, financial or other condition of such party and would not materially adversely affect such partys ability to perform its obligations under this Variation and the Agreement as varied by this Variation.
12.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Section 6.2 Authorization and Enforcement of Obligations
Each party represents and warrants to the other parties that it has the corporate power and authority and legal right to enter into this Variation and to perform its obligations under the Agreement as varied by this Variation; and that this Variation has been duly executed and delivered on behalf of each party and, except as it may be limited by applicable law, constitutes a legal, valid, binding obligation, according to its terms.
Section 6.3 Consents
Each party represents and warrants to the other parties that all necessary consents, approvals and authorizations of all governmental authorities and others required to be obtained by such party in connection with this Variation have been obtained.
Section 6.4 No Conflict
Each party represents and warrants to the other parties that the execution and delivery of this Variation and the performance of such partys obligations under the Agreement as varied by this Variation do not conflict with or violate any requirement of applicable laws or regulations, and do not conflict with, or constitute a default under any contractual obligation of such party.
Section 6.5 Authorization of Obligations
Each party represents and warrants to the other parties that the execution, delivery and performance by such party of this Variation and the Agreement as varied by this Variation have been duly authorized by all necessary corporate action and do not and will not (a) require any consent or approval of its stockholders or any other third party that has not been received by the Effective Date, (b) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect that have applicability to it or any provision of its charter documents or (c) result in a breach of or constitute a default under any material agreement, mortgage, lease, license, permit or other instrument or obligation to which it is a party or by which it or its properties may be bound or affected.
Section 6.6 No Further Representations or Warranties
Except as expressly provided in this ARTICLE 6 or any other provision of this Variation or the Agreement as varied by this Variation, neither party makes any representation or warranty of any kind to the other party, express or implied.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Integration Clause
The Agreement as varied by this Variation, and this Variation, are the sole agreement with respect to the subject matter hereof, and supersedes all proposals, negotiations, conversations, discussions, agreements and/or representations, whether oral or written, including any industry custom or past dealing between the parties relating to the subject matter of the Agreement. The parties agree that any and all obligations between the parties that are outside the terms of the Agreement as varied by this Variation and that relate to the subject matter of the Agreement as varied by this Variation that preceded the Effective Date of the Agreement have been satisfactorily executed or are null and void.
13.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Section 7.2 Severability and Survival
To the extent that any provision of this Variation or the Agreement as varied by this Variation shall be prohibited by or held to be invalid or unenforceable under applicable law, such provision shall be ineffective to the extent of such prohibition, invalidity or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Variation or the Agreement as varied by this Variation.
Section 7.3 Amendment of Variation
No change, modification, extension, termination, waiver or other amendment of this Variation or any of the provisions contained herein, shall be valid unless made in writing and signed by a duly authorized representative of each party.
Section 7.4 Governing Law and Attornment
This Variation is subject to and shall be governed by the laws of the Province of Alberta and the laws of Canada applicable therein (without giving effect to the conflict of law provisions thereof) and the parties agree to irrevocably attorn to the exclusive jurisdiction of the courts of Alberta.
Section 7.5 Counterparts
This Variation may be executed in several counterparts, each of which when so executed shall be deemed to be an original and shall have the same force and effect as an original but such counterparts together shall constitute but one and the same instrument.
14.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
IN WITNESS WHEREOF, the parties hereto have each caused this deed to be executed (as a deed) by their duly authorized representatives as of the date first above written.
Per: | /s/ Robert D. Avery | |
Per: |
Robert D. Avery |
EXECUTED by CANCER VAC PTY LTD ACN 096 859 513 in a manner authorized by the Corporations Act with the authority of the director(s): |
) ) ) ) |
|||
/s/ Eugen Kopp | Eugen Kopp | |||
Signature of Director/Secretary | Name of Director/Secretary in full | |||
Signature of Director/Secretary | Name of Director/Secretary in full |
EXECUTED by PRIMA BIOMED LIMITED ACN 009 237 889 in a manner authorized by the Corporations Act with the authority of the director(s): |
) ) ) ) |
|||
/s/ Eugen Kopp | Eugen Kopp | |||
Signature of Director/Secretary | Name of Director/Secretary in full | |||
Signature of Director/Secretary | Name of Director/Secretary in full |
15.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
SCHEDULE D
Additional Cancer Vac Territory Countries
[ * ]
16.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
E XHIBIT 4.8
COLLABORATIVE RESEARCH AGREEMENT
NewSouth Innovations Pty Limited
(ABN 25 000 263 025)
and
Prima Biomed Limited
ACN 009 237 889
Collaborative Research Agreement
398332_1
Rupert Myers Building I Gate 14, Barker Street I UNSW SYDNEY NSW 2052
www.nsinnovations.com.au I enquiries@nsinnovations.com.au
T +61 2 9385 5008 I F +61 2 9385 6600
Reference: [09_2348]
2.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
TABLE OF CONTENTS
1. |
DEFINITIONS AND INTERPRETATION |
1 | ||||
2. |
SERVICES |
5 | ||||
3. |
STUDENTS |
6 | ||||
4. |
COLLABORATOR DUTIES AND MATERIALS |
7 | ||||
5. |
PAYMENT |
8 | ||||
6. |
INTELLECTUAL PROPERTY RIGHTS |
8 | ||||
7. |
OPTION TO COMMERCIAL LICENCE |
9 | ||||
8. |
PROSECUTION AND MAINTENANCE OF PATENTS |
10 | ||||
9. |
CONFIDENTIAL INFORMATION |
11 | ||||
10. |
PUBLICATIONS |
12 | ||||
11. |
PRIVACY |
12 | ||||
12. |
LIABILITY AND INDEMNITY |
12 | ||||
13. |
TERM AND TERMINATION |
14 | ||||
14. |
FORCE MAJEURE |
14 | ||||
15. |
DISPUTE RESOLUTION |
15 | ||||
16. |
GENERAL |
15 |
.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
BACKGROUND:
A. |
NSi is the commercial entity of UNSW responsible for entering into arrangements relating to the commercialisation of Intellectual Property developed at UNSW, including collaborative research involving such Intellectual Property. |
B. |
The Collaborator wishes to engage NSi to undertake certain research services and the parties wish to enter into a Commercial Licence. |
C. |
The Collaborator and UNSW have also applied for an ARC Linkage Grant to conduct research under an ARC Linkage Agreement to further develop the NSi Background IP. |
D. |
NSi agrees to conduct the Project and the ARC Project, the Collaborator agrees to pay the Fees, and the parties agree to accept certain other rights and obligations on the terms and conditions of this Agreement. |
THE PARTIES AGREE:
1. |
DEFINITIONS AND INTERPRETATION |
1.1 |
Definitions |
In this Agreement, unless the context otherwise requires:
Affiliate means any person who, directly or indirectly, Controls, is Controlled by or is under common Control with a party.
1.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
ARC Project means the project to be conducted under an ARC Linkage Agreement between the parties and UNSW to further develop NSi Background IP as a result of a successful ARC Linkage Grant Application.
ARC Project IP means all Intellectual Property created, conceived, developed or reduced to practice in the course of the ARC Project.
Application means an application of the Project IP to [ * ].
Background IP means Intellectual Property rights owned by or licensed to a party as at the Commencement Date, or acquired or developed by a party during the Term independently of the Project, which that party has the right to license to third parties and which are necessary for the performance of the Services, including those specified in the Schedule.
Collaborator Duties means the duties to be undertaken by the Collaborator under clause 4, as specified in the Research Plan.
Collaborator Materials means all equipment, materials, data and information (including any Background IP) supplied to NSi or its nominee by or on behalf of the Collaborator, including those specified in the Research Plan.
Collaborator Personnel means all personnel of the Collaborator involved in the Project.
Commencement Date means the commencement date specified in the Schedule.
Commercial Licence means the commercial licence set out in Annexure 2.
Completion Date means the completion date specified in the Schedule.
Confidential Information means all know how, Intellectual Property, business, financial, technical and other commercially valuable or sensitive information of a party in whatever form, including inventions (whether or not reduced to practice), trade secrets, methodologies, formulae, graphs, drawings, samples, biological materials, devices, models, business plans, policies and any other materials or information which a party regards as confidential, proprietary or of a commercially sensitive nature that may be in the possession of that party or its Related Bodies Corporate or its or their employees or officers, in each case whether disclosed visually, orally, in writing or by electronic means, directly or indirectly by a party (including by a Affiliate) and whether disclosed before or after the Commencement Date, but excluding information which:
(a) |
is now in the public domain, or enters the public domain after the Commencement Date, through no fault of the recipient; |
(b) |
can be shown by contemporaneous records of the recipient to have been known to the recipient at the time it is received pursuant to this Agreement; |
(c) |
is provided to the recipient by a third party after the Commencement Date, lawfully and without violating any restriction on its disclosure; or |
(d) |
can be shown by contemporaneous records of the recipient to have been independently developed by the recipient without reference to the Confidential Information of the other party. |
Control has the meaning given to that term in section 50AA of the Corporations Act 2001 (Cth):
2.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
(a) |
the ability to cast or control the casting of more than 50% of the maximum number of votes that might be cast at any general meeting (or equivalent) of an entity; |
(b) |
the holding of more than 50% of the issued ordinary share capital, the equity, or other ownership interest, in the entity, or the holding of the maximum ownership interest permitted in the country where the entity exists; or |
(c) |
the ability of a person or persons to direct, or share equally in the direction of, the composition of the board of directors (or equivalent) of the entity, or to manage the entity pursuant to an agreement. |
Commercial Licence Schedule means the schedule attached to the Commercial Licence.
Fees means the fees to be paid by the Collaborator to NSi in accordance with clause 5, as specified in the Schedule.
Force Majeure means any act, event or cause (other than lack of funds) which is beyond the reasonable control of the affected party.
GST means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related tax imposition Acts of the Commonwealth of Australia.
Intellectual Property means statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions, patents, plant varieties, registered and unregistered trade marks, registered and unregistered designs, circuit layouts and rights to require information to be kept confidential, and all other rights as defined by Article 2 of the Convention establishing the World Intellectual Property Organization of July 1967, and all rights to apply for any of the above, but does not include moral rights that are not transferable.
Option means the option referred to in clause 7.
Other Key Personnel means the personnel to be involved in the performance of the Services specified in the Schedule other than the Project Director.
Paper means any manuscript, abstract, paper, journal article, Student Thesis, or content of any oral, poster or other presentation containing or referring to the Services or Background IP or Project IP.
Patents means:
(a) |
the patents and patent applications, if any, described in the Schedule; |
(b) |
all patent applications that may be filed by or on behalf of NSi which are based on, claim priority from, are divided from or are continuations of any patent application, if any, described in the Schedule or arising from the Project; and |
(c) |
all patents which may be granted pursuant to any of the patent applications referred to in paragraphs (a) or (b). |
Patent Costs means fees, costs and expenses (including patent attorney, legal fees and expenses, external patent management services fees and government charges) incurred after the Commencement Date, in the obtaining of grants of the Patents or other formal Intellectual Property rights forming part of the Project IP and NSi Background IP in the Territory and maintaining the same, and includes all expenses incurred in making and prosecuting patent applications and dealing with any opposition to any application for such registrations, any
3.
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Collaborative Research Agreement
challenge to the validity of any such registrations, and action taken in relation to infringement of Patents or such other Intellectual Property.
Project means the research project to be conducted by NSi under this Agreement in accordance with the Research Plan and which includes the performance of the Services.
Project Director means the UNSW person appointed to oversee the performance of the Services specified in the Schedule.
Project IP means all Intellectual Property created, conceived, developed or reduced to practice in the course of the Project.
Research Plan means the research plan for the conduct of the Project set out in Annexure 1, as updated in accordance with clause 2.4.
Schedule means the schedule attached to this Agreement.
Services means the services to be performed by NSi as described in the Schedule.
Student means a person involved in the Project as part of a higher degree programme at UNSW.
Student Thesis means any thesis or report containing or referring to the Project, the Project IP or any results of the Project which a Student is required to submit to UNSW pursuant to his or her enrolment in a higher degree programme.
Territory means the territory specified in the Schedule.
Term means the term of this Agreement specified in clause 13.1.
UNSW means the University of New South Wales (ABN 57 195 873 179).
UNSW Ethics Committee means:
(a) |
the committee formed in accordance with the terms of reference for the Human Research Ethics Committee; or |
(b) |
the committee formed in accordance with the terms of reference for the Animal Care and Ethics Committee, |
as approved from time to time by resolution of the UNSW Council.
UNSW Personnel means any academic staff, general staff, students or visiting, honorary, adjunct or conjoint appointees of UNSW.
UNSW Policy means the policies, procedures, codes and regulations which govern UNSW operations.
1.2 |
Interpretation |
In this Agreement, unless the context requires otherwise:
(a) |
headings are for convenience only and do not affect interpretation; |
(b) |
the singular includes the plural and conversely, and a gender includes all genders; |
4.
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Collaborative Research Agreement
(c) |
a reference to a clause, schedule or annexure is a reference to a clause of or schedule or annexure to this Agreement and references to this Agreement include any background recital, schedule and annexure; |
(d) |
a reference to a thing (including a right) includes a reference to a part of that thing; |
(e) |
a reference to a document includes the document as modified from time to time and any document replacing it; |
(f) |
the word person includes a natural person and any body or entity whether incorporated or not; |
(g) |
a reference to written or in writing includes any communication sent by letter, email or facsimile transmission; |
(h) |
a reference to any statute, proclamation, rule, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it and any statute, proclamation, rule, regulation or ordinance replacing it. A reference to a specified section, clause, paragraph, schedule or item of any statue, proclamation, rule, regulation or ordinance means a reference to the equivalent section of the statue, proclamation, rule, regulation or ordinance which is for the time being in force; |
(i) |
a reference to law includes laws, acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements and directions of any relevant government or quasi-government department, body or authority in force from time to time (including any stock exchange); |
(j) |
wherever include or any form of that word is used it must be construed as it were followed by (without limitation); |
(k) |
a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body which performs most closely the functions of the defunct body; and |
(l) |
money amounts are stated in the lawful currency of Australia unless otherwise specified. |
2. |
SERVICES |
2.1 |
Supply of Services by NSi |
NSi will perform the Services in accordance with the Research Plan and this Agreement.
2.2 |
Use of contractors |
Subject to clause 2.3, NSi may subcontract all or part of the performance of the Services to appropriately qualified third parties, including to UNSW and UNSW Personnel.
2.3 |
Key personnel |
NSi will use its reasonable efforts to ensure that the Services are primarily performed by the Project Director and Other Key Personnel specified in the Schedule (if any) or added to the Schedule from time to time. If for any reason the Project Director or any Other Key Personnel becomes unavailable to NSi before completion of the Services, NSi will promptly notify the Collaborator of a suitable replacement. If the notified replacement is not reasonably acceptable to the Collaborator in its absolute discretion, the Collaborator may terminate this Agreement immediately by giving written notice to NSi.
5.
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Collaborative Research Agreement
2.4 |
Reporting |
(a) |
At least [ * ] prior to the end of each [ * ] during the Term the parties must consult with each other with a view to agreeing on an updated Research Plan for the following [ * ]. If the parties fail to agree on an updated Research Plan for any [ * ] prior to the end of the [ * ] then the current Research Plan will remain in place for the following [ * ]. |
(b) |
During the Term NSi must provide to the Collaborator a written report setting out progress of the Services in relation to the Research Plan at least [ * ], which must include details of any Project IP developed since the last report (Progress Report). |
2.5 |
Access |
The Collaborators Personnel will have access to NSis premises at reasonable times, subject to reasonable security requirements and on reasonable notice, for the purpose of facilitating the performance of this Agreement.
2.6 |
Uncertain nature of research |
Each party acknowledges and agrees that research is uncertain and that the Project may produce no results, unpredictable or inaccurate results, or results which do not satisfy the Collaborators requirements. Neither party gives to the other any warranty or assurance that the Project will have any particular result or give rise to any particular product or item of Intellectual Property, or any product having any particular performance or characteristics.
3. |
STUDENTS |
3.1 |
Student involvement |
The Collaborator acknowledges and agrees Students may be involved in the Project. Any Students will be supervised by appropriate UNSW Personnel and subject to UNSW Policy regarding the participation of students in industry funded research projects.
3.2 |
Completion of higher degree |
(a) |
The parties acknowledge and agree that nothing contained in this Agreement will prevent a Student involved in the Project from meeting the requirements of a higher degree. |
(b) |
Despite any other provision of this Agreement, the Collaborator acknowledges and agrees that all or part of the results of the Project may be included in a Student Thesis which will be made publicly available after the award of a higher degree to the relevant Student. Any such publication of a Student Thesis will be in accordance with UNSW Policy, which contemplates certain restrictions on publication relating to confidential information and protection of Intellectual Property [ * ]. |
(c) |
NSi must ensure that any external examiner appointed to examine a Student Thesis is bound by written obligations of confidentiality with respect to the information contained in the Student Thesis on terms consistent with this Agreement. |
(d) |
If this Agreement is terminated prior the Completion Date for any reason and a Students participation in the Project forms part of the Students work for a higher degree, the Collaborator grants to NSi a non-exclusive, non-transferable, royalty-free licence, including the right to sublicense to UNSW and UNSW Personnel (including the Student), to use such of the Collaborators Background IP as is necessary for the Student to complete the higher degree |
6.
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Collaborative Research Agreement
(including completion and examination of his or her Student Thesis for such higher degree in accordance with this clause 3.2). |
4. |
COLLABORATOR DUTIES AND MATERIALS |
4.1 |
Collaborator to perform Collaborator Duties and provide Collaborator Materials |
The Collaborator must provide to NSi Collaborator Materials, and must comply with and perform all Collaborator Duties, as specified in the Schedule (if any). The Collaborator must on request promptly provide to NSi or its contractors, information, decisions and services reasonably necessary for the performance of the Services.
4.2 |
Nature of Collaborator Materials |
The Collaborator warrants that:
(a) |
the Collaborator is entitled to supply the Collaborator Materials to NSi and its contractors for the purposes of the Project; |
(b) |
the use of the Collaborator Materials by NSi or its contractors in the course of the Project is lawful, does not require the consent, permission or authorisation of any person and will not infringe the rights (including Intellectual Property rights) of any person; |
(c) |
if the Project includes the use, reproduction or adaptation of any Collaborator Materials, the Collaborator has obtained and grants to NSi and its contractors all necessary authorities for such use, reproduction or adaptation; |
(d) |
all information provided by or on behalf of the Collaborator in relation to the Collaborator Materials is accurate, complete and up to date; and |
(e) |
unless expressly specified by written notice to NSi, the Collaborator Materials are not reasonably capable of constituting a threat to safety, health, life, property or the environment and the Collaborator has given written notice to NSi prior to supplying any Collaborator Materials to NSi or its contractors of any matters affecting the safe, secure and appropriate transportation, use, storage and disposal of the Collaborator Materials. |
4.3 |
No liability if Collaborator Duties not fulfilled |
Without limiting any other rights which NSi may have under this Agreement, NSi will not be liable for any deficiency, failure or delay in the performance of the Services arising out of:
(a) |
a breach by the Collaborator of any provision contained in this Agreement; or |
(b) |
a failure or delay by the Collaborator to provide the Collaborator Materials (if any).and timely access to information and decisions. |
4.4 |
Adjustment of Fees |
NSi may, after consultation with the Collaborator, reasonably adjust the Fees of any fixed fee component of the Services where the Collaborator has delayed or rendered materially more difficult NSis performance or completion of that component.
7.
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Collaborative Research Agreement
5. |
PAYMENT |
5.1 |
Payment of Fees |
The Collaborator must pay to NSi the Fees in advance, at the rate or amount and in the manner specified in the Schedule.
5.2 |
Expenses |
In addition to the Fees, the Collaborator must pay or reimburse NSi for all reasonable travel, accommodation, courier and administrative expenses which NSi or any of its contractors incur in performing the Services. Where practicable NSi or its contractors will not incur any materially significant expenses not already included in the Research Plan without first notifying the Collaborator and obtaining prior written approval for the relevant expenditure.
5.3 |
Invoices |
NSi will submit an invoice for the Fees and expenses to the Collaborator quarterly in advance or as otherwise specified in the Schedule and the Collaborator must pay each invoice within [ * ] after receipt.
5.4 |
Overdue payments |
If the Licensee fails to pay any amount under this clause 5 within [ * ] after the due date, NSi will charge interest on such overdue payments at [ * ] the prevailing bank overdraft rate nominated by NSi from the due date until the date of repayment and may suspend performance of the Services and its other obligations under this Agreement until all such overdue amounts are paid in full.
5.5 |
Taxes |
(a) |
Unless otherwise stated in the Schedule, all Fees, expenses and other amounts payable by the Collaborator under this Agreement are exclusive of GST, withholding tax and any other applicable taxes, duties, imposts and other similar charges payable in respect of the Services (Taxes). |
(b) |
If Taxes are payable on any supply made by NSi under this Agreement, the Collaborator must pay to NSi an additional amount equivalent to the Taxes at the time that payment to NSi is due. NSi will provide a tax invoice to the Collaborator. |
6. |
INTELLECTUAL PROPERTY RIGHTS |
6.1 |
Ownership of Background IP |
Each party acknowledges that all Background IP remains the sole property of its owner and that it acquires no right, title or interest in or to the Background IP of the other party by virtue of this Agreement or the disclosure or use of the Background IP in the course of the Project, other than as expressly set out in this Agreement.
6.2 |
Licence of Background IP |
Each party grants to the other party a non-exclusive, royalty-free, non-transferable licence during the Term to use the Background IP owned by it to the extent necessary and for the sole purpose of the performance of the Project. The licence granted to NSi under this clause 6.2 includes the right to sublicense to NSis contractors, including UNSW and UNSW Personnel.
8.
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Collaborative Research Agreement
6.3 |
Ownership of Project IP |
All right, title and interest in the Project IP and the ARC Project IP vests in and is hereby assigned to NSi with effect from its creation.
6.4 |
Assistance |
Upon request, each party must at its cost sign all documents and do all things (including requiring its officers, employees and contractors to sign documents) as may be necessary or desirable to vest, confirm, perfect and record the ownership rights of the other party under this clause 6.
6.5 |
No challenge |
(a) |
The Collaborator must not directly or indirectly engage in any conduct which may endanger the capacity of any Project IP or ARC Project IP owned by NSi to be protected or challenge its ownership or validity. |
(b) |
The Collaborator agrees clause 6.3 and 7.3 set out its entire rights in respect of ARC Project IP. |
7. |
OPTION TO COMMERCIAL LICENCE |
7.1 |
Option to Commercial Licence |
Except where this Agreement is terminated by NSi under clause 13.2, and provided the Collaborator has paid all Patent Costs and Fees and is not otherwise in breach (other than a trivial breach) of any provision contained in this Agreement, NSi grants to the Collaborator an exclusive option during the Term and for six months after the Completion Date to acquire a commercial licence of the Project IP on the terms of the Commercial Licence set out in Annexure 2.
7.2 |
Exercise of option for Project IP |
(a) |
The Collaborator may exercise the Option in respect of the Project IP at any time during the Term or on or before the date six months after the Completion Date (Option Period) by: |
(i) |
giving written notice to NSi; |
(ii) |
providing the names of [ * ] Applications; |
(b) |
Upon NSis receipt of the Collaborators written notice, and the Application names in accordance with clause 7.2(a), NSi will: |
(i) |
update the Commercial Licence Schedule to reflect the Application names and the details of the Licensed IP, |
(ii) |
provide the Collaborator with two originals of the Commercial Licence duly executed by NSi. |
7.3 |
Option for ARC Project IP Applications |
Should the parties enter into an ARC Linkage Agreement, they agree, and NSi will procure UNSW to agree, that the Collaborator will be granted an option which will provide:
9.
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Collaborative Research Agreement
(i) |
where the Option Period under clause 7.2 has not expired and the Collaborator has not exercised that Option, that the Collaborator may nominate any Application arising out of the ARC Project IP as [ * ] Applications under clause 7.2 (a)(ii); |
(ii) |
where the Option under clause 7.2 has been exercised, provided the Collaborator is not in breach of any of the terms of the ARC Linkage Agreement, that the Collaborator may substitute any Application arising out of the ARC Project IP in accordance with the provisions of the Commercial Licence. |
8. |
PROSECUTION AND MAINTENANCE OF PATENTS |
8.1 |
Prosecution and Maintenance |
Subject to clause 8.3, NSi must, to the extent commercially and legally reasonable in accordance with the advice available to it, use reasonable and timely efforts in consultation with the Collaborator to:
(a) |
prosecute all Patents and other applications for statutory protection of the Project IP; and |
(b) |
maintain all Patents and other rights granted on those applications. |
8.2 |
Assistance in Prosecution |
(a) |
NSi and the Collaborator must render all reasonable non-monetary assistance to each other in relation to the prosecution and maintenance of the Patents. |
(b) |
At the Collaborators written request, NSi will advise the Collaborator about the current status of the Patents. |
8.3 |
Costs of Patents |
(a) |
Subject to clause 8.3(b), the Collaborator must pay or reimburse NSi (at NSis option) all Patent Costs incurred by or on behalf of NSi in any country in the Territory approved by the Collaborator in writing. |
(b) |
The Collaborator is only required to pay or reimburse NSi (at NSis option) [ * ] of all Patent Costs incurred by or on behalf of NSi for any licensed NSi Background IP [ * ]. |
(c) |
The Collaborator must give to NSi at least [ * ] written notice if it does not wish to continue payment of Patent Costs with respect to any Patents in any country in the Territory, in which case NSi may, at its sole discretion: |
(i) |
cease prosecution of that Patent or allow it to lapse in that country; or |
(ii) |
prosecute or maintain such Licensed IP in that country at its own cost, and |
(d) |
From the date the Licensees notice under clause 8.3(c) becomes effective the option to any licence(s) under this Agreement for the relevant Licensed IP in that country will terminate and the Licensee will have no obligation to pay any Registration Costs incurred after that date in respect of such Licensed IP in that country under clause 8.3(a). |
10.
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Collaborative Research Agreement
9. |
CONFIDENTIAL INFORMATION |
9.1 |
Permitted use |
Each party may use and disclose the Confidential Information of the other party solely to the extent necessary for the performance of the Services in accordance with this Agreement. Subject to clause 9.2(c), the Collaborator acknowledges and agrees that NSi may disclose Confidential Information of the Collaborator to UNSW and UNSW Personnel for the purpose of performing the Services in accordance with this Agreement.
9.2 |
Obligations of confidentiality |
Subject to clause 9.1, each party must:
(a) |
not use, and ensure that its employees, officers and agents (and in the case of NSi, UNSW, UNSW Personnel, Students and contractors) do not use, any Confidential Information of the other party for any purpose other than compliance with its obligations under this Agreement; |
(b) |
take all action necessary to maintain the confidential nature of the Confidential Information of the other party, including keeping all records of that Confidential Information under lock and key or password protection; |
(c) |
not disclose any of the Confidential Information of the other party to any person other than those of its employees (and in the case of NSi, UNSW, UNSW Personnel, Students and contractors) who need to have access to that Confidential Information for the purpose of performing the Services in accordance with this Agreement, who are aware of the requirements of this Agreement, and who are bound by an enforceable obligation of confidentiality; and |
(d) |
destroy all documents and other materials in whatever form in its possession, power or control which contain or refer to any Confidential Information of the other party, on the earlier of expiry or termination of this Agreement, demand by the other party or the time they are no longer required for the purpose of performing the Services in accordance with this Agreement. |
9.3 |
Disclosure required by law |
Each party may disclose Confidential Information of the other party if legally compelled to do so by a judicial or administrative body provided it takes all reasonably available legal measures to avoid such disclosure, and notifies the other party as soon as practicable after such disclosure is ordered so that the other party may seek an appropriate protective order or other remedy.
9.4 |
Acknowledgement |
Each party acknowledges that due to the proprietary and competitively-sensitive nature of the Confidential Information of the other party, the other party would be irreparably harmed by any actual or threatened breach of this clause 9, and that monetary damages would be insufficient to remedy such actual or threatened breach.
9.5 |
No restriction |
Subject to this clause 9, nothing in this Agreement restricts the right of NSi to provide consultancy, research or other services to any third party.
11.
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Collaborative Research Agreement
10. |
PUBLICATIONS |
10.1 |
Publication of Papers |
A party must not publish any Paper without the prior written consent of the other party. Where a party wishes to obtain the other partys consent for the publication of a Paper:
(a) |
the party must provide to the other party a copy of the proposed Paper at least [ * ] prior to the proposed date of publication (or submission for publication where applicable); |
(b) |
the other party may within [ * ] of receipt of a proposed Paper reasonably object to or request a delay of the publication of the Paper in whole or in part providing reasons, in which case the party must not publish, or must delay the publication of, the Paper (as applicable). If the other party fails to object or request a delay within this period, the other party will be deemed to have consented to the publication of the Paper; and |
(c) |
a party must not unreasonably withhold its consent to the publication of a Paper, provided that it may withhold consent if it reasonably believes the publication will adversely affect the protection or commercialisation of any Background IP or Project IP owned by it. |
10.2 |
Acknowledgements |
Each party must acknowledge the role of the other party in any Paper, and each party must, where any significant advice or recommendations have been provided by an employee of the other party, appropriately acknowledge the authorship of that person, in each case in accordance with usual academic practice.
10.3 |
Press releases |
Neither party may use the other partys name in any press release, advertising or other promotional material without the other partys prior written consent (which consent must not unreasonably be withheld).
11. |
PRIVACY |
Each party agrees to comply with the Privacy Act 1988 (Cth) in its dealings with the other party. In particular, each party warrants that it has made all necessary disclosures and obtained all consents required under that Act in respect of personal information given to or accessed by the other party in connection with this Agreement.
12. |
LIABILITY AND INDEMNITY |
12.1 |
Prescribed terms |
(a) |
Subject to any terms, conditions and warranties which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent ( Prescribed Terms ), all conditions, warranties, terms and obligations expressed or implied by law or otherwise relating to the performance of a partys obligations, or any goods or services supplied or to be supplied by a party, under this Agreement are excluded. |
(b) |
To the extent permitted by law, the liability of a party for a breach of a Prescribed Term implied into this Agreement is limited, at that partys option, to the repair or replacement of the goods, the cost of repairing or replacing the goods, the re-supply of the services or the payment of the cost of re-supplying the services. |
12.
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Collaborative Research Agreement
12.2 |
Consequential loss |
To the extent permitted by law, a party will have no liability to the other party, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity arising out of or in connection with this Agreement.
12.3 |
Indemnity |
Each party (the Indemnifying Party ) releases and indemnifies the other party and its officers, employees, consultants and agents from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Indemnifying Party and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss), arising out of:
(a) |
a breach of any provision of this Agreement by the Indemnifying Party; or |
(b) |
any negligent act or omission or wilful misconduct of the Indemnifying Party or its officers, employees, consultants or agents, |
and from and against all damages, reasonable costs and expenses incurred in defending, satisfying or settling any such claim, proceeding or demand, except to the extent such action, claim, proceeding or demand arose out of a breach of any provision of this Agreement by the other party or any negligent act or omission or wilful misconduct of the other party or its officers, employees, consultants or agents.
12.4 |
Insurance |
Each party must during the Term at its cost take out and maintain all necessary or prudent insurances in relation to this Agreement, including the insurances specified in the Schedule (if any). Each party must on request by the other party provide written evidence of such insurances, including certificates of currency from the insurer.
12.5 |
Cap on liability |
(a) |
Notwithstanding any other provisions of this Agreement, to the extent permitted by law the total aggregate liability of NSi arising out of or in connection with the Services, the Project, the Project IP or this Agreement, whether based upon breach of contract, under common law, statute, tort (including negligence) or otherwise, will not exceed the amount of Fees received by NSi from the Collaborator under this Agreement. |
12.6 |
Representations |
The Collaborator acknowledges that it has not relied on any representations made by or on behalf of NSi or its contractors (including UNSW and UNSW Personnel) which are not expressly set out in this Agreement.
13.
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Collaborative Research Agreement
13. |
TERM AND TERMINATION |
13.1 |
Term |
(a) |
Unless otherwise agreed by the parties in writing, this Agreement commences on the Commencement Date and continues in force until the Completion Date unless it is terminated earlier in accordance with its terms. |
(b) |
The parties acknowledge that further development of the Project IP may be required following the Completion Date (Further Work) and agree that the work will be undertaken: |
(i) |
by the parties agreeing in writing to amend the Schedule; |
(ii) |
under the same terms and conditions as this Agreement except for clause 7; and |
(iii) |
provided the Collaborator is not in breach (other than a trivial breach causing no material harm) of any of the terms of the Agreement, the Collaborator may substitute any Application arising out of the Further Work under the provisions of clause 13 of the Commercial Licence. |
13.2 |
Termination |
Either party may terminate this Agreement immediately by giving written notice to the other party if at any time:
(a) |
the other party commits a breach (other than a trivial breach causing no material harm) of any provision of this Agreement and, where the breach is capable of remedy, fails to remedy the breach within [ * ] of receiving written notice to do so; or |
(b) |
the other party becomes insolvent, enters into liquidation or receivership, becomes subject to any form of external administration, makes a composition or arrangement with its creditors generally, or takes advantage of any statute for the relief of insolvent debtors. |
13.3 |
Consequences of termination |
Upon termination or expiry of this Agreement for any reason:
(a) |
all Fees paid remain the property of NSi; and |
(b) |
the Collaborator must immediately pay to NSi all Fees accrued or due but unpaid, and all amounts incurred or committed to by or on behalf of NSi with respect to the Project, as at the date of such termination or expiry without recourse, discount, set-off or reimbursement of any kind. |
13.4 |
Survival |
(a) |
Clauses 2.6, 3.2, 4.2, 6, 7, 8, 9, 10, 12, 13.3 and 15 survive the expiry or termination of this Agreement for any reason. |
14. |
FORCE MAJEURE |
If Force Majeure prevents a party from fully or partly performing any obligation under this Agreement (except an obligation to pay money), the affected partys obligation to perform that obligation is suspended while the Force Majeure continues.
14.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
15. |
DISPUTE RESOLUTION |
15.1 |
No proceedings |
If a dispute arises out of or in connection with this Agreement ( Dispute ), no party may start court or arbitration proceedings (except proceedings seeking urgent interlocutory relief) unless it has complied with this clause 15.
15.2 |
Dispute resolution |
(a) |
A party claiming that a Dispute has arisen must give written notice to the other party giving details of the Dispute ( Notification ). |
(b) |
Within [ * ] (or any longer period agreed by the parties) of receipt by the other party of a Notification, the Chief Executive Officers (or equivalent) of each party must personally or through a nominee attempt in good faith to resolve the Dispute, failing which the parties must seek to agree on an alternative dispute resolution technique to resolve the Dispute. |
(c) |
If the parties fail to agree on the dispute resolution technique to be used within a further [ * ] (or any longer period agreed by the parties), the Dispute will be referred to mediation by, and in accordance with the rules of, the Australian Commercial Disputes Centre Limited. The mediation will be conducted in Sydney in the English language. |
(d) |
The parties must continue to perform their respective obligations under this Agreement pending the resolution of a Dispute. |
(e) |
Each party must bear its own costs of complying with this clause 15. |
16. |
GENERAL |
(a) |
This Agreement contains the entire agreement between the parties as to its subject matter and may only be amended in writing signed by all parties. |
(b) |
Notices must be given to the parties addresses set out at the front of this Agreement or as otherwise notified by the parties in writing and must be delivered in person or sent by email, fax or prepaid post (airmail if international). Notices will be deemed to have been received: |
(i) |
if delivered in person, on the date of delivery; |
(ii) |
if sent by email, on receipt by the sender of an acknowledgment indicating that the mail item was read by the recipient; |
(iii) |
if sent by fax, on production of a transmission report from the senders fax machine evidencing that the fax was successfully sent in its entirety; or |
(iv) |
if sent by prepaid post, 3 business days after posting (7 business days if sent to or from a place outside of Australia). |
(c) |
A party must not assign any of its rights or obligations under this Agreement without the other partys prior written consent. |
(d) |
No delay or indulgence by a party in enforcing this Agreement will prejudice or restrict the rights of that party, nor will a waiver of those rights operate as a waiver of a subsequent breach. |
15.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
(e) |
No part of this Agreement is to be construed to the disadvantage of a party because that party was responsible for its preparation. |
(f) |
Nothing in this Agreement may be construed as creating a relationship of partnership, joint venture employment, principal and agent or trustee and beneficiary. |
(g) |
A party, at the request of another party, must do all things and sign all documents necessary to give effect to this Agreement. |
(h) |
If any provision of this Agreement is or becomes invalid or unenforceable then, if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down, and otherwise the offending provision must be severed and the remaining provisions will operate as if the provision had not been included. |
(i) |
This Agreement is governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that State. |
(j) |
Each signatory to this Agreement warrants that he or she has authority to bind the party that he or she is stated to represent. |
(k) |
This Agreement may be executed in any number of counterparts all of which taken together will constitute one agreement. |
16.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
SCHEDULE
Key Project Terms
Commencement Date |
January 1 st , 2010 | |
Completion Date |
12 months from Commencement Date | |
Services |
As specified in the Research Plan
NB: The Services are activities, not guaranteed outcomes |
|
Project Director |
[ * ] | |
Other Key Personnel (UNSW) |
To be added as necessary and/or as agreed by the parties | |
Collaborator Personnel |
N/A |
17.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
Background IP |
To be inserted during the course of the CRA by mutual agreement between the parties |
|||
NSis Background IP: | ||||
1. |
[ * ] |
|||
Collaborators Background IP: | ||||
1. |
[ * ] |
|||
2. |
||||
3. |
||||
Insurance |
Each party must during the Term at its cost take out and maintain all necessary or prudent insurances in relation to this Agreement, including the insurances specified in the Schedule (if any). Each party must on request by the other party provide written evidence of such insurances, including certificates of currency from the insurer |
|||
Territory |
Worldwide |
18.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
Executed as an agreement.
Signed for an on behalf of NEWSOUTH INNOVATIONS PTY LIMITED |
||||
/s/ Mark T. Bennett | ||||
Signature of Authorised Officer | ||||
Mark T. Bennett, CEO Print Name |
||||
17/12/2009 Date |
Signed for an on behalf of Prima Biomed Limited |
||||
/s/ Martin Rogers | ||||
Signature of Authorised Officer | ||||
Martin Rogers Print Name |
||||
17-12-2009 Date |
19.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
Annexure 1 - Research Plan
The project will be undertaken [ * ].
Stage 1 [ * ]
[ * ]
Stage 2 [ * ]
[ * ]
Stage 3 [ * ]
[ * ]
Proposed Methodology Timelines [ * ]
1. |
Deliverables |
Description: |
Estimated Date: |
|||
1. | [ * ] | [ * ] | ||
2. | [ * ] | [ * ] | ||
3. | [ * ] | [ * ] |
2. |
Collaborator Duties |
Collaborator Personnel | ||||
1. | N/A | |||
Description of Collaborator Materials and Collaborator Duties: | Delivery Date: | |||
1. | [ * ] |
1.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Collaborative Research Agreement
Annexure 2 - Commercial Licence
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
ANNEXURE 2 - to the Collaborative Research Agreement dated
17 December 2009
COMMERCIAL LICENCE AGREEMENT
NewSouth Innovations Pty Limited
(ABN 25 000 263 025)
and
Prima Biomed Limited
ACN 009 237 889
387676_2
Rupert Myers Building I Gate 14, Barker Street I UNSW SYDNEY NSW 2052
www.nsinnovations.com.au I enquiries@nsinnovations.com.au
T +61 2 9385 5008 I F +61 2 9385 6600
Reference: [09_2348]
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
Table of Contents
1. | DEFINITIONS AND INTERPRETATION | 1 | ||||
2. | LICENCE | 7 | ||||
3. | SUB-LICENCES | 8 | ||||
4. | Exploitation BY NSI | 9 | ||||
5. | PAYMENTS | 11 | ||||
6. | TAXES | 13 | ||||
7. | ACCOUNTS | 13 | ||||
8. | PROSECUTION AND MAINTENANCE OF PATENTS | 15 | ||||
9. | [ * ] | 16 | ||||
10. | EXPLOITATION BY LICENSEE | 16 | ||||
11. | PRODUCTS | 17 | ||||
12. | Not Used | 19 | ||||
13. | Application Substitution | 19 | ||||
14. | CONFIDENTIAL INFORMATION | 20 | ||||
15. | MEDIA AND PUBLICATIONS | 21 | ||||
16. | INFRINGEMENT AND ENFORCEMENT | 22 | ||||
17. | WARRANTIES | 23 | ||||
18. | LIABILITY | 25 | ||||
19. | TERM AND TERMINATION | 27 | ||||
20. | FORCE MAJEURE | 28 | ||||
21. | DISPUTE RESOLUTION | 29 | ||||
22. | GENERAL | 30 |
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
BACKGROUND:
A. |
NSi is the owner of or otherwise authorised to use certain Intellectual Property. |
B. |
The Licensees principal activities include research and commercialisation of licensed medical biotechnology. It has engaged NSi to undertake certain collaborative research to develop formulations for a number of Applications of NSis sub-critical water and dense gas technology for controlled polymer nanoarchitecture vaccine delivery formulations. |
C. |
The Licensee wishes to be granted licences to Exploit those formulations within the Territory. |
D. |
NSi agrees to grant to the Licensee, and the Licensee agrees to accept, a licence to Exploit the Licensed IP, and the parties agree to accept certain other rights and obligations, on the terms and conditions of this Agreement. |
THE PARTIES AGREE:
1. |
DEFINITIONS AND INTERPRETATION |
1.1 |
Definitions |
In this Agreement, unless the context otherwise requires:
Affiliate means any person who, directly or indirectly, Controls, is Controlled by or is under common Control with a party.
Application(s) means an application of [ * ] identified in the Commercialisation Plan in Annexure 1, as may be modified from time to time by substituting a New Application in accordance with clause 13.
Application Commercialisation Plan means the plan for the Exploitation of each Application within the Territory and in the Field attached to this Agreement as Annexure 1.
1.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
Background IP means Intellectual Property rights including Know How owned by or licensed to NSi as at the Commencement Date or during the Term, which NSi has the right to license to third parties, which is necessary for the Exploitation of the Licensed IP and which are specified in the Schedule.
Business Day means a day that is not a Saturday, a Sunday nor a public holiday in the principal place of business of a party.
Collaborative Research Agreement means an agreement entered into by the parties to conduct a proof of concept Project in relation to the First Application.
Commencement Date means the commencement date specified in the Schedule, or if no date is specified in the Schedule, the date of last execution of this Agreement.
Commercialisation Milestone and Commercialisation Milestone Date have the meanings ascribed to them in the Schedule and set out in the Application Commercialisation Plan.
Commercialisation Start Date means the date specified in Annexure 1.
Confidential Information means all know how, Intellectual Property, business, financial, technical and other commercially valuable or sensitive information of a party in whatever form, including inventions (whether or not reduced to practice), trade secrets, methodologies, formulae, graphs, drawings, samples, biological materials, devices, models, business plans, policies and any other materials or information which a party regards as confidential, proprietary or of a commercially sensitive nature that may be in the possession of that party or its Affiliates or its or their employees or officers, including the terms of this Agreement and including, in the case of NSi, all information in or relating to the Licensed IP, in each case whether disclosed visually, orally, in writing or by electronic means, directly or indirectly by a party (including by an Affiliate) and whether disclosed before or after the Commencement Date, but excluding information which:
(a) |
is now in the public domain, or enters the public domain after the Commencement Date, through no fault of the recipient; |
(b) |
can be shown by contemporaneous records of the recipient to have been known to the recipient at the time it is received pursuant to this Agreement; |
(c) |
is provided to the recipient by a third party after the Commencement Date, lawfully and without violating any restriction on its disclosure; or |
(d) |
can be shown by contemporaneous records of the recipient to have been independently developed by the recipient without reference to the Confidential Information of the other party. |
Information is not to be considered to be in the public domain for the purposes of this Agreement unless it is lawfully available to the general public from a single source without restriction on its use or disclosure.
Control means:
(a) |
the ability to cast or control the casting of more than 50% of the maximum number of votes that might be cast at any general meeting (or equivalent) of an entity; |
(b) |
the holding of more than 50% of the issued ordinary share capital, the equity, or other ownership interest, in the entity, or if a holding of more than 50% is not permitted in the |
2.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
country where the entity exists, the holding of the maximum ownership interest permitted in the country where the entity exists; or |
(c) |
the ability of a person or persons to direct, or share equally in the direction of, the composition of the board of directors (or equivalent) of the entity, or to manage the entity pursuant to an agreement. |
Exploit means:
(a) |
in relation to an Intellectual Property right, the exercise of all the rights exclusively granted to the holder of such Intellectual Property rights by the laws of the jurisdiction in which the Intellectual Property right subsists, including where permitted under this Agreement the right to sub-license those rights; |
(b) |
in relation to a product, kit, apparatus, substance, documentation or information resource (or any part of such materials), to make, distribute, market, sell, hire out, lease, supply, or otherwise dispose of it; and |
(c) |
in relation to a method or process, to use the method or process or to make, distribute, market, sell, hire out, lease, supply, or otherwise dispose of a product, kit or apparatus the use of which is proposed or intended to involve the exercise of the method or process, |
and Exploitation will be similarly construed.
