EXHIBIT 10.4
SHAREHOLDER AGREEMENT DATED AS OF OCTOBER 15, 1999,
BETWEEN PRAXIS PHARMACEUTICALS AUSTRALIA PTY LTD.,
PRAXIS PHARMACEUTICALS INC., PERPETUAL TRUSTEES NOMINEES LIMITED,
AND ROTHSCHILD BIOSCIENCE MANAGERS LIMITED
PRAXIS PHARMACEUTICALS AUSTRALIA PTY
LIMITED
(ACN 082 811 630)
- and -
PRAXIS PHARMACEUTICALS INC.
- and -
PERPETUAL TRUSTEES NOMINEES LIMITED
(ACN 000 341 533)
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ROTHSCHILD BIOSCIENCE MANAGERS LIMITED
(ACN 072 515 247)
SHAREHOLDERS AGREEMENT
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Solicitors and Consultants
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Ref:JCS:EVK:1073464
(L:\SEC\EVK\1073464\PRAXSHAG.DOC)
SHAREHOLDERS' AGREEMENT
THIS AGREEMENT is made the 15th day of October December 21, 1999
BETWEEN:
PRAXIS PHARMACEUTICALS AUSTRALIA PTY LIMITED (ACN 082 811 630)
of ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Capital
Territory 2601 ("Company")
- and -
PRAXIS PHARMACEUTICALS INC. of ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America 84101 ("Praxis USA")
- and -
PERPETUAL TRUSTEES NOMINEES LIMITED (ACN 000 341 533) of ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ in its capacity as trustee for
The Australian Bioscience Trust constituted by a Trust Deed dated 20
August 1998 ("Trustee")
- and -
ROTHSCHILD BIOSCIENCE MANAGERS LIMITED
(ACN 072 515 247) of ▇▇▇▇▇ ▇▇, ▇ ▇'▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ("RBML")
WHEREAS:
A The current Shareholder is Praxis USA who is the registered holder of
the entire 100 Class A Shares issued.
B It is intended that prior to the subscription by the Trustee, Praxis
USA will be the registered holder of 1,400,000 Ordinary Shares.
C RBML have agreed to procure the Trustee to subscribe, over two
tranches, for up to 2,000,000 Series A Preferred Shares, at a
subscription price of $1.00 per Share, on the terms and conditions set
out in this Agreement. The first tranche will be for 250,000 Series A
Preferred Shares for a total consideration of $250,000 and the second
tranche will be for 1,750,000 Series A Preferred Shares for a total
consideration of $1,750,000.
D The parties have agreed that their relationship shall be governed by
the terms and conditions set out in this Agreement.
NOW IT IS AGREED:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement, unless the context otherwise requires:
"Anutech" means Anutech Pty Ltd (A.C.N. 008 548 650) of
Anutech Court, corner ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇;
"Associate" has the meaning ascribed to that term in the
Corporations Law;
"Board" or "the Directors" means the Board of Directors of the
Company as constituted from time to time;
"Business" means the drug development operations of the
Company;
"Business Day" means a day on which banks are open for
domestic business in Melbourne excluding Saturdays, Sundays
and public holidays;
"Business Plan" means the business plan of the Company in
place from time to time;
"Confidentiality Deed" means a deed substantially in the form
of the confidentiality deed set out in Schedule 1;
"Commencement Date" means the third Business Day after the
date on which the condition precedent set out in Clause 2.1 is
satisfied or such other date as the parties may agree;
"Constitution" means the constitution of the Company;
"Corporations Law" means the Corporations Law of Victoria or,
where applicable, any other Corporations Law of any State or
Territory;
"Deed of Accession" means a deed substantially in the form of
the deed of accession set out in Schedule 2;
"Dispose" means, in relation to any relevant property, to
sell, transfer, assign, create an Encumbrance over, declare
oneself a trustee of or part with a benefit of or otherwise
dispose of the relevant property (or any interest therein) and
includes, without limitation, in relation to a share to enter
into a transaction in relation to the share (or any interest
therein), other than a transaction permitted by this Agreement
or the Constitution, which results in a person other than the
registered holder of the share:
(a) acquiring any equitable interest in the share, including,
but not limited to, an equitable interest arising
pursuant to a declaration of trust, an agreement for sale
and purchase of or an option agreement or an agreement
creating a charge or other security interest in respect
of the share;
(b) acquiring any right to receive directly or indirectly any
dividends payable in respect of the share;
(c) acquiring any rights of pre-emption, first refusal or
like control over the disposal of the share;
(d) acquiring any rights of control over the exercise of any
voting rights or rights to appoint Directors attaching to
the share; or
(e) otherwise acquiring legal or equitable rights against the
registered holder of the share which have the effect of
placing the person in the same position as would exist if
the person had acquired a legal or equitable interest in
the share itself;
"Dividend" includes a bonus distribution in specie or in cash;
"Eligible Investee Company" has the meaning given to that term
in the IIF Program Guidelines No. 1 of 1998 established by the
Industry Research and Development Board acting under Part 2 of
the IIF Program, Policies and Practices Direction No. 1 of
1997 (as amended from time to time, whether generally or in
relation to any Licensed Fund);
"Employee Share Plan" means an employee share or option
incentive plan proposed to be introduced by the Company
pursuant to Clause 10;
"Encumbrance" means any mortgage, pledge, lien, hypothecation,
charge or other form of security interest or interest in the
nature of a security interest whatsoever;
"Group" means the Company and its subsidiaries (if any) for
the time being;
"IIF Management Licence" means an IIF Program management
licence executed between the Industry Research and Development
Board on behalf of the Commonwealth of Australia and a Party
to this Agreement;
"IIF Program" means the Innovation Investment Fund Program
established by the Commonwealth of Australia under the
Industry Research and Development ▇▇▇ ▇▇▇▇ (Clth.);
"Licence Agreements" means the licence agreements entered into
on or about the date of this Agreement between Anutech and
Praxis USA and between Anutech and the Company;
"Licence and Research & Development Agreements" means the
Licence and Research & Development Agreement entered into
between Anutech and Praxis USA on 27 October 1997 and the
Addendum to the Licence and Research & Development Agreement
dated 8 October 1998;
"Licensed Fund" means a fund of whatever nature, and whether
incorporated or not:
(a) which, or the manager of which, is to be or has been
granted an IIF Management License; and
(b) the manager or trustee of which is a Shareholder;
"Ordinary Shares" means the ordinary Shares of the Company
having the rights ascribed to them by the Constitution;
"Party" means