Field means the field specified in the Schedule.
First Application means the First Application described in Applications Commercialisation Plan in Annexure 1.
First Commercial Sale means the first sale of a Product by the Licensee or Sub-licensee.
Further Applications means the Applications listed in the Applications Commercialisation Plan other than the First Application.
Force Majeure means any act, event or cause (other than lack of funds) which is beyond the reasonable control of the affected party.
GST means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related tax imposition Acts of the Commonwealth of Australia.
Insolvency Event means circumstances in which a party:
(a) |
is unable to pay its debts as they fall due; |
(b) |
makes or commences negotiations with a view to making, a general re-scheduling of its indebtedness or a general assignment, scheme of arrangement or composition with its creditors; |
(c) |
takes any corporate action or any steps are taken or legal proceedings are started for: |
(i) |
its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other party (which approval will not be unreasonably withheld); or |
3.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(ii) |
the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets; or |
(d) |
seeks or is granted protection from its creditors, under any applicable legislation. |
Intellectual Property means statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions, patents, plant varieties, registered and unregistered trademarks, registered and unregistered designs, circuit layouts and rights to require information to be kept confidential, and all other rights as defined by Article 2 of the Convention establishing the World Intellectual Property Organization of July 1967, and all rights to apply for any of the above, but does not include moral rights that are not transferable.
Know-how means all unpatented technical and other information not in the public domain including inventions, discoveries, concepts, data, formulae, ideas, specifications, procedures and results for experiments and tests, experimentation and testing, and results of research and development, including laboratory records, clinical trial data, case reports, data analysis and summaries, and information in submissions to and information from ethics committees and regulatory bodies, relating to the inventions the subject of the Patents included within the Licensed IP in accordance with this Agreement, including the know-how specified in the Schedule.
Licence Fees means the licence fees payable by the Licensee to NSi under clause 5.1(a), as specified in the Schedule.
Licensed IP means:
(a) |
the Patents; |
(b) |
Project IP |
(c) |
the Other Statutory Rights; and |
(d) |
the Background IP. |
as set out in the Schedule.
Milestone means the Milestones for the payment of Licence Fees described in the Schedule.
Minimum Performance Obligations means the minimum performance obligations specified in the Schedule.
Net Revenue means all revenue actually received by NSi from its Exploitation of the Project IP (less Taxes, rebates, refunds and amounts received in consideration for the conduct of research or the provision of services), excluding revenue received from Licensee, after its costs of Exploitation of the relevant Intellectual Property Rights have been deducted, including but not limited to the costs of protecting Intellectual Property Rights, enforcing the Intellectual Property Rights, the creation of prototypes, models and samples, research and development, contractual and other liabilities, transportation, insurance, obtaining legal, financial and technical advice, repayments of investments, internal staff costs, accommodation, marketing and travel, and other like expenses.
Net Sales means the gross invoiced price for all Sales of Products by or on behalf the Licensee or its Affiliates or Sub-licensees in an arms length bona fide commercial transaction, less only
4.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
usual arms length trade discounts and rebates actually given or allowed [ * ], customs duties, transportation and insurance charges, and all Taxes incurred on such Sales.
New Application means a new application of a nanoarchitecture vaccine delivery formulation to be added to the Schedule as a substitute for a Further Application in accordance with Clause 13.
Option means the option referred to in clause 13.
Other Statutory Rights means all Intellectual Property rights other than the Patents, subsisting in or relating to the inventions the subject of the Patents, included within the Licensed IP in accordance with this Agreement, including copyright and design rights.
Paper means any manuscript, abstract, paper, journal article, student thesis or content of any oral, poster or other presentation containing or referring to the Licensed IP or the Products.
Patents means:
(a) |
the patents and patent applications described in the Schedule; |
(b) |
all patent applications that may be filed by or on behalf of NSi which are based on, claim priority from, are divided from or are continuations of any patent application described in the Schedule; |
(c) |
all patents which may be granted pursuant to any of the patent applications referred to in paragraphs (a) or (b); and |
Product means the entire assembly of components constituting any product, kit, apparatus, substance, documentation, information resource or service arising from the Exploitation of the Licensed IP in the Application, including all products and services whose research, development, manufacture, import, marketing, use, sale, or supply applies, utilises or incorporates any part of the Licensed IP.
Project means the Project contemplated under the Collaborative Research Agreement
Project IP means all Intellectual Property created, conceived, developed or reduced to practice in the course of the Project and the subject of the Collaborative Research Agreement.
Registration Costs means fees, costs and expenses (including patent attorney, legal fees and expenses and external patent management fees and government charges) incurred after the Commencement Date, in the obtaining of grants of the Patents or other formal Intellectual Property rights forming part of the Licensed IP in the Territory and maintaining the same, and includes all expenses incurred in making and prosecuting patent applications and dealing with any opposition to any application for such registrations, any challenge to the validity of any such registrations, and action taken in relation to infringement of Patents or such other Intellectual Property.
Regulatory Approval means regulatory approval of a United States Food and Drug Administration New Drug Application or its equivalent in the country to which a regulatory approval milestone applies.
Royalty means the royalty payable by the Licensee to NSi under clause 5.1(b), as specified in the Schedule.
Royalty Period means the royalty period specified in the Schedule.
5.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
Sale means any sale, transfer, rental, lease, hiring out, distribution, commercial supply or other disposal of Products by or on behalf of a party or its Affiliates or Sub-licensees.
and Sell and Sold will be similarly construed.
Schedule means the schedule attached this agreement as may be revised from time to time to include Project IP and New Applications.
Sub-licensee means a person (including an Affiliate of a party) with whom a party enters into an arrangement for the Exploitation of the Licensed IP within the Territory and in, and in the case of NSi outside, the Field as a permitted sub-licensee, subcontractor or assignee.
Sub-licence Fees means the sub-licensee fees payable by the Licensee to NSi under clause 5.1(a) and as specified in the Schedule.
Taxes means all applicable taxes (including GST), levies, duties, charges, deductions and withholdings and similar imposts imposed by law or by any government agency, other than imposts charged on net income.
Term means the term of this Agreement specified in the Schedule.
Territory means the territory specified in the Schedule.
UNSW means the University of New South Wales (ABN 57 195 873 179).
1.2 |
Interpretation |
In this Agreement, unless the context requires otherwise:
(a) |
headings are for convenience only and do not affect interpretation; |
(b) |
the singular includes the plural and conversely, and a gender includes all genders; |
(c) |
a reference to a clause, schedule or annexure is a reference to a clause of or schedule or annexure to this Agreement and references to this Agreement include any background recital, schedule and annexure; |
(d) |
a reference to a thing (including a right) includes a reference to a part of that thing; |
(e) |
a reference to a document includes the document as modified from time to time and any document replacing it; |
(f) |
the word person includes a natural person and any body or entity whether incorporated or not; |
(g) |
a reference to written or in writing includes any communication sent by letter, [email] or facsimile transmission; |
(h) |
a reference to any statute, proclamation, rule, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it and any statute, proclamation, rule, regulation or ordinance replacing it. A reference to a specified section, clause, paragraph, schedule or item of any statue, proclamation, rule, regulation or |
6.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
ordinance means a reference to the equivalent section of the statue, proclamation, rule, regulation or ordinance which is for the time being in force; |
(i) |
a reference to law includes laws, acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements and directions of any relevant government or quasi-government department, body or authority in force from time to time (including any stock exchange); |
(j) |
wherever include or any form of that word is used it must be construed as it were followed by (without limitation); |
(k) |
a reference to any agency or body, if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or functions removed (defunct body), means the agency or body which performs most closely the functions of the defunct body; and |
(l) |
money amounts are stated in the lawful currency of Australia unless otherwise specified. |
2. |
LICENCE |
2.1 |
Grant of licence |
Subject to the provisions of clause 10, NSi grants to the Licensee during the Term:
(a) |
separate exclusive, non-transferable licences: |
(i) |
under the Patents; |
(ii) |
the Project IP; |
(iii) |
under the Other Statutory Rights; and |
(b) a separate non-exclusive, non-transferable licence under the Background IP,
for each Application to Exploit the Products in the Territory within the Field, including the right to sub-license as permitted in this Agreement.
2.2 |
[ * ] |
[ * ] may [ * ] where necessary to comply with the legal requirements of any country, including for the [ * ] or to [ * ], or where necessary to [ * ].
2.3 |
Transfer of rights |
Subject to clause 3, the licences under this Agreement are personal to the Licensee and the Licensee must not assign, transfer or in any way charge, mortgage or deal with any of its rights or obligations under this Agreement without NSis prior written consent. Nothing in this Agreement restricts the right of NSi to assign any of its rights, obligations or liabilities under this Agreement.
2.4 |
Licensees acknowledgments |
The Licensee acknowledges that:
7.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(a) |
this Agreement does not confer and the Licensee does not acquire any right, title or interest in the Licensed IP other than as expressly set out in-this Agreement; |
(b) |
as between the parties, NSi is the owner of the Licensed IP; |
(c) |
to the extent permitted by law, the Licensee may not Exploit the Licensed IP or any Products outside the Territory or the Field or knowingly supply any Products to any person for resupply outside the Territory or the Field; and |
(d) |
subject to clause 4, NSi reserves all rights in and to the Licensed IP outside and within the Field and may Exploit or license others to Exploit the Licensed IP and the Products outside and within the Field as it sees fit, except in relation to the Applications licensed under this Agreement. |
2.5 |
Disclosure of the Licensed IP and technical assistance |
(a) |
Following the Commencement Date, to the extent it has not already done so, NSi must disclose to the Licensee details of the Licensed IP. |
(b) |
NSi may, subject to payment in accordance with its usual consulting rates and on its standard consulting terms and conditions from time to time, provide the Licensee with technical assistance and consultancy services reasonably requested by the Licensee in relation to the Exploitation of the Licensed IP and the Products. |
2.6 |
Research by UNSW |
Despite anything else in this Agreement, the Licensee acknowledges and agrees that NSi retains the right to use the Licensed IP for education and research purposes within the Territory and the Field including the right to sub-license the Licensed IP to UNSW and UNSW personnel solely for this purpose.
3. |
SUB-LICENCES |
3.1 |
Sub-licences |
Subject to payment of all Sub-licence Fees and clause 3.2, the Licensee may by written agreement grant sub-licences to Exploit the Licensed IP (not including the right to sub-license) with respect to an Application within the Territory in the Field:
(a) |
to its Affiliates without the consent of NSi, provided that the Licensee must provide to NSi a copy of any agreement effecting any such sub-licence within [ * ] of its execution; and |
(b) |
to third parties without the consent of NSi, where such third party [ * ]. The licensee must provide to NSi a copy of any agreement effecting any such sub-licence within [ * ] of its execution; and |
(c) |
to any other third parties only with prior written consent of NSi, which consent may be granted, whether or not subject to conditions, or withheld provided in all the circumstances NSi consent will not be unreasonably withheld. The Licensee must provide to NSi a copy of any proposed agreement effecting any such sub-licence at least [ * ] prior to its proposed or planned execution. |
8.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
3.2 |
Conditions of Sub-licences |
Any permitted sub-licence granted by the Licensee pursuant to clauses 3.1 must be on terms consistent with the terms and conditions of this Agreement and must:
(a) |
provide that the sub-licence and the rights granted under it are personal to the Sub-licensee and the Sub-licensee must not at any time assign, transfer or in any way charge, mortgage or deal with any of its rights or obligations under the sub-licence without NSis prior written consent; |
(b) |
provide in a form reasonably required by NSi that the Sub-licensee releases NSi and UNSW from, and indemnifies NSi and UNSW against, all costs and liability in connection with the sub-licence and the Sub-licensees exercise of rights under it, including indirect and consequential loss, liability for breach of contract, under statute, common law, tort (including negligence) or otherwise to the extent permitted by law; |
(c) |
contain obligations of confidentiality in respect of NSis Confidential Information, and the right of NSi to inspect the Sub-licensees premises and records, in a form substantially similar to those contained in this Agreement; |
(d) |
not otherwise grant rights which are inconsistent with the rights and obligations of the Licensee under this Agreement; |
(e) |
terminate where the Sub-licensee ceases to be an Affiliate of Licensee, unless NSi has given its prior written consent to the continuation of the relevant sub-licence; |
(f) |
if the licence of any right in respect of the Licensed IP is terminated under this Agreement, terminate to a corresponding extent; and |
(g) |
terminate on the termination or expiry of this Agreement, except where this Agreement is terminated under clauses 19.3(d) or 19.3(e) in which case the sub-licence must provide for the novation of the rights and obligations of Licensee under the sub-licence to NSi at NSis absolute discretion. For the purpose of any such novation, the Licensee hereby appoints NSi as its attorney to do all things and execute all documents necessary or desirable to perfect such novation of the sub-licence agreement on behalf of the Licensee. |
3.3 |
Licensee responsible for Sub-licensees |
All acts, omissions and Exploitation of the Licensed IP by or on behalf of the Licensees Sub-licensees will be deemed to be acts, omissions and Exploitation by the Licensee for the purposes of this Agreement.
3.4 |
Licensee to procure compliance by sub-licensees |
The Licensee must procure that each of its Sub-licensees complies with the terms of the relevant sub-licence.
4. |
EXPLOITATION BY NSI |
4.1 |
Royalties |
Where NSi Exploits or licenses others to Exploit the Project IP within the Field it will pay the Licensee [ * ]% of the Net Revenue actually received by NSi solely and directly from the
9.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
Exploitation of the Project IP within the Field (NSi Royalty) within [ * ] of the end of each Royalty Period.
4.2 |
Late payment |
Without prejudice to the Licensees other rights or remedies, if NSi fails to pay any amount under this clause 4 within [ * ] after the due date it will pay the Licensee interest on the amount outstanding:
(a) |
calculated daily from the due date of payment to the date payment is received by the Licensee in full; and |
(b) |
at an interest rate of [ * ] the rate quoted on the due date of payment (and if no rate was quoted on that day, the day on which it is next quoted) for business overdrafts over AUD$100,000 by the Licensees principal Australian bank. |
4.3 |
Payments |
(a) |
Payment of NSi Royalty is to be made by NSi to the Licensee in Australian currency and is to be made by bank draft made payable to the Licensee or, at the Licensees option, direct deposit into the account notified by the Licensee in writing. |
(b) |
Where conversion from foreign currency is required, the conversion is to be made at the average days buying rate of NSis principal bank prevailing two days before the remittance of the payment. |
4.4 |
Royalty statement |
Within [ * ] of the end of each Royalty Period in which the first sale of a Product by NSi, its Affiliates or additional licensees occurs NSi must give the Licensee a written statement signed by an authorised officer of NSi setting out the following information for the relevant Royalty Period, by country (to the extent applicable):
(a) |
the number of Products manufactured by NSi and its Affiliates and additional licensees; |
(b) |
the number of Products supplied by NSi and its Affiliates and additional licensees; |
(c) |
the total amounts invoiced in respect of Products by NSi and its Affiliates and additional licensees |
(d) |
the total Net Revenue amounts in respect of Products; |
(e) |
the manner in which the NSi Royalty was calculated, including details of any deductions from the total invoiced amounts; |
(f) |
the applicable NSi Royalty payable; |
(g) |
sales forecasts; and |
(h) |
any other details the Licensee reasonably requires from time to time. |
4.5 |
Licensee may request audited statement |
10.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
At the Licensees request from time to time, NSi must, at the Licensees cost, promptly provide to NSi a signed certificate from NSis auditor stating that the details set out in the statements prepared under clause 4.5 are correct.
4.6 |
NSi to retain records |
NSi must create and maintain for [ * ] from the date of creation, in a manner approved by the Licensee from time to time, separate, comprehensive, accurate, up-to-date and auditable records of:
(a) |
the matters specified in clause 4.4 in accordance with applicable accounting standards; |
(b) |
the working papers NSi used to calculate the NSi Royalty; and |
(c) |
each NSi Royalty statement, |
and provide the Licensee with any other information it reasonably requires from time to time.
4.7 |
Licensees right to inspect records |
NSi must:
(a) |
permit the Licensees accountant, auditor or nominee, on reasonable notice and during ordinary business hours on a Business Day, to inspect and verify the records referred to in clause 4.6; and |
(b) |
give all reasonable help in any inspection and verification and permit the Licensees accountant, auditor or nominee to take copies of such records. |
4.8 |
Cost of inspection |
The Licensees cost of inspections under clause 4.7 will be borne by the Licensee unless an inspection shows that any amounts due to the Licensee under this Agreement have been understated by [ * ] or more, in which case the cost of that inspection will be payable by NSi.
5. |
PAYMENTS |
5.1 |
Licence Fees, Sub-licence Fees and Royalties |
In consideration of the licences granted in clause 2.1 and the disclosure of the Licensed IP pursuant to clause 2.5, the Licensee must pay to NSi:
(a) |
the Licence Fees in the amounts, and within [ * ] of the Milestone specified in the Schedule having been achieved; |
(b) |
the Royalty within [ * ] of the end of each Royalty Period; |
(c) |
the Sub-licence Fees within [ * ] of the end of each Royalty Period; and |
(d) |
any other amounts due from time to time under this Agreement, upon request in accordance with the relevant obligations. |
5.2 |
Notification of milestone events |
11.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
The Licensee must immediately notify NSI in writing upon the occurrence of a Milestone which triggers the payment of any Licence Fee under clause 5.1(a), as specified in the Schedule.
5.3 |
Accruals |
(a) |
The Royalty accrues in respect of Products when the Products are invoiced by the Licensee its Affiliates or Sub-licensees which is deemed to have occurred on the earlier of the Products being invoiced, supplied to a purchaser, put into use or paid for by the purchaser. |
(b) |
The Sub-licence Fees accrue at the earlier of the time any consideration is received by or has become due to the Licensee from a Sub-licensee under the relevant sub-licence. |
5.4 |
Non arms length arrangements or non-cash consideration |
(a) |
Where any Sale of Products is made, or any sub-licence of the Licensed IP to a Sub-licensee is granted, other than in an arms length bona fide commercial transaction or for consideration other than cash, for the purposes of calculating the Royalty and any Sub-licence Fees the consideration received for that transaction must be calculated by the Licensee by reference to the fair market value, as if the transaction had been an arms length bona fide commercial transaction and the consideration had been in cash. |
(b) |
The Licensee must separately identify in its Royalty and Sub-licence Fee statements provided to NSi under clauses 7.1 and 7.2 any transactions the subject of this clause 5.4 providing reasonable detail as to the relevant calculation. |
(c) |
Any dispute as to the calculation of the fair market value or cash equivalent value which cannot be resolved by discussion between the parties must be referred for resolution in accordance with clause 21. |
5.5 |
Late payment |
Without prejudice to NSis other rights or remedies, if the Licensee fails to pay any amount under this clause 5 within [ * ] after the due date it will pay NSi interest on the amount outstanding:
(a) |
calculated daily from the due date of payment to the date payment is received by NSi in full; and |
(b) |
at an interest rate of [ * ] the rate quoted on the due date of payment (and if no rate was quoted on that day, the day on which it is next quoted) for business overdrafts over AUD$100,000 by NSis principal Australian bank. |
5.6 |
Payments |
(a) |
All Licence Fees, Royalties, Sub-licence Fees and other payments to be made by the Licensee to NSi under this Agreement are to be made in Australian currency and are to be made by bank draft made payable to NSi or, at NSis option, direct deposit into the account notified by NSi in writing. |
(b) |
Where conversion from foreign currency is required, the conversion is to be made at the average days buying rate of the Licensees principal bank prevailing two days before the remittance of the payment |
12.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
6. |
TAXES |
6.1 |
General Taxes |
(a) |
All amounts payable by a party ( Recipient ) under this Agreement are exclusive of any applicable Taxes and, subject to clause 6.3, the Recipient must pay directly (if applicable) or reimburse the other party ( Supplier ) for any such Taxes. |
(b) |
Where required, Supplier will provide a tax invoice to the Recipient. |
6.2 |
GST |
(a) |
In circumstances where GST applies, at the cost the Recipient, the Supplier must do all things reasonably necessary to assist the Recipient to claim any input tax credit or refund available in relation to any GST paid or payable by the Recipient under this clause 6. |
(b) |
The Supplier may invoice the Recipient for GST when the Supplier invoices the Recipient for payments due under this Agreement or when the Supplier is required to remit the GST, at the Suppliers option. |
(c) |
Any GST payable by the Recipient under this Agreement is calculated by multiplying by the prevailing GST rate by the amount of the consideration payable by the Recipient for the relevant supply. |
(d) |
If a payment to a party under this agreement is a payment by way of reimbursement or indemnity and is calculated by reference to the GST inclusive amount of a loss, cost or expense incurred by that party, then the payment is to be reduced by the amount of any input tax credit to which that party is entitled in respect of that loss, cost or expense before any adjustment is made for GST. |
6.3 |
Withholding taxes |
All payments made under this Agreement are exclusive of any withholding taxes. If any laws, rules or regulations require the withholding of amounts of Taxes or other amounts from payments made by the Recipient to the Supplier under this Agreement, the Recipient must gross up such payments so that the amount actually paid to the Supplier is the amount the Supplier would otherwise receive if no amount was required to be withheld.
7. |
ACCOUNTS |
7.1 |
Royalty statement |
Within [ * ] of the end of each Royalty Period in which a First Commercial Sale occurs the Licensee must give NSi a written statement signed by an authorised officer of the Licensee setting out the following information for the relevant Royalty Period, by country (to the extent applicable):
(a) |
the number of Products manufactured by the Licensee and its Affiliates and Sub-licensees; |
(b) |
the number of Products supplied by the Licensee and its Affiliates and Sub-licensees; |
(c) |
the total amounts invoiced in respect of Products by the Licensee and its Affiliates and Sub-licensees |
13.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(d) |
the total Net Sales amounts in respect of Products; |
(e) |
the manner in which the Royalty was calculated, including details of any deductions from the total invoiced amount; |
(f) |
the applicable Royalty payable; |
(g) |
Sales forecasts; and |
(h) |
any other details NSi reasonably requires from time to time. |
7.2 |
Sub-licence statement |
Within [ * ] of the end of each Royalty Period the Licensee must give NSi a written statement signed by an authorised officer of the Licensee setting out the following information for the relevant Royalty Period, by country (to the extent applicable):
(a) |
the number of sub-licences to Sub-licensees (other than Affiliates) in place for the Licensed IP; |
(b) |
the total amounts invoiced by the Licensee or its Affiliates under or in relation to such sub-licences; |
(c) |
the amount of all payments received by the Licensee or its Affiliates under or in relation to such sub-licences; |
(d) |
the manner in which the Sub-licence Fee was calculated; |
(e) |
the applicable Sub-licence Fee; |
(f) |
sales forecasts; and |
(g) |
any other details NSi reasonably requires from time to time. |
7.3 |
NSi may request audited statement |
At NSis request from time to time, the Licensee must, at NSis cost, promptly provide to NSi a signed certificate from the Licensees auditor stating that the details set out in the statements prepared under clauses 7.1 and 7.2 are correct.
7.4 |
Licensee to retain records |
The Licensee must create and maintain for [ * ] from the date of creation, in a manner reasonably approved by NSi from time to time, separate, comprehensive, accurate, up-to-date and auditable records of:
(a) |
the matters specified in clauses 7.1 and 7.2 in accordance with applicable accounting standards; |
(b) |
the working papers the Licensee used to calculate the Royalty and the Sub-licence Fees; and |
(c) |
each Royalty and Sub-licence Fee statement, |
14.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
and provide NSi with any other information it reasonably requires from time to time.
7.5 |
NSis right to inspect records |
The Licensee must:
(a) |
permit NSis accountant, auditor or nominee, on reasonable notice and during ordinary business hours on a Business Day, to inspect and verify the records referred to in clause 7.4; and |
(b) |
give all reasonable help in any inspection and verification and permit NSis accountant, auditor or nominee to take copies of such records. |
7.6 |
Cost of inspection |
NSis cost of inspections under clause 7.5 will be borne by NSi unless an inspection shows that any amounts due to NSi under this Agreement have been understated by [ * ] or more, in which case the cost of that inspection will be payable by the Licensee.
7.7 |
Obligations of Sub-licensees |
The Licensee must procure:
(a) |
that all Sub-licensees comply with obligations substantially the same as those contained in this clause 7; and |
(b) |
for NSi the rights of inspection under clause 7.5 in respect of the Licensees Sub-licensees. |
8. |
PROSECUTION AND MAINTENANCE OF PATENTS |
8.1 |
Prosecution |
Subject to clause 8.3, NSi must, to the extent commercially and legally reasonable in accordance with the advice available to it, use reasonable and timely efforts in consultation with the Licensee to:
(a) |
prosecute all Patents and other applications for statutory protection of the Licensed IP; and |
(b) |
maintain all Patents and other rights granted on those applications. |
8.2 |
Assistance in prosecution |
(a) |
NSi and the Licensee must render all reasonable non-monetary assistance to each other in relation to the prosecution and maintenance of the Patents. |
(b) |
At the Licensees written request, NSi will advise the Licensee about the current status of the Patents. |
8.3 |
Costs of Patents |
(a) |
Subject to clause 8.3(b), the Licensee must pay or reimburse NSi (at NSis option) all Registration Costs incurred by or on behalf of NSi with respect to all Licensed IP in any country in the Territory approved by the Licensee in writing. |
15.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(b) |
The Licensee is only required to pay or reimburse NSi (at NSis option) [ * ] of all Registration Costs incurred by or on behalf of NSi for any licensed NSi Background IP in any country in the Territory approved by the Licensee in writing, [ * ]. |
(c) |
The Licensee must give to NSi at least [ * ] written notice if it does not wish to continue payment of Registration Costs with respect to any Licensed IP in any country in the Territory, in which case NSi may, at its sole discretion: |
(i) |
cease prosecution of that Licensed IP or allow it to lapse in that country; or |
(ii) |
prosecute or maintain such Licensed IP in that country at its own cost, and |
from the date the Licensees notice becomes effective the licence(s) under this Agreement for the relevant Licensed IP in that country will terminate and the Licensee will have no obligation to pay any Registration Costs incurred after that date in respect of such Licensed IP in that country under clause 8.3(a).
9. |
NO CHALLENGE TO VALIDITY |
Except where such a prohibition is not permitted under applicable law, the Licensee must not raise or cause to be raised any questions concerning, or any challenge or any objection to, the validity or ownership of any part of the Licensed IP, other than drawing to NSis attention any information which the Licensee believes is relevant to the validity or ownership of the Licensed IP. Where such a prohibition is not permitted under applicable law, if the Licensee raises or causes to be raised any question concerning, or any objection to, the validity or ownership of any part of the Licensed IP, NSi may, to the extent permitted by law, by notice in writing to the Licensee terminate the licence(s) granted to the Licensee under this Agreement for that part of the Licensed IP.
10. |
EXPLOITATION BY LICENSEE |
10.1 |
Best efforts to Exploit |
The Licensee must use its best endeavours during the Term to:
(a) |
Exploit the Licensed IP within the Territory in the Field so as to maximise Sales of Products and consideration received from Sub-licensees; |
(b) |
meet the Minimum Performance Obligations as set out in the Schedule. |
10.2 |
Reports |
(a) |
The Licensee must prepare and deliver to NSi within [ * ] of the end of each [ * ] during the Term, in a form reasonably required by NSi, a written report setting out progress of the development and Exploitation of the Licensed IP in the previous [ * ] for those Applications for which a Royalty statement has not been provided under clause 7. |
(b) |
The Licensee must procure that its Sub-licensees comply with obligations substantially equivalent to those in this clause 10.2. |
10.3 |
Minimum Performance Obligations |
16.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(a) |
Without limiting the obligations set out in clauses 10.1 and 10.2, the Licensee must meet the Minimum Performance Obligation by the relevant Commercialisation Milestone Date set out in the Applications Commercialisation Plan. |
(b) |
Where the Licensee fails to meet a Minimum Performance Obligation for any Application NSi may, in its absolute discretion by [ * ] prior written notice to the Licensee, terminate the licences granted under this Agreement for that Application only. |
10.4 |
Compliance with laws |
The Licensee must ensure that the Exploitation of the Licensed IP and the Products by or on behalf of the Licensee and its Sub-licensees is carried out with all due care and skill and in compliance with all applicable laws, regulations, standards and requirements of relevant jurisdictions.
10.5 |
Exclusive efforts |
The Licensee must not during the Term directly or indirectly engage in or be knowingly concerned with the development, manufacture, marketing, sale, supply or other commercial Exploitation of any product or service competitive with or substitutable for the Products in the Territory and within the Field and in respect of the Applications to which this Agreement applies.
11. |
PRODUCTS |
11.1 |
Quality of Products |
Where the Licensee or Sub-licensees make or cause to be made, supply or cause to be supplied, any Products, the Licensee must (as applicable) itself, or cause its Sub-licensees to:
(a) |
manufacture, or cause to be manufactured, the Products with due care and skill and in accordance with all relevant best practice industry standards, and ensure that the Products are of good and merchantable quality and fit for their purpose, and meet all legal requirements, including all product liability laws, applicable where the particular Product is to be Exploited; and |
(b) |
promptly notify NSi of any significant quality failures which affect the Products and any circumstances which may require the recall of any Products. |
11.2 |
Inspection of Licensees premises |
On reasonable notice from NSi, the Licensee must permit NSi or its authorised representative to inspect the Licensees premises during business hours on a Business Day in order to observe the manufacture of Products and to verify whether the Licensee is complying with its obligations under this Agreement.
11.3 |
Records of Exploitation |
The Licensee must keep appropriate, comprehensive, accurate and up-to-date financial, technical and commercial records of its compliance with its obligations under this Agreement and must:
(a) |
permit NSi, its authorised representative or agent, on reasonable notice and during ordinary business hours on a Business Day, to inspect and verify such records; and |
17.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(b) |
give all reasonable help in any such inspection and verification and permit NSi, its authorised representative or agent to take copies of such records. |
11.4 |
Cost of inspection |
NSis cost of inspections under clauses 11.2 and 11.3 will be borne by NSi unless an inspection shows that the Licensee is in material breach of its obligations under this Agreement, in which case the cost of that inspection will be payable by the Licensee.
11.5 |
Obligations of sub-licensees |
The Licensee must procure:
(a) |
that all Sub-licensees comply with obligations substantially the same as those contained in this clause 11; and |
(b) |
for NSi the rights of inspection under clauses 11.2 and 11.3 in respect of the Licensees Sub-licensees. |
11.6 |
Insurance |
(a) |
The Licensee must during the Term, and for so long as is necessary after the Term to give effect to this clause 11.6, take out and maintain with reputable insurers reasonably acceptable to NSi: |
(i) |
comprehensive public and product liability insurance policies which give coverage against all usual risks, including for any claim or demand arising out of or in relation to this Agreement, the Licensed IP or the Products (including but not limited to clinical trial insurance) and for an amount in respect of each claim of at least the amount specified in the Schedule; |
(ii) |
insurance in respect of all claims and liabilities arising, whether at common law or under statute, relating to workers compensation or employers liability, from any accident or injury to any person employed by the Licensee in connection with the Exploitation of the Products. This insurance must be in compliance with all laws of the relevant jurisdiction in which the Products will be manufactured, marketed and Sold; and |
(b) |
Unless prohibited by law, the Licensee must ensure that all policies of insurance required to be taken out by it under this clause 11.6 include NSi and UNSW as interested parties on such policy. |
(c) |
Unless otherwise agreed by NSi in writing, any sub-contract or sub-licence granted by the Licensee with respect to the Licensed IP must require the sub-contractor or Sub-licensee to take out and maintain adequate insurance, including comprehensive public and product liability insurance policies, consistent with the requirements of this clause 11.6. |
(d) |
The Licensee must at NSis request provide NSi with certificates of currency for the policies required to be taken out by the Licensee under this clause 11.6 within [ * ] of such request. |
(e) |
The Licensee must immediately notify NSi of any cancellation or change to a relevant insurance policy which affects NSis or UNSWs interests. |
18.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(f) |
If any event occurs which may give rise to a claim involving NSi or UNSW under any policy of insurance to be taken out by the Licensee under this clause 11.6 the Licensee must: |
(i) |
notify NSi as soon as reasonably practicable, but in any event within [ * ] of the occurrence of that event; and |
(ii) |
ensure that NSi is kept fully informed of any subsequent actions and developments concerning the relevant claim. |
(g) |
The Licensees obligations to insure under this clause 11.6 are material obligations of this Agreement. Without limiting NSis rights at law, in equity, under this Agreement or otherwise, any failure by the Licensee to comply with a provision of this clause 11.6 entitles NSi, at its sole discretion, to terminate this Agreement and/or to invoice the Licensee for, or set off against any sum payable by NSi to the Licensee, all costs and expenses NSi incurs in taking out and maintaining a policy of insurance which Licensee has failed to take out as required. |
12. |
NOT USED |
13. |
APPLICATION SUBSTITUTION |
13.1 |
Option to Substitute New Applications |
Except where this Agreement or any licenses granted under this Agreement are terminated by NSi under clauses 10.3 and 19.3, and further provided the Licensee has paid all Registration Costs, Licence Fees, monies due and payable under the Collaborative Research Agreement and is not otherwise in material breach of any provision contained in this Agreement or the Collaborative Research Agreement, the Licensee may at its discretion substitute New Application to replace a Further Application at anytime during the Term of this Agreement (Option) subject to Clause 13.3.
13.2 |
Exercise of the Option |
To Exercise the Option and give effect to a separate commercial licence for a New Application:
(a) |
the Licensee will provide a notice in writing to NSi indicating the New Application required to be licensed and nominating the Further Application to be replaced in the Schedule; |
(b) |
NSi will amend the Schedule to incorporate the New Application, remove the Further Application and add any Project IP or Background IP necessary to Exploit the New Application; and |
(c) |
the parties will execute the amended Schedule to indicate their agreement to amend the Schedule. |
13.3 |
[ * ] Option |
The Licensee acknowledges and agrees:
(a) |
that it may only exercise the Option subject to: |
19.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(i) |
[ * ]; and |
(ii) |
[ * ]; and |
(b) |
until the Licensee exercises its Option, [ * ] and [ * ] in respect of any applications [ * ]. |
13.4 |
Additional Applications |
(a) |
At any time during the Term, the Licensee may serve a notice on NSi that it wishes to obtain a separate commercial licence for an application of the Project IP within or outside the Field ( Additional Application ). |
(b) |
The parties must work together in good faith on an exclusive basis for a period of [ * ] (Exclusivity Period) after service of a notice pursuant to clause 13.4(a) to agree on the terms (including, without limitation, the royalty rate) on which the Additional Application will be licensed to the Licensee provided that if the parties agree on terms: |
(i) |
the parties will enter into a new separate license agreement; and |
(ii) |
[ * ] will [ * ] during the Exclusivity Period in respect of any Intellectual Property the subject of the negotiation. |
14. |
CONFIDENTIAL INFORMATION |
14.1 |
Permitted use |
The Licensee may use and disclose NSis Confidential Information comprised in the Licensed IP solely to the extent necessary for the Exploitation of the Licensed IP or Products in accordance with this Agreement.
14.2 |
Obligations of confidentiality |
Subject to clause 14.1, each party must:
(a) |
not use, and ensure that its employees, officers and agents do not use, any Confidential Information of the other party for any purpose other than compliance with its obligations under this Agreement; |
(b) |
take all action necessary to maintain the confidential nature of the Confidential Information of the other party, including keeping all records of that Confidential Information under lock and key or password protection; |
(c) |
not disclose any of the Confidential Information of the other party to any person other than those of its employees who need to have access to that Confidential Information for the purposes of compliance with its obligations under this Agreement, who are aware of the requirements of this Agreement, and who are bound by an enforceable obligation of confidentiality; and |
(d) |
destroy all documents and other materials in whatever form in its possession, power or control which contain or refer to any Confidential Information of the other party, on the earlier of expiry or termination of this Agreement, demand by the other party or the time they are no longer required for the purposes of this Agreement. |
20.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
14.3 |
Uncertainty |
If it is uncertain as to whether:
(a) |
any information is Confidential Information; or |
(b) |
any Confidential Information is publicly available, |
that information will be taken to be Confidential Information and not generally available to the public unless the disclosing party advises the recipient party in writing to the contrary or a court declares it to be publicly available.
14.4 |
Disclosure required by law |
Each party may disclose Confidential Information of the other party if legally compelled to do so by a judicial or administrative body provided it takes all reasonably available legal measures to avoid such disclosure, and notifies the other party as soon as practicable after such disclosure is ordered so that the other party may seek an appropriate protective order or other remedy.
14.5 |
Acknowledgement |
Each party acknowledges that due to the proprietary and competitively-sensitive nature of the Confidential Information of the other party, the other party would be irreparably harmed by any actual or threatened breach of this clause 14, and that monetary damages would be insufficient to remedy such actual or threatened breach.
15. |
MEDIA AND PUBLICATIONS |
15.1 |
Statements and use of name |
(a) |
A party may not make press or other announcements or releases relating to this Agreement or the matters the subject of this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld. |
(b) |
In any publication, press release, advertising or other promotional material relating to the Licensed IP: |
(i) |
the Licensee must give due credit to UNSW and/or NSi as owner and/or licensor (as applicable), but must not otherwise use or permit to be used NSis or UNSWs name without having previously obtained the consent in writing of NSi and/or UNSW (as applicable); and |
(ii) |
must not intentionally make or permit to be made any inaccurate or misleading statement in relation to the Licensed IP or the Products. |
15.2 |
Publication of Papers |
A party must not publish any Paper without the prior written consent of the other party. Where a party wishes to obtain the other partys consent for the publication of a Paper:
(a) |
the party must provide to the other party a copy of the proposed Paper at least [ * ] prior to the proposed date of publication (or submission for publication where applicable); |
21.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(b) |
the other party may within [ * ] of receipt of a proposed Paper reasonably object to or request a delay of the publication of the Paper in whole or in part providing reasons, in which case the party must not publish, or must delay the publication of, the Paper (as applicable). If the other party fails to object or request a delay within this period, the other party will be deemed to have consented to the publication of the Paper; and |
(c) |
a party must not unreasonably withhold its consent to the publication of a Paper, provided that it may withhold consent if it reasonably believes the publication will adversely affect the protection or commercialisation of any Intellectual Property owned by it. |
15.3 |
Acknowledgements |
Each party must acknowledge the role of the other party in any Paper, and each party must, where any significant advice or recommendations have been provided by an employee of the other party, appropriately acknowledge the authorship of that person, in each case in accordance with usual academic practice.
16. |
INFRINGEMENT AND ENFORCEMENT |
16.1 |
Notice of proceedings |
Each party must immediately give to the other party full details of any actual or suspected infringement or any action for revocation of any of the Licensed IP by a third party in the Territory ( Infringement ) of which it becomes aware. If such an Infringement occurs, the parties must consult with each other as to an appropriate course of action.
16.2 |
Licensee to enforce |
If an Infringement occurs, the Licensee may, to the extent commercially and legally reasonable in accordance with the advice and resources available to it, institute and prosecute or defend (as applicable) proceedings in its own name at its cost to prevent infringement of the Licensed IP by the third party or revocation of the Licensed IP, or to defend any cross-claim asserting invalidity of the Licensed IP, and the Licensee must:
(a) |
give NSi reasonable notice, keep NSi advised of the progress, and consult with NSi and accept the reasonable directions of NSi about the conduct of such proceedings; |
(b) |
provide to NSi on request, at no cost to NSi, copies of all documents used in or prepared for such proceedings; and |
(c) |
indemnify NSi and UNSW against all actions, claims, loss, awards, costs, damages and expenses arising out of or in connection with those proceedings, but only to the extent those proceedings relate to or arise from the Exploitation of the Licensed IP by the Licensee, its Affiliates or its sub-licensees. |
16.3 |
NSi may join action |
If the Licensee institutes or defends proceedings with respect to an Infringement in accordance with clause 16.2, NSi may join the Licensee in such proceedings and may contribute to the costs and expenses of the proceedings, in which case [ * ] or [ * ] or [ * ].
16.4 |
NSi may proceed alone |
22.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
If the Licensee fails to institute or defend proceedings with respect to an Infringement in accordance with clause 16.2, NSi may institute or defend such proceedings on its own in its own name and at its cost and may retain any damages or other amounts received through settlements or adjudications of such proceedings.
16.5 |
Third party claims |
(a) |
If proceedings are threatened or commenced by a third party against a party in any country on the ground that the Exploitation of the Licensed IP infringes an Intellectual Property rights vested in the third party, then: |
(i) |
the party threatened or sued must immediately notify the other party; and |
(ii) |
the parties will refer the matter to leading legal counsel for advice on whether a defence or threats action will have a reasonable chance of a successful outcome and whether there are circumstances making it imprudent to defend or commence proceedings. |
(b) |
If proceedings are threatened or commenced against a party, that party will be solely responsible for the defence of those proceedings and bringing any threats action, and indemnifies the other party against all actions, claims, loss, awards, costs, damages and expenses arising out of or in connection with those proceedings. In the case of the Licensee, the requirement for it to indemnify NSi only applies to the extent the proceedings or threatened proceedings relate to or arise from the Exploitation of the Licensed IP by the Licensee, its Affiliates or its sub-licensees. |
(c) |
A party will not be required to defend any infringement proceedings brought by a third party or institute any threats action where leading counsel advises that it would be imprudent to defend or commence proceedings. |
16.6 |
Amendment |
If the parties agree [ * ] that, prior to the defence or institution of proceedings, the specification of any Patent should be amended, NSi may apply to amend the specification.
16.7 |
Assistance |
Each party agrees, on the request of the other party, at its cost to provide to the other party all information and assistance reasonably required by the other party in connection with any action or proceedings contemplated by this clause 16, including providing documents and witnesses to give evidence.
17. |
WARRANTIES |
17.1 |
Mutual warranties |
Each party warrants that as at the date of execution of this Agreement:
(a) |
it has the power and authority to enter into and perform its obligations under this Agreement and that the execution of this Agreement by it has been duly and validly authorised by all necessary corporate action; |
23.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(b) |
its obligations under this Agreement are valid and binding and enforceable against it in accordance with their terms; and |
(c) |
this Agreement and its performance do not contravene its constituent documents or any law, or any of its obligations or undertakings by which it is bound, or cause a limitation on the powers of its corporate officers to be exceeded. |
17.2 |
NSis warranties |
NSi warrants that to the best of its actual knowledge as at the date of execution of this Agreement:
(a) |
it owns the Licensed IP and has the right to grant the licences to the Licensed IP contained in this Agreement; |
(b) |
there is no litigation pending in respect to the Licensed IP, and no claim or demand has been received by NSi from any person in relation to the ownership or validity of the Licensed IP; |
(c) |
the Licensed IP is not encumbered, mortgaged, or charged in any way, nor subject to any lien; |
(d) |
it has not granted to any person any licence to the Licensed IP which may conflict with the licences granted in this Agreement, other than as expressly permitted by this Agreement; |
17.3 |
Limit on warranties |
The warranties by NSi in clause 17.2 are given by NSi:
(a) |
to [ * ] knowledge, [ * ]; and |
(b) |
subject to all liabilities, contracts and other matters disclosed in writing by or on behalf of NSi to the Licensee before the date of execution of this Agreement, including all matters disclosed in the Disclosed Items specified in the Schedule, and do not apply in respect of any matter disclosed in, or arising out of or in connection with, any such liabilities, contracts and other matters. |
17.4 |
Licensees warranties |
The Licensee warrants that as at the date of execution of this Agreement:
(a) |
it has the necessary resources, skills and technical expertise to Exploit the Licensed IP and Products in accordance with and perform its obligations under this Agreement; |
(b) |
it has made its own assessment of the Licensed IP and Products and the commercial value of the licences granted under this Agreement; |
(c) |
it has exercised its independent skill and judgment and has carried out its own investigations in its decision to enter into this Agreement; |
(d) |
it has not relied on any advice, promise or representation made by or on behalf of NSi (including by UNSW or UNSW personnel) which has not been expressly included in this Agreement; and |
24.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(e) |
it has obtained, or where required in the future will obtain, all authorisations, registrations, approvals and permits required by any governmental body or under any government legislation in any relevant jurisdiction in connection with the Licensees entry into and performance of this Agreement and the Exploitation of the Licensed IP and Products. |
17.5 |
Exclusion of warranties |
The Licensee acknowledges and agrees that:
(a) |
NSi has not made or given, nor has any person on behalf of NSi made or given, any warranty, representation, undertaking or understanding whatsoever that is not expressly set out in this Agreement; and |
(b) |
NSi has not made and does not make any warranty or representation whatsoever as to: |
(i) |
the safety of the Licensed IP or the Products; |
(ii) |
the Exploitation of the Licensed IP or of the Products, except as set out in clause 17.2; |
(iii) |
the marketability of the Licensed IP or of the Products; |
(iv) |
the Exploitation prospects or success of any part of the Licensed IP or of the Products or the profits or revenues that may result from the Exploitation of the Licensed IP or the Products; |
(v) |
the validity of any right in respect of the Licensed IP, whether in respect of the Products or otherwise; |
(vi) |
NSis Confidential Information or the Know-how being complete or accurate; |
(vii) |
the Licensees Exploitation of the Licensed IP or the Products not infringing the rights (including Intellectual Property rights) of any person; |
(viii) |
the Exploitation of the Licensed IP being lawful or not requiring the consent or approval of any person (including regulatory approval); and |
(ix) |
it being possible to grant an exclusive licence of the Licensed IP under the law of any jurisdiction within the Territory. |
18. |
LIABILITY |
18.1 |
NSis exclusions |
Except for liability under any Prescribed Terms (as defined in clause 18.2), to the extent permitted by law NSi excludes all liability to the Licensee arising out of or in connection with the suitability of the Licensed IP for the Exploitation of Products or the quality or performance of any Products, or the claims of third parties arising from the Exploitation of the Licensed IP or Products.
18.2 |
Prescribed terms |
(a) |
Subject to any terms, conditions and warranties which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent ( Prescribed Terms ), except as expressly set out in this Agreement, all |
25.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
conditions, warranties, terms and obligations expressed or implied by law or otherwise relating to the performance of a partys obligations, or any goods or services supplied or to be supplied by a party, under this Agreement are excluded. |
(b) |
To the extent permitted by law, the liability of a party for a breach of a Prescribed Term implied into this Agreement is limited, at that partys option, to the repair or replacement of the goods, the cost of repairing or replacing the goods, the re-supply of the services or the payment of the cost of re-supplying the services. |
18.3 |
Consequential loss |
To the extent permitted by law, a party will have no liability to the other party, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit (whether direct or indirect) or loss of business opportunity arising out of or in connection with this Agreement.
18.4 |
Indemnity by Licensee |
The Licensee releases and indemnifies NSi, UNSW, and their officers, employees, consultants and agents, from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with the Licensee and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage arising out of:
(a) |
any material breach by the Licensee of its warranties or obligations under this Agreement; |
(b) |
any negligent act or omission or wilful misconduct of the Licensee or its officers, employees, consultants or agents; |
(c) |
the Exploitation of the Licensed IP or Products by or on behalf of the Licensee or its Sub-licensees, including but not limited to, breach of Intellectual Property rights of third parties arising in the course of such Exploitation; |
(d) |
the design, manufacture, marketing or supply of the Products by or on behalf of the Licensee or its Sub-licensees; or |
(e) |
any persons use of any Products supplied by or on behalf of the Licensee or its Sub-licensees, |
and from and against all damages, reasonable costs and expenses incurred in defending, satisfying or settling any such action, claim, proceeding or demand.
18.5 |
Indemnity by NSi |
NSi releases and indemnifies the Licensee, its officers, employees, consultants and agents, from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with NSi and whether at common law, under tort (including negligence), in equity, pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage arising out of:
(a) |
any material breach by NSi of its warranties or obligations under this Agreement; |
26.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(b) |
any negligent act or omission or wilful misconduct of NSi or its officers, employees, consultants or agents; |
18.6 |
Cap on Liability |
To the extent permitted by law, the total aggregate liability of NSi arising out of or in connection with the Licensed IP, the Products or this Agreement, whether based upon breach of contract, under common law, statute, tort (including any negligence) or otherwise, and whether or not NSi had been advised of the possibility of such loss or damage:
(a) |
arising out of any one act, omission or event and any one series of related acts, omissions or events are not to exceed the amount of Licence Fees, Sub-licence Fees and Royalties paid by the Licensee to NSi in the 12 month period prior to the act, omission or event or the first in the series of acts, omissions or events giving rise to the liability; and |
(b) |
arising out of all acts, omissions and events whenever occurring is not to exceed the total amount of Licence Fees, Sub-licence Fees and Royalties paid to NSi under this Agreement, |
less any Taxes forming part of those amounts and less any amounts paid by NSi to the Licensee within the relevant period.
19. |
TERM AND TERMINATION |
19.1 |
Agreement to continue for Term |
Subject to earlier termination in accordance with this Agreement, this Agreement will commence on the Commencement Date and continue in force for the Term.
19.2 |
Expiry of Intellectual Property rights during the Term |
The licences granted under this Agreement expire in relation to a Product in a country once all Patents in that country any claim of which governs the Exploitation of that Product and all Other Statutory Rights in that country which subsist in the Exploitation of that Product expire, lapse, are found to be invalid or are rejected in a non-appealable or non-appealed decision, and all Know-how in respect of the Exploitation of that Product has entered the public domain.
19.3 |
Termination by NSi |
NSi may terminate this Agreement, or the licence of any right in respect of the Licensed IP, by giving written notice to the Licensee if:
(a) |
the Licence Fees, Sub-licence Fees or Royalties are in arrears and unpaid for a period of [ * ] after they have become due and payable; |
(b) |
the Licensee commits or allows to be committed a breach (other than a trivial breach causing no material harm) of this Agreement and, where the breach is capable of remedy, fails to remedy that breach within [ * ] of receiving written notice from NSi describing the breach and asking for it to be remedied; |
(c) |
the Licensee suffers a change in Control (other than solely due to a corporate reconstruction of Affiliates) which, in the reasonable opinion of NSi, adversely affects the Licensees ability to perform this Agreement; |
27.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
(d) |
an Insolvency Event occurs in relation to the Licensee; or |
(e) |
the Licensee ceases or threatens to cease to carry on its business. |
19.4 |
Termination by Licensee |
The Licensee may terminate this Agreement by giving written notice to NSi if:
(a) |
NSi commits or allows to be committed a breach (other than a trivial breach causing no material harm) of this Agreement and, where the breach is capable of remedy, fails to remedy that breach within [ * ] of receiving written notice from the Licensee describing the breach and asking for it to be remedied; or |
(b) |
an Insolvency Event occurs in relation to NSi. |
19.5 |
Consequences of termination |
Upon the termination or expiry of this Agreement for any reason::
(a) |
the parties must pay all amounts owing under this Agreement, which become immediately due on termination or expiry; |
(b) |
except to the extent applicable law provides otherwise, the Licensee must cease Exploiting the Licensed IP; |
(c) |
the Licensee must provide NSi with details of any sub-licences or other arrangements entered into by the Licensee relating to or relying upon the Licensed IP; |
(d) |
the Licensee must, at NSis option deliver to NSi or erase or destroy, or procure the delivery, erasure or destruction (as applicable) of, all materials, including electronic storage, in the possession or under the control of the Licensee or its Affiliates containing any Confidential Information of NSi; and |
(e) |
the Licensee must deliver to NSi a statutory declaration made by an authorised officer of the Licensee declaring that to the best of that persons knowledge and belief (after having made proper inquiries) none of Licensee, its Affiliates and their officers, employees, agents, contractors or advisers have retained any Confidential Information of NSi and that the Licensee has fully complied with its obligations under clause 19.5(d). |
19.6 |
Other remedies |
Termination of this Agreement by a party under clauses 10.3, 19.3 or 19.4 is without prejudice to each partys right to sue for and recover any monies then due in respect of any previous breach by the other party of this Agreement.
19.7 |
Survival |
Clauses 7.4, 7.5, 7.6, 11.6, 14, 15, 16, 17, 18, 19.5, 19.6, 20.2(b) and 21 survive the termination or expiry of this Agreement for any reason.
20. |
FORCE MAJEURE |
20.1 |
Relief for Force Majeure |
28.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
If a party is wholly or partly unable to carry out its obligations under this Agreement (other than an obligation to pay money) because of Force Majeure, the obligations of that party will be suspended provided that:
(a) |
within a reasonable time after the occurrence of the Force Majeure, the party gives the other party a written notice specifying the Force Majeure; |
(b) |
the relevant obligations will be suspended only to the extent that the obligations are affected by Force Majeure; |
(c) |
the relevant obligations will be suspended during, but no longer than, the continuance of the Force Majeure, and such further period as is reasonable in the circumstances; and |
(d) |
the party giving the notice uses its best efforts to promptly abate the Force Majeure. |
20.2 |
Other party may terminate |
(a) |
If a party is wholly or partly unable to carry out its obligations under this Agreement due to Force Majeure for a period of more than [ * ], the other party may terminate this Agreement or the licence of any right in respect of the Licensed IP by giving written notice. |
(b) |
Termination under this clause 20.2 is without prejudice to the rights of any party arising before or due to the event giving rise to termination, or from any breach of this Agreement. |
21. |
DISPUTE RESOLUTION |
21.1 |
No proceedings |
If a dispute arises out of or in connection with this Agreement ( Dispute ), no party may start court or arbitration proceedings (except proceedings seeking urgent interlocutory relief) unless it has complied with this clause 21.
21.2 |
Dispute resolution |
(a) |
A party claiming that a Dispute has arisen must give written notice to the other party giving details of the Dispute ( Notification ). |
(b) |
Within [ * ] (or any longer period agreed by the parties) of receipt by the other party of a Notification, the Chief Executive Officers (or equivalent) of each party must personally or through a nominee attempt in good faith to resolve the Dispute, failing which the parties must seek to agree on an alternative dispute resolution technique to resolve the Dispute. |
(c) |
If the parties fail to agree on the dispute resolution technique to be used within a further [ * ] (or any longer period agreed by the parties), the Dispute will be referred to mediation by, and in accordance with the rules of, the Australian Commercial Disputes Centre Limited. The mediation will be conducted in Sydney in the English language. |
(d) |
The parties must continue to perform their respective obligations under this Agreement pending the resolution of a Dispute. |
(e) |
Each party must bear its own costs of complying with this clause 21. |
29.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
22. |
GENERAL |
(a) |
This Agreement contains the entire agreement between the parties as to its subject matter and may only be amended in writing signed by all parties. |
(b) |
Notices must be given to the parties addresses set out at the front of this Agreement and in the case of notices regarding accounting issues to the person specified in the Schedule or as otherwise notified by the parties in writing and must be delivered in person or sent by email, fax or prepaid post (airmail if international). Notices will be deemed to have been received: |
(i) |
if delivered in person, on the date of delivery; |
(ii) |
if sent by email, on receipt by the sender of an acknowledgment indicating that the mail item was read by the recipient; |
(iii) |
if sent by fax, on production of a transmission report from the senders fax machine evidencing that the fax was successfully sent in its entirety; or |
(iv) |
if sent by prepaid post, 3 business days after posting (7 business days if sent to or from a place outside of Australia). |
(c) |
No delay or indulgence by a party in enforcing this Agreement will prejudice or restrict the rights of that party, nor will a waiver of those rights operate as a waiver of a subsequent breach. |
(d) |
No part of this Agreement is to be construed to the disadvantage of a party because that party was responsible for its preparation. |
(e) |
Nothing in this Agreement may be construed as creating a relationship of partnership, joint venture employment, principal and agent or trustee and beneficiary. |
(f) |
A party, at the request of another party, must do all things and sign all documents necessary to give effect to this Agreement. |
(g) |
If any provision of this Agreement is or becomes invalid or unenforceable then, if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down, and otherwise the offending provision must be severed and the remaining provisions will operate as if the provision had not been included. |
(h) |
This Agreement is governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that State. |
(i) |
Each signatory to this Agreement warrants that he or she has authority to bind the party that he or she is stated to represent. |
(j) |
This Agreement may be executed in any number of counterparts all of which taken together will constitute one agreement. |
30.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
SCHEDULE
Commencement Date |
To be updated at end of the Collaborative Research Agreement |
|||||||||||
Term |
In respect of each Application, from the Commencement Date until the conditions in clause 19.2 have been met |
|||||||||||
Licensed IP |
Patents |
|||||||||||
NSi Ref / Tech ID |
Title |
Type of
|
Date of
Application |
|||||||||
[ insert ] | [ insert ] | [ insert ] | [ insert ] | |||||||||
[ insert ] | [ insert ] | [ insert ] | [ insert ] | |||||||||
Know-how -To be updated at end of the Collaborative Research Agreement |
||||||||||||
Background IP - To be updated at end of the Collaborative Research Agreement |
||||||||||||
Project IP - To be updated at end of the Collaborative Research Agreement |
||||||||||||
Territory |
Worldwide |
|||||||||||
Field |
Formulations for oral vaccines. The Licensee acknowledges that [ * ] and [ * ]. |
|||||||||||
License Fees |
These License Fees are payable in respect of each Application Licensed under this Agreement.
The Licensee will pay NSi the Licence Fees attributed to each Milestone for each Application licensed under this Agreement as follows:
Milestones are numbered for convenience but may not occur in sequence and are payable when achieved. |
|||||||||||
No |
[ * ] |
Milestone |
License Fees |
|||||||||
1. | [ * ] | [ * ] | $ [ * ] | |||||||||
2. | [ * ] | [ * ] | $ [ * ] | |||||||||
3. | [ * ] | [ * ] | $ [ * ] | |||||||||
4. | [ * ] | [ * ] | $ [ * ] |
31.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
In addition to the [ * ] Milestones above, a trigger for payment to NSI is payable on [ * ]. |
||||||||||||
No |
[ * ] |
Milestone |
License Fees |
|||||||||
1. | [ * ] | [ * ] | $ [ * ] | |||||||||
2. | [ * ] | [ * ] | $ [ * ] | |||||||||
3. | [ * ] | [ * ] | $ [ * ] | |||||||||
4. | [ * ] | [ * ] | $ [ * ] | |||||||||
Royalty For all Applications |
[ * ]% of Net Sales |
|||||||||||
Royalty Period |
Each calendar quarter ending on 31 March, 30 June, 30 September and 31 December during the Term, or part thereof where the first such period commences within a quarter or this Agreement terminates prior to the end of a quarter. |
|||||||||||
Sub-license Fees |
[ * ]% of any one-off upfront payments or other one-off upfront consideration (other than Royalties, patent re-imbursement expenses or research funding) received by or due to the Licensee or its Affiliates for and on execution of an agreement sub-licensing the Licensed IP or any part of it to a Sub-licensee (excluding any consideration received by the Licensee from any of its Affiliates). |
|||||||||||
Insurance |
Public liability and product liability insurance: AU$[ * ] |
|||||||||||
Minimum Performance Obligations |
1. Exploitation:
The Licensee must: |
|||||||||||
(a) use its best endeavours to pursue throughout the Territory and the Field opportunities for the Exploitation of the Licensed IP and the Products; and |
||||||||||||
(b) use its best endeavours (whether by itself or through permitted Sub-licensees, sub-contractors or assignees) to obtain all necessary regulatory approvals for the Exploitation of the Products in the Territory and in the Field; |
||||||||||||
3. Application Commercialisation Plan |
||||||||||||
For each Application the Licensee must, by the Commercialisation Milestone Dates listed in the Application Commercialisation Plan, demonstrate to NSis satisfaction that the Commercialisation Milestone has been achieved. For this purpose the Commercialisation Milestone is achieved when a substantial [ * ] R&D and/or commercialisation program to further Exploit the Application, is commenced, conducted and funded by either: |
||||||||||||
1. By the Licensee; or |
||||||||||||
2. By a 3 rd party sub-licensee [ * ]. |
||||||||||||
For the avoidance of doubt, substantiality for the purposes of |
32.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
Executed as an agreement.
Signed for an on behalf of NEWSOUTH INNOVATIONS PTY LIMITED |
||||
Signature of Authorised Officer | ||||
Print Name | ||||
Date | ||||
Signed for an on behalf of Prima Biomed Limited |
||||
Signature of Authorised Officer | ||||
Print Name | ||||
Date |
33.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
Commercial Licence Agreement
Annexure 1
Application Commercialisation Plan
Application
|
Application
Description |
Commercialisation
Start Date |
Commercialisation
Milestone Date |
|||||||||
[ * ] |
[ | * ] | [ | * ] | [ | * ] | ||||||
[ * ] |
[ | * ] | [ | * ] | [ | * ] | ||||||
[ * ] |
[ | * ] | [ | * ] | [ | * ] | ||||||
[ * ] |
[ | * ] | [ | * ] | [ | * ] | ||||||
[ * ] |
[ | * ] | [ | * ] | [ | * ] |
This Schedule was amended on _____________ by agreement of the parties to the Licence Agreement dated __________.
Signed for an on behalf of NEWSOUTH INNOVATIONS PTY LIMITED |
||||
Signature of Authorised Officer | ||||
Print Name | ||||
Date | ||||
Signed for an on behalf of Prima Biomed Limited |
||||
Signature of Authorised Officer | ||||
Print Name | ||||
Date |
34.
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
E XHIBIT 4.9
Dated 30th day of September 2009
CANCER VAC PTY LTD
and
CELL THERAPIES Pty. Ltd.
MANUFACTURING AGREEMENT
for CAN003
a Phase IIb trial of CVac
TABLE OF CONTENTS
1. |
DEFINITIONS AND INTERPRETATION |
3 | ||||
2. |
APPOINTMENT OF CT |
9 | ||||
3. |
TERM OF THE AGREEMENT |
10 | ||||
4. |
PERFORMANCE OF THE SERVICES |
10 | ||||
5. |
OBLIGATIONS OF CANCERVAC |
11 | ||||
6. |
INTERFACE WITH CANCERVACS USA CONTRACT MANUFACTURER |
11 | ||||
7. |
INVOICING AND PAYMENT |
11 | ||||
8. |
APPOINTMENT OF AUTHORISED REPRESENTATIVES |
12 | ||||
9. |
CONFIDENTIALITY / INFORMATION |
12 | ||||
10. |
PRIVACY |
13 | ||||
11. |
INTELLECTUAL PROPERTY |
13 | ||||
12. |
REVIEW |
15 | ||||
13. |
INSURANCE |
15 | ||||
14. |
INDEMNITY |
16 | ||||
15. |
REPRESENTATIONS AND WARRANTIES |
16 | ||||
16. |
ETHICS COMMITTEE APPROVAL AND PATIENT CONSENT |
19 | ||||
17. |
TERMINATION OR EXTENSION |
19 | ||||
18. |
RELATIONSHIP |
20 | ||||
19. |
VARIATION |
20 | ||||
20. |
ASSIGNMENT |
20 | ||||
21. |
NOTICES TO CANCERVAC |
20 | ||||
22. |
NOTICES TO CT |
21 | ||||
23. |
DISPUTE RESOLUTION |
21 | ||||
24. |
GOVERNING LAW AND JURISDICTION |
21 | ||||
25. |
ENTIRE AGREEMENT |
22 | ||||
26. |
NO WAIVER |
22 | ||||
27. |
REMEDIES CUMULATIVE |
22 | ||||
28. |
COUNTERPARTS |
22 | ||||
29. |
SEVERABILITY OF PROVISIONS |
22 | ||||
30. |
GST GENERAL PRINCIPLES |
22 | ||||
31. |
CHANGE IN CONTROL & STRUCTURE |
23 | ||||
32. |
RELEASE OF INFORMATION |
23 | ||||
SCHEDULE 1 THE SERVICES |
25 | |||||
SCHEDULE 2 CHARGES TO BE INCURRED BY CANCERVAC |
27 | |||||
SCHEDULE 3 INSURANCE |
31 | |||||
SCHEDULE 4 TIMETABLE |
32 |
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THIS AGREEMENT is made the 30th day of September 2009
BETWEEN
Cell Therapies Pty Ltd (ABN 15 100 285 916) of Ground Floor, 10 St Andrews Place, East Melbourne, Victoria 3002 ( CT )
AND
CANCER VAC PTY LTD (ABN 64 096 859 513) Suite 1, 1233 High Street Armadale Victoria 3143 ( CANCERVAC )
Each a Party and collectively, Parties.
RECITALS
CT is the commercial manager of the Peter MacCallum Cancer Centres Centre for Blood Cell Therapies (CBCT).
CT is a controlled entity of the Peter MacCallum Cancer Centre (Peter Mac) and is the entity through which Peter Mac conducts all commercial arrangements for CBCT.
CT has provided CANCERVAC and its parent company PrimaBiomed Limited with consulting and cGMP compliant manufacturing services including support for a successful IND application for a Phase IIb trial of CVac and the successful technical transfer of CANCERVACs manufacturing process for CVac to a USA contract manufacturer.
CANCERVAC wishes CT to maintain its support of the overall IND Trial program and specifically to perform the cGMP compliant blood and cell processing requirements for the Australian arm of the IND Trial
CANCERVAC owns certain intellectual property rights necessary or useful to perform the cell processing for CVac.
CBCT holds TGA Licence #149827 for human autologous blood and tissue processing which enables it to undertake cell collection and processing under cGMP/cGTP conditions. CT and CBCT have demonstrable skills and experience with clinical trials and cell processing involving the TGA and FDA regulatory regimes.
CANCERVAC will appoint a Clinical Research Organisation (CRO) to manage the trial and CT are expected to work collaboratively with the appointed CRO, the principal investigators and the nominated CANCERVAC project leaders.
Accordingly, CANCERVAC wishes to engage CT to provide the Services pursuant to the terms and conditions contained in this Agreement.
IT IS THEREFORE AGREED AS FOLLOWS
1. |
DEFINITIONS AND INTERPRETATION |
1.1 |
Definitions |
The following definitions apply unless the context requires otherwise:
Affiliate means any corporation, firm, partnership or other entity which directly or indirectly controls or is controlled by or is under common control
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with a Party to this Agreement. For the purposes of this definition, control means ownership, directly or through one or more Affiliates, of fifty percent (50%) or more of the shares of stock entitled to vote for the election of directors, in the case of a corporation, fifty percent (50%) or more of the equity interests in the case of any other type of legal entity, status as a general partner in any partnership, or any other arrangement whereby a Party controls or has the right to control the Board of Directors or equivalent governing body of a corporation or other entity;
ARCBS Australian Red Cross Blood Service-NTS Division at 6 th Floor 464 St Kilda Road Melbourne 3004
Authorised Representative means the authorised contact person for a party for all purposes connected with this Agreement.
CANCERVAC Background Intellectual Property Rights means any Intellectual Property Rights provided by CANCERVAC for use in the Services or the Project that is owned, licensed to or controlled by CANCERVAC whether provided on or after the Commencement Date including without limitation CANCERVACs Project methods for CVac but excluding any Developed Intellectual Property Rights;
CANCERVAC Insurance Policies means the insurance policies specified as such in Schedule 3 for an amount of not less than the amount stated in Schedule 3;
CANCERVAC Supplied Products means any products supplied by CANCERVAC or its nominee to CT in connection with the delivery or performance of the Services;
CBCT means Peter MacCallum Cancer Centre as represented by the operation unit of the Haematology and Oncology that reports to Professor Miles Prince and under the day to day control of Dr Dominic Wall;
cGMP means the Code of Good Manufacturing Practice as interpreted and applied by the Australian Therapeutic Goods Administration (TGA).
cGTP means the Code of current Good Tissue Practice as interpreted and applied by the FDA;
Clinical Protocol means the specific clinical trial protocol as part of the Project;
Commencement Date means the date of execution of this agreement.
Confidential Information means all confidential information disclosed by one Party to the receiving Party or otherwise obtained by the receiving Party as a direct or indirect result of this Agreement including information relating to any technology, marketing strategies and/or business of the disclosing Party but does not include information which:
(a) |
At the time of the disclosure to the receiving Party, was already in the lawful possession of that Party in written form; |
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(b) |
Is in or comes into the public domain otherwise than by disclosure in breach of this Agreement or any other breach of confidentiality; |
(c) |
Is independently developed by the receiving Party; or |
(d) |
Is obtained lawfully by the receiving Party from a third Party otherwise than by disclosure in breach of an obligation of confidentiality. |
CSO Chief Scientific officer of CANCERVAC or Primabiomed Limited
CT Background Intellectual Property Rights means any Intellectual Property Rights provided by CT for use in the Services or the Project that is owned, licensed to or controlled by CT whether provided on or after the Commencement Date including without limitation the Quality Systems, but excluding any Developed Intellectual Property Rights;
CT Insurance Policies means the insurance policies specified as such in Schedule 3 for an amount of not less than the amount stated in Schedule 3;
CVac means an autologous dendritic cell vaccine the property of CANCERVAC.
Delegate means a deputy authorised to act on behalf of an Authorised Representative.
Developed Intellectual Property Rights means Intellectual Property Rights acquired, developed or created in relation to the Project, in the course of this Agreement or the provision of the Services, which arises at a date after the Commencement Date of this Agreement;
Facilities means all facilities required by CT to provide the Services pursuant to this Agreement;
FDA means the Food and Drug Administration of the USA;
Force Majeure means an event or cause beyond the reasonable control of the Party claiming force majeure including, without limitation:
(a) |
act of God, lightning, storm, flood, fire, earthquake or explosion, cyclone, tidal wave, landslide, adverse weather conditions; |
(b) |
strike, lockout or other labour difficulty; |
(c) |
act of public enemy, war (declared or undeclared), sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic; |
(d) |
the effects of any applicable laws, orders, rules or regulations of any government or other competent authority; |
(e) |
breakage or accident or other damage to machinery or equipment; |
(f) |
failure of process in the performance of the Services; |
(g) |
power interruption or failure, to either or both of mainline power transmission or backup/emergency generator, howsoever caused; |
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(h) |
unsuitability or unavailability of materials supplied by third parties or CANCERVAC necessary for carrying out the obligations of each Party under this Agreement |
GST has the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Health Information means:
(a) |
information or an opinion about: |
(i) |
the physical, mental or psychological health (at any time) of an individual; or |
(ii) |
a disability (at any time) of an individual; or |
(iii) |
an individuals expressed wishes about the future provision of health services to him or her; or |
(iv) |
a health service provided, or to be provided, to an individual that is also personal information; or |
(b) |
other personal information collected to provide, or in providing, a health service; or |
(c) |
other personal information about an individual collected in connection with the donation, or intended donation, by the individual of his or her body parts, organs or body substances; or |
(d) |
other personal information that is genetic information about an individual in a form which is or could be predictive of the health (at any time) of the individual or of any of his or her descendants. |
Health Laws means the Health Records Act 2001 (Vic), the Health Privacy Principles contained in Schedule 1 of that Act, and any other statute, regulation or law in Australia or elsewhere which relates to the protection of Health Information and which any of the parties to this Agreement must observe;
IND Trial means CANCERVACs CAN003 Phase IIb trial of a nominal x60 patients with ovarian cancer to be run under the FDAs Investigational New Drug (IND) notification system and the TGAs Clinical Trial Notification (CTN) system;
Input Tax Credit(s) has the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means, in relation to a party, any one or more of the following events or circumstances:
(a) |
being in liquidation or provisional liquidation or under administration; |
(b) |
having a receiver, receiver and manager, administrator or liquidator of that person or that persons property, or anyone else who is in possession, or has control, of that persons property to enforce any encumbrance appointed to it or any of its property; |
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(c) |
being taken under Section 459F(1) of the Corporations Act to have failed to comply with a statutory demand; |
(d) |
being unable to pay its debts or being otherwise insolvent; |
(e) |
any analogous event or circumstance under the laws of any jurisdiction; or |
(f) |
taking any step or being the subject of any action that is reasonably likely to result in any of the above occurring; |
Intellectual Property Rights means and includes all present and future intellectual and industrial property rights conferred by statute, at common law or in equity, including (without limitation):
(a) |
any patent rights, inventions, patent, copyright, designs, rights in circuit layouts, plant breeders rights, trade marks, brand names, domain names, product names, trade secret, or know-how and other results of intellectual effort in the scientific, technological, bio-technological, industrial, literary or artistic and commercial fields, whether or not registered or capable of registration; |
(b) |
any application or right to apply for registration in respect of those rights; |
(c) |
any registration of any of those rights or any registration of any application referred to in item (b); and |
(d) |
all renewals and extensions of these rights. |
Loss of Material means the loss, damage, destruction, contamination, theft or unsuitability of Material for its intended purpose;
Material means all products, by-products, samples, or intermediates produced, collected, received or stored by CT, its staff, employees, contractors or agents for the purpose of performing the Services and includes without limitation any Product;
Minimum Yield means, in respect of any Product, the minimum yield specified in item 12 of Schedule 2;
Personnel means employees, contractors and subcontractors;
Personal Information means information or an opinion (including information or an opinion forming part of a database), whether true or not and whether recorded in a material form or not, about a person whose identity is apparent, or can reasonably be ascertained, from the information or opinion;
Phase IIb Trial See IND Trial.
Privacy Laws means the Privacy Act 1988 (Cth), the National Privacy Principles contained in Schedule 3 of that Act and any approved Privacy Code (as defined in that Act), that applies to a party to this Agreement, and any other statute, regulation or law in Australia or elsewhere which relates to the protection of Personal Information and which any of the parties to this Agreement must observe;
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Procedure means, in respect of any Product, the manufacturing processes specified for the IND Trial;
Product means the output of the manufacturing processes required for the IND Trial (CVac);
Project means the Australian arm of the IND Trial and the Services described in Schedule 1;
Quality Systems means a structured and planned approach to the assurance of the quality of product and services provided based upon those processes outlined in AS/NZS/ISO 9002:1994 which relate to the TGAs code of GMP/Blood and Blood Components or any system or process relating to such an approach;
Repeats means, in respect of any Procedure for a Product, the number of times such Procedure is to be performed after the first Procedure in the event that the Minimum Yield in respect of such Product is not achieved after conducting the first Procedure;
Services means the services set out in Schedule 1 and any other tasks agreed by the Parties and includes without limitation all Storage Services;
Services Fees means all charges specified in Schedule 2 and includes without limitation all Storage Services Fee;
SOP means standard operating procedure as applied to cell manipulation and handling for the manufacture of CVac under cGMP conditions,
Storage Services means, in respect of any Material, the storage services specified in item 11, Schedule 2 or as agreed during the Term.
Storage Services Fee means, in respect of any Storage Services, all charges specified in Schedule 2 or as agreed during the Term.
Taxable Supply has the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Taxes means accommodation taxes, diesel fuel rebates, financial institutions, duty, debits tax, sales taxes, excise duties, stamp duties and customs duties.
Term means 12 months beginning on the Commencement Date
TGA means the Therapeutic Goods Administration;
Timetable means the timetable for provision of the Services as set out in Schedule 4 (to be amended from time to time as needed by mutual agreement of the Parties) and agreed between the Parties in writing from time to time; and
Trial Manager that individual or organisation appointed by CANCERVAC to manage the Phase IIb Trial.
1.2 |
Interpretation |
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Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) |
The singular includes the plural and conversely. |
(b) |
A gender includes all genders. |
(c) |
If a word or phrase is defined, its other grammatical forms have a corresponding meaning. |
(d) |
A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them. |
(e) |
A reference to a clause, paragraph, Item, Annexure or Schedule, is a reference to a clause, paragraph or Item of or an Annexure to or a Schedule to, this Agreement. |
(f) |
A reference to an agreement or document (including, without limitation, a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced except to the extent prohibited by this Agreement or that other agreement or document. |
(g) |
A reference to a party to this Agreement or another agreement or document includes the partys successors and permitted substitutes or assigns (and, where applicable, the partys legal personal representatives). |
(h) |
A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it. |
(i) |
A reference to writing includes a facsimile transmission and any means of reproducing words in a tangible and permanently visible form. |
1.3 |
Consents or Approvals |
If the doing of any act, matter or thing under the Agreement is dependent on the consent or approval of a Party or is within the discretion of a Party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the Party in its absolute discretion.
2. |
APPOINTMENT OF CT |
(a) |
CANCERVAC engages CT to be the provider of the Services for the term of this Agreement and CT agrees to carry out the Services. |
(b) |
CT may subcontract the performance of specialised release testing and ancillary services in delivering the Services or any other obligations under this Agreement CT agrees to promptly provide on request to CANCERVAC full details of all subcontractors engaged by CT. |
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(c) |
CT will be fully liable for the performance of its obligations under this Agreement, irrespective of whether those obligations have been sub-contracted by CT. |
(d) |
CT will procure that any subcontract relating to the obligations set out in this Agreement binds the subcontractor to comply with the terms of this Agreement to the extent that such terms are relevant to the obligations the subject of the subcontract. Notwithstanding any consent granted by CANCERVAC pursuant to Clause 2(b), CT remains liable for ensuring that the subcontractor complies with its obligations, and that any work undertaken by a subcontractor conforms with the requirements of this Agreement. |
3. |
TERM OF THE AGREEMENT |
This Agreement will commence on the Commencement Date and shall terminate after a term of twelve (12) months unless extended or terminated in accordance with Clause 17
4. |
PERFORMANCE OF THE SERVICES |
(a) |
CT must perform the Services in accordance with this Agreement. |
(b) |
CT must ensure that the Facilities are cGMP/cGTP compliant in performing all aspects of the Services. |
(c) |
Subject to an annual four (4) week plant shut down for maintenance CT shall use its best endeavours to ensure that there is sufficient resource allocation within the Facilities for the provision of the Services. |
(d) |
CT will perform its obligations in accordance with the Timetable. |
(e) |
In respect of any Product: |
(i) |
CT will perform a first Procedure with the purpose of producing the Minimum Yield for such Product; |
(ii) |
if after performing the first Procedure the Product does not achieve the Minimum Yield, CT will perform a Repeat with the purpose of producing the Minimum Yield for such Product; |
(iii) |
if the Minimum Yield is not achieved after CT has performed all Repeats, then CT will be under no further obligation to perform any further Procedures or Repeats in respect of such Product and nothing in this Agreement will require CT to manufacture such Product. |
(f) |
CT is to provide CANCERVACs Authorised Representative with copies of all communications with the TGA or any entity that has an authority over the Project and the associated cell processing. |
(g) |
When requested by CANCERVAC or PrimaBiomed Limited CT shall furnish to CANCERVAC a comprehensive written report summarizing the data generated to date and the status of the project. |
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5. |
OBLIGATIONS OF CANCERVAC |
(a) |
In consideration for the performance of the Services, CANCERVAC must pay CT the Service Fees, in accordance with the invoicing and payment schedule set out in Clause 7. |
(b) |
CANCERVAC must, within [ * ] of receiving an invoice from CT for costs and expenses, pay all costs and expenses reasonably incurred by CT in the course of complying with its obligations under this Agreement which were approved in writing by CANCERVAC prior to incurring the cost or expense. |
(c) |
CANCERVAC must ensure that it carries out any of its obligations set out in Schedule 1 to enable CT to perform the Services. |
(d) |
CANCERVAC is to provide CTs Authorised Representative with copies of all communications with the TGA or any entity that has authority over manufacturing for the Phase IIb Trial |
(e) |
CANCERVAC must ensure that all CANCERVAC staff or nominees involved in the use of the Services comply with the policies, practices, rules, procedures and standards of the CBCT Facility provided that CT gives CANCERVAC reasonable notice of the contents of such policies, practices, rules, procedures and standards. |
(f) |
CANCERVAC is required to declare if there is any genetically modified organisms to be used as part of the Project. |
(g) |
CANCERVAC is required to declare if there is any material of animal origin and its status to be used in the processes involved in the Project. |
6. |
INTERFACE WITH CANCERVACS USA CONTRACT MANUFACTURER |
CT agrees to maintain a continuous dialogue and exchange of information and collaboration with CANCERVACs USA manufacturer for the IND Trial as an integral component of this Agreement.
7. |
INVOICING AND PAYMENT |
(a) |
CT will invoice CANCERVAC on a calendar month basis in accordance with the fees set out in Schedule 2. |
(b) |
Subject to clause 7(c), CANCERVAC will pay correctly rendered invoices within [ * ] of delivery to CANCERVACs nominated address for billing by electronic payment to: |
Commonwealth Bank of Australia
Cell Therapies Pty Ltd
[ * ]
(c) |
CANCERVAC reserves the right to withhold payment of any invoiced amount which is in dispute. |
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8. |
APPOINTMENT OF AUTHORISED REPRESENTATIVES |
(a) |
Both CANCERVAC and CT will appoint one of its staff to be the Authorised Representative of that Party. In the case of CANCERVAC, the Authorised Representative will be Ms Ginny Raymond, or such other person as advised by CANCERVAC to CT in writing from time to time. In the case of CT, the Authorised Representative will be the Ms Maureen Loudovaris or the CBCT Manufacturing Nominee (Production Manager) or such other person as advised by CT to CANCERVAC in writing from time to time. Each Authorised Representative may appoint a Delegate by notice in writing to the other party. |
(b) |
CT and CANCERVAC must ensure that their Authorised Representatives (or their Delegates) are available for consultation with the other Party as reasonably required by the other Party and within [ * ] of being requested. |
(c) |
CT and CANCERVAC must ensure that their Authorised Representatives (or their Delegates) maintain an open communication with respect to all communication with the FDA and TGA or any party with authority over the performance of the Services. |
(d) |
CT and CANCERVAC must ensure that their Authorised Representatives (or their Delegates) agree to the form and content of external communications that relate to the performance of the Services. |
9. |
CONFIDENTIALITY / INFORMATION |
(a) |
CT must not disclose, and must ensure that CBCT, and CTs and CBCTs employees, contractors and agents do not disclose, any Confidential Information of CANCERVAC to any third party, unless the disclosure is required by law. If disclosure is required by law, CT must immediately provide written notice to CANCERVACs Authorised Representative of the requirement for the disclosure of the Confidential Information and use its reasonable endeavours to withhold any such disclosure for at least [ * ]. |
(b) |
CT warrants that all relevant employees of CT and CBCT have entered into written confidentiality agreements undertaking confidentiality obligations no less onerous than those of CT under this Agreement. On receipt of a request from CANCERVAC, CT covenants to provide copies of the confidentiality agreements. |
(c) |
CANCERVAC, must not disclose, and must ensure that their Affiliates, and CANCERVACs and their Affiliates employees, contractors and agents do not disclose, any Confidential Information of CT to any third party, unless the disclosure is required by law. If disclosure is required by law, CANCERVAC must immediately provide written notice to CTs Authorised Representative of the requirement for the disclosure of the Confidential Information and use its reasonable endeavours to withhold any such disclosure for at least [ * ]. |
(d) |
Each Party agrees that any disclosure of another Partys Confidential Information to any of its employees, consultants, Affiliates, licensees and sub-licensees shall be made only if and to the extent necessary to |
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carry out its rights and responsibilities under this Agreement, and shall be limited to the maximum extent possible consistent with such rights and responsibilities and shall only be made to persons who are bound by written confidentiality obligations to maintain the confidentiality thereof and not to use such Confidential Information except as expressly permitted by this Agreement. |
(e) |
Failure to observe the obligations contained in this Clause is a serious breach and may cause irreparable damage to the relevant Party. In addition to any other remedies available to the relevant Party for disclosure of Confidential Information, the proprietor of the Confidential Information may require the permanent removal of the person who disclosed the Confidential Information from any activities associated or connected with this Agreement. |
(f) |
This Clause survives the termination of this Agreement. |
(g) |
CANCERVAC have at any time the right to inspect all papers and all records and data concerning the Project, including without limitation all relevant SOPs and documents concerning manufacturing licenses and to make copies of them. |
10. |
PRIVACY |
(a) |
Where a Party ( Discloser ) provides Personal Information or Health Information to another Party (Recipient) the Recipient will: |
(i) |
comply with the Privacy Laws; |
(ii) |
comply with the Health Privacy Laws; |
(iii) |
to the extent permitted by law, not in any way respond to a request for access to Personal Information or Health Information, except to refer the enquirer to the Discloser and to notify the Discloser of the request; and |
(iv) |
without limiting the operation of clause 10(a)(ii), the Recipient must: |
A). |
only use Personal Information and Health Information for the purpose of this Agreement and not for its own purpose; |
B). |
only disclose Personal Information or Health Information if it is necessary for the purpose of this Agreement or with the prior written consent of the Discloser; and |
C). |
ensure that only authorised personnel have access to Personal Information and Health Information and that all Personal Information and Health Information is stored securely and is protected from unauthorised access, use or disclosure. |
11. |
INTELLECTUAL PROPERTY |
(a) |
Nothing in this Agreement will cause the transfer of any rights in, or grant any rights to, the CANCERVAC Background Intellectual Property |
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Rights, nor the CT Background Intellectual Property Rights to another Party, other than those rights conferred pursuant to Clause 11(c) and (e). |
(b) |
Subject to Clause 11(a), all Developed Intellectual Property Rights will vest solely and absolutely in CANCERVAC immediately upon creation and CT hereby assigns to CANCERVAC all its current and future right, title and interest in and to Developed Intellectual Property Rights. |
(c) |
For the avoidance of doubt, CANCERVAC acknowledge that the CT Background Intellectual Property Rights are Confidential Information of CT and remain the property of CT. CT grants a non-exclusive, perpetual, royalty free licence to CANCERVAC to use the CT Background Intellectual Property Rights for purposes associated with this Agreement, for the purpose of the Project and for the purpose of and to the extent required for CANCERVAC to use and exploit the CANCERVAC Background Intellectual Property Rights, the Developed Intellectual Property Rights and any modifications or improvements of such Intellectual Property Rights. |
(d) |
For the avoidance of doubt, CT acknowledges that the CANCERVAC Background Intellectual Property Rights are Confidential Information of CANCERVAC and remain the property of CANCERVAC (as the case may be). |
(e) |
CANCERVAC grant to CT a non-exclusive license to use those Intellectual Property Rights of CANCERVAC as are necessary for the sole purpose of and only to the extent required to carry out the Services. |
(f) |
CT has not made and does not by entering into this Agreement make any representation or warranty, express or implied, that the Services does not infringe any third partys Intellectual Property Rights. |
(g) |
Any improvements to CANCERVAC Background Intellectual Property Rights will vest in CANCERVAC and any improvements to CT Background Intellectual Property Rights will vest in CT. The parties agree that improvements to CANCERVAC Background Intellectual Property Rights or to CT Background Intellectual Property Rights do not and will not include Developed Intellectual Property Rights. |
(h) |
All data resulting from the Services and any Intellectual Property Rights in that data will vest in CANCERVAC, and CT hereby assigns to CANCERVAC all its current and future right, title and interest in and to the data resulting from the Services and all of its Intellectual Property Rights in that data. |
(i) |
Subject to the confidentiality obligations in Clause 9, CT will provide access during the course of this Agreement to CANCERVACs employees, contractors and agents to Confidential Information and to information and materials that contain the CT Background Intellectual Property Rights. CT agrees to CANCERVACs unrestricted use and application of any CT Background Intellectual Property Rights acquired as a result of entering into this Agreement for the purpose defined in this Agreement. If CANCERVAC wish to exploit the CT Background |
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Intellectual Property Rights other than in conjunction with their own intellectual property, CANCERVAC will pay a reasonable fee to CT for such usage. |
(j) |
Where requested by CANCERVAC, CT must, in relation to moral rights in works as defined as Part IX of the Copyright Act created in the course of providing the Services ( Works ), secure from any of its employees, contractors or agents who perform any of the Services, written waivers in respect of any moral rights which may subsist in the Works. CT must ensure that the consent is genuinely given and not obtained by duress or by the making of any false or misleading statement. |
(k) |
Clause 12 survives the termination of this Agreement. |
(l) |
Both Parties will execute all documents and do all things reasonably necessary to give effect to the above and to protect all Intellectual Property Rights arising as a result of this Agreement. |
12. |
REVIEW |
(a) |
Where the Term exceeds twelve (12) months, the Parties will conduct an annual review of the obligations of each of the Parties under this Agreement to ensure the adequacy of the Services. This review will be conducted by the Parties Authorised Representatives within thirty (30) days of the anniversary of the Commencement Date or at a time mutually agreed in writing. |
(b) |
If the Parties Authorised Representative decides that the obligations of either Party under the Agreement should be altered, the Parties Authorised Representatives will negotiate in good faith appropriate revision of the Services and adjustments (either up or down) to the fees payable to CT under Schedule 2. |
(c) |
If the Parties Authorised Representatives agree to amendments under this clause, the Parties must amend this Agreement in accordance with Clause 19 |
(d) |
If the Parties Authorised Representatives cannot agree in relation to any changes to be made pursuant to this clause, the dispute must be referred to dispute resolution in accordance with Clause 23 |
13. |
INSURANCE |
(a) |
It is a condition precedent to the operation of this Agreement that CANCERVAC must take out and maintain the CANCERVAC Insurance Policies during the Term |
(b) |
It is a condition precedent to the operation of this Agreement that CT must take out and maintain the CT Insurance Policies during the Term. |
(c) |
Upon reasonable request of a Party, the requested Party must produce documentary evidence that the insurance required under the Agreement is current and effective. |
(d) |
If a Party cannot or does not comply with its obligation to effect insurance, any other Party may (but is not obliged to) affect such |
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insurance at the expense of the uninsured Party. Any such expense must be reimbursed within [ * ] of the supply of an invoice. |
14. |
INDEMNITY |
14.1 |
CANCERVAC continually indemnify CT, its officers, employees and agents against any claim or proceedings made, threatened or commenced, and any liability, loss, damage or expense (including consequential loss or damage, damage to real, personal or intellectual property, CANCERVAC data loss or corruption, Loss of Material, personal injury including death and legal costs on a full indemnity basis) under statute or common law which CT incurs or suffers as a direct or indirect result of any breach by CANCERVAC of this Agreement, or warranties contained in this Agreement or the use by CT of CANCERVAC-supplied human blood or tissue product which fails to comply with relevant regulatory standards in the provision of the Services. This indemnity does not apply to the extent that such loss or damage is caused by the negligence, act or omission of CT or CBCT. This indemnity survives the termination of this Agreement indefinitely. |
14.2 |
Without limitation to clauses 15(h) and 17(d), CANCERVAC acknowledges and agrees that there exist risks associated with cryopreservation and refrigeration of the Materials and storage of any Materials in the provision of the Storage Services including without limitation failure howsoever arising of any CT cryogenic or low temperature storage facilities used in the performance of the Storage Services, any failure by CT to recover any Material, or any loss in yield when any Material is recovered, after having been cryogenically frozen or refrigerated. CANCERVAC further acknowledges and agrees that CT, its officers, employees and agents will not be liable for any claim or proceedings made, threatened or commenced, or any liability, loss, damage or expense, Loss of Material, personal injury including death and legal costs (on a full indemnity basis) under statute or common law which arises as a direct or indirect result of any negligence, act or omission of CT under this Agreement. Notwithstanding anything else in this Agreement, CANCERVAC hereby indemnifies and will continue to indemnify CT, its officers, employees and agents against any claim or proceedings made, threatened or commenced, and any liability, loss, damage or expense, Loss of Material, personal injury including death and legal costs on a full indemnity basis) under statute or common law which arises as a direct or indirect result of any negligence, act or omission of CT. This indemnity survives the termination of this Agreement indefinitely. |
15. |
REPRESENTATIONS AND WARRANTIES |
(a) |
CANCERVAC and CT each represent and warrant as follows: |
(i) |
Organization. It is a corporation duly organized, validly existing and is in good standing under the laws of its respective jurisdiction, is qualified to do business and is in good standing as a corporation in each jurisdiction in which the performance of its obligations hereunder requires such qualification and has all requisite power and authority, corporate or otherwise, to conduct its business as now being conducted, to own, lease and operate its properties and to execute, deliver and perform this Agreement. |
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(ii) |
Authorization. The execution, delivery and performance by it of this Agreement have been duly authorized by all necessary corporate action and do not and will not (a) require any consent or approval of its stockholders or shareholders or (b) violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or any provision of its charter documents or constitution. |
(iii) |
Binding Agreement. This Agreement is a legal, valid and binding obligation of it enforceable against it in accordance with its terms and conditions. |
(iv) |
No Inconsistent Obligation. It is not under any obligation to any person, or entity, contractual or otherwise, that is conflicting or inconsistent in any respect with the terms of this Agreement or that would impede the diligent and complete fulfilment of its obligations. |
(b) |
CT warrants that: |
(i) |
it has the expertise, resources (including without limitation financial resources), capacity, experience and ability to perform its obligations under this Agreement; |
(ii) |
it has adequate insurance policies and financial resources to sustain any potential liability incurred in relation to this Agreement; |
(iii) |
it holds and will at all relevant times hold, and ensure that its subcontractors hold, all necessary licences and authorities legally required to perform the Services; |
(iv) |
the conduct of the Services will be of high quality and provided in a professional manner, with all due care, skill and attention and CT will use its reasonable endeavours to perform the Services in accordance with industry best practice on the understanding always that in respect of the provision of any Storage Services under this Agreement, CT will use the procedures and equipment it would customarily use for its own cGMP; |
(v) |
it will perform its obligations in a timely and efficient manner; |
(vi) |
CT warrants compliance of the Services with GMP/TGA requirements in all circumstances where: |
A). |
CT has control over the manufacturing processes; or |
B). |
CT controls the status of its starting material. |
(vii) |
Where CT does not control the status of its starting material, CT only warrants that its own services comply with GMP/TGA requirements; |
(viii) |
CT warrants that the Aphaeresis facilities at Peter Mac (which are controlled by the CBCT) are GMP/TGA compliant; and |
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(ix) |
CBCT or any subcontractor retained by CT has or will have all licences necessary to perform the obligations under this agreement. |
(c) |
CANCERVAC warrants that it will undertake a cryopreservation risk analysis and will consider, and adopt where it so decides, any option available for split storage, including off-site storage. CT agrees to provide reasonable non-financial assistance to CANCERVAC in undertaking such analysis. In the event that CANCERVAC intends to effect insurance policies in respect of stored Materials, CT will, at no cost to CANCERVAC provide reasonably non-financial support to CANCERVAC to effect an application for such insurance, and where requested by CANCERVAC provide CANCERVAC reasonable site inspections and reasonable access to validation records by insurance company representatives. |
(d) |
CANCERVAC certifies that the CANCERVAC-supplied products have been screened in accordance with the relevant Australian regulations and standards and warrant to the best of their knowledge and belief that the CANCERVAC-supplied products do not contain any contaminants, viruses, bacteria or other potentially dangerous material. |
(e) |
CT agrees to actively participate and co-operate in any TGA audit of the Services and to defend any allegation that CTs deliverables do not comply with GMP/TGA requirements. |
(f) |
Notwithstanding anything else in this Agreement or otherwise, to the fullest extent permitted by law, none of CANCERVAC or CT will be liable with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for any indirect, incidental, consequential damages or lost profits. |
(g) |
CANCERVAC acknowledges that, without limitation to clause 15(h), CT makes no warranties that in the performance of the Services CT will achieve the Minimum Yield in respect of the manufacture of any Product. |
(h) |
To the full extent permitted by the laws of the Commonwealth of Australia or of any State or Territory of Australia having jurisdiction, any conditions or warranties imposed by such legislation are excluded. In so far as liability under or pursuant to such legislation may not be excluded or the liability relates to conditions or warranties provided pursuant to this Agreement, such liability is limited, at the option of CT, to: |
(i) |
in respect of Storage Services, the payment of the amount of the Storage Services Fee actually paid in respect of the applicable Material; or |
(ii) |
in respect of Services other than Storage Services, |
A). |
the re-performance of the relevant Services; or |
B). |
the payment of the cost of having the relevant Services re-performed and in all circumstances the liability of CT is |
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limited to the amount of the Services Fees actually paid for the relevant Service pursuant to this Agreement. |
16. |
ETHICS COMMITTEE APPROVAL AND PATIENT CONSENT |
(a) |
CT warrants that it will, if necessary, seek approval to provide the Services from the CBCT Ethics Committee, in accordance with the relevant NH&MRC Guidelines. |
(b) |
CANCERVAC warrants that it will ensure that all consent required to be obtained by law from patients in order for CT to perform the Services is obtained. CANCERVAC will ensure that copies of such consents are provided to CT within [ * ] of CT requesting a copy. |
17. |
TERMINATION OR EXTENSION |
(a) |
This Agreement will terminate if |
(i) |
CANCERVAC gives [ * ] prior notice in writing of such termination to CT; or |
(ii) |
Either Party reasonably determines that the Project is not scientifically or ethically viable; or |
(iii) |
CT gives [ * ] prior notice in writing of such termination to CANCERVAC. |
(b) |
CANCERVAC may immediately terminate this Agreement by giving written notice to CT if CT: |
(i) |
commits a breach of any of the provisions of this Agreement which is incapable of being remedied to the reasonable satisfaction of CANCERVAC; |
(ii) |
for any reason whatsoever becomes incapable, in the reasonable opinion of CANCERVAC, from performing its obligations under this Agreement; |
(iii) |
fails to remedy, to the reasonable satisfaction of CANCERVAC, a breach or default of any of the provisions of this Agreement which is, in the opinion of CANCERVAC, capable of being remedied, within [ * ] of receiving a notice from CANCERVAC of that breach or default; or |
(iv) |
is the subject of an Insolvency Event. |
(c) |
CT may immediately terminate this Agreement by giving written notice to CANCERVAC if CANCERVAC: |
(i) |
commits a breach of any of the provisions of this Agreement which is incapable of being remedied to the reasonable satisfaction of CT; |
(ii) |
fails to remedy, to the reasonable satisfaction of CT a breach or default of any of the provisions of this Agreement which is, in the |
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opinion of CT, capable of being remedied, within [ * ] of receiving a notice from CT of that breach or default; or |
(iii) |
is the subject of an Insolvency Event. |
(d) |
A Party is not liable for any failure or delay in performance of any obligations under this Agreement, including (but not limited to) Loss of Material, if all of the following conditions are satisfied: |
(i) |
the failure or delay arose from Force Majeure; and |
(ii) |
the Party took all reasonable precautions against that Force Majeure and did its best to limit its consequences. This does not require the Party to settle a labour dispute if, in the Partys opinion, that is not in its best interests; and |
(iii) |
the Party gave the other Parties notice of the Force Majeure as soon as practicable after becoming aware of it. |
(e) |
If the Force Majeure and the resulting failure or delay lasts for more than [ * ] then the Parties will negotiate in good faith to overcome any difficulties associated with the Force Majeure. |
(f) |
If the Force Majeure and the resulting failure or delay lasts for more than [ * ] then any Party may terminate the Agreement. |
(g) |
The Term can be extended if the Parties agree in writing to the terms and conditions to apply to the extension prior to the termination date. |
(h) |
Despite any other provision of this Agreement, 9, 10, 13, 14, 23, 24 and this Clause 17(h) survives the expiry or termination of this Agreement. |
18. |
RELATIONSHIP |
The relationship of the Parties is that of independent contractors and nothing in this Agreement constitutes any Party, the employee, partner, agent, fiduciary, representative, trustee or joint venture of the other. No Party is liable for an act or omission of another Party except to the extent set out in this Agreement.
19. |
VARIATION |
This Agreement can only be varied by the Parties in writing and signed by or on behalf of all Parties.
20. |
ASSIGNMENT |
CT may not assign any of its rights and obligations under this Agreement without the written consent of CANCERVAC, which consent must not be unreasonably withheld.
21. |
NOTICES TO CANCERVAC |
(a) |
Any notice required to be given to CANCERVAC under this Agreement must be in writing and may be served: |
(i) |
by giving the notice personally to a Director of CANCERVAC; or |
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(ii) |
by delivering the notice for a Director of CANCERVAC at his usual office in Australia; or |
(iii) |
by delivering the notice to CANCERVACs registered office in Australia. |
(b) |
The notice is served at the time it is given or delivered. |
(c) |
Electronic transmission of Notices by telefax or email may be used however written acknowledgement of receipt must be received by the transmitting party. |
22. |
NOTICES TO CT |
(a) |
Any notice required to be given to CT under this Agreement must be in writing and may be served: |
(i) |
by giving the notice personally to the Managing Director of CT; or |
(ii) |
by delivering the notice for the Managing Director of CT at his usual office; or |
(iii) |
by delivering the notice to CTs registered office. |
(b) |
The notice is served at the time it is given or delivered. |
(c) |
Electronic transmission of Notices by telefax or email may be used however written acknowledgement of receipt must be received by the transmitting party. |
23. |
DISPUTE RESOLUTION |
If a dispute arises in relation to this Agreement, any Party may give the other Parties a notice requiring that an attempt be made to resolve the dispute. The Parties will try to resolve the dispute by the help of Mr Ray Wood and Mr Martin Rogers. If the dispute is not resolved within [ * ] of the first meeting of Mr Ray Wood and Mr. Martin Rogers, any Party may give the other a notice requiring that an attempt be made to resolve the dispute with the help of a mediator to be appointed jointly by the Parties. If the Parties do not agree on a mediator within seven (7) days after such notice is given, the mediator is to be appointed by The Australian Commercial Disputes Centre (ACDC). The mediation is to be conducted in accordance with the ACDCs Rules for the Mediation of Commercial Disputes. Each of the Parties must pay an equal share of the fees and expenses the mediator is entitled to.
24. |
GOVERNING LAW AND JURISDICTION |
This document is governed by the law of Victoria, Australia and the Parties submit to the non-exclusive jurisdiction of its courts. The Parties will not object to the exercise of jurisdiction by those courts, either for forum non conveniens or on any other basis.
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25. |
ENTIRE AGREEMENT |
This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties in connection with it.
26. |
NO WAIVER |
No failure to exercise nor any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
27. |
REMEDIES CUMULATIVE |
The rights, powers and remedies provided to the parties in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by law or equity.
28. |
COUNTERPARTS |
This Agreement may be executed in two counterparts. All counterparts together will be taken to constitute one instrument. If each party executes separate documents, this Agreement takes effect when the parties exchange executed documents.
29. |
SEVERABILITY OF PROVISIONS |
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the viability or enforceability of that provision in any other jurisdiction.
30. |
GST GENERAL PRINCIPLES |
(a) |
CANCERVAC must pay GST on a Taxable Supply made to it under this Agreement, in addition to any consideration (excluding GST) that is payable for that Taxable Supply. It must do so at the same time and in the same way as it is required to pay the consideration for the Taxable Supply. |
(b) |
Without prejudice to (a) or (b), if the amount payable is calculated by reference to any costs, expenses or other liability incurred by a Party (Payee), the relevant amount is the actual amount incurred by the Payee less the amount of any Input Tax Credit the Payee is entitled to claim in respect of that cost, expense or liability. |
(c) |
The Parties must provide each other with all documentation, including tax invoices, required to claim any Input Tax Credit, set off, rebate or refund for or in relation to any GST included in any payment made under this Agreement. CANCERVAC indemnifies CT against any loss resulting from CANCERVACs failure to provide such documentation. CANCERVAC warrants that it is registered for GST and ABN purposes |
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and further indemnifies CT for any loss resulting from CANCERVACs failure to be registered for such purposes. |
31. |
CHANGE IN CONTROL & STRUCTURE |
(a) |
If either party undergoes any merger or reconstruction which results in the creation of a new legal entity to undertake the activities of that party in relation to this Agreement, the new legal entity will assume responsibility for, and continue to perform, this Agreement unless the parties agree to a new agreement. |
(b) |
This Agreement will endure to the benefit of each partys permitted successors and assignees. |
32. |
RELEASE OF INFORMATION |
(a) |
The Parties acknowledge that the release of information to the public, including verbal and written communication, relating to the Services may be beneficial to all Parties. Accordingly, the Parties will have the right to review and approve any such communications pursuant to Sub-Clause 32(a) |
(b) |
Before any communication (such as media releases or other public releases of information) is released to an external third Party, the releasing Party must send a complete copy of the communication to the other Parties by registered mail at least [ * ] prior to the release. All Parties must review the communication and provide its comments to the author. No such communications will be released to an external third Party unless all Parties to this Agreement have given their prior approval in writing to the release of information or communication. This approval shall not be unreasonably withheld. All such releases and communications must mention the respective contribution made by each Party. |
(c) |
CANCERVAC must ensure that it or its nominees do not release information to the public, including verbal and written communication, relating to the manufacture for the IND Trial or the Services unless that release has been approved by the parties in accordance with this clause 29. Of particular note is the avoidance of inappropriate public reference to matters involving manufacturing and the TGA. |
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[ * ] = C ERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT , MARKED BY BRACKETS , HAS BEEN OMITTED AND FILED SEPARATELY WITH THE S ECURITIES AND E XCHANGE C OMMISSION PURSUANT TO R ULE 24 B -2 OF THE S ECURITIES E XCHANGE A CT OF 1934, AS AMENDED .
EXECUTED BY THE PARTIES AS AN AGREEMENT
Signed for and on behalf of | ) | |||
CANCER VAC PTY. LTD. | ) | |||
By its duly authorised officer | ) | |||
) | ||||
Martin Roger | ) | /s/ Martin Roger | ||
Director / Secretary | ) | |||
) | ||||
and | ) | |||
) | ||||
) | ||||
Director | ) | |||
) | ||||
) | Date: 14th October 2009 | |||
Signed for and on behalf of | ) | |||
CELL THERAPIES Pty. Ltd. | ) | |||
By its duly authorised officer | ) | |||
) | ||||
) | ||||
Raymond J Wood | ) | /s/ Raymond J Wood | ||
Director | ) | |||
) | ||||
and | ) | |||
) | ||||
) | ||||
Director | ) | |||
) | ||||
) | Date: 14 th October 2009 |
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SCHEDULE 1 THE SERVICES
CT to undertake all tasks required to assume production responsibility for the Australian arm of the IND Trial and maintain support as requested for the USA arm of the IND Trial.
1. |
CT will provide the following services and others to be agreed between the parties from time to time: [ * ] |
2. |
CT to undertake manufacturing comparability trials in collaboration with CANCERVACs nominated contract manufacturer in the USA, as specified in the successful IND application. |
3. |
CT undertake and manage all aspects of the cGMP manufacturing required for the execution of the Australian arm of the IND Trial. (CVac Phase IIb trial) |
4. |
CT to dedicate one clean room or its equivalent to CANCERVACs requirements for at least 12 months. |
5. |
CT to maintain and develop CANCERVACs SOPs and trial documentation as required for the IND Trial. |
6. |
CT to appoint a manufacturing nominee (Production Manager) and quality nominee (Quality Manager) plus deputies as required for TGA regulatory purposes. |
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7. |
CT to appoint a project coordinator/scientist and a suitably qualified laboratory technician who will be responsible for the day-to-day manufacturing tasks including; scheduling, cell processing and record keeping. The coordinator/scientist will be the primary interface to CANCERVACs nominated Trial Manager and Authorised Representative. |
8. |
CT to provide back up for the operational personnel as required during the Term. |
9. |
By negotiation, CT to provide limited after hours personnel to meet the patient recruitment variables involved in the Australian arm of the IND Trial |
10. |
CT through the project co-ordinator, to maintain an open communication channel with CANCERVACs Trial Manager such that the cell processing phase can be integrated with patient availability and Apheresis at CANCERVACs nominated collection point. |
11. |
CT to support CANCERVAC in dealing with Australian and USA regulatory authorities including interaction with CANCERVACs USA regulatory advisors. CT to maintain a watching brief over CANCERVACs dealing with Australian regulatory authorities. |
12. |
[ * ] |
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SCHEDULE 2 CHARGES TO BE INCURRED BY CANCERVAC
1. |
FACILITY FEE |
In exchange for a long term commitment, CT will provide guaranteed access to a fully supported clean room and the services described in Schedule 1 for a fixed fee per month:
For a minimum twelve (12) month commitment, CT will charge $65,000 per calendar month ($780,000 pa).
CT will invoice monthly in arrears
Periodic Escalation
The Facility Fee will be for fixed for 12 months and is to be renegotiated on an annual basis by the Authorised Representatives as part of the annual review conducted under Clause 12. The Services Fee negotiation will take into account that there can be evidence based increases in CTs costs. Evidence can include published CPI index, variations in relevant agreements for labour awards and variations in the charges for services or goods. If the Authorised Representatives are unable to agree on a revised fee within 30 days of commencing the annual review then it will be referred for dispute resolution in accordance with Clause 23. If the parties are unable to agree on the revised Services Fee following the completion of dispute resolution, the issue will be referred to an expert nominated by the President of the Institute of Chartered Accountants for binding determination.
2. |
CHARGES FOR CONSUMABLES AND IN-PROCESS TESTING |
[ * ]
3. |
CAPITAL EQUIPMENT PURCHASES DEDICATED TO THE PROJECT |
[ * ]
4. |
ARCBS QUALITY SYSTEMS |
CT utilises the services of the ARCBS to provide [ * ]. CT expects to be able to integrate within the monthly facility fee any ARCBS quality support for CANCERVACs manufacturing within their broader support agreement with ARCBS
CT reserves the right to negotiate with CANCERVAC to recover any additional ARCBS costs if the quality management of the Project becomes significantly different from its current understanding of the requirements. Under such conditions CT would invoice only for the incremental cost of ARCBSs support for CANCERVACs changed requirements and with the Parties prior written agreement.
5. |
VALIDATION COSTS |
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[ * ]
6. |
TGA AUDIT AND LICENSE FEES |
The TGA may elect to audit the manufacturing for the Australian arm of the IND Trial and may also apply a manufacturing license fee.
If CT does incur any TGA charges that relate specifically to the manufacturing of the CANCERVAC materials then these charges will be passed on to CANCERVAC by CT.
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7. |
CONSULTING AND ADVISORY SERVICES |
The Parties note that CT and CANCERVAC or PrimaBiomed may have other consulting arrangements in place for the provision of advisory services outside the scope of this Agreement, however:
7.1 |
CT has considerable experience in managing the Australian regulatory environment and CANCERVAC may, at times, request CTs assistance with the management of its licensable activities. While it is understood and agreed by CT that a level of assistance for such purposes is inherent in the delivery of the Services there may be occasions where the time and resource allocation is beyond the scope of the Services outlined in Schedule 1. |
[ * ]
7.2 |
In addition to fees specified in Schedule 2 #1 - #7, CANCERVAC may request specialist advice or support. When such support is requested and agreed in writing the fees will be calculated monthly using the rate specified below. |
[ * ]
8. |
WORKING HOURS AND ADDITIONAL RATES |
In setting the Services Fees, it has been assumed that an 8.30am to 5.00pm work day with occasional after hours or overtime work will meet requirements. If the trial requires continuous or exceptional after-hours work a labour loading and the costs of extra use of the Facilities will be paid by CANCERVAC. [ * ]
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9. |
CHARGES FOR ANCILLIARY SERVICES |
In addition to the facility charge there will be a per-patient charge relating to:
[ * ]
11. |
STORAGE SERVICES (TO BE NEGOTIATED AS PROJECT REQUIREMENTS ARE IDENTIFIED) |
CT will provide the following controlled and monitored cryopreservation or refrigeration storage services in respect of the following Materials and for the Storage Services Fee payable in the manner and at the times set out below:
Material |
Storage
|
Storage
|
Payable in the manner and a
the times set out as follows: |
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SCHEDULE 3 INSURANCE
CANCERVAC Insurance Policies:
Insurance that is consistent with reasonable commercial prudence to indemnify CANCERVAC against any liability which CANCERVAC may incur in relation to the Services or which CANCERVAC may incur under this Agreement (including professional indemnity insurance (including cover for clinical trials), directors and officers insurance, public liability insurance, industrial special risks insurance and all other statutory insurances covering its employees, contractors, agents and operations).
Product Liability Insurance policy covering liability to third parties for personal injury, disease and/or death arising from CANCERVACs use of the Services or the use of CANCERVAC-supplied products in the provision of the Services.
The insurance policies shall provide coverage for data loss or corruption or both and Loss of Material.
Public Liability Insurance for an amount of cover not less than [ * ].
Professional Indemnity Insurance for an amount of cover not less than [ * ].
CT Insurance Policies:
Insurance that is consistent with reasonable commercial prudence to indemnify CT against any liability which CT may incur in relation to the Services or which CT may incur under this Agreement (including professional indemnity insurance, directors and officers insurance, public liability insurance, industrial special risks insurance and all other statutory insurances covering its employees, contractors, agents and operations).
Public Liability Insurance for an amount of cover not less than [ * ].
Professional Indemnity Insurance for an amount of cover not less than [ * ].
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SCHEDULE 4 TIMETABLE
[ * ]
As the Australian CRO identifies and recruits patients the Authorised Representatives or their nominees will establish and maintain a timetable driven by the recruitment rate
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Exhibit 4.10
Executive Services Agreement |
|
Prima Biomed Limited |
ACN 009 237 889 |
Martin Frederick Rogers |
718179_1 |
McCabe Terrill Lawyers Ply Limited |
T +61 2 9261 1211 |
||||||
ACN 122 850 033 |
F +61 2 9261 2336 |
|||||||
130 Elizaheth Street (Level 14) |
W www.mccabeterrill.com.au |
|||||||
Sydney NSW 2000 |
||||||||
GPO Box 235 Sydney NSW 2001 |
||||||||
DX 145 Sydney |
T ABLE O F C ONTENTS
Page | ||||||
1. |
DEFINITION AND INTERPRETATION |
1 | ||||
2. |
APPOINTMENT AND POSITION |
4 | ||||
3. |
DUTIES |
5 | ||||
4. |
HOURS OF WORK |
6 | ||||
5. |
REMUNERATION |
7 | ||||
6. |
LEAVE ENTITLEMENTS |
8 | ||||
7. |
MEDICAL EXAMINATION |
8 | ||||
8. |
PRIVACY |
8 | ||||
9. |
CONFLICTS OF INTEREST |
9 | ||||
10. |
CONFIDENTIAL INFORMATION |
9 | ||||
11. |
INTELLECTUAL PROPERTY |
10 | ||||
12. |
RESTRAINT |
10 | ||||
13. |
TERMINATION |
12 | ||||
14. |
NOTICES |
15 | ||||
15. |
GENERAL |
15 | ||||
SCHEDULE 1 |
17 | |||||
SCHEDULE 2 |
18 |
-i-
Dated
Parties
Prima Biomed Limited ACN 009 237 889 |
||||
Address: |
Suite 1, 1233 High Street, Armadale, VIC, 3143 |
|||
Facsimile: |
+ 61 3 9822 7735 |
|||
Attention: |
The Board of Directors |
|||
(Company) |
||||
Martin Frederick Rogers | ||||
Address: |
313 Alison Road, Coogee, NSW, 2034 |
|||
Facsimile: |
N/A |
|||
(Executive) |
Background
A |
The Executive is currently employed by the Company as Chief Executive Officer and is a director of the Company. |
B. |
The parties have agreed: |
(i) |
the terms and conditions relating to his employment by the Company prior to the Commencement Date will no longer apply; and |
(ii) |
the Company will offer new terms and conditions of employment to the Executive, |
on the terms set out in this agreement and the Executive has accepted the offer.
1. |
Definition and Interpretation |
1.1 |
Definitions |
In this agreement, unless the contrary intention appears, the following words have the following meanings:
Term: |
Definition: | |
Board |
the board of directors of the Company from time to time. |
|
Business |
the business carried on by the Company, being the business of developing a portfolio of biotechnology products related to the therapeutic area of cancer, and such other business as the Company carries on during the course of the Executives employment. |
Commencement Date |
the date specified in Item 1 of Schedule 1. |
|
Confidential Information |
all information of which the Executive becomes aware or generates in the course of, or in connection with, his employment with the Company, including: |
|
(a) information belonging to a third party; |
||
(b) customer and supplier lists; |
||
(c) trade secrets; |
||
(d) financial, accounting, marketing and technical information and plans; |
||
(e) strategic plans and projections; |
||
(f) product ingredients, formulae, designs, specifications, ideas, concepts and techniques; |
||
(g) technological processes, technology and equipment; and |
||
(h) any other information that the Executive is given which the Executive is told is confidential, or that a reasonable person would expect from its nature to be confidential, |
||
but excludes information that enters the public domain without any breach of this agreement. |
||
Corporations Act |
Corporations Act 2001 (Cth) as varied or replaced from time to time. |
|
Fixed Termination Date |
the date specified in Item 4 of Schedule 1. |
|
FW Act |
Fair Work Act 2009 (Cth) as varied or replaced from time to time. |
|
Group |
the Company and its Subsidiaries and Group Company means any one of them. |
|
Intellectual Property Rights |
all intellectual property rights created or otherwise brought into existence by the Executive solely or jointly with others (whether before or after the date of this agreement): |
|
(a) in the course of, in connection with, or arising out of his employment with the Company; |
2.
1.2 |
Interpretation |
In this agreement, unless the context otherwise requires:
(a) |
the singular includes the plural and vice versa; |
3.
(b) |
another grammatical form of a defined word or expression has a corresponding meaning; |
(c) |
a reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to this agreement and a reference to this agreement includes any schedule or annexure; |
(d) |
a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time; |
(e) |
a reference to A$, $A, dollar or $ is to Australian currency; |
(f) |
a reference to time is to New South Wales time; |
(g) |
a reference to a party to this agreement, and a reference to a party to a document includes the partys executors, administrators, successors and permitted assigns and substitutes; |
(h) |
a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; |
(i) |
a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
(j) |
the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; |
(k) |
a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and |
(l) |
headings are for ease of reference only and do not affect interpretation. |
2. |
Appointment and Position |
2.1 |
Employment |
The Company employs the Executive in the Position in accordance with this agreement.
2.2 |
Commencement Date |
The Executives employment under this agreement commences on the Commencement Date and will continue until terminated in accordance with clause 13.
2.3 |
Continuation of terms and conditions |
If the Executives position with the Company changes for any reason, then the terms of this agreement will continue to apply unless expressly varied by the parties in writing.
4.
2.4 |
Warranties |
The Executive warrants that:
(a) |
by entering into this agreement and performing his duties under this agreement, he will not be in breach of any agreement with, or obligation owed by him to, any third party; and |
(b) |
he has disclosed everything to the Company which may be material to the Companys decision to offer him employment under this agreement. |
3. |
Duties |
3.1 |
Specific duties |
(a) |
The Executive must report to the Board and may be directed to perform both duties which are set out in Schedule 2 and such other duties and responsibilities as are assigned to the Executive by the Board from time to time. |
(b) |
The Executive must: |
(i) |
perform to the best of his abilities and knowledge the duties assigned to him by the Board from time to time, whether during or outside the Companys business hours, at such places as the Company requires and for the benefit of whoever the Company directs (including any Group Company or a third party); |
(ii) |
devote his full time and attention to the business of the Company and the Group; |
(iii) |
serve the Company and the Group faithfully and diligently to the best of his ability and in accordance with the highest standards of professionalism; |
(iv) |
use all reasonable efforts to promote the interests of the Company and the Group; |
(v) |
act in the best interests of the Company and the Group; |
(vi) |
comply with all lawful directions of the Company; |
(vii) |
comply with all laws, regulations and guidelines applicable to the Position and the duties assigned to him; |
(viii) |
maintain professional awareness and continue to develop his skills and knowledge to ensure maintenance of best practice; |
(ix) |
comply with all Company policies; |
5.
(x) |
fully disclose to the Board all material matters relevant to the operations of the Business; |
(xi) |
attend all meetings of the Board; and |
(xii) |
notify the Company of any other directorships held by him. |
3.2 |
Restrictions |
The Executive must not:
(a) |
act in conflict with the best interests of the Company or the Group; |
(b) |
engage in any conduct which has the potential to undermine the Board or the Company, such as engaging in conduct which might be considered to be misleading; |
(c) |
compete with the Company or the Group; or |
(d) |
perform work for any person other than the Group without first obtaining the consent of the Company. |
3.3 |
Authority |
The Executive acknowledges that he has no authority to bind, or make representations on behalf of, the Company except as expressly authorised by the Board from time to time.
3.4 |
Directorship |
The Executive acknowledges that the Company may require him to become a director of any Group Company.
4. |
Hours of Work |
4.1 |
Full-time |
The Executive is employed on a full time basis and is required to work during the Companys ordinary business hours, and for such additional hours as are necessary to perform his duties or required by the Company.
4.2 |
Acknowledgements |
The Executive acknowledges and agrees that:
(a) |
he will be required to travel extensively, both domestically and overseas, to perform his duties; |
(b) |
he may be required to work on public holidays; and |
6.
(c) |
working additional hours, including while travelling and on public holidays, is part of his role and that this has been taken into account in setting the Remuneration Package. |
5. |
Remuneration |
5.1 |
Remuneration Package |
(a) |
In consideration of the Executive performing his duties under this agreement, the Company will provide the Executive a Remuneration Package comprising the salary and other benefits specified in Item 3 of Schedule 1. |
(b) |
The Executive acknowledges and agrees that the Remuneration Package is subject to the deduction, or withholding of any amounts on account of, any applicable taxes. |
5.2 |
Payment |
The Executives salary will be paid by equal monthly installments in arrears by electronic funds transfer.
5.3 |
Superannuation |
The Executives salary includes the minimum level of superannuation contributions which the Company must make for the Executive so as not to be liable to pay a charge under the SGA Act and the SGC Act. The Company will make such contributions into the superannuation fund the Executive chooses from time to time in accordance with the SGA Act. If the Executive does not choose such a fund, the Company will make such contributions into its default superannuation fund from time to time.
5.4 |
Review |
The Company will review the Remuneration Package on an annual basis.
5.5 |
Directors remuneration |
The Remuneration Package is paid in respect of all services provided by the Executive to the Company under this agreement, including services in connection with holding office as a director of any Group Company. No separate amount is payable by the Company to the Executive in respect of his services as a director of any Group Company.
5.6 |
Reimbursement of expenses |
The Company will pay for or reimburse the Executive for out-of-pocket expenses properly incurred by the Executive in connection with the performance of his duties under this agreement, subject to the Executive providing the Company with appropriate receipts and invoices substantiating each expense in accordance with the Groups policies and procedures.
7.
5.7 |
Deductions |
To the extent permitted by law, the Executive irrevocably authorises the Company to deduct from the Remuneration Package any amounts which the Executive owes on any account to the Company.
6. |
Leave Entitlements |
6.1 |
Annual Leave |
(a) |
The Executive is entitled to 20 days paid annual leave per year of service in accordance with applicable law. |
(b) |
There is no entitlement to leave loading in respect to annual leave. |
(c) |
The Company may direct the Executive to take annual leave on one months notice. |
6.2 |
Personal/Carers Leave |
(a) |
The Executive is entitled to sick leave, carers leave and/or compassionate leave in accordance with applicable law. |
(b) |
No payment in lieu of sick leave, carers leave or compassionate leave will be made, either on termination or otherwise. |
6.3 |
Parental Leave |
The Executive is entitled to parental leave in accordance with applicable law.
6.4 |
Long Service Leave |
The Executive will be entitled to long service leave in accordance with applicable law.
7. |
Medical examination |
The Board may require the Executive to be examined by a medical practitioner nominated by the Company, who will provide a report to the Company.
8. |
Privacy |
The Executive consents to each Group Company collecting, using and disclosing personal and sensitive information (as those terms are defined in the Privacy Act 1998 (Cth)) concerning the Executive for any purpose relating to his employment by the Company.
8.
9. |
Conflicts of Interest |
9.1 |
Disclosure of interests |
The Executive must declare to the Company the nature of any interests that the Executive may have directly or indirectly which might or might reasonably be expected to then conflict with the Executives duties to the Company.
9.2 |
Exchange traded stock |
The obligations imposed by this clause 9 do not prevent the Executive holding shares in any company listed on any recognised stock exchange.
10. |
Confidential Information |
10.1 |
Access |
The Executive acknowledges that, having regard to the Position, he will have access to Confidential Information and that disclosure of any Confidential Information could materially harm the Group.
10.2 |
Not to divulge |
The Executive must keep confidential all Confidential Information and must not, either during or after termination of the Executives employment with the Company, disclose to any person or use any Confidential Information except:
(a) |
to the extent reasonably required in the performance of the Executives duties under this agreement; or |
(b) |
as required by law. |
10.3 |
Notification |
The Executive must immediately notify the Company of any suspected or actual unauthorised use, copying or disclosure of Confidential Information.
10.4 |
Limitation of disclosure |
Before the Executive discloses any Confidential Information under any law the Executive must provide the Company with:
(a) |
sufficient notice of the disclosure to be made; and |
(b) |
all assistance and co-operation which the Company considers necessary in regard to such disclosure. |
9.
10.5 |
Survival |
This clause 10 survives termination of this agreement.
11. |
Intellectual Property |
11.1 |
Assignment of Intellectual Property Rights |
The Executive assigns to the Company all existing and future right, title and interests in and to all Intellectual Property Rights.
11.2 |
Assistance |
The Executive must do all things reasonably requested by the Company to enable the Company to exploit and further assure the rights assigned, and consents given, under clause 11.1.
11.3 |
Moral Rights |
The Executive:
(a) |
to the extent permitted by law, irrevocably waives any Moral Rights he has in respect of all Intellectual Property Rights; and |
(b) |
voluntarily and unconditionally consents to any acts or omissions by the Company, or other persons authorised by the Company, which would otherwise infringe the Moral Rights he has in respect of any Intellectual Property Rights. |
11.4 |
Survival |
This clause 11 survives termination of this agreement.
12. |
Restraint |
12.1 |
Clause 12 definitions |
In this clause 12 (and any other provision of this agreement which relates to this clause 12 or its subject matter), unless the context otherwise requires:
(a) |
Engage in means to participate, assist or otherwise be directly or indirectly involved in, including as a member, shareholder, unitholder, director, consultant, adviser, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier; |
(b) |
Restraint Area means: |
(i) |
anywhere in the world, or if such area is determined to be invalid or unenforceable by a court of competent jurisdiction; |
10.
(ii) |
Australia and USA, or if such area if determined to be invalid or unenforceable by a court of competent jurisdiction; |
(iii) |
Australia, or if such area if determined to be invalid or unenforceable by a court of competent jurisdiction; |
(iv) |
New South Wales; Queensland and Victoria, or if such area if determined to be invalid or unenforceable by a court of competent jurisdiction; and |
(v) |
New South Wales. |
(c) |
Restrained Business means a business or operation substantially the same or similar to, or competitive with, the Business. |
(d) |
Restraint Period means the period commencing on the date of termination of the Executives employment and continuing for a period of: |
(i) |
12 months, or if such period is determined to be invalid or unenforceable by a court of competent jurisdiction; |
(ii) |
6 months, or if such period is determined to be invalid or unenforceable by a court of competent jurisdiction; and |
(iii) |
3 months. |
12.2 |
Restraint obligations |
During the term of this agreement, and for the Restraint Period, the Executive must not, either directly, indirectly or as a result of contact by any other party, in the Restraint Area, without the prior written consent of the Company (which it may withhold in its absolute discretion):
(a) |
Engage in a Restrained Business; |
(b) |
take any action to prepare to Engage in a Restrained Business; |
(c) |
be concerned or interested (directly or indirectly, or through any interposed body corporate, trust, principal, agent, shareholder, beneficiary, or as an independent contractor or in any other capacity) in a Restrained Business; |
(d) |
solicit, canvas or secure the custom of any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of any Group Company with whom the Executive dealt at any time during the last 12 months of the Executives employment with the Company for the purpose of transacting business relating to the Restrained Business; |
11.
(e) |
accept any instructions to perform any work relating to the Restrained Business for any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of any Group Company; or |
(f) |
induce or attempt to induce an employee of any Group Company to terminate his or his employment with the Group Company. |
12.3 |
Independence of restraints |
Each of the restraint obligations imposed by this clause 12 (which results from the combinations of Restrained Business and Restraint Areas) is a separate and independent obligation from the other restraint obligations imposed (although they are cumulative in effect).
12.4 |
Reasonableness of restraint |
The Executive acknowledges and agrees that each of the restraint obligations imposed by this clause 12 is reasonable in its extent (as to all of duration, geographical area and restrained conduct) having regard to the interests of each party to this agreement and extends no further (in any respect) than is reasonably necessary and is solely to protect the Companys legitimate interests.
12.5 |
Legal advice |
Each party acknowledges that in relation to this clause 12 it has received legal advice or has had the opportunity of obtaining legal advice.
12.6 |
Notification to prospective employer |
The Executive will notify any prospective employer of the terms of the restrictions undertaken by him in this agreement.
12.7 |
Injunction |
Each party to this agreement acknowledges that monetary damages alone would not be adequate compensation to the Company for a breach of clause 12 and that the Company is entitled to seek an injunction or other equitable relief from a Court of competent jurisdiction if the Executive fails to comply or threatens to fail to comply with clause 12 or the Company has reason to believe the Executive will not comply with clause 12.
12.8 |
Survival |
This clause 12 survives termination of this agreement.
13. |
Termination |
13.1 |
Termination on notice |
(a) |
Subject to clause 13.2, the Executives employment may be terminated: |
12.
(i) |
by the Executive, at any time, giving to the Company six months notice in writing; or |
(ii) |
by the Company: |
(A) |
on or after the Fixed Termination Date, giving to the Executive six months notice in writing for any reason; |
(B) |
at any time, if the Executive is subject to Poor Performance, by providing the minimum period of statutory notice of termination under the FW Act; or |
(C) |
electing, in its absolute discretion, to make a payment to the Executive equal to the Executives salary in lieu of any period of notice, or the unexpired part of any period of notice, to be given under clauses 13.1(a)(ii)(A) or 13.1(a)(ii)(B). |
(b) |
If the Company does elect to make a payment to the Executive under clause 13.1(a)(ii)(C), then the Executives employment terminates on the date the Company notifies the Executive of the election. |
13.2 |
Summary dismissal |
The Executives employment may be summarily terminated by the Company at any time without notice and without payment of any compensation in lieu of notice if the Executive:
(a) |
is guilty of serious misconduct, fraud, dishonesty, wilful breach of duty, or of a serious or persistent breach of the Executives employment obligations; |
(b) |
breaches any material provision of this agreement, including clauses 3.1, 3.2 or 10; |
(c) |
is found guilty by a court of a serious criminal office which in the reasonable opinion of the Company might injure the reputation of the Group; |
(d) |
is unable to perform the inherent requirements of his position for a period of six months or longer (other than by reason of partial or total and permanent disability, as supported by independent medical opinion or for any other justifiable cause outside the Executives control); or |
(e) |
becomes bankrupt or enters into a composition or arrangement with his creditors. |
13.3 |
Gardening leave |
During the notice period provided for by clause 13.1, or while the Company is investigating any matter which the Company believes could lead to the Company
13.
exercising its rights under clause 13.2 or taking other disciplinary action, the Company may require the Executive:
(a) |
not to enter or access any Group Companys premises; |
(b) |
to perform duties which are different from those which the Executive was required to perform during his employment with the Company; |
(c) |
not to contact or have any communications with any customer, client, employee or officer of the Group; or |
(d) |
to do any combination of the above things. |
13.4 |
Resignation as a director |
If, on termination of this agreement, the Executive is a director of any Group Company the Executive must immediately resign as a director of that Group Company.
13.5 |
Return of Company property |
(a) |
If the Executives employment is terminated for any reason, the Executive must immediately return to the Company any property of any Group Company, including all documents, software, computers, credit cards, keys, mobile telephones, security passes and vehicles. |
(b) |
The Executive is not entitled to retain a copy of a document referred to in clause 13.5(a). |
13.6 |
Accrued rights |
Termination under this clause 13 does not affect any accrued rights or remedies of either party.
13.7 |
Limitation of payments and benefits |
(a) |
If the payments and benefits otherwise payable or due to the Executive as a result of the termination of the Executives employment or this agreement would exceed the maximum amount or value which the Company is permitted, without shareholder approval, to pay or provide to the Executive (in the circumstances at that time) under the Corporations Act ( Maximum Amount ), then, notwithstanding any other provisions of this agreement, the payments or benefits payable or due to the Executive as a result of the termination of the Executives employment or this agreement will be reduced as determined by the Company so that the amount of the payments or value of the benefits, having regard to the payments and the value of the benefits (if any) already made or provided or payable or to be provided in connection with the Executives retirement from board or managerial office (as that term is defined in the Corporations Act) in any Group Company does not exceed the Maximum Amount. |
14.
(b) |
Without limiting clause 13.7(a), no payment will be made to, or benefit conferred on, the Executive under this agreement to the extent such payment would cause any Group Company to breach the ASX Listing Rules, the Corporations Act or any applicable law. |
14. |
Notices |
14.1 |
Service and notices |
A notice, demand, consent, approval or communication under this agreement ( Notice ) must be:
(a) |
in writing, in English and signed by a person duly authorised by the sender; and |
(b) |
hand delivered or sent by prepaid post or facsimile to the recipients address for Notices specified in the Parties section of this agreement, as varied by any Notice given by the recipient to the sender. |
14.2 |
Effective on receipt |
A Notice given in accordance with clause 13.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:
(a) |
if hand delivered, on delivery; |
(b) |
if sent by prepaid post, on the second Business Day after the date of posting; |
(c) |
if sent by facsimile, when the senders facsimile system generates a message confirming successful transmission of the entire Notice, |
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
15. |
General |
15.1 |
Entire agreement |
This agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this agreement and have no further effect.
15.2 |
Amendment |
This agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.
15.
15.3 |
Costs |
Each party must pay its own costs and expenses in relation to the negotiation, preparation and execution of this agreement.
15.4 |
Severability |
Part or all of any provision of this agreement that is illegal or unenforceable will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.
15.5 |
Waiver |
Waiver of any power or right under this agreement must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.
15.6 |
Governing law and jurisdiction |
This agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State.
16.
Schedule 1
Remuneration
Item 1: Commencement Date |
1 January 2011 |
|
Item 2: Position |
CEO |
|
Item 3: Salary and other benefits |
A total remuneration package of $315,000 per annum, inclusive of superannuation.
The employer superannuation contributions will be $22,000 to 30 June 2011, and $25,000 per annum thereafter. |
|
Item 4: Fixed Termination Date |
31 December 2012 |
17.
Schedule 2
Duties
The Executive must devote such of the Executives time, attention and skill to the Company during the Term as required for the proper performance of the following duties:
|
provide support, mentoring and guidance to the Companys senior employees; |
|
prepare and settle agendas for all Board meetings; |
|
assist with regulatory; |
|
operate the Business in accordance with the objectives of the Company; |
|
protect and enhance the goodwill and reputation of the Company and the Business; |
|
monitor and direct the Companys day to day activities and overall operations to promote and extend the performance of the Business and the Company; |
|
conduct meetings and negotiate terms with companies and individuals with whom the Company will enter into agreements; |
|
prepare the business plan and budget; |
|
conduct the Business in compliance with the approved budget and approved business Plan; |
|
obtain approval from the Board for any expenditure outside of the budget; |
|
engage contractors, sales people, technicians and other personnel required for the expansion of the Business and have overall control of the Business; |
|
leadership and development of the Companys staff in order to meet operating needs in the immediate and longer term; |
|
manage the provision of legal, tax and accounting services to the Business and the Company; |
|
protect the Intellectual Property Rights of the Company; |
|
supervise and manage the Companys business in accordance with Board approved business plans and budgets; |
|
oversee projects; |
18.
|
procure the provision of monthly progress, financial and cashflow reports to the Company; and other information as reasonably requested by the Board from time to time; and |
|
keep accurate and complete records of all matters relating to the Company and the Business and retaining such records, as well as all receipts and vouchers, for inspection by the Company if requested. |
19.
EXECUTED as an agreement
EXECUTED by PRIMA BIOMED |
) |
|||||||
LIMITED CAN 009 237 889 in |
) |
|||||||
accordance with section 127 of the |
) |
|||||||
Corporations Act 2001 |
) |
|||||||
) |
||||||||
/s/ Lucinda Turnbull |
/s/ Albert Wong |
|||||||
Signature of Director |
Signature of Director |
|||||||
Lucinda Turnbull |
Albert Wong |
|||||||
Name of Director |
Name of Director |
|||||||
SIGNED by MARTIN FREDERICK |
) |
|||||||
ROGERS in the presence of: |
) |
|||||||
) |
||||||||
) |
||||||||
) |
||||||||
/s/ Albert Wong |
/s/ Martin Frederick Rogers |
|||||||
Signature of Witness |
Martin Frederick Rogers | |||||||
Albert Wong |
||||||||
Name of Witness |
Exhibit 4.11
Employment Agreement |
||||||
|
||||||
Prima Biomed Limited ACN 009 237 889 |
||||||
Neil Frazer |
McCabe Terrill Lawyers Pty Limited ACN 122 850 033 130 Elizabeth Street (Level 14) Sydney NSW 2000 GPO Sox 235 Sydney NSW 2001 DX 145 Sydney |
T +61 2 9261 1211 F +61 2 9261 2336 W ww.mccabeterrill.com.au |
Table of Contents
1. |
Definition and Interpretation | 3 | ||||
2. |
Commencement and pre-conditions to employment | 5 | ||||
3. |
Position and duties | 6 | ||||
4. |
Hours of Work | 7 | ||||
5. |
Remuneration | 7 | ||||
6. |
Leave Entitlements | 8 | ||||
7. |
Conflicts of Interest | 9 | ||||
8. |
Confidential Information | 9 | ||||
9. |
Intellectual Property | 10 | ||||
10. |
Restraint | 10 | ||||
11. |
Termination | 12 | ||||
12. |
Personal information | 13 | ||||
13. |
General | 13 |
Schedule 1
Schedule 2
Schedule 3
2.
Dated
Parties
Background
A |
The Company operates the Business. |
B |
The Company has agreed to employ the Employee, and the Employee has agreed to serve the Company as an employee, on the terms and conditions of this agreement. |
1. |
Definition and Interpretation |
1.1 |
Definitions |
In this agreement, unless the contrary intention appears, the following words have the following meanings:
Term |
Definition: | |
Business |
the business carried on by Group, being the business of researching, developing and commercialising a portfolio of biotechnology products related to the therapeutic area of cancer, and such other business as the Company advises the Employee of in writing during the course of the Employees employment. | |
Claim |
in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent. | |
Commencement Date |
the date specified in item 1 of Schedule 1. | |
Confidential Information | any information, whether in written, electronic or other form, which the Employee has access to during the Employees employment with the Company or in the Business, including: |
3.
(a) | information relating to the customers or suppliers of the Group including (without limitation): | |||||
(i) | their contact details; | |||||
(ii) | information relating to expenditure and consumption levels of the Groups customers or suppliers; and | |||||
(iii) | the prices and costs at which the Group sells products to customers or sources material from suppliers; | |||||
(b) | details of the transactions or affairs of the Group; | |||||
(c) | financial information relating to the Group; | |||||
(d) | trade secrets; | |||||
(e) | business forecasts, strategic plans and projections, operational structure, methodology and future developments of the Group; | |||||
(f) | marketing information relating to the Group, including marketing plans and methodologies, promotional material and presentations; | |||||
(g) | product ingredients, formulae, designs, specifications, ideas, concepts and techniques used or contemplated to be used in relation to the Business of the Group or relating to any products sold or distributed by the Group; | |||||
(h) | information concerning the Groups employees, contractors or agents; | |||||
(i) | technological processes, technology and equipment used or contemplated to be used in relation to the Business or the Group; and | |||||
(j) | any other information or data that the Employee is given or which comes to the Employees knowledge during the course of the employment that the Employee is told is confidential, or that a reasonable person would expect from its nature to be confidential. | |||||
Corporations Act |
Corporations Act 2001 (Cth). | |||||
Group |
the Company and each of its Related Companies. | |||||
Human Resources Manual |
the human resources manual issued by the Company to its employees, as varied from time to time. | |||||
Intellectual Property Rights: |
all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, |
4.
inventions and discoveries and all other rights resulting from intellectual activities in the industrial, scientific, literary, commercial or artistic fields. | ||
Location |
the location specified in item 3 of Schedule 1. | |
Position |
the position specified in item 2 of Schedule 1, and any other position to which the Employee is appointed in accordance with this agreement. | |
Related Company |
has the same meaning given to that term in section 50 of the Corporations Act. | |
Remuneration Package |
the Employees annual remuneration package as specified in clause 5.1, and includes any variations as agreed between the Company and the Company or as determined by the Company. |
1.2 |
Interpretation |
In this agreement, unless the context otherwise requires:
(a) | the singular includes the plural and vice versa; |
(b) | another grammatical form of a defined word or expression has a corresponding meaning; |
(c) | a reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to this agreement and a reference to this agreement includes any schedule or annexure; |
(d) | a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time; |
(e) | a reference to a party to this agreement, and a reference to a party to a document includes the partys executors, administrators, successors and permitted assigns and substitutes; |
(f) | a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; |
(g) | a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
(h) | the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; |
(i) | a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and |
(1) | headings are for ease of reference only and do not affect interpretation. |
2. | Commencement and pre-conditions to employment |
2.1 | Commencement Date |
The Employees employment with the Company will commence on the Commencement Date and will continue until terminated in accordance with clause 2.2(b) or 11.
5.
2.2 |
Probationary period |
(a) | The Employees employment with the Company is subject to an initial three month probationary period (Probationary Period). |
(b) | The Company may terminate the Employees employment at any time during the Probationary Period by providing the Employee, in writing, one weeks notice of termination (or payment in lieu of such notice). |
2.3 | Warranty |
(a) | The Employee represents and warrants to the Company that the entry into this agreement, and the performance of this agreement, by the Employee will not constitute a breach of any contractual obligation, including any previous employment obligation, or of any relevant restraint, non-competition, confidentiality or intellectual property obligations, owed to any former employer. |
(b) | The Employee indemnifies the Company and its officers against any Claim which the Company and its officers, pays or is liable for arising directly or indirectly from the Employee breaching the warranty set out in clause 2.3(a). |
3. | Position and duties |
3.1 | Position |
(a) | The Company agrees to employ the Employee and the Employee will work for the Company: |
(i) | in the Position at the Location; and |
(ii) | in any additional or reasonably comparable substituted position directed by the Company and to which the Employee is appointed by the Company, after consultation with the Employee. |
(b) | For the avoidance of doubt, the terms and conditions set out in this agreement will continue to apply irrespective of any permitted change to the Position, unless otherwise agreed in writing by the Company and the Employee. |
3.2 | Duties |
The Employee must perform the Employees duties consistent with the Position as assigned to the Employee from time to time by the Company to the best of the Employees ability and knowledge and in accordance with the highest standards of professionalism, whether during or outside business hours. Without limitation, the Employee must:
(a) | comply with all reasonable directions given to the Employee by the Company; |
(b) | comply with all laws applicable to the Position in each of the jurisdictions in which the Group operates; |
(c) | maintain professional awareness and development of skills and knowledge to ensure maintenance of best practice; |
(d) | use all reasonable endeavours to safe guard the success, reputation and interests of the Group. |
6.
3.3 | Company Policies |
(a) | The Employees employment with the Company is subject to the Companys rules and procedures set out in the Human Resources Manual. |
(b) | It is the Employees responsibility to be thoroughly familiar with the contents of the Human Resources Manual, as varied and updated from time to time by the Company. |
(c) | in the event that any conflict exists between this agreement and the Human Resources Manual, this agreement prevails. |
4. | Hours of Work |
4.1 | Hours |
(a) | The Employees usual hours of work will be 38 hours per week, worked on Monday to Friday inclusive (Usual Hours). |
(b) | The Employee will also be required to commit whatever reasonable additional hours (Additional Hours) are needed to properly manage and perform the Employees duties and meet the reasonable requirements of the Position. |
(c) | The Employee acknowledges that given the nature of the Position and the remuneration payable under this agreement the requirement to work Additional Hours is reasonable. |
4.2 | Payment |
The Employee agrees and acknowledges that the Remuneration Package comprises compensation for Usual Hours and all and any Additional Hours worked by the Employee, and that the Employee is not entitled to payment of any amount in addition to the Remuneration Package for any hours worked by the Employee outside the Usual Hours.
5. | Remuneration |
5.1 | Remuneration Package |
(a) | The Employee will be entitled to receive a Remuneration Package comprising: |
(i) | a base salary in the amount specified in item 4 of Schedule 1 (Base Salary); and |
(ii) | other benefits specified in item 5 of Schedule 1. |
(b) | The Remuneration Package is subject to the deduction or withholding of any amounts on account of any applicable taxation. |
5.2 | Payment of Base Salary |
The Employees Base Salary will be paid monthly by direct deposit into a bank account of the Employees choice.
5.3 | Superannuation |
The Remuneration Package is inclusive of superannuation, unless otherwise specified.
7.
5.4 | Remuneration review |
The Company will review the Remuneration Package on an annual basis and the Company may alter the Employees total Remuneration Package and its components following that review.
5.5 | Expenses |
(a) | Subject to clause 5.5(b), the Company will pay for or reimburse the Employee for out of pocket expenses properly incurred by the Employee in connection with the Employees employment, provided that the Employee provides the Company on request with a tax invoice substantiating each expense. |
(b) | In the case of individual expenses exceeding the amount specified in item 6 of Schedule 1, the Employee must obtain the written approval of the Company in advance. |
5.6 | Deductions |
The Company may deduct from the Base Salary or other sums due to the Employee any amount owned by the Employee on any account to the Group.
6. | Leave Entitlements |
6.1 | Annual Leave |
(a) | The Employee is entitled to 20 days paid annual leave per year. |
(b) | Annual leave will accrue on a pro-rata basis at the end of each completed four week period of continuous service with the Company and is cumulative. |
(c) | There is no entitlement to leave loading in respect to annual leave. |
6.2 | Personal/Carers Leave |
(a) | The Employee is entitled to 10 days paid personal/carers leave per year. The Employee may use this personal/carers leave as sick leave or carers leave. |
(b) | Personal/carers leave will accrue on a pro rata basis at the end of each completed four week period of service with the Company and is cumulative. |
(c) | Accrued personal/carers leave will not form part of any benefit payable to the Employee on termination of the Employees employment. |
(d) | The Company may require the Employee to provide documentary evidence to support any personal/carers leave period. |
6.3 | Compassionate leave |
(a) | The Employee is entitled to paid compassionate leave of up to five days for each occasion when a member of the Employees immediate family or a household member: |
(i) | contracts or develops a personal injury or illness that poses a serious threat to the Employees life; or |
(ii) | dies. |
8.
(b) | Other special leave may be granted to the Employee in extenuating circumstances at the absolute discretion of the Company. |
6.4 | Parental Leave |
The Employee will be entitled to parental leave in accordance with the applicable legislation in the Location.
6.5 | Long Service Leave |
The Employee will be entitled to long service leave in accordance with the applicable legislation in the Location.
7. | Conflicts of Interest |
7.1 | Disclosure of interests |
The Employee must declare to the Company the nature of any interests that the Employee may have directly or indirectly which might or might reasonably be expected to conflict with the Employees duties to the Company.
7.2 | Restriction |
The Employee must not engage in any other paid employment or work of any kind during the term of this agreement without the written consent of the Company and the Employee must not be induced or agree to accept any commission, reward or benefit in connection with the Business from any person other than that which is provided under this agreement.
8. | Confidential Information |
8.1 | Prohibitions |
The Employee must not without the Companys prior written consent, either during the Employees employment with the Company or at any time after the termination of the Employees employment with the Company:
(a) | use for the Employees or anothers advantage any Confidential Information; |
(b) | disclose to any person any Confidential information, either directly or indirectly; |
(c) | make copies of any Confidential Information; or |
(d) | counsel, procure or assist any person or corporation to use or disclose any Confidential Information, |
other than as reasonably required in the performance of the Employees duties as an employee of the Company or as required by law.
8.2 | Protecting Unauthorised Use or Disclosure |
The Employee must use the Employees best endeavours to prevent the unauthorised use or disclosure of Confidential Information by, or to, any third party.
9.
8.3 | Information already available to the public |
Clause 8.1 and 8.2 do not apply to information which is freely available to the public, other than as a result of a breach by the Employee of this agreement.
8.4 | Survival |
The obligations in this clause 8 survive termination of this agreement.
9. | Intellectual Property |
9.1 | Intellectual Property Rights |
The Employee agrees that all Intellectual Property Rights created by the Employee during the course of, and in connection with, the Employees employment with the Company will immediately be disclosed and assigned to, and vest in, the Company or such other person or company as may be nominated by the Company as such rights are created.
9.2 | Employee to assist |
The Employee agrees to execute all documents and do all acts and things required by the Company for the purpose of vesting Intellectual Property Rights as prescribed by this clause 9, including without limitation executing a deed of assignment of Intellectual Property Rights in favour of the Company or its nominee.
9.3 | Royalties |
The Employee acknowledges that all royalties, payments, fees, income or any other remuneration arising from Intellectual Property Rights are owned by the Company.
9.4 | Moral rights |
To the extent permitted by law, the Employee waives all of the Employees moral rights in respect of any acts of the Company or any acts of third parties done with the Companys authority in relation to any Intellectual Property Rights that are the property of the Company and consent to the use, treatment, alteration and attribution of such Intellectual Property Rights as deemed appropriate by the Company.
9.5 | Survival |
The obligations in this clause 9 survive termination of this agreement.
10. | Restraint |
10.1 | Clause 10 definitions |
In this clause 10 (and any other provision of this agreement which relates to this clause or its subject matter), unless the context otherwise requires:
(a) | Engage in means to participate, assist or otherwise be directly or indirectly involved in, including as a member, shareholder, unitholder, director, consultant, adviser, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier; |
(b) | Restraint Area means the areas specified in item 7 of Schedule 1; |
10.
(c) | Restrained Business means a business or operation similar to, or competitive with, the Business; and |
(d) | Restraint Period means the period specified in item 8 of Schedule 1. |
10.2 | Restraint obligations |
During the Restraint Period, the Employee must not, either directly, indirectly or as a result of contact by any other party, in the Restraint Area, without the prior written consent of the Company (which it may withhold in its absolute discretion):
(a) | engage in a Restrained Business; |
(b) | take any action to prepare to Engage in a Restrained Business; |
(c) | be concerned or interested (directly or indirectly, or through any interposed body corporate, trust, principal, agent, shareholder, beneficiary, or as an independent contractor or in any other capacity) in a Restrained Business; |
(d) | solicit, canvas or secure the custom of any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group with whom the Employee dealt at any time during the last 12 months of the Employees employment with the Company for the purpose of transacting business relating to the Restrained Business; |
(e) | accept any instructions to perform any work relating to the Restrained Business for any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group; or |
(f) | induce or attempt to induce an employee or consultant of the Group to terminate their employment or consultancy with the Group. |
10.3 | Independence of restraints |
Each of the restraint obligations imposed by this clause 10 (which results from the combinations of Restraint Area, Restrained Business and Restraint Period) is a separate and independent obligation from the other restraint obligations imposed (although they are cumulative in effect).
10.4 | Reasonableness of restraint |
The Employee acknowledges and agrees that each of the restraint obligations imposed by this clause 10 is reasonable in its extent (as to all of duration, geographical area and restrained conduct) having regard to the interests of each party to this agreement and extends no further (in any respect) than is reasonably necessary and is solely to protect the Companys legitimate interests.
10.5 | Legal advice |
Each party acknowledges that in relation to this agreement and in particular this clause 10 it has received legal advice or has had the opportunity of obtaining legal advice.
10.6 | Notification to prospective employer |
The Employee must notify any prospective employer of the terms of the restrictions undertaken by him in this agreement.
11.
10.7 | injunction |
Each party to this agreement acknowledges that monetary damages alone would not be adequate compensation to the Company for a breach of this clause 10 and that the Company is entitled to seek an injunction or other equitable relief from a Court of competent jurisdiction if:
(a) | the Employee fails to comply or threatens to fail to comply with this clause 10; or |
(b) | the Company has reason to believe the Employee will not comply with this clause 10. |
10.8 | Survival |
The obligations in this clause 10 survive termination of this agreement.
11. | Termination |
11.1 | General |
(a) | Either party may terminate this agreement on the provision, in writing, of the period of written notice of termination specified in item 9 of Schedule 1 to the other party. |
(b) | The Company may terminate the Employees employment by making a payment of Base Salary plus superannuation contributions in lieu of notice of termination for all or part of the notice period. |
11.2 | Termination without notice |
The Company may terminate the Employees employment without notice and without paying any amount in lieu of notice if the Employee:
(a) | is guilty of serious misconduct or dishonesty; |
(b) | commits any serious or persistent breach of any of the provisions of this agreement; |
(c) | in the reasonable opinion of the Company, materially or persistently fails or neglects to perform or carry out the Employees duties under this agreement; |
(d) | refuses or neglects to comply with any lawful and reasonable order given to the Employee by the Company or any other person duly authorised by the Company; |
(e) | becomes bankrupt or suspends payment or compounds with or assigns the Employees estate for the benefit of the Employees creditors; |
(f) | is continually and repeatedly absent from the Employees employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(g) | has provided the Company with information about the Employees qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; |
(h) | is incapacitated from performing the Employees duties for an aggregate period of three months in any period of 12 months; or |
12.
(i) | is convicted of any serious criminal offence which in the reasonable opinion of the Company might tend to injure the reputation or the Group or the Business. |
11.3 | No redundancy |
The Employee acknowledges that the Employee will not be entitled to any redundancy payment that the Employee may otherwise be entitled to at law where the Employees employment is transferred to another employer, and qualifying service with the Company, including recognised prior service, is recognised by the new employer for the calculation of all accrued entitlements, including in relation to any subsequent redundancy situation.
11.4 | Employees obligations after termination |
If the Employees employment is terminated for any reason:
(a) | the Company may set off any amounts the Employee owes the Company against any amounts the Company owes the Employee at the date of termination, except for amounts the Company is not entitled by law to set off; and |
(b) | the Employee must immediately return all property belonging to the Company, including all software, computers, credit cards, keys, security access passes, books, vehicles and mobile phones. |
12. | Personal information |
12.1 | Acknowledgement |
The Employee acknowledges that the Company will be required to request and hold personal information relating to the Employee for the purposes of administering the Employees employment.
12.2 | Disclosure |
The Employee consents to the Company or any of its Related Companies disclosing personal information it holds regarding the Employee for purposes related to the Employees employment, and any other related purpose
13. | General |
13.1 | Entire agreement |
This agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this agreement and have no further effect.
13.2 | No merger |
The provisions of this agreement will not merge on completion of any transaction contemplated in this agreement and, to the extent any provision has not been fulfilled, will remain in force.
13.
13.3 |
Attorneys |
Each person who executes this agreement on behalf of a party under a power of attorney warrants that he or she has no notice of the revocation of that power or of any fact or circumstance that might affect his or her authority to execute this agreement under that power.
13.4 |
Amendment |
This agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.
13.5 |
Assignment |
Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of each other party, which must not be unreasonably withheld.
13.6 |
Severability |
Part or all of any provision of this agreement that is illegal or unenforceable will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.
13.7 |
Waiver |
Waiver of any power or right under this agreement:
(a) |
must be in writing signed by the party entitled to the benefit of that power or right; and |
(b) |
is effective only to the extent set out in that written waiver. |
13.8 |
Rights, remedies additional |
Any rights and remedies that a person may have under this agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
13.9 |
Further assurances |
Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).
13.10 |
Costs |
Except as specifically provided in this agreement, each party must bear its own legal, accounting and other costs for the preparation and execution of this agreement.
13.11 |
Counterparts |
This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
14.
13.12 |
Governing law and jurisdiction |
This agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State.
15.
Schedule 1
Details
16.
No |
Item |
Description |
||
7. | Expense Limit | US $500 | ||
8. | Restraint Area | Global | ||
9. | Restraint Period | The period of the Employees employment with the Company and the period of six months from the cessation of the Employees employment with the Company. | ||
10. | Termination notice period | Three months | ||
11. | Governing law and jurisdiction | New South Wales, Australia |
17.
Schedule 2
Performance Options
1. | Each Performance Option entitles the holder to subscribe for 1 fully paid ordinary share in the Company. |
2. | Vesting of the Performance Options is subject to the holder continuing to be an employee of the Company for not less than four years after the date of grant of the Performance Options to the holder. |
3. | Despite any other paragraph of these terms, all Performance Options will immediately vest in the holder on the occurrence of either of the following events: |
(a) | the offeror under a takeover bid or announcement acquires (unconditionally) in excess of 50% of the issued voting shares of the Company; or |
(b) | as a result of the approval of one or more schemes of arrangement any person who is not at the date of issue of the options in control of the Company acquires in excess of 50% of the issued voting shares of the Company. |
4. | Each Performance Option may be exercised at a lesser price of ten cents(10) or a price equal to the volume weighted average price of ordinary shares in the Company traded on ASX during the 30 trading days immediately prior to the date of grant of the Performance Options to the holder at any time during the period commencing on the date the Performance Options vest pursuant to paragraph 2 or 3 of these terms and ending at 5:00 pm (Sydney, NSW time) on the date two years following that date (Expiry Date) by completing the option exercise form and delivering it to the registered office of the Company. |
5. | Any Performance Option automatically lapses if: |
(a) | it has not been exercised prior to the Expiry Date; or |
(b) | the holders employment with the Company is terminated for any one or more of the following reasons: |
(i) | the holder is guilty of serious misconduct or dishonesty; |
(ii) | the holder commits any serious or persistent breach of any of the provisions of the holders employment agreement with the Company; |
(iii) | in the reasonable opinion of the Company, the holder materially or persistently fails or neglects to perform or carry out the holders duties under the holders employment agreement with the Company; |
(iv) | the holder refuses or neglects to comply with any lawful and reasonable order given to the holder by the Company or any other person duly authorised by the Company; |
(v) | the holder becomes bankrupt or suspends payment or compounds with or assigns the holders estate for the benefit of the holders creditors; |
18.
(vi) | the holder is continually and repeatedly absent from the holders employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(vii) | the holder has provided the Company with information about the holders qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; or |
(viii) | the holder is convicted of any serious criminal offence. |
6. | An exercise of only some Performance Options will not affect the rights of the holder under the balance of the Performance Options held by him or her as appropriate. |
7. | The Company will not apply for official quotation by ASX of the Performance Options. |
8. | The Performance Options are non-transferable and may not be sold, assigned, transferred or otherwise dealt with in any way. |
9. | Shares issued upon the exercise of Performance Options will rank pari passu with the Companys fully paid ordinary shares and will have the same voting and other rights as the existing shares of the Company, which are set out in the Companys Constitution, ASX Listing Rules and the Corporations Act. |
10. | The Company will apply for official quotation by ASX of all shares issued upon exercise of Performance Options, subject to any restriction obligations imposed by ASX. |
11. | The Performance Options will not give any right to participate in dividends until shares are issued pursuant to the exercise of the relevant Performance Options. |
12. | There are no participation rights or entitlements inherent in the Performance Options and holders will not be entitled to participate in new issues of capital offered to shareholders during the currency of the Performance Options. |
13. | In the event of any reconstruction (including consolidation, subdivision, reduction or return) of the issued capital of the Company prior to the Expiry Date, the number of Performance Options or the rights attaching to the Performance Options or both shall be reconstructed in accordance with the ASX Listing Rules applying to a reorganisation of capital at the time of the reconstruction. |
19.
EXECUTED as an agreement
EXECUTED by PRIMA BIOMED LIMITED ACN 009 237 889 in accordance with section 127 of the Corporations Act 2001 |
) ) ) ) ) ) ) ) ) |
Phillip Hains Company Secretary |
||||||
/s/ Martin Rogers |
/s/ Philip Hains |
|||||||
Signature of Director |
Signature of Director/Secretary |
|||||||
Martin Rogers |
|
|||||||
Name of Director |
Name of Director/Secretary |
|||||||
SIGNED by NEIL FRAZER in the presence of: |
) ) ) ) ) ) |
|||||||
/s/ Sharon Frazer |
/s/ Neil Frazer |
|||||||
Signature of Witness |
Neil Frazer |
|||||||
Sharon Frazer |
||||||||
Name of Witness |
20.
Exhibit 4.12
Employment Agreement |
||
|
||
Prima Biomed Limited ACN 009 237 889 |
||
Matthew Bryson Lehman |
McCabe Terrill Lawyers Pty Limited ACN 122 850 033 130 Elizabeth Street (Level 14) Sydney NSW 2000 GPO Box 235 Sydney NSW 2001 DX 145 Sydney |
T +61 2 9261 1211 F +61 2 9261 2336 W www.mccabeterrill.com.au |
Table of Contents
1. |
Definition and Interpretation |
3 | ||||
2. |
Commencement and pre-conditions to employment |
5 | ||||
3. |
Position and duties |
6 | ||||
4. |
Hours of Work |
7 | ||||
5. |
Remuneration |
7 | ||||
6. |
Leave Entitlements |
8 | ||||
7. |
Conflicts of Interest |
9 | ||||
8. |
Confidential Information |
9 | ||||
9. |
Intellectual Property |
10 | ||||
10. |
Restraint |
11 | ||||
11. |
Termination |
12 | ||||
12. |
Personal information |
13 | ||||
13. |
General |
13 | ||||
Schedule 1 |
16 | |||||
Schedule 2 |
18 | |||||
Schedule 3 |
20 |
2
Dated 7/12/09
Parties
Prima Biomed Limited ACN 009 237 889 |
||
Address: |
Suite 1,1233 High Street, ARMADALE,VIC,AUSTRALIA,3143 |
|
Facsimile: |
+ 61 3 9822 7735 |
|
Attention: |
Martin Rogers |
|
(Company) |
||
Matthew Bryson Lehman |
||
Address: |
Horodetskoho 17/1, Apt 7, 01001 Kyiv, Ukraine |
|
Facsimile: |
N/A |
|
(Employee) |
Background
A |
The Company operates the Business. |
B | The Company has agreed to employ the Employee, and the Employee has agreed to serve the Company as an employee, on the terms and conditions of this agreement. |
1. |
Definition and Interpretation |
1.1 |
Definitions |
In this agreement, unless the contrary intention appears, the following words have the following meanings:
Term: |
Definition: |
|
Business |
the business carried on by Group, being the business of researching, developing and commercialising a portfolio of biotechnology products related to the therapeutic area of cancer, and such other business as the Company advises the Employee of in writing during the course of the Employees employment. | |
Claim |
in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent. | |
Commencement Date |
the date specified in item 1 of Schedule 1. | |
Confidential Information |
any information, whether in written, electronic or other form, which the Employee has access to during the Employees employment with the Company or in the Business, including: | |
(a) information relating to the customers or suppliers of the Group including (without limitation): |
||
(i) their contact details; |
3.
(ii) information relating to expenditure and consumption levels of the Groups customers or suppliers; and |
||
(iii) the prices and costs at which the Group sells products to customers or sources material from suppliers; |
||
(b) details of the transactions or affairs of the Group; |
||
(c) financial information relating to the Group; |
||
(d) trade secrets; |
||
(e) business forecasts, strategic plans and projections, operational structure, methodology and future developments of the Group; |
||
(f) marketing information relating to the Group, including marketing plans and methodologies, promotional material and presentations; |
||
(g) product ingredients, formulae, designs, specifications, ideas, concepts and techniques used or contemplated to be used in relation to the Business of the Group or relating to any products sold or distributed by the Group; |
||
(h) information concerning the Groups employees, contractors or agents; |
||
(i) technological processes, technology and equipment used or contemplated to be used in relation to the Business or the Group; and |
||
(j) any other information or data that the Employee is given or which comes to the Employees knowledge during the course of the employment that the Employee is told is confidential, or that a reasonable person would expect from its nature to be confidential. |
||
Corporations Act | Corporations Act 2001 (Cth). | |
Group | the Company and each of its Related Companies. | |
Human Resources Manual | the human resources manual issued by the Company to its employees, as varied from time to time. | |
Intellectual Property Rights | all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other rights resulting from intellectual activities in the industrial, scientific, literary, commercial or artistic fields. | |
Location | the location specified in item 3 of Schedule 1. |
4.
Position |
the position specified in item 2 of Schedule 1, and any other position to which the Employee is appointed in accordance with this agreement. |
|
Related Company |
has the same meaning given to that term in section 50 of the Corporations Act. |
|
Remuneration Package |
the Employees annual remuneration package as specified in clause 5.1, and includes any variations as agreed between the Company and the Company or as determined by the Company. |
1.2 | Interpretation |
In this agreement, unless the context otherwise requires:
(a) | the singular includes the plural and vice versa; |
(b) | another grammatical form of a defined word or expression has a corresponding meaning; |
(c) | a reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to this agreement and a reference to this agreement includes any schedule or annexure; |
(d) | a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time; |
(e) | a reference to a party to this agreement, and a reference to a party to a document includes the partys executors, administrators, successors and permitted assigns and substitutes; |
(f) | a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; |
(g) | a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
(h) | the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; |
(i) | a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and |
(j) | headings are for ease of reference only and do not affect interpretation. |
2. | Commencement and pre-conditions to employment |
2.1 | Commencement Date |
The Employees employment with the Company will commence on the Commencement Date and will continue until terminated in accordance with clause 2.2(b) or 11.
2.2 | Probationary period |
(a) | The Employees employment with the Company is subject to an initial three month probationary period ( Probationary Period ). |
5.
(b) | The Company may terminate the Employees employment at any time during the Probationary Period by providing the Employee, in writing, one weeks notice of termination (or payment in lieu of such notice). |
2.3 | Warranty and Liability |
(a) | The Employee represents and warrants to the Company that the entry into this agreement, and the performance of this agreement, by the Employee will not constitute a breach of any contractual obligation, including any previous employment obligation, or of any relevant restraint, non-competition, confidentiality or intellectual property obligations, owed to any former employer. |
(b) | The Employee indemnifies the Company and its officers against any Claim which the Company and its officers, pays or is liable for arising directly or indirectly from the Employee breaching the warranty set out in clause 2.3(a). |
(c) | The Company indemnifies Employee against any third party Claim arising directly or indirectly out of, or in connection with, the Employees employment with the Company, excepting damage or injury directly attributed to the Employees failure to adhere to this Agreement, or any applicable federal, state and local laws and regulations, or which may be directly attributable to the negligence or wilful misconduct of the Employee. |
3. | Position and duties |
3.1 | Position |
(a) | The Company agrees to employ the Employee and the Employee will work for the Company: |
(i) | in the Position at the Location; and |
(ii) | in any additional or reasonably comparable substituted position directed by the Company and to which the Employee is appointed by the Company, after consultation with the Employee. |
(b) | For the avoidance of doubt, the terms and conditions set out in this agreement will continue to apply irrespective of any permitted change to the Position, unless otherwise agreed in writing by the Company and the Employee. |
3.2 | Duties |
The Employee must perform the Employees duties consistent with the Position as assigned to the Employee from time to time by the Company to the best of the Employees ability and knowledge and in accordance with the highest standards of professionalism, whether during or outside business hours. Without limitation, the Employee must:
(a) | comply with all reasonable directions given to the Employee by the Company; |
(b) | comply with all laws applicable to the Position in each of the jurisdictions in which the Group operates; |
(c) | maintain professional awareness and development of skills and knowledge to ensure maintenance of best practice; |
6.
(d) | use all reasonable endeavours to safe guard the success, reputation and interests of the Group. |
3.3 | Company Policies |
(a) | The Employees employment with the Company is subject to the Companys rules and procedures set out in the Human Resources Manual. |
(b) | It is the Employees responsibility to be thoroughly familiar with the contents of the Human Resources Manual, as varied and updated from time to time by the Company. |
(c) | In the event that any conflict exists between this agreement and the Human Resources Manual, this agreement prevails. |
4. | Hours of Work |
4.1 | Hours |
(a) | The Employees usual hours of work will be 38 hours per week, worked on Monday to Friday inclusive (Usual Hours). |
(b) | The Employee will also be required to commit whatever reasonable additional hours ( Additional Hours ) are needed to properly manage and perform the Employees duties and meet the reasonable requirements of the Position. |
(c) | The Employee acknowledges that given the nature of the Position and the remuneration payable under this agreement the requirement to work Additional Hours is reasonable. |
4.2 | Payment |
The Employee agrees and acknowledges that the Remuneration Package comprises compensation for Usual Hours and all and any Additional Hours worked by the Employee, and that the Employee is not entitled to payment of any amount in addition to the Remuneration Package for any hours worked by the Employee outside the Usual Hours.
5. | Remuneration |
5.1 | Remuneration Package |
(a) | The Employee will be entitled to receive a Remuneration Package comprising: |
(i) | a base salary in the amount specified in item 4 of Schedule 1 (Base Salary); and |
(ii) | other benefits specified in item 5 of Schedule 1. |
(b) | The Remuneration Package is subject to the deduction or withholding of any amounts on account of any applicable taxation. |
5.2 | Payment of Base Salary |
The Employees Base Salary will be paid monthly by direct deposit into a bank account of the Employees choice.
7.
5.3 | Superannuation |
The Remuneration Package is inclusive of superannuation, unless otherwise specified.
5.4 | Remuneration review |
The Company will review the Remuneration Package on an annual basis and the Company may alter the Employees total Remuneration Package and its components following that review.
5.5 | Expenses |
(a) | Subject to clause 5.5(b), the Company will pay for or reimburse the Employee for out of pocket expenses properly incurred by the Employee in connection with the Employees employment, provided that the Employee provides the Company on request with a tax invoice substantiating each expense. |
(b) | In the case of individual expenses exceeding the amount specified in item 6 of Schedule 1, the Employee must obtain the written approval of the Company in advance. |
5.6 | Deductions |
The Company may deduct from the Base Salary or other sums due to the Employee any amount owned by the Employee on any account to the Group.
6. | Leave Entitlements |
6.1 | Annual Leave |
(a) | The Employee is entitled to 20 days paid annual leave per year. |
(b) | Annual leave will accrue on a pro-rata basis at the end of each completed four week period of continuous service with the Company and is cumulative. |
(c) | There is no entitlement to leave loading in respect to annual leave. |
6.2 | Personal/Carers Leave |
(a) | The Employee is entitled to 10 days paid personal/carers leave per year. The Employee may use this personal/carers leave as sick leave or carers leave. |
(b) | Personal/carers leave will accrue on a pro rata basis at the end of each completed four week period of service with the Company and is cumulative. |
(c) | Accrued personal/carers leave will not form part of any benefit payable to the Employee on termination of the Employees employment. |
(d) | The Company may require the Employee to provide documentary evidence to support any personal/carers leave period. |
8.
6.3 | Compassionate leave |
(a) | The Employee is entitled to paid compassionate leave of up to five days for each occasion when a member of the Employees immediate family or a household member: |
(i) | contracts or develops a personal injury or illness that poses a serious threat to the Employees life; or |
(ii) | dies. |
(b) | Other special leave may be granted to the Employee in extenuating circumstances at the absolute discretion of the Company. |
6.4 | Parental Leave |
The Employee will be entitled to parental leave in accordance with the applicable legislation in the Location.
6.5 | Long Service Leave |
The Employee will be entitled to long service leave in accordance with the applicable legislation in the Location.
7. | Conflicts of Interest |
7.1 | Disclosure of interests |
The Employee must declare to the Company the nature of any interests that the Employee may have directly or indirectly which might or might reasonably be expected to conflict with the Employees duties to the Company.
7.2 | Restriction |
The Employee must not engage in any other paid employment or work of any kind during the term of this agreement without the written consent of the Company and the Employee must not be induced or agree to accept any commission, reward or benefit in connection with the Business from any person other than that which is provided under this agreement.
8. | Confidential Information |
8.1 | Prohibitions |
The Employee must not without the Companys prior written consent, either during the Employees employment with the Company or at any time after the termination of the Employees employment with the Company:
(a) | use for the Employees or anothers advantage any Confidential Information; |
(b) | disclose to any person any Confidential Information, either directly or indirectly; |
(c) | make copies of any Confidential Information; or |
(d) |
counsel, procure or assist any person or corporation to use or disclose any Confidential Information, |
9.
other than as reasonably required in the performance of the Employees duties as an employee of the Company or as required by law. |
8.2 | Protecting Unauthorised Use or Disclosure |
The Employee must use the Employees best endeavours to prevent the unauthorised use or disclosure of Confidential information by, or to, any third party.
8.3 | Information already available to the public |
Clause 8.1 and 8.2 do not apply to information which is freely available to the public, other than as a result of a breach by the Employee of this agreement.
8.4 | Survival |
The obligations in this clause 8 survive termination of this agreement.
9. | Intellectual Property |
9.1 | Intellectual Property Rights |
The Employee agrees that all Intellectual Property Rights created by the Employee during the course of, and in connection with, the Employees employment with the Company will immediately be disclosed and assigned to, and vest in, the Company or such other person or company as may be nominated by the Company as such rights are created.
9.2 | Employee to assist |
The Employee agrees to execute all documents and do all acts and things required by the Company for the purpose of vesting Intellectual Property Rights as prescribed by this clause 9, including without limitation executing a deed of assignment of Intellectual Property Rights in favour of the Company or its nominee.
9.3 | Royalties |
The Employee acknowledges that all royalties, payments, fees, income or any other remuneration arising from Intellectual Property Rights are owned by the Company.
9.4 | Moral rights |
To the extent permitted by law, the Employee waives all of the Employees moral rights in respect of any acts of the Company or any acts of third parties done with the Companys authority in relation to any Intellectual Property Rights that are the property of the Company and consent to the use, treatment, alteration and attribution of such Intellectual Property Rights as deemed appropriate by the Company.
9.5 | Survival |
The obligations in this clause 9 survive termination of this agreement.
10.
10. | Restraint |
10.1 | Clause 10 definitions |
In this clause 10 (and any other provision of this agreement which relates to this clause or its subject matter), unless the context otherwise requires:
(a) | Engage in means to participate, assist or otherwise be directly or indirectly involved in, including as a member, shareholder, unitholder, director, consultant, adviser, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier; |
(b) | Restraint Area means the areas specified in item 7 of Schedule 1; |
(c) | Restrained Business means a business or operation similar to, or competitive with, the Business; and |
(d) | Restraint Period means the period specified in item 8 of Schedule 1. |
10.2 | Restraint obligations |
During the Restraint Period, the Employee must not, either directly, indirectly or as a result of contact by any other party, in the Restraint Area, without the prior written consent of the Company (which it may withhold in its absolute discretion):
(a) | engage in a Restrained Business; |
(b) | take any action to prepare to Engage in a Restrained Business; |
(c) | be concerned or interested (directly or indirectly, or through any interposed body corporate, trust, principal, agent, shareholder, beneficiary, or as an independent contractor or in any other capacity) in a Restrained Business; |
(d) | solicit, canvas or secure the custom of any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group with whom the Employee dealt at any time during the last 12 months of the Employees employment with the Company for the purpose of transacting business relating to the Restrained Business; |
(e) | accept any instructions to perform any work relating to the Restrained Business for any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group; or |
(f) | induce or attempt to induce an employee or consultant of the Group to terminate their employment or consultancy with the Group. |
10.3 | Independence of restraints |
Each of the restraint obligations imposed by this clause 10 (which results from the combinations of Restraint Area, Restrained Business and Restraint Period) is a separate and independent obligation from the other restraint obligations imposed (although they are cumulative in effect).
10.4 | Reasonableness of restraint |
The Employee acknowledges and agrees that each of the restraint obligations imposed by this clause 10 is reasonable in its extent (as to all of duration, geographical area and restrained conduct) having regard to the interests of each party to this agreement and extends no further (in
11.
any respect) than is reasonably necessary and is solely to protect the Companys legitimate interests.
10.5 | Legal advice |
Each party acknowledges that in relation to this agreement and in particular this clause 10 it has received legal advice or has had the opportunity of obtaining legal advice.
10.6 | Notification to prospective employer |
The Employee must notify any prospective employer of the terms of the restrictions undertaken by him in this agreement.
10.7 | Injunction |
Each party to this agreement acknowledges that monetary damages alone would not be adequate compensation to the Company for a breach of this clause 10 and that the Company is entitled to seek an injunction or other equitable relief from a Court of competent jurisdiction if:
(a) | the Employee fails to comply or threatens to fail to comply with this clause 10; or |
(b) | the Company has reason to believe the Employee will not comply with this clause 10. |
10.8 | Survival |
The obligations in this clause 10 survive termination of this agreement.
11. | Termination |
11.1 | General |
(a) | Either party may terminate this agreement on the provision, in writing, of the period of written notice of termination specified in item 9 of Schedule 1 to the other party. |
(b) | The Company may terminate the Employees employment by making a payment of Base Salary plus superannuation contributions in lieu of notice of termination for all or part of the notice period. |
11.2 | Termination without notice |
The Company may terminate the Employees employment without notice and without paying any amount in lieu of notice if the Employee:
(a) | is guilty of serious misconduct or dishonesty; |
(b) | commits any serious or persistent breach of any of the provisions of this agreement; |
(c) | in the reasonable opinion of the Company, materially or persistently fails or neglects to perform or carry out the Employees duties under this agreement; |
(d) | refuses or neglects to comply with any lawful and reasonable order given to the Employee by the Company or any other person duly authorised by the Company; |
(e) | becomes bankrupt or suspends payment or compounds with or assigns the Employees estate for the benefit of the Employees creditors; |
12.
(f) | is continually and repeatedly absent from the Employees employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(g) | has provided the Company with information about the Employees qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; |
(h) | is incapacitated from performing the Employees duties for an aggregate period of three months in any period of 12 months; or |
(i) | is convicted of any serious criminal offence which in the reasonable opinion of the Company might tend to injure the reputation or the Group or the Business. |
11.3 | No redundancy |
The Employee acknowledges that the Employee will not be entitled to any redundancy payment that the Employee may otherwise be entitled to at law where the Employees employment is transferred to another employer, and qualifying service with the Company, including recognised prior service, is recognised by the new employer for the calculation of all accrued entitlements, including in relation to any subsequent redundancy situation.
11.4 | Employees obligations after termination |
If the Employees employment is terminated for any reason:
(a) | the Company may set off any amounts the Employee owes the Company against any amounts the Company owes the Employee at the date of termination, except for amounts the Company is not entitled by law to set off; and |
(b) | the Employee must immediately return all property belonging to the Company, including all software, computers, credit cards, keys, security access passes, books, vehicles and mobile phones. |
12. | Personal information |
12.1 | Acknowledgement |
The Employee acknowledges that the Company will be required to request and hold personal information relating to the Employee for the purposes of administering the Employees employment.
12.2 | Disclosure |
The Employee consents to the Company or any of its Related Companies disclosing personal information it holds regarding the Employee for purposes related to the Employees employment, and any other related purpose.
13. | General |
13.1 | Entire agreement |
This agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and
13.
indemnities in relation to that subject matter are replaced by this agreement and have no further effect.
13.2 | No merger |
The provisions of this agreement will not merge on completion of any transaction contemplated in this agreement and, to the extent any provision has not been fulfilled, will remain in force.
13.3 | Attorneys |
Each person who executes this agreement on behalf of a party under a power of attorney warrants that he or she has no notice of the revocation of that power or of any fact or circumstance that might affect his or her authority to execute this agreement under that power.
13.4 | Amendment |
This agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.
13.5 | Assignment |
Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of each other party, which must not be unreasonably withheld.
13.6 | Severability |
Part or all of any provision of this agreement that is illegal or unenforceable will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.
13.7 | Waiver |
Waiver of any power or right under this agreement:
(a) | must be in writing signed by the party entitled to the benefit of that power or right; and |
(b) | is effective only to the extent set out in that written waiver. |
13.8 | Rights, remedies additional |
Any rights and remedies that a person may have under this agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
13.9 | Further assurances |
Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).
13.10 | Costs |
Except as specifically provided in this agreement, each party must bear its own legal, accounting and other costs for the preparation and execution of this agreement.
14.
13.11 | Counterparts |
This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
13.12 | Governing law and jurisdiction |
This agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State.
15.
Schedule 1
Details
No. |
Item |
Description |
||
1. |
Commencement Date | 1 February 2010 | ||
2. |
Position | Chief Operating Officer | ||
3. |
Location | Zurich, Switzerland, subject to change upon mutual agreement, and in support of the mutual interests, of both Employee and the Company. | ||
4. |
Base Salary | EUR 140,000. Subject to good-faith cost of living considerations at the Location and/or the Employee exceeding agreed performance targets determined by the Company in its absolute discretion, the base salary shall be reviewed and may be increased annually. | ||
5. |
Term | 4 years | ||
6. |
Other Benefits | The Company will: | ||
(a) on the Commencement Date: |
||||
(i) pay the Employee a sign-on bonus of EUR 20,000; |
||||
(ii) grant the Employee 100,000 Sign-on Options; |
||||
(b) subject to the Employee exceeding agreed performance targets determined by the Company in its absolute discretion from time to time and all laws, on 1 February in each year during the Employees employment with the Company: |
||||
(i) pay the Employee a cash bonus of EUR 15,000; and |
||||
(ii) grant the Employee the number of 600,000 Performance Options determined by the Company in its absolute discretion; |
||||
(c) pay, or reimburse, the Employee for the cost of: |
||||
(i) Airfares for the Employee, his wife and his children to travel to the United States once in each year during the term of the Employees employment with the Company, not to exceed EUR 10,000 in total each year; |
16.
(ii) a comprehensive health and disability insurance policy for the Employee, his wife and his children, during the term of the Employees employment with the Company; |
||||
(iii) the rent of an office or home-office exclusively for Company business, during such time the Company does not maintain its own office at the Location, subject to reasonable and customary rental rates at the Location and the Companys discretion; |
||||
(iv) a laptop computer, printer, fax, and other reasonable and customary office supplies for the Employees exclusive use during the Employees employment with the Company; and |
||||
(v) a mobile phone for the Employees exclusive use during the Employees employment with the Company. |
||||
(vi) fifty percent (50%) of Employees childrens reasonable and customary school fees. |
||||
For the purposes of this Schedule 1: | ||||
(a) Sign-on Option means an option entitling the holder to subscribe for one ordinary share in the Company, and having the terms specified in Schedule 2; and |
||||
(b) Performance Option means an option entitling the holder to subscribe for one ordinary share in the Company, and having the terms specified in Schedule 3. |
||||
7. |
Expense Limit | EUR 500 | ||
8. |
Restraint Area | Global | ||
9. |
Restraint Period | The period of the Employees employment with the Company and the period of six months from the cessation of the Employees employment with the Company; however, if the Employee is terminated by the Company without cause, the Restraint Period shall terminate on the date of Employees employment termination. | ||
10. |
Termination notice period | Three months | ||
11. |
Governing law and jurisdiction | New South Wales, Australia |
17.
Schedule 2
Sign-on Option Terms
1. |
Each Sign-on Option entitles the holder to subscribe for 1 fully paid ordinary share in the Company. |
2. |
Vesting of the Sign-on Options is subject to the holder remaining an employee of the Company until 1 February 2011. |
3. |
Despite any other paragraph of these terms, all Sign-on Options will immediately vest in the holder on the occurrence of either of the following events: |
(a) |
the Employee is terminated by the company without cause after the Probation Period; or |
(b) |
the Employees death, or |
(c) |
the offeror under a takeover bid or announcement acquires (unconditionally) in excess of 50% of the issued voting shares of the Company; or |
(d) |
as a result of the approval of one or more schemes of arrangement any person who is not at the date of issue of the options in control of the Company acquires in excess of 50% of the issued voting shares of the Company. |
4. |
Each Sign-on Option may be exercised at lesser price of ten Australian cents (AUD 0.10) or a price equal to the volume weighted average price of ordinary shares in the Company traded on ASX during the 30 trading days immediately prior to the date of grant of the Sign-on Options to the holder at any time during the period commencing on the date the Sign-on Options vest pursuant to paragraph 2 or 3 of these terms and ending at 5:00 pm (Sydney, NSW time) on 1 February 2011 or within 30 trading days of the Employees death, whichever is earlier ( Expiry Date ) by completing the option exercise form and delivering it to the registered office of the Company. |
5. |
Any Sign-on Option automatically lapses if: |
(a) |
it has not been exercised prior to the Expiry Date; or |
(b) |
the holders employment with the Company is terminated for any one or more of the following reasons: |
(i) |
the holder is guilty of serious misconduct or dishonesty; |
(ii) |
the holder commits any serious or persistent breach of any of the provisions of the holders employment agreement with the Company; |
(iii) |
in the reasonable opinion of the Company, the holder materially or persistently fails or neglects to perform or carry out the holders duties under the holders employment agreement with the Company; |
(iv) |
the holder refuses or neglects to comply with any lawful and reasonable order given to the holder by the Company or any other person duly authorised by the Company; |
18.
(v) |
the holder becomes bankrupt or suspends payment or compounds with or assigns the holders estate for the benefit of the holders creditors; |
(vi) |
the holder is continually and repeatedly absent from the holders employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(vii) |
the holder has provided the Company with information about the holders qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; or |
(viii) |
the holder is convicted of any serious criminal offence. |
6. |
An exercise of only some Sign-on Options will not affect the rights of the holder under the balance of the Sign-on Options held by him or her as appropriate. |
7. |
The Company will not apply for official quotation by ASX of the Sign-on Options. |
8. |
The Sign-on Options are non-transferable and may not be sold, assigned, transferred or otherwise dealt with in any way, except in the sole case of the Employees death whereby Sign-On options shall be transferred to the Employees estate. |
9. |
Shares issued upon the exercise of Sign-on Options will rank pari passu with the Companys fully paid ordinary shares and will have the same voting and other rights as the existing shares of the Company, which are set out in the Companys Constitution, ASX Listing Rules and the Corporations Act. |
10. |
The Company will apply for official quotation by ASX of all shares issued upon exercise of Sign-on Options, subject to any restriction obligations imposed by ASX. |
11. |
The Sign-on Options will not give any right to participate in dividends until shares are issued pursuant to the exercise of the relevant Sign-on Options. |
12. |
There are no participation rights or entitlements inherent in the Sign-on Options and holders will not be entitled to participate in new issues of capital offered to shareholders during the currency of the Sign-on Options. |
13. |
In the event of any reconstruction (including consolidation, subdivision, reduction or return) of the issued capital of the Company prior to the Expiry Date, the number of Sign-on Options or the rights attaching to the Sign-on Options or both shall be reconstructed in accordance with the ASX Listing Rules applying to a reorganisation of capital at the time of the reconstruction. |
19.
Schedule 3
Performance Options
1. |
Each Performance Option entitles the holder to subscribe for 1 fully paid ordinary share in the Company. |
2. |
Vesting of the Performance Options is subject to the holder continuing to be an employee of the Company for not less than four years after the date of grant of the Performance Options to the holder. |
3. |
Despite any other paragraph of these terms, all Performance Options will immediately vest in the holder on the occurrence of either of the following events: |
(a) |
the Employee is terminated by the company without cause; or |
(b) |
the Employees death; or |
(c) |
the offeror under a takeover bid or announcement acquires (unconditionally) in excess of 50% of the issued voting shares of the Company; or |
(d) |
as a result of the approval of one or more schemes of arrangement any person who is not at the date of issue of the options in control of the Company acquires in excess of 50% of the issued voting shares of the Company. |
4. |
Each Performance Option may be exercised at a lesser price of ten Australian cents (AUD 0.10) or a price equal to the volume weighted average price of ordinary shares in the Company traded on ASX during the 30 trading days immediately prior to the date of grant of the Performance Options to the holder at any time during the period commencing on the date the Performance Options vest pursuant to paragraph 2 or 3 of these terms and ending at 5:00 pm (Sydney, NSW time) on the date two years following that date or within 30 trading days of the Employees death, whichever is earlier ( Expiry Date ) by completing the option exercise form and delivering it to the registered office of the Company. |
5. |
Any Performance Option automatically lapses if: |
(a) |
it has not been exercised prior to the Expiry Date; or |
(b) |
the holders employment with the Company is terminated for any one or more of the following reasons: |
(i) |
the holder is guilty of serious misconduct or dishonesty; |
(ii) |
the holder commits any serious or persistent breach of any of the provisions of the holders employment agreement with the Company; |
(iii) |
in the reasonable opinion of the Company, the holder materially or persistently fails or neglects to perform or carry out the holders duties under the holders employment agreement with the Company; |
(iv) |
the holder refuses or neglects to comply with any lawful and reasonable order given to the holder by the Company or any other person duly authorised by the Company; |
20.
(v) |
the holder becomes bankrupt or suspends payment or compounds with or assigns the holders estate for the benefit of the holders creditors; |
(vi) |
the holder is continually and repeatedly absent from the holders employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(vii) |
the holder has provided the Company with information about the holders qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; or |
(viii) |
the holder is convicted of any serious criminal offence. |
6. |
An exercise of only some Performance Options will not affect the rights of the holder under the balance of the Performance Options held by him or her as appropriate. |
7. |
The Company will not apply for official quotation by ASX of the Performance Options. |
8. |
The Performance Options are non-transferable and may not be sold, assigned, transferred or otherwise dealt with in any way, except in the sole case of the Employees death whereby Sign-On options shall be transferred to the Employees estate. |
9. |
Shares issued upon the exercise of Performance Options will rank pari passu with the Companys fully paid ordinary shares and will have the same voting and other rights as the existing shares of the Company, which are set out in the Companys Constitution, ASX Listing Rules and the Corporations Act. |
10. |
The Company will apply for official quotation by ASX of all shares issued upon exercise of Performance Options, subject to any restriction obligations imposed by ASX. |
11. |
The Performance Options will not give any right to participate in dividends until shares are issued pursuant to the exercise of the relevant Performance Options. |
12. |
There are no participation rights or entitlements inherent in the Performance Options and holders will not be entitled to participate in new issues of capital offered to shareholders during the currency of the Performance Options. |
13. |
In the event of any reconstruction (including consolidation, subdivision, reduction or return) of the issued capital of the Company prior to the Expiry Date, the number of Performance Options or the rights attaching to the Performance Options or both shall be reconstructed in accordance with the ASX Listing Rules applying to a reorganisation of capital at the time of the reconstruction. |
21.
EXECUTED as an agreement |
||||||||
EXECUTED by PRIMA BIOMED |
) |
|||||||
LIMITED ACN 009 237 889 in |
) |
|||||||
accordance with section 127 of the |
) |
|||||||
Corporations Act 2001 |
) |
|||||||
) |
||||||||
/s/ Martin Rogers |
/s/ Ata Gokyildirim |
|||||||
Signature of Director |
Signature of Director/Secretary |
|||||||
Martin Rogers |
Ata Gokyildirim |
|||||||
Name of Director |
Name of Director/Secretary |
|||||||
SIGNED by MATTHEW BRYSON |
) |
|||||||
LEHMAN i n the presence of: |
) |
|||||||
) |
||||||||
) |
||||||||
) |
||||||||
/s/ Anna Kasik-Korenbet |
/s/ Matthew Bryson Lehman |
|||||||
Signature of Witness |
Matthew Bryson Lehman |
|||||||
Anna Kasik-Korenbet |
||||||||
Name of Witness |
22.
Exhibit 4.13
Employment Agreement |
|
Prima Biomed Limited ACN 009 237 889 |
Ginny Raymond |
McCabe Terrill Lawyers Pty Limited ACN 122 850 033
130 Elizabeth Street (Level 14) Sydney NSW 2000
GPO Box 235 Sydney NSW 2001 DX 145 Sydney |
T +61 2 9261 1211
F +61 2 9261 2336
W www.mccabeterrill.com.au |
Table of Contents
1. |
Definition and Interpretation | 3 | ||||
2. |
Commencement and pre-conditions to employment | 5 | ||||
3. |
Position and duties | 6 | ||||
4. |
Hours of Work | 7 | ||||
5. |
Remuneration | 7 | ||||
6. |
Leave Entitlements | 8 | ||||
7. |
Conflicts of Interest | 9 | ||||
8. |
Confidential Information | 9 | ||||
9. |
Intellectual Property | 10 | ||||
10. |
Restraint | 10 | ||||
11. |
Termination | 12 | ||||
12. |
Personal information | 13 | ||||
13. |
General | 13 | ||||
Schedule 1 |
16 | |||||
Schedule 2 |
17 | |||||
Schedule 3 |
2.
Dated
Parties
Prima Biomed Limited |
ACN 009 237 889 |
|
Address: |
Suite 1, 1233 High Street, ARMADALE, VIC, AUSTRALIA, 3143 |
|
Facsimile: |
+ 61 3 9822 7735 |
|
Attention: |
Martin Rogers |
|
(Company) |
||
Ginny Raymond |
||
Address: |
59 Whippoorwill Crossing |
|
Armonk, NY 10504 USA |
||
Facsimile: |
+1 914 273 9153 |
|
(Employee) |
Background
A | The Company operates the Business. |
B | The Company has agreed to employ the Employee, and the Employee has agreed to serve the Company as an employee, on the terms and conditions of this agreement. |
1. |
Definition and Interpretation |
1.1 |
Definitions: |
In this agreement, unless the contrary intention appears, the following words have the following meanings:
Term: | Definition: | |
Business |
the business carried on by Group, being the business of researching, developing and commercialising a portfolio of biotechnology products related to the therapeutic area of cancer, and such other business as the Company advises the Employee of in writing during the course of the Employees employment. | |
Claim |
in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent. | |
Commencement Date |
the date specified in item 1 of Schedule 1. | |
Confidential Information |
any information, whether in written, electronic or other form, which the Employee has access to during the Employees employment with the Company or in the Business, including: | |
(a) information relating to the customers or suppliers of the Group including (without limitation): |
||
(i) their contact details; |
3.
(ii) information relating to expenditure and consumption levels of the Groups customers or suppliers; and |
||
(iii) the prices and costs at which the Group sells products to customers or sources material from suppliers; |
||
(b) details of the transactions or affairs of the Group; |
||
(c) financial information relating to the Group; |
||
(d) trade secrets; |
||
(e) business forecasts, strategic plans and projections, operational structure, methodology and future developments of the Group; |
||
(f) marketing information relating to the Group, including marketing plans and methodologies, promotional material and presentations; |
||
(g) product ingredients, formulae, designs, specifications, ideas, concepts and techniques used or contemplated to be used in relation to the Business of the Group or relating to any products sold or distributed by the Group; |
||
(h) information concerning the Groups employees, contractors or agents; |
||
(i) technological processes, technology and equipment used or contemplated to be used in relation to the Business or the Group; and |
||
(j) any other information or data that the Employee is given or which comes to the Employees knowledge during the course of the employment that the Employee is told is confidential, or that a reasonable person would expect from its nature to be confidential. |
||
Corporations Act |
Corporations Act 2001 (Cth). | |
Group |
the Company and each of its Related Companies. | |
Human Resources Manual |
the human resources manual issued by the Company to its employees, as varied from time to time. | |
Intellectual Property Rights |
all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other rights resulting from intellectual activities in the industrial, scientific, literary, commercial or artistic fields of the Company. | |
Location |
the location specified in item 3 of Schedule 1. |
4.
Position |
the position specified in item 2 of Schedule 1, and any other position to which the Employee is appointed in accordance with this agreement. | |
Related Company |
has the same meaning given to that term in section 50 of the Corporations Act. | |
Remuneration Package |
the Employees annual remuneration package as specified in clause 5.1, and includes any variations as agreed between the Company and the Employee or as determined by the Company. |
1.2 |
Interpretation |
In this agreement, unless the context otherwise requires:
(a) | the singular includes the plural and vice versa; |
(b) | another grammatical form of a defined word or expression has a corresponding meaning; |
(c) | a reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to this agreement and a reference to this agreement includes any schedule or annexure; |
(d) | a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time; |
(e) | a reference to a party to this agreement, and a reference to a party to a document includes the partys executors, administrators, successors and permitted assigns and substitutes; |
(f) | a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; |
(g) | a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
(h) | the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; |
(i) | a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and |
(j) | headings are for ease of reference only and do not affect interpretation. |
2. | Commencement and pre-conditions to employment |
2.1 | Commencement Date |
The Employees employment with the Company will commence on the Commencement Date and will continue until terminated in accordance with clause 2.2(b) or 11.
5.
2.2 |
Probationary period |
(a) | The Employees employment with the Company is subject to an initial three month probationary period (Probationary Period) . |
(b) | The Company may terminate the Employees employment at any time during the Probationary Period by providing the Employee, in writing, one weeks notice of termination (or payment in lieu of such notice). |
2.3 | Warranty |
(a) | The Employee represents and warrants to the Company that the entry into this agreement, and the performance of this agreement, by the Employee will not constitute a breach of any contractual obligation, including any previous employment obligation, or of any relevant restraint, non-competition, confidentiality or intellectual property obligations, owed to any former employer. |
(b) | The Employee indemnifies the Company and its officers against any Claim which the Company and its officers, pays or is liable for arising directly or indirectly from the Employee breaching the warranty set out in clause 2.3(a). |
3. | Position and duties |
3.1 | Position |
(a) | The Company agrees to employ the Employee and the Employee will work for the Company: |
(i) | in the Position at the Location; and |
(ii) | in any additional or reasonably comparable substituted position directed by the Company and to which the Employee is appointed by the Company, after consultation with the Employee. |
(b) | For the avoidance of doubt, the terms and conditions set out in this agreement will continue to apply irrespective of any permitted change to the Position, unless otherwise agreed in writing by the Company and the Employee. |
3.2 | Duties |
The Employee must perform the Employees duties consistent with the Position as assigned to the Employee from time to time by the Company to the best of the Employees ability and knowledge and in accordance with the highest standards of professionalism, whether during or outside business hours. Without limitation, the Employee must
(a) | comply with all reasonable directions given to the Employee by the Company; |
(b) | comply with all laws applicable to the Position in each of the jurisdictions in which the Group operates; |
(c) | maintain professional awareness and development of skills and knowledge to ensure maintenance of best practice; |
(d) | use all reasonable endeavours to safe guard the success, reputation and interests of the Group. |
6.
3.3 |
Company Policies |
(a) | The Employees employment with the Company is subject to the Companys rules and procedures set out in the Human Resources Manual. |
(b) | It is the Employees responsibility to be thoroughly familiar with the contents of the Human Resources Manual, as varied and updated from time to time by the Company. |
(c) | In the event that any conflict exists between this agreement and the Human Resources Manual, this agreement prevails. |
4. | Hours of Work |
4.1 | Hours |
(a) | The Employees usual hours of work will be 38 hours per week, worked on Monday to Friday inclusive ( Usual Hours ). |
(b) | The Employee will also be required to commit whatever reasonable additional hours ( Additional Hours ) are needed to properly manage and perform the Employees duties and meet the reasonable requirements of the Position. |
(c) | The Employee acknowledges that given the nature of the Position and the remuneration payable under this agreement the requirement to work Additional Hours is reasonable. |
4.2 | Payment |
The Employee agrees and acknowledges that the Remuneration Package comprises compensation for Usual Hours and all and any Additional Hours worked by the Employee, and that the Employee is not entitled to payment of any amount in addition to the Remuneration Package for any hours worked by the Employee outside the Usual Hours, unless discussed and agreed to by the company.
5. | Remuneration |
5.1 | Remuneration Package |
(a) | The Employee will be entitled to receive a Remuneration Package comprising: |
(i) | a base salary in the amount specified in item 4 of Schedule 1 (Base Salary); and |
(ii) | other benefits specified in item 6 of Schedule 1. |
(b) | The Remuneration Package is subject to the deduction or withholding of any amounts on account of any applicable taxation within the United States. |
5.2 | Payment of Base Salary |
The Employees Base Salary will be paid monthly by direct deposit into a bank account of the Employees choice.
5.3 | Superannuation |
The Remuneration Package is inclusive of superannuation, unless otherwise specified.
7.
5.4 |
Remuneration review |
The Company will review the Remuneration Package on an annual basis and the Company may alter the Employees total Remuneration Package and its components following that review.
5.5 | Expenses |
(a) | Subject to clause 5.5(b), the Company will pay for or reimburse the Employee for out of pocket expenses properly incurred by the Employee in connection with the Employees employment, provided that the Employee provides the Company on request with a tax invoice substantiating each expense. |
(b) | In the case of individual expenses exceeding the amount specified in item 7 of Schedule 1, the Employee must obtain the written approval of the Company in advance. |
5.6 | Deductions |
The Company may deduct from the Base Salary or other sums due to the Employee any amount owned by the Employee on any account to the Group.
6. | Leave Entitlements |
6.1 | Annual Leave |
(a) | The Employee is entitled to 20 days paid annual leave per year. |
(b) | Annual leave will accrue on a pro-rata basis at the end of each completed four week period of continuous service with the Company and is cumulative. |
(c) | There is no entitlement to leave loading in respect to annual leave. |
6.2 | Personal/Carers Leave |
(a) | The Employee is entitled to 10 days paid personal/carers leave per year. The Employee may use this personal/carers leave as sick leave or carers leave. |
(b) | Personal/carers leave will accrue on a pro rata basis at the end of each completed four week period of service with the Company and is cumulative. |
(c) | Accrued personal/carers leave will not form part of any benefit payable to the Employee on termination of the Employees employment. |
(d) | The Company may require the Employee to provide documentary evidence to support any personal/carers leave period. |
6.3 | Compassionate leave |
(a) | The Employee is entitled to paid compassionate leave of up to five days for each occasion when a member of the Employees immediate family or a household member: |
(i) | contracts or develops a personal injury or illness that poses a serious threat to the Employees life; or |
(ii) | dies. |
8.
(b) |
Other special leave may be granted to the Employee in extenuating circumstances at the absolute discretion of the Company. |
6.4 |
Parental Leave |
The Employee will be entitled to parental leave in accordance with the applicable legislation in the Location.
6.5 |
Long Service Leave |
The Employee will be entitled to long service leave in accordance with the applicable legislation in the Location.
7. |
Conflicts of Interest |
7.1 |
Disclosure of interests |
The Employee must declare to the Company the nature of any interests that the Employee may have directly or indirectly which might or might reasonably be expected to conflict with the Employees duties to the Company.
7.2 |
Restriction |
The Employee must not engage in any work with products of a competitive nature to the company during the term of this agreement without the written consent of the Company and the Employee must not be induced or agree to accept any commission, reward or benefit in connection with the Business from any person other than that which is provided under this agreement.
8. |
Confidential Information |
8.1 |
Prohibitions |
The Employee must not without the Companys prior written consent, either during the Employees employment with the Company or at any time after the termination of the Employees employment with the Company:
(a) |
use for the Employees or anothers advantage any Confidential Information; |
(b) |
disclose to any person any Confidential Information, either directly or indirectly; |
(c) |
make copies of any Confidential Information; or |
(d) |
counsel, procure or assist any person or corporation to use or disclose any Confidential Information, |
other than as reasonably required in the performance of the Employees duties as an employee of the Company or as required by law.
8.2 |
Protecting Unauthorised Use or Disclosure |
The Employee must use the Employees best endeavours to prevent the unauthorised use or disclosure of Confidential Information by, or to, any third party.
9.
8.3 |
Information already available to the public |
Clause 8.1 and 8.2 do not apply to information which is freely available to the public, other than as a result of a breach by the Employee of this agreement.
8.4 |
Survival |
The obligations in this clause 8 survive termination of this agreement.
9. |
Intellectual Property |
9.1 |
Intellectual Property Rights |
The Employee agrees that all Intellectual Property Rights created by the Employee during the course of, and in connection with, the Employees employment with the Company will immediately be disclosed and assigned to, and vest in, the Company or such other person or company as may be nominated by the Company as such rights are created.
9.2 |
Employee to assist |
The Employee agrees to execute all documents and do all acts and things required by the Company for the purpose of vesting Intellectual Property Rights as prescribed by this clause 9, including without limitation executing a deed of assignment of intellectual Property Rights in favour of the Company or its nominee.
9.3 |
Royalties |
The Employee acknowledges that all royalties, payments, fees, income or any other remuneration arising from Intellectual Property Rights are owned by the Company.
9.4 |
Moral rights |
To the extent permitted by law, the Employee waives all of the Employees moral rights in respect of any acts of the Company or any acts of third parties done with the Companys authority in relation to any Intellectual Property Rights that are the property of the Company and consent to the use, treatment, alteration and attribution of such Intellectual Property Rights as deemed appropriate by the Company.
9.5 |
Survival |
The obligations in this clause 9 survive termination of this agreement.
10. |
Restraint |
10.1 |
Clause 10 definitions |
In this clause 10 (and any other provision of this agreement which relates to this clause or its subject matter), unless the context otherwise requires:
(a) |
Engage in means to participate, assist or otherwise be directly or indirectly involved in, including as a member, shareholder, unitholder, director, consultant, adviser, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier; |
(b) |
Restraint Area means the areas specified in item 8 of Schedule 1; |
10.
(c) | Restrained Business means a business or operation similar to, or competitive with, the Business; and |
(d) | Restraint Period means the period specified in item 9 of Schedule 1. |
10.2 | Restraint obligations |
During the Restraint Period, the Employee must not, either directly, indirectly or as a result of contact by any other party, in the Restraint Area, without the prior written consent of the Company (which it may withhold in its absolute discretion):
(a) | engage in a Restrained Business; |
(b) | take any action to prepare to Engage in a Restrained Business; |
(c) | be concerned or interested (directly or indirectly, or through any interposed body corporate, trust, principal, agent, shareholder, beneficiary, or as an independent contractor or in any other capacity) in a Restrained Business; |
(d) | solicit, canvas or secure the custom of any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group with whom the Employee dealt at any time during the last 12 months of the Employees employment with the Company for the purpose of transacting business relating to the Restrained Business; |
(e) | accept any instructions to perform any work relating to the Restrained Business for any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group; or |
(f) | induce or attempt to induce an employee or consultant of the Group to terminate their employment or consultancy with the Group. |
10.3 | Independence of restraints |
Each of the restraint obligations imposed by this clause 10 (which results from the combinations of Restraint Area, Restrained Business and Restraint Period) is a separate and independent obligation from the other restraint obligations imposed (although they are cumulative in effect).
10.4 | Reasonableness of restraint |
The Employee acknowledges and agrees that each of the restraint obligations imposed by this clause 10 is reasonable in its extent (as to all of duration, geographical area and restrained conduct) having regard to the interests of each party to this agreement and extends no further (in any respect) than is reasonably necessary and is solely to protect the Companys legitimate interests.
10.5 | Legal advice |
Each party acknowledges that in relation to this agreement and in particular this clause 10 it has received legal advice or has had the opportunity of obtaining legal advice.
10.6 | Notification to prospective employer |
The Employee must notify any prospective employer of the terms of the restrictions undertaken by him in this agreement.
11.
10.7 | Injunction |
Each party to this agreement acknowledges that monetary damages alone would not be adequate compensation to the Company for a breach of this clause 10 and that the Company is entitled to seek an injunction or other equitable relief from a Court of competent jurisdiction if:
(a) | the Employee fails to comply or threatens to fail to comply with this clause 10; or |
(b) | the Company has reason to believe the Employee will not comply with this clause 10. |
10.8 | Survival |
The obligations in this clause 10 survive termination of this agreement.
11. | Termination |
11.1 | General |
(a) | Either party may terminate this agreement on the provision, in writing, of the period of written notice of termination specified in item 10 of Schedule 1 to the other party. |
(b) | The Company may terminate the Employees employment by making a payment of Base Salary plus superannuation contributions in lieu of notice of termination for all or part of the notice period. |
11.2 | Termination without notice |
The Company may terminate the Employees employment without notice and without paying any amount in lieu of notice if the Employee:
(a) | is guilty of serious misconduct or dishonesty; |
(b) | commits any serious or persistent breach of any of the provisions of this agreement; |
(c) | in the reasonable opinion of the Company, materially or persistently fails or neglects to perform or carry out the Employees duties under this agreement; |
(d) | refuses or neglects to comply with any lawful and reasonable order given to the Employee by the Company or any other person duly authorised by the Company; |
(e) | becomes bankrupt or suspends payment or compounds with or assigns the Employees estate for the benefit of the Employees creditors; |
(f) | is continually and repeatedly absent from the Employees employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(g) | has provided the Company with information about the Employees qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; |
(h) | is incapacitated from performing the Employees duties for an aggregate period of three months in any period of 12 months; or |
12.
(i) | is convicted of any serious criminal offence which in the reasonable opinion of the Company might tend to injure the reputation or the Group or the Business. |
11.3 | No redundancy |
The Employee acknowledges that the Employee will not be entitled to any redundancy payment that the Employee may otherwise be entitled to at law where the Employees employment is transferred to another employer, and qualifying service with the Company, including recognised prior service, is recognised by the new employer for the calculation of all accrued entitlements, including in relation to any subsequent redundancy situation.
11.4 | Employees obligations after termination |
If the Employees employment is terminated for any reason:
(a) | the Company may set off any amounts the Employee owes the Company against any amounts the Company owes the Employee at the date of termination, except for amounts the Company is not entitled by law to set off; and |
(b) | the Employee must immediately return all property belonging to the Company, including all software, computers, credit cards, keys, security access passes, books, vehicles and mobile phones. |
12. | Personal information |
12.1 | Acknowledgement |
The Employee acknowledges that the Company will be required to request and hold personal information relating to the Employee for the purposes of administering the Employees employment.
12.2 | Disclosure |
The Employee consents to the Company or any of its Related Companies disclosing personal information it holds regarding the Employee for purposes related to the Employees employment, and any other related purpose.
13. | General |
13.1 | Entire agreement |
This agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this agreement and have no further effect.
13.2 | No merger |
The provisions of this agreement will not merge on completion of any transaction contemplated in this agreement and, to the extent any provision has not been fulfilled, will remain in force.
13.
13.3 |
Attorneys |
Each person who executes this agreement on behalf of a party under a power of attorney warrants that he or she has no notice of the revocation of that power or of any fact or circumstance that might affect his or her authority to execute this agreement under that power.
13.4 |
Amendment |
This agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.
13.5 |
Assignment |
Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of each other party, which must not be unreasonably withheld.
13.6 |
Severability |
Part or all of any provision of this agreement that is illegal or unenforceable will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.
13.7 |
Waiver |
Waiver of any power or right under this agreement:
(a) |
must be in writing signed by the party entitled to the benefit of that power or right; and |
(b) |
is effective only to the extent set out in that written waiver. |
13.8 |
Rights, remedies additional |
Any rights and remedies that a person may have under this agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
13.9 |
Further assurances |
Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).
13.10 |
Costs |
Except as specifically provided in this agreement, each party must bear its own legal, accounting and other costs for the preparation and execution of this agreement.
13.11 |
Counterparts |
This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
14.
13.12 |
Governing law and jurisdiction |
This agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State.
15.
Schedule
Details
No. |
Item |
Description |
||
1. | Commencement Date | 1 st December 2009 | ||
2. | Position | Clinical Affairs Director | ||
3. | Location | United States of America | ||
4. | Base Salary | US$175,000/year | ||
5. | Term | 4 years | ||
6. | Other Benefits | The Company will: | ||
(a) subject to the Employee exceeding agreed performance targets determined by the Company in its absolute discretion from time to time and all laws, on 1st December in second year and on the fourth year during the Employees employment with the Company grant the Employee 1,000,000 of Performance Options; |
||||
(b) pay, or reimburse, the Employee for the cost of a comprehensive health insurance policy for the Employee during the term of the Employees employment with the Company; |
||||
For the purposes of this Schedule 1, Performance Option means an option entitling the holder to subscribe for one ordinary share in the Company, and having the terms specified in Schedule 2. | ||||
7. | Expense Limit | US$1000.00, exclusive of airline tickets | ||
8. | Restraint Area | N/A | ||
9. | Restraint Period | The period of the Employees employment with the Company and the period of six months from the cessation of the Employees employment with the Company. | ||
10. | Termination notice period | Three months | ||
11. | Governing law and jurisdiction | New South Wales, Australia |
16.
Schedule 2
Performance Options
1. |
Each Performance Option entitles the holder to subscribe for 1 fully paid ordinary share in the Company. |
2. |
Vesting of the Performance Options is subject to the holder continuing to be an employee of the Company for not less than two years after the date of grant of the Performance Options to the holder. |
3. |
Despite any other paragraph of these terms, all Performance Options will immediately vest in the holder on the occurrence of either of the following events: |
(a) |
the offeror under a takeover bid or announcement acquires (unconditionally) in excess of 50% of the issued voting shares of the Company; or |
(b) |
as a result of the approval of one or more schemes of arrangement any person who is not at the date of issue of the options in control of the Company acquires in excess of 50% of the issued voting shares of the Company. |
4. |
Each Performance Option may be exercised at lesser of a price equal to ten cents(10) or the volume weighted average price of ordinary shares in the Company traded on ASX during the 30 trading days immediately prior to the date of grant of the Performance Options to the holder at any time during the period commencing on the date the Performance Options vest pursuant to paragraph 2 or 3 of these terms and ending at 5:00 pm (Sydney, NSW time) on the date two years following that date (Expiry Date) by completing the option exercise form and delivering it to the registered office of the Company. |
5. |
Any Performance Option automatically lapses if: |
(a) |
it has not been exercised prior to the Expiry Date; or |
(b) |
the holders employment with the Company is terminated for any one or more of the following reasons: |
(i) |
the holder is guilty of serious misconduct or dishonesty; |
(ii) |
the holder commits any serious or persistent breach of any of the provisions of the holders employment agreement with the Company; |
(iii) |
in the reasonable opinion of the Company, the holder materially or persistently fails or neglects to perform or carry out the holders duties under the holders employment agreement with the Company; |
(iv) |
the holder refuses or neglects to comply with any lawful and reasonable order given to the holder by the Company or any other person duly authorised by the Company; |
(v) |
the holder becomes bankrupt or suspends payment or compounds with or assigns the holders estate for the benefit of the holders creditors; |
17.
(vi) |
the holder is continually and repeatedly absent from the holders employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(vii) |
the holder has provided the Company with information about the holders qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; or |
(viii) |
the holder is convicted of any serious criminal offence. |
6 |
An exercise of only some Performance Options will not affect the rights of the holder under the balance of the Performance Options held by him or her as appropriate. |
7. |
The Company will not apply for official quotation by ASX of the Performance Options. |
8. |
The Performance Options are non-transferable and may not be sold, assigned, transferred or otherwise dealt with in any way. |
9. |
Shares issued upon the exercise of Performance Options will rank pari passu with the Companys fully paid ordinary shares and will have the same voting and other rights as the existing shares of the Company, which are set out in the Companys Constitution, ASX Listing Rules and the Corporations Act. |
10. |
The Company will apply for official quotation by ASX of all shares issued upon exercise of Performance Options, subject to any restriction obligations imposed by ASX. |
11. |
The Performance Options will not give any right to participate in dividends until shares are issued pursuant to the exercise of the relevant Performance Options. |
12. |
There are no participation rights or entitlements inherent in the Performance Options and holders will not be entitled to participate in new issues of capital offered to shareholders during the currency of the Performance Options. |
13. |
In the event of any reconstruction (including consolidation, subdivision, reduction or return) of the issued capital of the Company prior to the Expiry Date, the number of Performance Options or the rights attaching to the Performance Options or both shall be reconstructed in accordance with the ASX Listing Rules applying to a reorganisation of capital at the time of the reconstruction. |
18.
EXECUTED as an agreement |
||||||||
EXECUTED by PRIMA BIOMED |
) |
|||||||
LIMITED ACN 009 237 889 in |
) |
|||||||
accordance with section 127 of the |
) |
|||||||
Corporations Act 2001 |
) |
|||||||
) |
||||||||
/s/ Martin Rogers |
/s/ Ata Gokyildirim |
|||||||
Signature of Director |
Signature of Director/Secretary |
|||||||
Martin Rogers |
Ata Gokyildirim |
|||||||
Name of Director |
Name of Director/Secretary |
|||||||
SIGNED by GINNY RAYMOND |
) |
|||||||
in the presence of: |
) |
|||||||
) |
||||||||
) |
||||||||
) |
||||||||
/s/ Sydney Welt |
/s/ Ginny Raymond |
|||||||
Signature of Witness |
Ginny Raymond |
|||||||
Sydney Welt |
||||||||
Name of Witness |
19.
Exhibit 4.14
Consulting Agreement
This Agreement (Agreement) is by and between Prima Biomed USA Inc., including its affiliates and subsidiaries, having its principal office at 415 East 37th Street, Suite 7D, New York, NY 10016 (hereinafter collectively referred to as Company) and Sharron Gargosky, PhD, at 2833 NW Cumberland Rd, Portland, OR 97210 (hereinafter referred to as Consultant).
In consideration of the mutual covenants as set forth below, the parties named above agree as follows:
1. |
SERVICES The services to be performed by Consultant (Services) involve |
|
Assisting in the strategic planning of CVac TM development, as well as management of related scientific, nonclinical, clinical, and regulatory issues; |
|
Providing information and independent opinions to the Company with regards to CVac TM and other products under development; and |
|
Other services as requested by the Company |
These Services will be provided by Sharron Gargosky, PhD.
2. |
COMPENSATION The compensation to be paid to Consultant for performance of the Services described above will be based on actual hours worked on the project. The billing rate is $175 per hour for regular working time and 50% thereof for travel time (including air, rail, and auto travel to and from any place not the Consultants regular place of work). Consultant shall be reimbursed upon receipt of an invoice for all reasonable travel, lodging, and meal expenses, and all reasonable expenses incidental to travel and other expenses specific to the Services provided. Consultant shall receive prior approval from Company prior to incurring incidental expenses exceeding $500; the Company reserves the right not to reimburse costs exceeding $500 if prior approval was not been granted. Invoices will be provided to Company on a monthly basis and will identify work performed for the invoice month according to Companys standard hour tracking. Payment will be due within 30 days of invoice date. Consultant will charge a late payment fee of 1 1 / 2 % per month, or the maximum amount permitted by law if less than 1 1 / 2 % per month, for any payment not received within 30 days from invoice date. If a portion of an invoice is in dispute, then Company shall pay the undisputed amounts as set forth in the preceding sentence and the parties shall use good faith efforts to reconcile the disputed amount within (60) days invoice date. |
3. |
RIGHTS TO DEVELOPMENT All work product developed by Consultant in the performance of Services including, but not limited to, papers, records, reports, analyses, computer based information and drawings (collectively Developments) and the patentable intellectual property rights in any such material will be the sole and exclusive property of Company provided, however, that Consultant shall retain the sole and exclusive right to any procedural manuals, personnel data, computer software, processes, process technology, means and know-how developed by Consultant independently from Consultants Services provided under this Agreement. |
4. |
CONFIDENTIAL INFORMATION In order to facilitate Consultants Services under this Agreement, it may be necessary for Company to disclose certain data and other proprietary information to Consultant that will, if possible, be labeled with the text confidential, and/or to provide Consultant with samples, which, together with any information generated by Consultant in performing Consultants Services for Company hereunder (collectively Technology). Consultant agrees to retain in strict confidence and not to disclose or transfer any Technology denoted as confidential to any party other than as authorized by Company. Consultant further agrees not to use such information for any purposes other than those of this Agreement. Upon completion of Consultants Services hereunder, Consultant will return all Technology copies and any remaining samples to Company, upon request by Company. These obligations of confidentiality and non-use shall not apply to technology: a) that was previously known to Consultant as evidenced by Consultants written records, b) that is lawfully obtained by Consultant from a source independent |
Page 1
of Company, c) that is now or becomes public knowledge other than by breach of this Agreement, or d) is otherwise required to be disclosed by law. |
All information regarding Consultants pricing and Consultants procedural manuals, data, computer software, processes, process technology, means and know-how developed by Consultant and disclosed by Consultant to Company in connection with this Agreement is proprietary, confidential information (Consultant Know-How) belonging to Consultant. Consultant Know-How will be held confidential by Company.
5. |
TERM AND TERMINATION This Agreement will commence on 5 July 2010 and remains in full force and effect until 31 December 2010, unless mutually extended or terminated early. This Agreement may be terminated by either party, at any time, upon 30-days advance written notice to the other party. Upon the termination of this Agreement, each party will be released from all obligations and liabilities to the other occurring or arising after the date of termination, except that such termination will not relieve either party of its obligations under Paragraph 4 above, for a period of five (5) years from termination of this Agreement or from liability arising from any breach of this Agreement. The obligations under Paragraph 12 shall survive the expiration or termination of this Agreement for a period of five (5) years. |
6. |
ASSIGNMENT The rights and liabilities of the parties will bind and inure to the benefit of their respective successors, heirs, executors and administrators, as the case may be, provided that Company has specifically contracted for Consultants services. Consultant may not assign or delegate its obligations under this Agreement either in whole or in part without the prior written consent of Company. |
7. |
GOVERNING LAW: SEVERABILITY This Agreement will be governed by the laws of the State of New York without reference to any conflict of law provision. The parties hereby consent to the jurisdiction of the New York courts for resolution of any disputes arising under this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, that provision will be severed and the remainder of this Agreement will continue in full force and effect. |
8. |
COMPLETE UNDERSTANDING: MODIFICATION Except as expressly provided herein, this Agreement will supersede and render null and void any and all prior Agreements between the parties and their agents and personnel on the subject of this Agreement. Any modifications to the provisions herein must be in writing and signed by the parties. |
9. |
NOTICES Any notices required or permitted hereunder will be given in writing to the appropriate party at the address specified below or at such address as the party will specify. Such notice will be deemed given upon personal delivery to the appropriate address or sent by certified or registered mail, three days after the date of mailing. |
10. |
FORCE MAJEURE No party shall be liable for the delay in performance or failure to perform this Agreement if such delay or failure is due to any occurrence beyond the control of the parties including, without limitation, fire, explosion, weather, disease, war, insurrection, civil strife, riots, government action or power failure; provided, however, that the party who is unable to perform resumes performance as soon as possible following the end of the occurrence causing delay or failure. |
11. |
WAIVER The waiver of either party or the failure by either party to claim a breach of any provision of this Agreement shall not be deemed to constitute a waiver or estoppel with respect to any subsequent breach or with respect to any provision thereof. |
12. |
INDEMNITY Company hereby agrees to indemnify, defend, and hold Consultant harmless from and against any and all loss, claims, actions, liability and/or suits (including reasonable attorneys |
Page 2
fees) arising directly or indirectly as a result of this Agreement except to the extent that any such loss, cost, claims, actions, liability and/or suits is directly caused by the gross negligence or intentional misconduct of Consultant in the performance of the Services under this Agreement. |
Consultant hereby agrees to indemnify, defend, and hold Company, its employees, officers, directors and principals harmless from and against any and all loss, claims, actions, liability and/or suits (including reasonable attorneys fees) arising directly as a result of the gross negligence or intentional misconduct of Consultant in the performance of its Services under this Agreement except to the extent that any such loss, cost, claims, actions, liability and/or suits is directly caused by the gross negligence or intentional misconduct of Company, its employees, officers, directors and principals.
13. |
DAMAGES In the event of any breach or default by either party with respect to this Agreement, the defaulting partys damage liability to the non-defaulting party for such breach or default shall be limited to the non-defaulting partys direct damages which shall not exceed the fees paid by Company to Consultant under this Agreement. Under no circumstances will either party be liable for any consequential, special or indirect damages for the breach of its obligations under this Agreement |
14. |
NON-COMPETITION Without prior consent of the Company, during the term of this Agreement, Consultant agrees not to consult with, provide services to, or assist (actively or otherwise), whether paid or unpaid, any Direct Competitor of Prima BioMed USA Inc., or its Affiliates. For purposes of this Agreement, a Direct Competitor means any person, group, or company researching and/or developing cell therapeutics or immunological medicinal products intended for the treatment or prevention of cancer. |
15. |
INDEPENDENT CONTRACTOR For the purposes of this Agreement, the parties hereto are independent contractors and nothing contained in this Agreement shall be construed to place them in the relationship of partners, principal and agent, employer/employee or joint ventures. Neither party shall have the power or right to bind or obligate the other party, nor shall it hold itself out as having such authority. |
The parties hereto have executed this Agreement as of the last date signed below.
Prima BioMed USA Inc. | ||||
By: |
/s/ Matthew Lehman |
(signature) | ||
Name: | Matthew Lehman | |||
Title: | Chief Operating Officer | |||
Date: | 20 July 2010 |
Consultant:
By: |
/s/ Sharron Gargosky |
(signature) |
||
Name: |
Sharron Gargosky, PhD |
|||
Title: |
Member |
|||
Date: |
20 July 2010 |
Page 3
Exhibit 4.15
Table of Contents
1. | Definition and Interpretation | 3 | ||||
2. | Commencement and pre-conditions to employment | 5 | ||||
3. | Position and duties | 6 | ||||
4. | Hours of Work | 7 | ||||
5. | Remuneration | 7 | ||||
6. | Leave Entitlements | 8 | ||||
7. | Conflicts of Interest | 9 | ||||
8. | Confidential Information | 9 | ||||
9. | Intellectual Property | 10 | ||||
10. | Restraint | 10 | ||||
11. | Termination | 12 | ||||
12. | Personal information | 13 | ||||
13. | General | 13 | ||||
Schedule 1 | 16 | |||||
Schedule 2 | 18 | |||||
Schedule 3 | 20 |
Dated 7/12/09
Parties
Prima Biomed Limited ACN 009 237 889 |
||
Address: | Suite 1,1233 High Street, ARMADALE,VIC,AUSTRALIA,3143 | |
Facsimile: | + 61 3 9822 7735 | |
Attention: | Martin Rogers | |
(Company) |
Matthew Bryson Lehman | ||
Address: | Horodetskoho 17/1, Apt 7, 01001 Kyiv, Ukraine | |
Facsimile: | N/A | |
(Employee) |
Background
A | The Company operates the Business. |
B | The Company has agreed to employ the Employee, and the Employee has agreed to serve the Company as an employee, on the terms and conditions of this agreement. |
1. | Definition and Interpretation |
1.1 | Definitions |
In this agreement, unless the contrary intention appears, the following words have the following meanings:
Term: |
Definition: | |||||
Business | the business carried on by Group, being the business of researching, developing and commercialising a portfolio of biotechnology products related to the therapeutic area of cancer, and such other business as the Company advises the Employee of in writing during the course of the Employees employment. | |||||
Claim | in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent. | |||||
Commencement Date | the date specified in item 1 of Schedule 1. | |||||
Confidential Information | any information, whether in written, electronic or other form, which the Employee has access to during the Employees employment with the Company or in the Business, including: | |||||
(a) |
information relating to the customers or suppliers of the Group including (without limitation): | |||||
(i) | their contact details; |
3
(ii) |
information relating to expenditure and consumption levels of the Groups customers or suppliers; and | |||||
(iii) |
the prices and costs at which the Group sells products to customers or sources material from suppliers; | |||||
(b) |
details of the transactions or affairs of the Group; | |||||
(c) |
financial information relating to the Group; | |||||
(d) |
trade secrets; | |||||
(e) |
business forecasts, strategic plans and projections, operational structure, methodology and future developments of the Group; | |||||
(f) |
marketing information relating to the Group, including marketing plans and methodologies, promotional material and presentations; | |||||
(g) |
product ingredients, formulae, designs, specifications, ideas, concepts and techniques used or contemplated to be used in relation to the Business of the Group or relating to any products sold or distributed by the Group; | |||||
(h) |
information concerning the Groups employees, contractors or agents; | |||||
(i) |
technological processes, technology and equipment used or contemplated to be used in relation to the Business or the Group; and | |||||
(j) |
any other information or data that the Employee is given or which comes to the Employees knowledge during the course of the employment that the Employee is told is confidential, or that a reasonable person would expect from its nature to be confidential. | |||||
Corporations Act | Corporations Act 2001 (Cth). | |||||
Group | the Company and each of its Related Companies. | |||||
Human Resources Manual | the human resources manual issued by the Company to its employees, as varied from time to time. | |||||
Intellectual Property Rights |
all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other rights resulting from intellectual activities in the industrial, scientific, literary, commercial or artistic fields. | |||||
Location | the location specified in item 3 of Schedule 1. |
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Position | the position specified in item 2 of Schedule 1, and any other position to which the Employee is appointed in accordance with this agreement. | |
Related Company | has the same meaning given to that term in section 50 of the Corporations Act. | |
Remuneration Package | the Employees annual remuneration package as specified in clause 5.1, and includes any variations as agreed between the Company and the Company or as determined by the Company. |
1.2 | Interpretation |
In this agreement, unless the context otherwise requires:
(a) | the singular includes the plural and vice versa; |
(b) | another grammatical form of a defined word or expression has a corresponding meaning; |
(c) | a reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to this agreement and a reference to this agreement includes any schedule or annexure; |
(d) | a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time; |
(e) | a reference to a party to this agreement, and a reference to a party to a document includes the partys executors, administrators, successors and permitted assigns and substitutes; |
(f) | a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; |
(g) | a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
(h) | the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; |
(i) | a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and |
(j) | headings are for ease of reference only and do not affect interpretation. |
2. | Commencement and pre-conditions to employment |
2.1 | Commencement Date |
The Employees employment with the Company will commence on the Commencement Date and will continue until terminated in accordance with clause 2.2(b) or 11.
2.2 | Probationary period |
(a) | The Employees employment with the Company is subject to an initial three month probationary period ( Probationary Period ). |
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(b) | The Company may terminate the Employees employment at any time during the Probationary Period by providing the Employee, in writing, one weeks notice of termination (or payment in lieu of such notice). |
2.3 | Warranty and Liability |
(a) | The Employee represents and warrants to the Company that the entry into this agreement, and the performance of this agreement, by the Employee will not constitute a breach of any contractual obligation, including any previous employment obligation, or of any relevant restraint, non-competition, confidentiality or intellectual property obligations, owed to any former employer. |
(b) | The Employee indemnifies the Company and its officers against any Claim which the Company and its officers, pays or is liable for arising directly or indirectly from the Employee breaching the warranty set out in clause 2.3(a). |
(c) | The Company indemnifies Employee against any third party Claim arising directly or indirectly out of, or in connection with, the Employees employment with the Company, excepting damage or injury directly attributed to the Employees failure to adhere to this Agreement, or any applicable federal, state and local laws and regulations, or which may be directly attributable to the negligence or wilful misconduct of the Employee. |
3. | Position and duties |
3.1 | Position |
(a) | The Company agrees to employ the Employee and the Employee will work for the Company: |
(i) | in the Position at the Location; and |
(ii) | in any additional or reasonably comparable substituted position directed by the Company and to which the Employee is appointed by the Company, after consultation with the Employee. |
(b) | For the avoidance of doubt, the terms and conditions set out in this agreement will continue to apply irrespective of any permitted change to the Position, unless otherwise agreed in writing by the Company and the Employee. |
3.2 | Duties |
The Employee must perform the Employees duties consistent with the Position as assigned to the Employee from time to time by the Company to the best of the Employees ability and knowledge and in accordance with the highest standards of professionalism, whether during or outside business hours. Without limitation, the Employee must:
(a) | comply with all reasonable directions given to the Employee by the Company; |
(b) | comply with all laws applicable to the Position in each of the jurisdictions in which the Group operates; |
(c) | maintain professional awareness and development of skills and knowledge to ensure maintenance of best practice; |
6
(d) | use all reasonable endeavours to safe guard the success, reputation and interests of the Group. |
3.3 | Company Policies |
(a) | The Employees employment with the Company is subject to the Companys rules and procedures set out in the Human Resources Manual. |
(b) | It is the Employees responsibility to be thoroughly familiar with the contents of the Human Resources Manual, as varied and updated from time to time by the Company. |
(c) | In the event that any conflict exists between this agreement and the Human Resources Manual, this agreement prevails. |
4. | Hours of Work |
4.1 | Hours |
(a) | The Employees usual hours of work will be 38 hours per week, worked on Monday to Friday inclusive (Usual Hours). |
(b) | The Employee will also be required to commit whatever reasonable additional hours ( Additional Hours ) are needed to properly manage and perform the Employees duties and meet the reasonable requirements of the Position. |
(c) | The Employee acknowledges that given the nature of the Position and the remuneration payable under this agreement the requirement to work Additional Hours is reasonable. |
4.2 | Payment |
The Employee agrees and acknowledges that the Remuneration Package comprises compensation for Usual Hours and all and any Additional Hours worked by the Employee, and that the Employee is not entitled to payment of any amount in addition to the Remuneration Package for any hours worked by the Employee outside the Usual Hours.
5. | Remuneration |
5.1 | Remuneration Package |
(a) | The Employee will be entitled to receive a Remuneration Package comprising: |
(i) | a base salary in the amount specified in item 4 of Schedule 1 (Base Salary); and |
(ii) | other benefits specified in item 5 of Schedule 1. |
(b) | The Remuneration Package is subject to the deduction or withholding of any amounts on account of any applicable taxation. |
5.2 | Payment of Base Salary |
The Employees Base Salary will be paid monthly by direct deposit into a bank account of the Employees choice.
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5.3 | Superannuation |
The Remuneration Package is inclusive of superannuation, unless otherwise specified.
5.4 | Remuneration review |
The Company will review the Remuneration Package on an annual basis and the Company may alter the Employees total Remuneration Package and its components following that review.
5.5 | Expenses |
(a) | Subject to clause 5.5(b), the Company will pay for or reimburse the Employee for out of pocket expenses properly incurred by the Employee in connection with the Employees employment, provided that the Employee provides the Company on request with a tax invoice substantiating each expense. |
(b) | In the case of individual expenses exceeding the amount specified in item 6 of Schedule 1, the Employee must obtain the written approval of the Company in advance. |
5.6 | Deductions |
The Company may deduct from the Base Salary or other sums due to the Employee any amount owned by the Employee on any account to the Group.
6. | Leave Entitlements |
6.1 | Annual Leave |
(a) | The Employee is entitled to 20 days paid annual leave per year. |
(b) | Annual leave will accrue on a pro-rata basis at the end of each completed four week period of continuous service with the Company and is cumulative. |
(c) | There is no entitlement to leave loading in respect to annual leave. |
6.2 | Personal/Carers Leave |
(a) | The Employee is entitled to 10 days paid personal/carers leave per year. The Employee may use this personal/carers leave as sick leave or carers leave. |
(b) | Personal/carers leave will accrue on a pro rata basis at the end of each completed four week period of service with the Company and is cumulative. |
(c) | Accrued personal/carers leave will not form part of any benefit payable to the Employee on termination of the Employees employment. |
(d) | The Company may require the Employee to provide documentary evidence to support any personal/carers leave period. |
8
6.3 | Compassionate leave |
(a) | The Employee is entitled to paid compassionate leave of up to five days for each occasion when a member of the Employees immediate family or a household member: |
(i) | contracts or develops a personal injury or illness that poses a serious threat to the Employees life; or |
(ii) | dies. |
(b) | Other special leave may be granted to the Employee in extenuating circumstances at the absolute discretion of the Company. |
6.4 | Parental Leave |
The Employee will be entitled to parental leave in accordance with the applicable legislation in the Location.
6.5 | Long Service Leave |
The Employee will be entitled to long service leave in accordance with the applicable legislation in the Location.
7. | Conflicts of Interest |
7.1 | Disclosure of interests |
The Employee must declare to the Company the nature of any interests that the Employee may have directly or indirectly which might or might reasonably be expected to conflict with the Employees duties to the Company.
7.2 | Restriction |
The Employee must not engage in any other paid employment or work of any kind during the term of this agreement without the written consent of the Company and the Employee must not be induced or agree to accept any commission, reward or benefit in connection with the Business from any person other than that which is provided under this agreement.
8. | Confidential Information |
8.1 | Prohibitions |
The Employee must not without the Companys prior written consent, either during the Employees employment with the Company or at any time after the termination of the Employees employment with the Company:
(a) | use for the Employees or anothers advantage any Confidential Information; |
(b) | disclose to any person any Confidential Information, either directly or indirectly; |
(c) | make copies of any Confidential Information; or |
(d) | counsel, procure or assist any person or corporation to use or disclose any Confidential Information, |
9
other than as reasonably required in the performance of the Employees duties as an employee of the Company or as required by law.
8.2 | Protecting Unauthorised Use or Disclosure |
The Employee must use the Employees best endeavours to prevent the unauthorised use or disclosure of Confidential information by, or to, any third party.
8.3 | Information already available to the public |
Clause 8.1 and 8.2 do not apply to information which is freely available to the public, other than as a result of a breach by the Employee of this agreement.
8.4 | Survival |
The obligations in this clause 8 survive termination of this agreement.
9. | Intellectual Property |
9.1 | Intellectual Property Rights |
The Employee agrees that all Intellectual Property Rights created by the Employee during the course of, and in connection with, the Employees employment with the Company will immediately be disclosed and assigned to, and vest in, the Company or such other person or company as may be nominated by the Company as such rights are created.
9.2 | Employee to assist |
The Employee agrees to execute all documents and do all acts and things required by the Company for the purpose of vesting Intellectual Property Rights as prescribed by this clause 9, including without limitation executing a deed of assignment of Intellectual Property Rights in favour of the Company or its nominee.
9.3 | Royalties |
The Employee acknowledges that all royalties, payments, fees, income or any other remuneration arising from Intellectual Property Rights are owned by the Company.
9.4 | Moral rights |
To the extent permitted by law, the Employee waives all of the Employees moral rights in respect of any acts of the Company or any acts of third parties done with the Companys authority in relation to any Intellectual Property Rights that are the property of the Company and consent to the use, treatment, alteration and attribution of such Intellectual Property Rights as deemed appropriate by the Company.
9.5 | Survival |
The obligations in this clause 9 survive termination of this agreement.
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10. | Restraint |
10.1 | Clause 10 definitions |
In this clause 10 (and any other provision of this agreement which relates to this clause or its subject matter), unless the context otherwise requires:
(a) | Engage in means to participate, assist or otherwise be directly or indirectly involved in, including as a member, shareholder, unitholder, director, consultant, adviser, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier; |
(b) | Restraint Area means the areas specified in item 7 of Schedule 1; |
(c) | Restrained Business means a business or operation similar to, or competitive with, the Business; and |
(d) | Restraint Period means the period specified in item 8 of Schedule 1. |
10.2 | Restraint obligations |
During the Restraint Period, the Employee must not, either directly, indirectly or as a result of contact by any other party, in the Restraint Area, without the prior written consent of the Company (which it may withhold in its absolute discretion):
(a) | engage in a Restrained Business; |
(b) | take any action to prepare to Engage in a Restrained Business; |
(c) | be concerned or interested (directly or indirectly, or through any interposed body corporate, trust, principal, agent, shareholder, beneficiary, or as an independent contractor or in any other capacity) in a Restrained Business; |
(d) | solicit, canvas or secure the custom of any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group with whom the Employee dealt at any time during the last 12 months of the Employees employment with the Company for the purpose of transacting business relating to the Restrained Business; |
(e) | accept any instructions to perform any work relating to the Restrained Business for any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group; or |
(f) | induce or attempt to induce an employee or consultant of the Group to terminate their employment or consultancy with the Group. |
10.3 | Independence of restraints |
Each of the restraint obligations imposed by this clause 10 (which results from the combinations of Restraint Area, Restrained Business and Restraint Period) is a separate and independent obligation from the other restraint obligations imposed (although they are cumulative in effect).
10.4 | Reasonableness of restraint |
The Employee acknowledges and agrees that each of the restraint obligations imposed by this clause 10 is reasonable in its extent (as to all of duration, geographical area and restrained conduct) having regard to the interests of each party to this agreement and extends no further (in
11
any respect) than is reasonably necessary and is solely to protect the Companys legitimate interests.
10.5 | Legal advice |
Each party acknowledges that in relation to this agreement and in particular this clause 10 it has received legal advice or has had the opportunity of obtaining legal advice.
10.6 | Notification to prospective employer |
The Employee must notify any prospective employer of the terms of the restrictions undertaken by him in this agreement.
10.7 | Injunction |
Each party to this agreement acknowledges that monetary damages alone would not be adequate compensation to the Company for a breach of this clause 10 and that the Company is entitled to seek an injunction or other equitable relief from a Court of competent jurisdiction if:
(a) | the Employee fails to comply or threatens to fail to comply with this clause 10; or |
(b) | the Company has reason to believe the Employee will not comply with this clause 10. |
10.8 | Survival |
The obligations in this clause 10 survive termination of this agreement.
11. | Termination |
11.1 | General |
(a) | Either party may terminate this agreement on the provision, in writing, of the period of written notice of termination specified in item 9 of Schedule 1 to the other party. |
(b) | The Company may terminate the Employees employment by making a payment of Base Salary plus superannuation contributions in lieu of notice of termination for all or part of the notice period. |
11.2 | Termination without notice |
The Company may terminate the Employees employment without notice and without paying any amount in lieu of notice if the Employee:
(a) | is guilty of serious misconduct or dishonesty; |
(b) | commits any serious or persistent breach of any of the provisions of this agreement; |
(c) | in the reasonable opinion of the Company, materially or persistently fails or neglects to perform or carry out the Employees duties under this agreement; |
(d) | refuses or neglects to comply with any lawful and reasonable order given to the Employee by the Company or any other person duly authorised by the Company; |
(e) | becomes bankrupt or suspends payment or compounds with or assigns the Employees estate for the benefit of the Employees creditors; |
12
(f) | is continually and repeatedly absent from the Employees employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(g) | has provided the Company with information about the Employees qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; |
(h) | is incapacitated from performing the Employees duties for an aggregate period of three months in any period of 12 months; or |
(i) | is convicted of any serious criminal offence which in the reasonable opinion of the Company might tend to injure the reputation or the Group or the Business. |
11.3 | No redundancy |
The Employee acknowledges that the Employee will not be entitled to any redundancy payment that the Employee may otherwise be entitled to at law where the Employees employment is transferred to another employer, and qualifying service with the Company, including recognised prior service, is recognised by the new employer for the calculation of all accrued entitlements, including in relation to any subsequent redundancy situation.
11.4 | Employees obligations after termination |
If the Employees employment is terminated for any reason:
(a) | the Company may set off any amounts the Employee owes the Company against any amounts the Company owes the Employee at the date of termination, except for amounts the Company is not entitled by law to set off; and |
(b) | the Employee must immediately return all property belonging to the Company, including all software, computers, credit cards, keys, security access passes, books, vehicles and mobile phones. |
12. | Personal information |
12.1 | Acknowledgement |
The Employee acknowledges that the Company will be required to request and hold personal information relating to the Employee for the purposes of administering the Employees employment.
12.2 | Disclosure |
The Employee consents to the Company or any of its Related Companies disclosing personal information it holds regarding the Employee for purposes related to the Employees employment, and any other related purpose.
13. | General |
13.1 | Entire agreement |
This agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and
13
indemnities in relation to that subject matter are replaced by this agreement and have no further effect.
13.2 | No merger |
The provisions of this agreement will not merge on completion of any transaction contemplated in this agreement and, to the extent any provision has not been fulfilled, will remain in force.
13.3 | Attorneys |
Each person who executes this agreement on behalf of a party under a power of attorney warrants that he or she has no notice of the revocation of that power or of any fact or circumstance that might affect his or her authority to execute this agreement under that power.
13.4 | Amendment |
This agreement may not be amended or varied unless the amendment or variation is in writing signed by all parties.
13.5 | Assignment |
Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of each other party, which must not be unreasonably withheld.
13.6 | Severability |
Part or all of any provision of this agreement that is illegal or unenforceable will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.
13.7 | Waiver |
Waiver of any power or right under this agreement:
(a) | must be in writing signed by the party entitled to the benefit of that power or right; and |
(b) | is effective only to the extent set out in that written waiver. |
13.8 | Rights, remedies additional |
Any rights and remedies that a person may have under this agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
13.9 | Further assurances |
Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).
13.10 | Costs |
Except as specifically provided in this agreement, each party must bear its own legal, accounting and other costs for the preparation and execution of this agreement.
14
13.11 | Counterparts |
This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
13.12 | Governing law and jurisdiction |
This agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State.
15
Schedule 1
Details
No. | Item | Description | ||
1.
|
Commencement Date | 1 February 2010 | ||
2.
|
Position | Chief Operating Officer | ||
3. | Location |
Zurich, Switzerland, subject to change upon mutual agreement, and in support of the mutual interests, of both Employee and the Company.
|
||
4. | Base Salary |
EUR 140,000. Subject to good-faith cost of living considerations at the Location and/or the Employee exceeding agreed performance targets determined by the Company in its absolute discretion, the base salary shall be reviewed and may be increased annually.
|
||
5. | Term |
4 years
|
||
6. | Other Benefits |
The Company will:
|
||
(a) on the Commencement Date:
|
||||
(i) pay the Employee a sign-on bonus of EUR 20,000;
|
||||
(ii) grant the Employee 100,000 Sign-on Options;
|
||||
(b) subject to the Employee exceeding agreed performance targets determined by the Company in its absolute discretion from time to time and all laws, on 1 February in each year during the Employees employment with the Company:
|
||||
(i) pay the Employee a cash bonus of EUR 15,000; and
|
||||
(ii) grant the Employee the number of 600,000 Performance Options determined by the Company in its absolute discretion;
|
||||
(c) pay, or reimburse, the Employee for the cost of:
|
||||
(i) Airfares for the Employee, his wife and his children to travel to the United States once in each year during the term of the Employees employment with the Company, not to exceed EUR 10,000 in total each year;
|
16
(ii) a comprehensive health and disability insurance policy for the Employee, his wife and his children, during the term of the Employees employment with the Company;
|
||||
(iii) the rent of an office or home-office exclusively for Company business, during such time the Company does not maintain its own office at the Location, subject to reasonable and customary rental rates at the Location and the Companys discretion;
|
||||
(iv) a laptop computer, printer, fax, and other reasonable and customary office supplies for the Employees exclusive use during the Employees employment with the Company; and
|
||||
(v) a mobile phone for the Employees exclusive use during the Employees employment with the Company.
|
||||
(vi) fifty percent (50%) of Employees childrens reasonable and customary school fees.
|
||||
For the purposes of this Schedule 1:
|
||||
(a) Sign-on Option means an option entitling the holder to subscribe for one ordinary share in the Company, and having the terms specified in Schedule 2; and
|
||||
(b) Performance Option means an option entitling the holder to subscribe for one ordinary share in the Company, and having the terms specified in Schedule 3.
|
||||
7. | Expense Limit |
EUR 500
|
||
8. | Restraint Area |
Global
|
||
9. | Restraint Period |
The period of the Employees employment with the Company and the period of six months from the cessation of the Employees employment with the Company; however, if the Employee is terminated by the Company without cause, the Restraint Period shall terminate on the date of Employees employment termination.
|
||
10. | Termination notice period |
Three months
|
||
11. | Governing law and jurisdiction |
New South Wales, Australia
|
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Schedule 2
Sign-on Option Terms
1. | Each Sign-on Option entitles the holder to subscribe for 1 fully paid ordinary share in the Company. |
2. | Vesting of the Sign-on Options is subject to the holder remaining an employee of the Company until 1 February 2011. |
3. | Despite any other paragraph of these terms, all Sign-on Options will immediately vest in the holder on the occurrence of either of the following events: |
(a) | the Employee is terminated by the company without cause after the Probation Period; or |
(b) | the Employees death, or |
(c) | the offeror under a takeover bid or announcement acquires (unconditionally) in excess of 50% of the issued voting shares of the Company; or |
(d) | as a result of the approval of one or more schemes of arrangement any person who is not at the date of issue of the options in control of the Company acquires in excess of 50% of the issued voting shares of the Company. |
4. | Each Sign-on Option may be exercised at lesser price of ten Australian cents (AUD 0.10) or a price equal to the volume weighted average price of ordinary shares in the Company traded on ASX during the 30 trading days immediately prior to the date of grant of the Sign-on Options to the holder at any time during the period commencing on the date the Sign-on Options vest pursuant to paragraph 2 or 3 of these terms and ending at 5:00 pm (Sydney, NSW time) on 1 February 2011 or within 30 trading days of the Employees death, whichever is earlier ( Expiry Date ) by completing the option exercise form and delivering it to the registered office of the Company. |
5. | Any Sign-on Option automatically lapses if: |
(a) | it has not been exercised prior to the Expiry Date; or |
(b) | the holders employment with the Company is terminated for any one or more of the following reasons: |
(i) | the holder is guilty of serious misconduct or dishonesty; |
(ii) | the holder commits any serious or persistent breach of any of the provisions of the holders employment agreement with the Company; |
(iii) | in the reasonable opinion of the Company, the holder materially or persistently fails or neglects to perform or carry out the holders duties under the holders employment agreement with the Company; |
(iv) | the holder refuses or neglects to comply with any lawful and reasonable order given to the holder by the Company or any other person duly authorised by the Company; |
18
(v) | the holder becomes bankrupt or suspends payment or compounds with or assigns the holders estate for the benefit of the holders creditors; |
(vi) | the holder is continually and repeatedly absent from the holders employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(vii) | the holder has provided the Company with information about the holders qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; or |
(viii) | the holder is convicted of any serious criminal offence. |
6. | An exercise of only some Sign-on Options will not affect the rights of the holder under the balance of the Sign-on Options held by him or her as appropriate. |
7. | The Company will not apply for official quotation by ASX of the Sign-on Options. |
8. | The Sign-on Options are non-transferable and may not be sold, assigned, transferred or otherwise dealt with in any way, except in the sole case of the Employees death whereby Sign-On options shall be transferred to the Employees estate. |
9. | Shares issued upon the exercise of Sign-on Options will rank pari passu with the Companys fully paid ordinary shares and will have the same voting and other rights as the existing shares of the Company, which are set out in the Companys Constitution, ASX Listing Rules and the Corporations Act. |
10. | The Company will apply for official quotation by ASX of all shares issued upon exercise of Sign-on Options, subject to any restriction obligations imposed by ASX. |
11. | The Sign-on Options will not give any right to participate in dividends until shares are issued pursuant to the exercise of the relevant Sign-on Options. |
12. | There are no participation rights or entitlements inherent in the Sign-on Options and holders will not be entitled to participate in new issues of capital offered to shareholders during the currency of the Sign-on Options. |
13. | In the event of any reconstruction (including consolidation, subdivision, reduction or return) of the issued capital of the Company prior to the Expiry Date, the number of Sign-on Options or the rights attaching to the Sign-on Options or both shall be reconstructed in accordance with the ASX Listing Rules applying to a reorganisation of capital at the time of the reconstruction. |
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Schedule 3
Performance Options
1. | Each Performance Option entitles the holder to subscribe for 1 fully paid ordinary share in the Company. |
2. | Vesting of the Performance Options is subject to the holder continuing to be an employee of the Company for not less than four years after the date of grant of the Performance Options to the holder. |
3. | Despite any other paragraph of these terms, all Performance Options will immediately vest in the holder on the occurrence of either of the following events: |
(a) | the Employee is terminated by the company without cause; or |
(b) | the Employees death; or |
(c) | the offeror under a takeover bid or announcement acquires (unconditionally) in excess of 50% of the issued voting shares of the Company; or |
(d) | as a result of the approval of one or more schemes of arrangement any person who is not at the date of issue of the options in control of the Company acquires in excess of 50% of the issued voting shares of the Company. |
4. | Each Performance Option may be exercised at a lesser price of ten Australian cents (AUD 0.10) or a price equal to the volume weighted average price of ordinary shares in the Company traded on ASX during the 30 trading days immediately prior to the date of grant of the Performance Options to the holder at any time during the period commencing on the date the Performance Options vest pursuant to paragraph 2 or 3 of these terms and ending at 5:00 pm (Sydney, NSW time) on the date two years following that date or within 30 trading days of the Employees death, whichever is earlier ( Expiry Date ) by completing the option exercise form and delivering it to the registered office of the Company. |
5. | Any Performance Option automatically lapses if: |
(a) | it has not been exercised prior to the Expiry Date; or |
(b) | the holders employment with the Company is terminated for any one or more of the following reasons: |
(i) | the holder is guilty of serious misconduct or dishonesty; |
(ii) | the holder commits any serious or persistent breach of any of the provisions of the holders employment agreement with the Company; |
(iii) | in the reasonable opinion of the Company, the holder materially or persistently fails or neglects to perform or carry out the holders duties under the holders employment agreement with the Company; |
(iv) | the holder refuses or neglects to comply with any lawful and reasonable order given to the holder by the Company or any other person duly authorised by the Company; |
20
(v) | the holder becomes bankrupt or suspends payment or compounds with or assigns the holders estate for the benefit of the holders creditors; |
(vi) | the holder is continually and repeatedly absent from the holders employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(vii) | the holder has provided the Company with information about the holders qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; or |
(viii) | the holder is convicted of any serious criminal offence. |
6. | An exercise of only some Performance Options will not affect the rights of the holder under the balance of the Performance Options held by him or her as appropriate. |
7. | The Company will not apply for official quotation by ASX of the Performance Options. |
8. | The Performance Options are non-transferable and may not be sold, assigned, transferred or otherwise dealt with in any way, except in the sole case of the Employees death whereby Sign-On options shall be transferred to the Employees estate. |
9. | Shares issued upon the exercise of Performance Options will rank pari passu with the Companys fully paid ordinary shares and will have the same voting and other rights as the existing shares of the Company, which are set out in the Companys Constitution, ASX Listing Rules and the Corporations Act. |
10. | The Company will apply for official quotation by ASX of all shares issued upon exercise of Performance Options, subject to any restriction obligations imposed by ASX. |
11. | The Performance Options will not give any right to participate in dividends until shares are issued pursuant to the exercise of the relevant Performance Options. |
12. | There are no participation rights or entitlements inherent in the Performance Options and holders will not be entitled to participate in new issues of capital offered to shareholders during the currency of the Performance Options. |
13. | In the event of any reconstruction (including consolidation, subdivision, reduction or return) of the issued capital of the Company prior to the Expiry Date, the number of Performance Options or the rights attaching to the Performance Options or both shall be reconstructed in accordance with the ASX Listing Rules applying to a reorganisation of capital at the time of the reconstruction. |
21
EXECUTED as an agreement
EXECUTED by PRIMA BIOMED |
) | |||
LIMITED ACN 009 237 889 in | ) | |||
accordance with section 127 of the | ) | |||
Corporations Act 2001 | ) | |||
) |
/s/ Martin Rogers |
/s/ Ata Gokyildirim |
|||
Signature of Director | Signature of Director/Secretary | |||
Martin Rogers |
Ata Gokyildirim |
|||
Name of Director | Name of Director/Secretary |
SIGNED by MATTHEW BRYSON | ) | |||
LEHMAN in the presence of: | ) | |||
) | ||||
) | ||||
) |
/s/ Anna Kasik-Korenbet |
/s/ Matthew Bryson Lehman |
|||
Signature of Witness | Matthew Bryson Lehman | |||
Anna Kasik-Korenbet |
||||
Name of Witness |
22
Exhibit 4.16
Consulting Agreement
This Agreement (Agreement) is by and between Prima Biomed USA Inc., including its affiliates and subsidiaries, having its principal office at 415 East 37th Street, Suite 7D, New York, NY 10016 (hereinafter collectively referred to as Company) and Sharron Gargosky, PhD, at 2833 NW Cumberland Rd, Portland, OR 97210 (hereinafter referred to as Consultant).
In consideration of the mutual covenants as set forth below, the parties named above agree as follows:
1. |
SERVICES The services to be performed by Consultant (Services) involve |
|
Assisting in the strategic planning of CVac TM development, as well as management of related scientific, nonclinical, clinical, and regulatory issues; |
|
Providing information and independent opinions to the Company with regards to CVac TM and other products under development; and |
|
Other services as requested by the Company |
These Services will be provided by Sharron Gargosky, PhD.
2. |
COMPENSATION The compensation to be paid to Consultant for performance of the Services described above will be based on actual hours worked on the project. The billing rate is $175 per hour for regular working time and 50% thereof for travel time (including air, rail, and auto travel to and from any place not the Consultants regular place of work). Consultant shall be reimbursed upon receipt of an invoice for all reasonable travel, lodging, and meal expenses, and all reasonable expenses incidental to travel and other expenses specific to the Services provided. Consultant shall receive prior approval from Company prior to incurring incidental expenses exceeding $500; the Company reserves the right not to reimburse costs exceeding $500 if prior approval was not been granted. Invoices will be provided to Company on a monthly basis and will identify work performed for the invoice month according to Companys standard hour tracking. Payment will be due within 30 days of invoice date. Consultant will charge a late payment fee of 1 1 / 2 % per month, or the maximum amount permitted by law if less than 1 1 / 2 % per month, for any payment not received within 30 days from invoice date. If a portion of an invoice is in dispute, then Company shall pay the undisputed amounts as set forth in the preceding sentence and the parties shall use good faith efforts to reconcile the disputed amount within (60) days invoice date. |
3. |
RIGHTS TO DEVELOPMENT All work product developed by Consultant in the performance of Services including, but not limited to, papers, records, reports, analyses, computer based information and drawings (collectively Developments) and the patentable intellectual property rights in any such material will be the sole and exclusive property of Company provided, however, that Consultant shall retain the sole and exclusive right to any procedural manuals, personnel data, computer software, processes, process technology, means and know-how developed by Consultant independently from Consultants Services provided under this Agreement. |
4. |
CONFIDENTIAL INFORMATION In order to facilitate Consultants Services under this Agreement, it may be necessary for Company to disclose certain data and other proprietary information to Consultant that will, if possible, be labeled with the text confidential, and/or to provide Consultant with samples, which, together with any information generated by Consultant in performing Consultants Services for Company hereunder (collectively Technology). Consultant agrees to retain in strict confidence and not to disclose or transfer any Technology denoted as confidential to any party other than as authorized by Company. Consultant further agrees not to use such information for any purposes other than those of this Agreement. Upon completion of Consultants Services hereunder, Consultant will return all Technology copies and any remaining samples to Company, upon request by Company. These obligations of confidentiality and non-use shall not apply to technology: a) that was previously known to Consultant as evidenced by Consultants written records, b) that is lawfully obtained by Consultant from a source independent |
Page 1 | ||
900945 v1/HN |
of Company, c) that is now or becomes public knowledge other than by breach of this Agreement, or d) is otherwise required to be disclosed by law. |
All information regarding Consultants pricing and Consultants procedural manuals, data, computer software, processes, process technology, means and know-how developed by Consultant and disclosed by Consultant to Company in connection with this Agreement is proprietary, confidential information (Consultant Know-How) belonging to Consultant. Consultant Know-How will be held confidential by Company.
5. |
TERM AND TERMINATION This Agreement will commence on 5 July 2010 and remains in full force and effect until 31 December 2010, unless mutually extended or terminated early. This Agreement may be terminated by either party, at any time, upon 30-days advance written notice to the other party. Upon the termination of this Agreement, each party will be released from all obligations and liabilities to the other occurring or arising after the date of termination, except that such termination will not relieve either party of its obligations under Paragraph 4 above, for a period of five (5) years from termination of this Agreement or from liability arising from any breach of this Agreement. The obligations under Paragraph 12 shall survive the expiration or termination of this Agreement for a period of five (5) years. |
6. |
ASSIGNMENT The rights and liabilities of the parties will bind and inure to the benefit of their respective successors, heirs, executors and administrators, as the case may be, provided that Company has specifically contracted for Consultants services. Consultant may not assign or delegate its obligations under this Agreement either in whole or in part without the prior written consent of Company. |
7. |
GOVERNING LAW: SEVERABILITY This Agreement will be governed by the laws of the State of New York without reference to any conflict of law provision. The parties hereby consent to the jurisdiction of the New York courts for resolution of any disputes arising under this Agreement. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, that provision will be severed and the remainder of this Agreement will continue in full force and effect. |
8. |
COMPLETE UNDERSTANDING: MODIFICATION Except as expressly provided herein, this Agreement will supersede and render null and void any and all prior Agreements between the parties and their agents and personnel on the subject of this Agreement. Any modifications to the provisions herein must be in writing and signed by the parties. |
9. |
NOTICES Any notices required or permitted hereunder will be given in writing to the appropriate party at the address specified below or at such address as the party will specify. Such notice will be deemed given upon personal delivery to the appropriate address or sent by certified or registered mail, three days after the date of mailing. |
10. |
FORCE MAJEURE No party shall be liable for the delay in performance or failure to perform this Agreement if such delay or failure is due to any occurrence beyond the control of the parties including, without limitation, fire, explosion, weather, disease, war, insurrection, civil strife, riots, government action or power failure; provided, however, that the party who is unable to perform resumes performance as soon as possible following the end of the occurrence causing delay or failure. |
11. |
WAIVER The waiver of either party or the failure by either party to claim a breach of any provision of this Agreement shall not be deemed to constitute a waiver or estoppel with respect to any subsequent breach or with respect to any provision thereof. |
12. |
INDEMNITY Company hereby agrees to indemnify, defend, and hold Consultant harmless from and against any and all loss, claims, actions, liability and/or suits (including reasonable attorneys |
Page 2 | ||
900945 v1/HN |
fees) arising directly or indirectly as a result of this Agreement except to the extent that any such loss, cost, claims, actions, liability and/or suits is directly caused by the gross negligence or intentional misconduct of Consultant in the performance of the Services under this Agreement. |
Consultant hereby agrees to indemnify, defend, and hold Company, its employees, officers, directors and principals harmless from and against any and all loss, claims, actions, liability and/or suits (including reasonable attorneys fees) arising directly as a result of the gross negligence or intentional misconduct of Consultant in the performance of its Services under this Agreement except to the extent that any such loss, cost, claims, actions, liability and/or suits is directly caused by the gross negligence or intentional misconduct of Company, its employees, officers, directors and principals.
13. |
DAMAGES In the event of any breach or default by either party with respect to this Agreement, the defaulting partys damage liability to the non-defaulting party for such breach or default shall be limited to the non-defaulting partys direct damages which shall not exceed the fees paid by Company to Consultant under this Agreement. Under no circumstances will either party be liable for any consequential, special or indirect damages for the breach of its obligations under this Agreement |
14. |
NON-COMPETITION Without prior consent of the Company, during the term of this Agreement, Consultant agrees not to consult with, provide services to, or assist (actively or otherwise), whether paid or unpaid, any Direct Competitor of Prima BioMed USA Inc., or its Affiliates. For purposes of this Agreement, a Direct Competitor means any person, group, or company researching and/or developing cell therapeutics or immunological medicinal products intended for the treatment or prevention of cancer. |
15. |
INDEPENDENT CONTRACTOR For the purposes of this Agreement, the parties hereto are independent contractors and nothing contained in this Agreement shall be construed to place them in the relationship of partners, principal and agent, employer/employee or joint ventures. Neither party shall have the power or right to bind or obligate the other party, nor shall it hold itself out as having such authority. |
The parties hereto have executed this Agreement as of the last date signed below.
Prima BioMed USA Inc. | ||||
By: |
/s/ Matthew Lehman |
(signature) |
||
Name: |
Matthew Lehman |
|||
Title: |
Chief Operating Officer |
|||
Date: |
20 July 2010 |
|||
Consultant: | ||||
By: |
/s/ Sharron Gargosky |
(signature) |
||
Name: |
Sharron Gargosky, PhD |
|||
Title: |
Member |
|||
Date: |
20 July 2010 |
Page 3 | ||
900945 v1/HN |
Exhibit 4.17
SERVICE AGREEMENT
The CFO Solution HQ Pty Ltd
and
Prima Biomed Limited
COMMERCIAL IN CONFIDENCE
Service Agreement 900990 v1/HN |
Page 1 of 13 |
CONTENTS
1. | DURATION | 3 | ||||
2. | SERVICE FEE | 3 | ||||
3. | DUTY OF CLIENT TO PROVIDE REASONABLE ACCESS | 5 | ||||
4. | ACKNOWLEDGMENT BY THE CLIENT | 5 | ||||
5. | CONFIDENTIALITY AN INTELLECTUAL PROPERTY | 5 | ||||
6. | INDEMNITY AND RELEASE | 6 | ||||
7. | NON-SOLICITATION OF STAFF | 6 | ||||
8. | TERMINATION | 6 | ||||
9. | NOTICES | 7 | ||||
10. | GOODS AND SERVICES TAX (GST) | 7 | ||||
11. | PRIVACY | 7 | ||||
12. | ENTIRE AGREEMENT | 7 | ||||
13. | NO WAIVER | 7 | ||||
14. | SEVERABILITY | 7 | ||||
15. | VARIATION | 7 | ||||
16. | GOVERNING LAW | 8 |
Service Agreement 900990 v1/HN |
Page 2 of 13 |
SERVICE AGREEMENT
BETWEEN:
Service Provider: |
The CFO Solution HQ Pty Ltd ACN 054 583 612 Suite 1, 1233 High Street, Armadale, Victoria Australia. 3143 |
|
Client: |
Prima Biomed Limited ACN 009 237 889 Suite 1, 1233 High Street Armadale, Victoria Australia. 3143 |
Commencement Date: 1 March 2010
PREAMBLE:
A. |
The Service Provider is engaged in the business of providing publicly listed companies finance, administrative and reporting services. |
B. |
The Service Provider has from the Commencement Date set out above been engaged by the client to provide such services to the Client. |
C. |
The Service Provider and the Client wish to set out in writing the terms and conditions of such engagement of the Service Provider. |
1. |
DURATION |
Subject to clauses 2.9 and 8, this agreement shall continue in force for a minimum period of 12 months from the Commencement Date and may only be terminated by the Client prior to the expiry of the 12 month minimum period upon the payment of the standard monthly fees payable for the balance of the 12 month minimum period. Thereafter this agreement shall remain in force from the expiry of the minimum 12 month period until terminated by the Client or the Service Provider by giving the other party 3 months notice in writing or where the Client is terminating, the payment of 3 months standard monthly fees in lieu of notice.
2. |
SERVICE FEE |
2.1 |
In consideration of the Service Provider providing the services identified in Item 2 of the Schedule (Services) the Client agrees to pay the standard monthly fee set out at Item 1 of the Schedule (or where the Services are provided for part of a month only, then a pro-rata portion of the standard monthly fee). On completion of the first 6 months of the term of this Agreement, and at regular intervals thereafter the service fee may be reviewed and the parties may renegotiate the standard monthly fee. |
2.2 |
The monthly standard fee is payable monthly in advance by direct debit from the bank account nominated by the Client, with the first monthly |
Service Agreement 900990 v1/HN |
Page 3 of 13 |
standard fee payable by the Client to the Service Provider on the Commencement Date and thereafter on the first day of each month. |
2.3 |
Prior to commencing the Services, representatives of the Service Provider and the Client will meet to determine an estimate of the number of days of work per month that the Service Provider will be required in order to provide the Services. If this number of days work is exceeded in any month then the days in excess of the estimate will be treated as additional work outside the scope of the Services and will be charged in accordance with clause 2.4. |
2.4 |
If work outside of the scope of the Services is required, or if the Service Provider agrees to perform work outside the scope of the Services, the Service Provider will charge the Client a fee based on hourly rates set out in Item 3 of the Schedule for such additional work. |
2.5 |
Any additional work will be invoiced by the Service Provider at such intervals as the Service Provider in its absolute discretion determines. Payment by the Client for such additional work carried out by the Service Provider is to be made within fourteen (14) days of the date of the invoice provided by the Service Provider to the Client. |
2.6 |
In addition to fees, as set out above, the Service Provider will also charge the Client all reasonable direct out-of-pocket expenses incurred by the Service Provider plus an administrative mark up of ten per cent (10%). |
2.7 |
The standard monthly fee as set out in Item 1 of the Schedule and the hourly rates as set out in Item 3 of the Schedule will be increased by the Service Provider in accordance with the Consumer Price Index (CPI) twice a year in June and December and the Service Provider reserves the right to conduct further reviews of its fees as the Service Provider sees fit. The Service Provider will advise the Client of any variations in excess of the Consumer Price Index in writing as soon as practicable after they come into effect. |
2.8 |
Interest will be charged on any unpaid fees at the rate fixed from time-to-time under section 2 of the Penalty Interest Rates Act 1983 (Vic), from the period beginning 14 days after payment is due until the fees are paid by the Client to the Service Provider. |
2.9 |
The Service Provider has the right to withhold services or terminate this agreement should outstanding fees exceed 60 days, by providing 48 hours written notice. |
2.10 |
If either the Service Provider or the Client terminates this Agreement pursuant to clause 2.9 or clause 8, the Service Provider is entitled to its fees accrued for time spent at the daily rates set out at Item 3 of the Schedule, up to the termination date. |
2.11 |
The Service Provider will not commence Services unless and until the standard monthly fee for the first months services has been paid by the Client. |
Service Agreement 900990 v1/HN |
Page 4 of 13 |
2.12 |
In the event that the Service Provider makes any claim to recover outstanding fees from the Client, the client shall indemnify the Service Provider for all legal costs incurred on a solicitor/client basis. |
3. |
DUTY OF CLIENT TO PROVIDE REASONABLE ACCESS |
The Client agrees to provide the Service Provider, in a timely manner, reasonable access to all documents and other information that the Service Provider reasonably requires to complete the Services they have been engaged to provide to the Client.
4. |
ACKNOWLEDGMENT BY THE CLIENT |
The Client acknowledges and agrees that:
(a) |
the Service Provider relies upon the accuracy of the information provided by the Client to complete the services the Service Provider is engaged to provide; |
(b) |
the Service Provider may from time to time be required to present its files relating to its engagement under this Agreement to the Institute of Chartered Accountants, in order to comply with its quality control review program; |
(c) |
the Service Provider may use client records belonging to the Client for the Service Providers internal training purposes; |
(d) |
the Service Provider will not be liable or responsible for any adverse consequences that result from a failure of the Client to provide to the Service Provider accurate documents or other information reasonably required by the Service Provider in a timely manner; and |
(e) |
it shall indemnify the Service Provider from and against any claims or demands suffered or incurred by the Service Provider in connection with any failure by the Client to provide to the Service Provider accurate documents or other information reasonably required by the Service Provider. |
5. |
CONFIDENTIALITY AN INTELLECTUAL PROPERTY |
5.1 |
Subject to clause 4(b) the Service Provider undertakes that it shall not either during the term of this Agreement or at any time thereafter (except in the proper course of the engagement hereunder or as required by the Client) use or disclose to any person confidential information of or relating to the Client or its subsidiaries or any person with whom contact has been made as a result of this Agreement or any trade or business secrets which become knowledge while appointed in any capacity hereunder and will use its best endeavours to prevent the use or disclosure of any such information by third parties. |
5.2 |
Provided that all fees have been paid by the Client and the Client is not otherwise in breach of this Agreement, the Service Provider shall return any documents, manuals, notes, computer software or any other form of information and all other property belonging to the Client on termination of this Agreement. |
5.3 |
The Client acknowledges that all documents, charts, spreadsheets or other material created in relation to the provision of the Services and provided to the Client by the Service Provider is for the benefit of the |
Service Agreement 900990 v1/HN |
Page 5 of 13 |
Client only and shall not be provided to any person other than the Clients officers, employees, agents and professional advisors without the express written permission of the Service Provider. The Service Provider accepts no responsibility to any third party for any material provided to a third party in contravention of this clause. The Client undertakes to inform its officers, employees, agents and professional advisors of the terms of this clause, and ensure that those persons comply with this clause. |
5.4 |
The Client acknowledges that the intellectual property in all documents, charts, spreadsheets or other material created in relation to the provision of the Services and provided to the Client by the Service Provider remains with the Service Provider and the Client shall not make use of or deal with any of that intellectual property without the prior consent of the Service Provider. |
6. |
INDEMNITY AND RELEASE |
6.1 |
As a term of this Agreement, the Client agrees to indemnify the Service Provider and to hold the Service Provider harmless from and against: |
(a) |
all actions, claims, demands or proceedings which may be instituted against; and |
(b) |
all liabilities, losses, damages, costs and expenses (including reasonable legal costs and expenses) which may be suffered or incurred by the Service Provider, |
in connection with or arising out of this Agreement.
6.2 |
The indemnity set out in this clause 6 will extend to the costs of investigations, preparing of and defending any actions, claims, demands or proceedings and any threatened litigation whether or not the Service Provider is a party to those actions, claims, demands, proceedings or threatened litigation. For the purposes of this clause, the Service Provider includes all related bodies corporate and the Service Provider directors, employees and agents. |
7. |
NON-SOLICITATION OF STAFF |
The Client agrees that it will not either during the Agreement or for a period of 12 months following the termination of the Agreement, induce or attempt to induce any employees of the Service Provider to leave the employment of the Service Provider or take up employment elsewhere.
8. |
TERMINATION |
In addition to the rights to terminate this Agreement set out in clause 1 and clause 2.9 of this Agreement, either party may terminate this Agreement immediately by the giving of written notice to the other party in the event that:
(a) |
the other party becomes insolvent (as that term is defined by section 95A of the Corporations Act 2001 ; |
(b) |
the other party commits a breach of this Agreement, which breach is not capable of remedy; |
Service Agreement 900990 v1/HN |
Page 6 of 13 |
(c) |
the other party commits a breach of this Agreement, and fails to remedy such breach within 14 days of receiving a written notice setting out the nature of the breach and requiring that the breach be remedied. |
9. |
NOTICES |
A notice to be given by a party to another party under this Agreement shall:
(a) |
be in writing; |
(b) |
be delivered to the address or email address of the recipient as set out in this Agreement or as varied by written notice; and |
(c) |
be in the English language. |
10. |
GOODS AND SERVICES TAX (GST) |
In addition to the fees payable by the Client pursuant to this Agreement the Client must also pay any GST arising in respect of the provision of the services.
11. |
PRIVACY |
The Service Provider maintains a contact database in order to manage its dealings with its clients. The contact details of the Client held by the Service Provider have been obtained in the usual course of business dealings. Unless the Client advises the Service Provider otherwise, the Service Provider will continue to use the contact information regarding the Client in this way.
12. |
ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement of the parties in respect of the matters dealt with in this Agreement and supersedes all prior agreements, understandings, undertakings and negotiations in respect of the matters dealt with in this Agreement.
13. |
NO WAIVER |
No failure to exercise and no delay in exercising any right, power or remedy under this agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.
14. |
SEVERABILITY |
A term or part of a term of this Agreement that is illegal or unenforceable may be severed from this Agreement and the remaining terms or parts of the term of this Agreement continue in force.
15. |
VARIATION |
Unless otherwise provided for in this Agreement, this Agreement shall not be changed or modified in any way subsequent to execution except in writing signed by or on behalf of the parties.
Service Agreement 900990 v1/HN |
Page 7 of 13 |
\
16. |
GOVERNING LAW |
16.1 |
This Agreement shall be governed by and construed in accordance with the laws of the State of Victoria. |
16.2 |
The parties unconditionally submit to the jurisdiction of the courts of the State of Victoria and courts entitled to hear appeals from these courts. |
Service Agreement 900990 v1/HN |
Page 8 of 13 |
SCHEDULE
ITEM 1: STANDARD SET FEE PER MONTH EXCLUSIVE OF GST
Estimated fee for Professional Services Listed in Item 2 below, being:
The annual fee is $300,000 (+GST) per annum. In the first 12 month of this agreement it is payable as follows:
Ø |
a consulting fee of $16,666.67 (+GST) per calendar month payable monthly in arrears for the engagement term. |
Ø |
ordinary shares in the Client to the value of $100,000 (+GST). The shares are to be issued to The CFO Solution Team Pty Ltd at a price of A$0.14 on or before 31 March 2010. |
At the time of entering this agreement, the Client also acknowledge additional services of $26,000 (+GST) that were provided in the period preceding the Commencement Date of this Agreement. The Client agrees to issue to the Service Provider, ordinary shares in the Client to the value of $26,000 (+GST). The shares are to be issued to The CFO Solution Team Pty Ltd at a price of A$0.14 on or before 31 March 2010.
Service Agreement 900990 v1/HN |
Page 9 of 13 |
ITEM 2: SERVICES INCLUDED IN THE FEE
CLIENT PRR | NUMBER OF DAYS PER MONTH | |||||||||||||||||||||||||||||||||||||||||||||||||||
PA | Jan | Feb | March | April | May | June | July | Aug | Sept | Oct | Nov | Dec | ||||||||||||||||||||||||||||||||||||||||
Review of accounting systems |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Review of Chart of accounts |
4.1 | 0.1 | 1 | 3 | ||||||||||||||||||||||||||||||||||||||||||||||||
Review of reporting systems |
1.1 | 1 | 0.1 | |||||||||||||||||||||||||||||||||||||||||||||||||
Board meetings attend & follow up |
1.1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | 1 | ||||||||||||||||||||||||||||||||||||||||
Board meetings prepared and preview |
5.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | ||||||||||||||||||||||||||||||||||||||||
Audit & Risk Committee meeting attend & follow up Annual & half year |
0.5 | 0.25 | 0.25 | |||||||||||||||||||||||||||||||||||||||||||||||||
Audit & Risk Committee meeting prepare & premeeting Annual & half year |
2.5 | 1.25 | 1.25 | |||||||||||||||||||||||||||||||||||||||||||||||||
Remuneration Committee meeting attend & follow up Annual & half year |
1 | 0.5 | 0.5 | |||||||||||||||||||||||||||||||||||||||||||||||||
Remuneration Committee meeting prepare & premeeting Annual & half year |
2 | 1 | 1 | |||||||||||||||||||||||||||||||||||||||||||||||||
Other Committee meetings attend & follow up |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Weekly accounting |
60 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | 5 | |||||||||||||||||||||||||||||||||||||||
Payroll, salary packaging monthly process |
9 | 0.5 | 1 | 0.5 | 1 | 0.5 | 1 | 0.5 | 1 | 0.5 | 1 | 0.5 | 1 | |||||||||||||||||||||||||||||||||||||||
Payroll, salary packaging & annual reporting |
2.2 | 0.2 | 2 | |||||||||||||||||||||||||||||||||||||||||||||||||
Monthly accounting |
26 | 4 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | |||||||||||||||||||||||||||||||||||||||
Rolling forecast |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Quarterly reporting Appendix 4C (due last day of month following end of qtr) |
6 | 1.5 | 1.5 | 1.5 | 1.5 | |||||||||||||||||||||||||||||||||||||||||||||||
Audit & Risk quarterly attend & follow up |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Audit & Risk prepare & premeeting |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Half year reporting Appendix 4D (due last business day in February) |
19 | 4 | 12 | 3 | ||||||||||||||||||||||||||||||||||||||||||||||||
Fringe Benefits Tax return (due mid May) |
2 | 2 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Preliminary final reporting Appendix 4E (due last business day in August) |
10 | 5 | 5 | |||||||||||||||||||||||||||||||||||||||||||||||||
Annual Financial Statement (due last business day in September) |
15 | 5 | 5 | 5 | ||||||||||||||||||||||||||||||||||||||||||||||||
Annual Report design, proof, etc. |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Annual budget |
0.2 | 0.2 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Notice of Annual General Meeting (Basic) (must be held before Nov) |
2 | 2 | ||||||||||||||||||||||||||||||||||||||||||||||||||
AGM attend & follow up |
1 | 1 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Notice of other General Meeting(s) |
2 | 2 | ||||||||||||||||||||||||||||||||||||||||||||||||||
EGM attend & follow up |
1 | 1 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Changes to Directors interest |
1.05 | 0.3 | 0.25 | 0.25 | 0.25 | |||||||||||||||||||||||||||||||||||||||||||||||
Grants applications & reporting |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Grants applications & reporting review of applicability |
0 | 0.5 | ||||||||||||||||||||||||||||||||||||||||||||||||||
R&D Tax concession prepare plan (must be prepared before commencement of FY) |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
R&D Tax concession lodge (must be lodged by end of April) |
1 | 0.5 | 0.5 | 0.5 | ||||||||||||||||||||||||||||||||||||||||||||||||
EMDG (due end of Dec) |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Business Activity Statements (due last day of month following end of qtr) |
2 | 0.5 | 0.5 | 0.5 | ||||||||||||||||||||||||||||||||||||||||||||||||
Financial due diligence |
0 | 0.5 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Changes to Officers |
1 | 0.5 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Charter & Corporate Governance |
1 | 1 | 0.5 | |||||||||||||||||||||||||||||||||||||||||||||||||
Income Tax return coordination (due end of Feb) |
1.5 | 0.5 | 0.5 | |||||||||||||||||||||||||||||||||||||||||||||||||
ESOP |
2 | 0.5 | 1 | |||||||||||||||||||||||||||||||||||||||||||||||||
Subsidiary matters |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
NASDAQ / JSE 20F |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
NASDAQ / JSE 6K |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
NASDAQ / JSE Other |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
ASIC, ATO & other review/audit matters |
1.25 | 0.25 | 0.25 | 0.25 | 0.25 | 0.25 | ||||||||||||||||||||||||||||||||||||||||||||||
Internal Control review work |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Equity Issues / capital raisings |
30 | 2.5 | 2.5 | 2.5 | 2.5 | 2.5 | 2.5 | 2.5 | 2.5 | 2.5 | 2.5 | 2.5 | 2.5 | |||||||||||||||||||||||||||||||||||||||
Special projects |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Shareholder query / investor relations |
6 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | 0.5 | |||||||||||||||||||||||||||||||||||||||
Job costing |
2.4 | 0.2 | 0.2 | 0.2 | 0.2 | 0.2 | 0.2 | 0.2 | 0.2 | 0.2 | 0.2 | 0.2 | 0.2 | |||||||||||||||||||||||||||||||||||||||
Archiving |
1 | 0.5 | 0.5 | |||||||||||||||||||||||||||||||||||||||||||||||||
Share Trading |
0 | |||||||||||||||||||||||||||||||||||||||||||||||||||
Substantial Shareholder Notice |
0.1 | 0.1 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Administration |
24 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | 2 | |||||||||||||||||||||||||||||||||||||||
Contingency |
26 | 2 | 3 | 2 | 2 | 2 | 2 | 3 | 2 | 2 | 2 | 2 | 2 | |||||||||||||||||||||||||||||||||||||||
TOTAL |
283.4 | 25.05 | 33.6 | 21.7 | 20.7 | 20.7 | 18.7 | 31.2 | 26.7 | 23.2 | 20.7 | 20.2 | 20.95 |
Service Agreement 900990 v1/HN |
Page 10 of 13 |
Days Required
Team Leader |
26.00 | 2.00 | 3.00 | 2.00 | 2.00 | 2.00 | 2.00 | 3.00 | 2.00 | 2.00 | 2.00 | 2.00 | 2.00 | |||||||||||||||||||||||||||||||||||||||
Senior Accountant |
183.00 | 16.35 | 24.40 | 14.00 | 12.00 | 13.00 | 10.50 | 22.00 | 18.50 | 15.50 | 12.00 | 12.50 | 12.25 | |||||||||||||||||||||||||||||||||||||||
Accountant / Senior Bookkeeper |
0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | 0.00 | |||||||||||||||||||||||||||||||||||||||
Assistant Accountant / Bookkeeper |
74.40 | 6.70 | 6.20 | 5.70 | 6.70 | 5.70 | 6.20 | 6.20 | 6.20 | 5.70 | 6.70 | 5.70 | 6.70 | |||||||||||||||||||||||||||||||||||||||
Total |
283.40 | 25.05 | 33.60 | 21.70 | 20.70 | 20.70 | 18.70 | 31.20 | 26.70 | 23.20 | 20.70 | 20.20 | 20.95 | |||||||||||||||||||||||||||||||||||||||
Team Leader |
$ | 1,688 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Senior Accountant |
$ | 1,350 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Accountant / Senior Bookkeeper |
$ | 1,013 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Assistant Accountant / Bookkeeper |
$ | 675 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Team Leader | $ | 43,875 | $ | 3,375 | $ | 5,063 | $ | 3,375 | $ | 3,375 | $ | 3,375 | $ | 3,375 | $ | 5,063 | $ | 3,375 | $ | 3,375 | $ | 3,375 | $ | 3,375 | $ | 3,375 | ||||||||||||||||||||||||||
Senior Accountant |
$ | 247,050 | $ | 22,073 | $ | 32,940 | $ | 18,900 | $ | 16,200 | $ | 17,550 | $ | 147,175 | $ | 29,700 | $ | 24,975 | $ | 20,925 | $ | 16,200 | $ | 16,875 | $ | 16,538 | ||||||||||||||||||||||||||
Accountant / Senior Bookkeeper |
$ | | $ | | $ | | $ | | $ | | $ | | $ | | $ | | $ | | $ | | $ | | $ | | $ | | ||||||||||||||||||||||||||
Assistant Accountant / Bookkeeper |
$ | 50,220 | $ | 4,523 | $ | 4,185 | $ | 3,848 | $ | 4,523 | $ | 3,848 | $ | 4,185 | $ | 4,185 | $ | 4,185 | $ | 3,848 | $ | 4,523 | $ | 3,848 | $ | 4,523 | ||||||||||||||||||||||||||
$ | 341,145 | $ | 29,970 | $ | 42,188 | $ | 26,123 | $ | 24,098 | $ | 24,773 | $ | 21,735 | $ | 38,948 | $ | 32,535 | $ | 28,148 | $ | 24,098 | $ | 24,098 | $ | 24,435 |
Service Agreement 900990 v1/HN |
Page 11 of 13 |
ITEM 3: | DAY RATES EXCLUSIVE OF GST |
Company Secretarial |
$ | 2,000 | ||
Statutory & Compliance Accounting |
$ | 1,500 | ||
Project Management & Monthly Accounting |
$ | 1,000 | ||
Bookkeeping |
$ | 500 |
The purpose of the day rates is for fees in addition to the estimated scope and quantity of work set out in Items 1 and 2.
Service Agreement 900990 v1/HN |
Page 12 of 13 |
ACCEPTANCE OF AGREEMENT
Signed for and on behalf of The CFO Solution HQ Pty Ltd by an authorised person:
/s/ Phillip Hains
|
||||||||
Name: |
Phillip Hains
|
|||||||
Position: |
Sole Director/Principal
|
|||||||
Date: |
12/4/10
|
Signed for an on behalf of Prima Biomed Limited by an authorised person:
/s/ Martin Rogers
|
||||||||
Name: |
Martin Rogers
|
Name:
|
||||||
Position: |
Director
|
Position:
|
||||||
Date: |
1/4/10
|
Date:
|
Service Agreement 900990 v1/HN |
Page 13 of 13 |
Exhibit 4.18
Employment | ||
Agreement |
||
Prima Biomed Limited | ||
ACN 009 237 889 | ||
Ian Edward Bangs |
Table of Contents
1. | Definition and Interpretation | 3 | ||||
2. | Commencement and pre-conditions to employment | 5 | ||||
3. | Position and duties | 6 | ||||
4. | Hours of Work | 7 | ||||
5. | Remuneration | 7 | ||||
6. | Leave Entitlements | 8 | ||||
7. | Conflicts of Interest | 9 | ||||
8. | Confidential Information | 9 | ||||
9. | Intellectual Property | 10 | ||||
10. | Restraint | 10 | ||||
11. | Termination | 12 | ||||
12. | Personal information | 13 | ||||
13. | General | 13 | ||||
Schedule 1 | 16 | |||||
Schedule 2 |
20 |
Dated
Parties
Prima Biomed Limited ACN 009 237 889 | ||
Address: | Suite 1,1233 High Street, ARMADALE,VIC,AUSTRALIA,3143 | |
Facsimile: | + 61 3 9822 7735 | |
Attention: | Martin Rogers (CEO) | |
(Company) | ||
Ian Edward Bangs | ||
Address: | 80 Pentecost Avenue, PYMBLE NSW 2073 | |
Facsimile: | N/A | |
(Employee) |
Background
A | The Company operates the Business. |
B | The Company has agreed to employ the Employee, and the Employee has agreed to serve the Company as an employee, on the terms and conditions of this agreement. |
1. | Definition and Interpretation |
1.1 | Definitions |
In this agreement, unless the contrary intention appears, the following words have the following meanings:
3
levels of the Groups customers or supplied; and |
||||||
(iii) |
the prices and costs at which the Group sells products to customers or sources material from suppliers; | |||||
(b) |
details of the transactions or affairs of the Group; |
|||||
(c) |
financial information relating to the Group; |
|||||
(d) |
trade secrets; |
|||||
(e) |
business forecasts, strategic plans and projections, operational structure, methodology and future developments of the Group; |
|||||
(f) |
marketing information relating to the Group, including marketing plans and methodologies, promotional material and presentations; |
|||||
(9) |
product ingredients, formulae, designs, specifications, ideas, concepts and techniques used or contemplated to be used in relation to the Business of the Group or relating to any products sold or distributed by the Group; |
|||||
(h) |
information concerning the Groups employees, contractors or agents; |
|||||
(i) |
technological processes, technology and equipment used or contemplated to be used in relation to the Business or the Group; and |
|||||
(j) |
any other information or data that the Employee is given or which comes to the Employees knowledge during the course of the employment that the Employee is told is confidential, or that a reasonable person would expect from its nature to be confidential. |
|||||
Corporations Act | Corporations Act 2001 (Cth). | |||||
Group | the Company and each of its Related Companies. | |||||
Human Resources Manual |
the human resources manual issued by the Company to its employees, as varied from time to time. | |||||
Intellectual Property Rights |
all intellectual property rights including current and future registered and unregistered rights in respect of copyright, designs, circuit layouts, trade marks, trade secrets, know-how, confidential information, patents, inventions and discoveries and all other rights resulting from intellectual activities in the industrial, scientific, literary, commercial or artistic fields. | |||||
Location | the location specified in Schedule 1. |
4
Position |
the position specified in Schedule 1, and any other position to which the Employee is appointed in accordance with this agreement. | |||||
Related Company |
has the same meaning given to that term in section 50 of the Corporations Act. | |||||
Remuneration Package |
the Employees annual remuneration package as specified in clause 5.1, and includes any variations as agreed between the Company and the Employee or as determined by the Company. |
1.2 | Interpretation |
In this agreement, unless the context otherwise requires:
(a) | the singular includes the plural and vice versa; |
(b) | another grammatical form of a defined word or expression has a corresponding meaning; |
(c) | a reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to this agreement and a reference to this agreement includes any schedule or annexure; |
(d) | a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time; |
(e) | a reference to a party to this agreement, and a reference to a party to a document includes the partys executors, administrators, successors and permitted assigns and substitutes; |
(f) | a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity; |
(g) | a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; |
(h) | the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; |
(i) | a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it; and |
(j) | headings are for ease of reference only and do not affect interpretation. |
2. | Commencement and pre-conditions to employment |
2.1 | Commencement Date |
The Employees employment with the Company will commence on the Commencement Date and will continue until terminated in accordance with clause 2.2(b) or 11.
2.2 | Probationary period |
(a) | The Employees employment with the Company is subject to an initial three month probationary period ( Probationary Period ). |
5
(b) | The Company may terminate the Employees employment at any time during the Probationary Period by providing the Employee, in writing, one weeks notice of termination (or payment in lieu of such notice). |
2.3 | Warranty and Liability |
(a) | The Employee represents and warrants to the Company that the entry into this agreement, and the performance of this agreement, by the Employee will not constitute a breach of any contractual obligation, including any previous employment obligation, or of any relevant restraint, non-competition, confidentiality or intellectual property obligations, owed to any former employer. |
(b) | The Employee indemnifies the Company and its officers against any Claim which the Company and its officers, pays or is liable for arising directly or indirectly from the Employee breaching the warranty set out in clause 2.3(a). |
(c) | The Company indemnifies Employee against any third party Claim arising directly or indirectly out of, or in connection with, the Employees employment with the Company, excepting damage or injury directly attributed to the Employees failure to adhere to this Agreement, or any applicable federal, state and local laws and regulations, or which may be directly attributable to the negligence or wilful misconduct of the Employee. |
3. | Position and duties |
3.1 | Position |
(a) | The Company agrees to employ the Employee and the Employee will work for the Company: |
(i) | in the Position at the Location; and |
(ii) | in any additional or reasonably comparable substituted position directed by the Company and to which the Employee is appointed by the Company, after consultation with the Employee. |
(b) | For the avoidance of doubt, the terms and conditions set out in this agreement will continue to apply irrespective of any permitted change to the Position, unless otherwise agreed in writing by the Company and the Employee. |
3.2 | Duties |
The Employee must perform the Employees duties consistent with the Position as assigned to the Employee from time to time by the Company, and as initially set out in Schedule 1, to the best of the Employees ability and knowledge and in accordance with the highest standards of professionalism, whether during or outside business hours. Without limitation and in additional to the assigned duties, the Employee must:
(a) | comply with all reasonable directions given to the Employee by the Company; |
(b) | comply with all laws applicable to the Position in each of the jurisdictions in which the Group operates; |
(c) | maintain professional awareness and development of skills and knowledge to ensure maintenance of best practice; |
6
(d) | use all reasonable endeavours to safe guard the success, reputation and interests of the Group. |
3.3 | Company Policies |
(a) | The Employees employment with the Company is subject to the Companys rules and procedures set out in the Human Resources Manual. |
(b) | It is the Employees responsibility to be thoroughly familiar with the contents of the Human Resources Manual, as varied and updated from time to time by the Company. |
(c) | In the event that any conflict exists between this agreement and the Human Resources Manual, this agreement prevails. |
4. | Hours of Work |
4.1 | Hours |
(a) | The Employees usual hours of work will be 38 hours per week, worked on Monday to Friday inclusive ( Usual Hours ). |
(b) | The Employee will also be required to commit whatever reasonable additional hours ( Additional Hours ) are needed to properly manage and perform the Employees duties and meet the reasonable requirements of the Position. |
(c) | The Employee acknowledges that given the nature of the Position and the remuneration payable under this agreement the requirement to work Additional Hours is reasonable. |
4.2 | Payment |
The Employee agrees and acknowledges that the Remuneration Package comprises compensation for Usual Hours and all and any Additional Hours worked by the Employee, and that the Employee is not entitled to payment of any amount in addition to the Remuneration Package for any hours worked by the Employee outside the Usual Hours.
5. | Remuneration |
5.1 | Remuneration Package |
(a) | The Employee will be entitled to receive a Remuneration Package comprising: |
(i) | a base salary in the amount specified in Schedule 1 (Base Salary); and |
(ii) | other benefits specified in Schedule 1. |
(b) | The Remuneration Package is subject to the deduction or withholding of any amounts on account of any applicable taxation. |
5.2 | Payment of Base Salary |
The Employees Base Salary will be paid monthly by direct deposit into a bank account of the Employees choice.
7
5.3 | Superannuation |
The Remuneration Package is inclusive of superannuation, unless otherwise specified.
5.4 | Remuneration review |
The Company will review the Remuneration Package on an annual basis, with regards to agreed upon Performance Targets as described in Schedule 1 and changed from time to time in the Companys discretion, and the Company may alter the Employees total Remuneration Package and its components following that review.
5.5 | Expenses |
(a) | Subject to clause 5.5(b), the Company will pay for or reimburse the Employee for out of pocket expenses properly incurred by the Employee in connection with the Employees employment, provided that the Employee provides the Company on request with a tax invoice substantiating each expense. |
(b) | In the case of individual expenses exceeding the amount specified in Schedule 1, the Employee must obtain the written approval of the CEO in advance. |
5.6 | Deductions |
The Company may deduct from the Base Salary or other sums due to the Employee any amount owned by the Employee on any account to the Group.
6. | Leave Entitlements |
6.1 | Annual Leave |
(a) | The Employee is entitled to 20 days paid annual leave per year. |
(b) | Annual leave will accrue on a pro-rata basis at the end of each completed four week period of continuous service with the Company and is cumulative. |
(c) | There is no entitlement to leave loading in respect to annual leave. |
6.2 | Personal/Carers Leave |
(a) | The Employee is entitled to 10 days paid personal/carers leave per year. The Employee may use this personal/carers leave as sick leave or carers leave. |
(b) | Personal/carers leave will accrue on a pro rata basis at the end of each completed four week period of service with the Company and is cumulative. |
(c) | Accrued personal/carers leave will not form part of any benefit payable to the Employee on termination of the Employees employment. |
(d) | The Company may require the Employee to provide documentary evidence to support any personal/carers leave period. |
6.3 | Compassionate leave |
(a) | The Employee is entitled to paid compassionate leave of up to five days for each occasion when a member of the Employees immediate family or a household member: |
8
(i) | contracts or develops a personal injury or illness that poses a serious threat to the Employees life; or |
(ii) | dies. |
(b) | Other special leave may be granted to the Employee in extenuating circumstances at the absolute discretion of the Company. |
6.4 | Parental Leave |
The Employee will be entitled to parental leave in accordance with the applicable legislation in the Location.
6.5 | Long Service Leave |
The Employee will be entitled to long service leave in accordance with the applicable legislation in the Location.
7. | Conflicts of Interest |
7.1 | Disclosure of interests |
The Employee must declare to the Company the nature of any interests that the Employee may have directly or indirectly which might or might reasonably be expected to conflict with the Employees duties to the Company.
7.2 | Restriction |
The Employee must not engage in any other paid employment or work of any kind during the term of this agreement without the written consent of the Company and the Employee must not be induced or agree to accept any commission, reward or benefit in connection with the Business from any person other than that which is provided under this agreement.
8. | Confidential Information |
8.1 | Prohibitions |
The Employee must not without the Companys prior written consent, either during the Employees employment with the Company or at any time after the termination of the Employees employment with the Company:
(a) | use for the Employees or anothers advantage any Confidential Information; |
(b) | disclose to any person any Confidential Information, either directly or indirectly; |
(c) | make copies of any Confidential Information; or |
(d) | counsel, procure or assist any person or corporation to use or disclose any Confidential Information, |
other than as reasonably required in the performance of the Employees duties as an employee of the Company or as required by law.
9
8.2 | Protecting Unauthorised Use or Disclosure |
The Employee must use the Employees best endeavours to prevent the unauthorised use or disclosure of Confidential Information by, or to, any third party.
8.3 | Information already available to the public |
Clause 8.1 and 8.2 do not apply to information which is freely available to the public, other than as a result of a breach by the Employee of this agreement.
8.4 | Survival |
The obligations in this clause 8 survive termination of this agreement.
9. | Intellectual Property |
9.1 | Intellectual Property Rights |
The Employee agrees that all Intellectual Property Rights created by the Employee during the course of, and in connection with, the Employees employment with the Company will immediately be disclosed and assigned to, and vest in, the Company or such other person or company as may be nominated by the Company as such rights are created.
9.2 | Employee to assist |
The Employee agrees to execute all documents and do all acts and things required by the Company for the purpose of vesting Intellectual Property Rights as prescribed by this clause 9, including without limitation executing a deed of assignment of Intellectual Property Rights in favour of the Company or its nominee.
9.3 | Royalties |
The Employee acknowledges that all royalties, payments, fees, income or any other remuneration arising from Intellectual Property Rights are owned by the Company.
9.4 | Moral rights |
To the extent permitted by law, the Employee waives all of the Employees moral rights in respect of any acts of the Company or any acts of third parties done with the Companys authority in relation to any Intellectual Property Rights that are the property of the Company and consent to the use, treatment, alteration and attribution of such Intellectual Property Rights as deemed appropriate by the Company.
9.5 | Survival |
The obligations in this clause 9 survive termination of this agreement.
10. | Restraint |
10.1 | Clause 10 definitions |
In this clause 10 (and any other provision of this agreement which relates to this clause or its subject matter), unless the context otherwise requires:
10
(a) | Engage in means to participate, assist or otherwise be directly or indirectly involved in, including as a member, shareholder, unitholder, director, consultant, adviser, contractor, principal, agent, manager, employee, beneficiary, partner, associate, trustee or financier; |
(b) | Restraint Area means the areas specified in Schedule 1; |
(c) | Restrained Business means a business or operation similar to, or competitive with, the Business; and |
(d) | Restraint Period means the period specified in Schedule 1. |
10.2 | Restraint obligations |
During the Restraint Period, the Employee must not, either directly, indirectly or as a result of contact by any other party, in the Restraint Area, without the prior written consent of the Company (which it may withhold in its absolute discretion):
(a) | engage in a Restrained Business; |
(b) | take any action to prepare to Engage in a Restrained Business; |
(c) | be concerned or interested (directly or indirectly, or through any interposed body corporate, trust, principal, agent, shareholder, beneficiary, or as an independent contractor or in any other capacity) in a Restrained Business; |
(d) | solicit, canvas or secure the custom of any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group with whom the Employee dealt at any time during the last 12 months of the Employees employment with the Company for the purpose of transacting business relating to the Restrained Business; |
(e) | accept any instructions to perform any work relating to the Restrained Business for any person who is, or was a customer, identified prospective customer, supplier, distributor or licensee of the Group; or |
(f) | induce or attempt to induce an employee or consultant of the Group to terminate their employment or consultancy with the Group. |
10.3 | Independence of restraints |
Each of the restraint obligations imposed by this clause 10 (which results from the combinations of Restraint Area, Restrained Business and Restraint Period) is a separate and independent obligation from the other restraint obligations imposed (although they are cumulative in effect).
10.4 | Reasonableness of restraint |
The Employee acknowledges and agrees that each of the restraint obligations imposed by this clause 10 is reasonable in its extent (as to all of duration, geographical area and restrained conduct) having regard to the interests of each party to this agreement and extends no further (in any respect) than is reasonably necessary and is solely to protect the Companys legitimate interests.
10.5 | Legal advice |
Each party acknowledges that in relation to this agreement and in particular this clause 10 it has received legal advice or has had the opportunity of obtaining legal advice.
11
10.6 | Notification to prospective employer |
The Employee must notify any prospective employer of the terms of the restrictions undertaken by him in this agreement.
10.7 | Injunction |
Each party to this agreement acknowledges that monetary damages alone would not be adequate compensation to the Company for a breach of this clause 10 and that the Company is entitled to seek an injunction or other equitable relief from a Court of competent jurisdiction if:
(a) | the Employee fails to comply or threatens to fail to comply with this clause 10; or |
(b) | the Company has reason to believe the Employee will not comply with this clause 10. |
10.8 | Survival |
The obligations in this clause 10 survive termination of this agreement.
11. | Termination |
11.1 | General |
(a) | Either party may terminate this agreement on the provision, in writing, of the period of written notice of termination specified in Schedule 1 to the other party. |
(b) | The Company may terminate the Employees employment by making a payment of Base Salary plus superannuation contributions in lieu of notice of termination for all or part of the notice period. |
11.2 | Termination without notice |
The Company may terminate the Employees employment without notice and without paying any amount in lieu of notice if the Employee:
(a) | is guilty of serious misconduct or dishonesty; |
(b) | commits any serious or persistent breach of any of the provisions of this agreement; |
(c) | in the reasonable opinion of the Company, materially or persistently fails or neglects to perform or carry out the Employees duties under this agreement; |
(d) | refuses or neglects to comply with any lawful and reasonable order given to the Employee by the Company or any other person duly authorised by the Company; |
(e) | becomes bankrupt or suspends payment or compounds with or assigns the Employees estate for the benefit of the Employees creditors; |
(f) | is continually and repeatedly absent from the Employees employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(g) | has provided the Company with information about the Employees qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; |
12
(h) | is incapacitated from performing the Employees duties for an aggregate period of three months in any period of 12 months; or |
(i) | is convicted of any serious criminal offence which in the reasonable opinion of the Company might tend to injure the reputation or the Group or the Business. |
11.3 | No redundancy |
The Employee acknowledges that the Employee will not be entitled to any redundancy payment that the Employee may otherwise be entitled to at law where the Employees employment is transferred to another employer, and qualifying service with the Company, including recognised prior service, is recognised by the new employer for the calculation of all accrued entitlements, including in relation to any subsequent redundancy situation.
11.4 | Employees obligations after termination |
If the Employees employment is terminated for any reason:
(a) | the Company may set off any amounts the Employee owes the Company against any amounts the Company owes the Employee at the date of termination, except for amounts the Company is not entitled by law to set off; and |
(b) | the Employee must immediately return all property belonging to the Company, including all software, computers, credit cards, keys, security access passes, books, vehicles and mobile phones. |
12. | Personal information |
12.1 | Acknowledgement |
The Employee acknowledges that the Company will be required to request and hold personal information relating to the Employee for the purposes of administering the Employees employment.
12.2 | Disclosure |
The Employee consents to the Company or any of its Related Companies disclosing personal information it holds regarding the Employee for purposes related to the Employees employment, and any other related purpose.
13. | General |
13.1 | Entire agreement |
This agreement constitutes the entire agreement between the parties in relation to its subject matter. All prior discussions, undertakings, agreements, representations, warranties and indemnities in relation to that subject matter are replaced by this agreement and have no further effect.
13.2 | No merger |
The provisions of this agreement will not merge on completion of any transaction contemplated in this agreement and, to the extent any provision has not been fulfilled, will remain in force.
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13.3 | Attorneys |
Each person who executes this agreement on behalf of a party under a power of attorney warrants that he or she has no notice of the revocation of that power or of any fact or circumstance that might affect his or her authority to execute this agreement under that power.
13.4 | Amendment |
This agreement may not be amended or varied unless the amendment or variation is in writing signed by each other party.
13.5 | Assignment |
Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of each other party, which must not be unreasonably withheld.
13.6 | Severability |
Part or all of any provision of this agreement that is illegal or unenforceable will be severed from this agreement and will not affect the continued operation of the remaining provisions of this agreement.
13.7 | Waiver |
Waiver of any power or right under this agreement:
(a) | must be in writing signed by the party entitled to the benefit of that power or right; and |
(b) | is effective only to the extent set out in that written waiver. |
13.8 | Rights, remedies additional |
Any rights and remedies that a person may have under this agreement are in addition to and do not replace or limit any other rights or remedies that the person may have.
13.9 | Further assurances |
Each party must do or cause to be done all things necessary or reasonably desirable to give full effect to this agreement and the transactions contemplated by it (including, but not limited to, the execution of documents).
13.10 | Costs |
Except as specifically provided in this agreement, each party must bear its own legal, accounting and other costs for the preparation and execution of this agreement.
13.11 | Counterparts |
This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
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13.12 | Governing law and jurisdiction |
This agreement will be governed by and construed in accordance with the laws in force in the State of New South Wales and each party submits to the non-exclusive jurisdiction of the courts of that State.
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Schedule 1
Details of Employment Terms
No.
|
Item
|
Description
|
||||
1. | Employee |
Ian Bangs
|
||||
2. | Position |
Chief Financial Officer
|
||||
3. | Entity |
Prima Biomed Ltd.
|
||||
4. | Commencement Date |
7 February 2011
|
||||
5. | Location |
Sydney
|
||||
6. | Report |
Board and CEO
|
||||
7. | Overview of duties and responsibilities | (a) |
As a member of Company executive team, assist with managing and guiding Company strategy especially its financial and funding strategy;
|
|||
(b) |
Work with Company executive team to help coordinate integrated approaches to research & development, operations, and sales and marketing with finance and accounting and provide a strategic and financial focus to the other executive and management team;
|
|||||
(c) |
Together with the CEO, be a key point of contact and communication between the company and its investors, financial analysts and advisers (in accordance with relevant listing and compliance rules) and work together with the CEO to ensure that the company maintains close contact with interested stakeholders, including shareholders and potential investors
|
|||||
(d) |
Be principally responsible for the Companys relations with its bankers and financial advisers in relation to general financial management and managing currency and foreign exchange risks
|
|||||
(e) |
Be accountable for Group financial planning and analysis, management accounting, budgeting and cash flow statements and forecasts;
|
|||||
(f) |
Accountable for Group accounting, tax and other compliance requirements in all relevant jurisdictions;
|
|||||
(g) |
Be responsible for cash management, establishment and monitoring of internal cash controls, and monitoring of exchange-rate and interest risks associated with Company resources;
|
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(h) | Accountable for regulatory compliance with relevant exchange rules, reporting, and audit requirements; | |||||
(i) | Maintain accounting and inventory for Companys tangible assets and inventory | |||||
(j) | Be responsible for and manage Companys insurance and legal requirements; | |||||
(k) | Be responsible for and manage Companys human resources policies and assure compliance with relevant labor regulations; | |||||
(l) | Be responsible for overseeing Companys leases, investor and creditor commitments, and other long term contractual commitments; | |||||
(m) | comply with all laws applicable to the Position in each of the jurisdictions in which the Group operates; | |||||
(n) | maintain professional awareness and development of skills and knowledge to ensure maintenance of best practices in finance, accounting, and tax, especially in the field of biotechnology; and | |||||
(o) |
do all things necessary to meet or exceed the reasonable directions given by the CEO and the board and to that end, be proactive in the critical high growth phase of the business
|
|||||
8. |
Performance targets | These shall be established every twelve months at the direction of the CEO and the Board. In the first twelve months, they shall include ( in addition to clause 7) : | ||||
(a) | Being responsible for a smooth and incident free transition from The CFO Solutions to the Employee as incoming internal Company CFO and Company Secretary so that the transition is seamless | |||||
(b) | Assisting wherever possible a successful launch and ongoing NASDAQ ADR listing and implement internal reporting procedures to comply with statutory and regulatory requirements | |||||
(c) | Be responsible, with the CEO for communicating with investors and potential investors which shall include participating, at the request of the CEO in road shows and investor presentations | |||||
(d) | Establish an internal financial management system and cost accounting system to help with effective financial strategy management, including the seamless and incident free implementation of a new accounting system. |
17
(e) | Prepare comprehensive and strategically focussed cost benefit analyses for major business and investment decisions | |||||||
(f) | Undertake a comprehensive review of Company cash management and expenses for near-term and medium term expense reduction including optimising the companys management of currency exposures and general expense management | |||||||
(g) | Determine options for financing the companys medium term obligations, and after they have been agreed by the Board, be responsible for securing favourable financing arrangements for Companys longer-term investment needs over the next 36 months after the alternative cost of capital has been calculated and market reactions have been evaluated | |||||||
These and other performance targets and the extent to which they have been achieved shall be assessed by the Board of the Company, in consultation with the CEO in its absolute discretion and communicated to the Employee.
|
||||||||
9. | Base Salary |
AUD 218,000 per annum, paid in equal monthly amounts, inclusive of superannuation contributions. Subject to satisfactory performance, the base salary shall be reviewed after 2 years
|
||||||
10. |
Term |
2 years with a two year option
|
||||||
11. | Other Benefits | The Company will: | ||||||
(a) | subject to (1) the Employee exceeding agreed performance targets; (2) the Employee remaining in compliance with this Agreement and all laws; and (3) in the absolute discretion of the Board of the Company, on each 01 February after the first year during the Employees employment with the Company, grant the Employee the number of Performance Options with an equivalent maximum value of 20% in the case of exceptional performance of the base annual salary (as calculated by Black-Scholes model) according to the terms in Schedule 2 below; and | |||||||
(b) | pay for, or reimburse the Employee for the cost of: | |||||||
(i) | a laptop computer for use on behalf of the Company, for the Employees exclusive use during the Employees employment with the Company; | |||||||
(ii) | reasonable and customary business expenses, including business related travel and entertainment, according to Companys current policies, and |
18
(iii) a mobile phone for the Employees exclusive use during the Employees employment with the Company. |
||||
12. | Restraint Period | The period of the Employees employment with the Company and the period of six months from the cessation of the Employees employment with the Company; however, if the Employee is terminated by the Company without cause, the Restraint Period shall terminate on the date of Employees employment termination. | ||
13. | Restraint Area(s) | Global for any competitive company in the field of cell therapy or research, development, marketing, or distribution or biopharmaceutical products | ||
14. | Expense Limit | AUD 1,000 | ||
15. | Termination notice period | Three months; salary may be paid in lieu of notice | ||
16. | Governing law and jurisdiction | New South Wales |
19
Schedule 2
Performance Options
1. | Each Performance Option entitles the holder to subscribe for 1 fully paid ordinary share in the Company. |
2. | Despite any other paragraph of these terms, all Performance Options will immediately vest in the holder on the occurrence of either of the following events: |
(a) | the Employee is terminated by the company without cause; or |
(b) | the Employees death; or |
(c) | the offeror under a takeover bid or announcement acquires (unconditionally) in excess of 50% of the issued voting shares of the Company; or |
(d) | as a result of the approval of one or more schemes of arrangement any person who is not at the date of issue of the options in control of the Company acquires in excess of 50% of the issued voting shares of the Company. |
3. | Each Performance Option may be exercised at a lesser price of ten Australian cents (AUD 0.10) or a price equal to the volume weighted average price of ordinary shares in the Company traded on ASX during the 30 trading days immediately prior to the date of grant of the Performance Options to the holder at any time during the period commencing on the date the Performance Options vest pursuant to paragraph 2 or 3 of these terms and ending at 5:00 pm (Sydney, NSW time) on the date two years following that date or within 30 trading days of the Employees death, whichever is earlier ( Expiry Date ) by completing the option exercise form and delivering it to the registered office of the Company. |
4. | Any Performance Option automatically lapses if: |
(a) | it has not been exercised prior to the Expiry Date; or |
(b) | the holders employment with the Company is terminated for any one or more of the following reasons: |
(i) | the holder is guilty of serious misconduct or dishonesty; |
(ii) | the holder commits any serious or persistent breach of any of the provisions of the holders employment agreement with the Company; |
(iii) | in the reasonable opinion of the Company, the holder materially or persistently fails or neglects to perform or carry out the holders duties under the holders employment agreement with the Company; |
(iv) | the holder refuses or neglects to comply with any lawful and reasonable order given to the holder by the Company or any other person duly authorised by the Company; |
(v) | the holder becomes bankrupt or suspends payment or compounds with or assigns the holders estate for the benefit of the holders creditors; |
20
(vi) | the holder is continually and repeatedly absent from the holders employment during normal working hours for reasons other than annual leave, leave arising from sickness or disability or other absences that are approved by the Company; |
(vii) | the holder has provided the Company with information about the holders qualifications, experience, character or reputation which is misleading or was intended to be false or misleading; or |
(viii) | the holder is convicted of any serious criminal offence. |
5. | An exercise of only some Performance Options will not affect the rights of the holder under the balance of the Performance Options held by him or her as appropriate. |
6. | The Company will not apply for official quotation by ASX of the Performance Options. |
7. | The Performance Options are non-transferable and may not be sold, assigned, transferred or otherwise dealt with in any way, except in the sole case of the Employees death whereby Sign-On options shall be transferred to the Employees estate. |
8. | Shares issued upon the exercise of Performance Options will rank pari passu with the Companys fully paid ordinary shares and will have the same voting and other rights as the existing shares of the Company, which are set out in the Companys Constitution, ASX Listing Rules and the Corporations Act. |
9. | The Company will apply for official quotation by ASX of all shares issued upon exercise of Performance Options, subject to any restriction obligations imposed by ASX. |
10. | The Performance Options will not give any right to participate in dividends until shares are issued pursuant to the exercise of the relevant Performance Options. |
11. | There are no participation rights or entitlements inherent in the Performance Options and holders will not be entitled to participate in new issues of capital offered to shareholders during the currency of the Performance Options. |
12. | In the event of any reconstruction (including consolidation, subdivision, reduction or return) of the issued capital of the Company prior to the Expiry Date, the number of Performance Options or the rights attaching to the Performance Options or both shall be reconstructed in accordance with the ASX Listing Rules applying to a reorganisation of capital at the time of the reconstruction. |
21
EXECUTED as an agreement
EXECUTED by PRIMA BIOMED |
) | |||
LIMITED ACN 009 237 889 in | ) | |||
accordance with section 127 of the | ) | |||
Corporations Act 2001 | ) | |||
) |
|
/s/ Lucy Turnbull |
|||
Signature of Director | Signature of Director/Secretary | |||
/s/ Martin Rogers |
Luncinda Turnbull |
|||
Name of Director | Name of Director/Secretary |
SIGNED by IAN EDWARD BANGS in | ) | |||
the presence of: | ) | |||
) | ||||
) | ||||
) |
/s/ Ian Bangs |
||||
Ian Edward Bangs | ||||
/s/ Melanie Sang |
||||
Signature of Witness | ||||
Melanie Sang |
||||
Name of Witness |
22
Exhibit 15.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation of our report dated November 15, 2011 with respect to the consolidated statements of financial position of Prima BioMed Ltd as at June 30, 2011, and 2010, and the consolidated statements of comprehensive income, cash flow and changes in equity for each of the 3 years to June 30, 2011, and notes to the financial statements, in its Registration Statement pursuant to Section 12(b) of the Securities Exchange Act of 1934 (Form 20-F).
MDHC Audit Assurance Pty Ltd |
Hawthorn, Australia |
|||||
February 9, 2012 | ||||||
|
||||||
KEVIN P ADAMS | ||||||
Director |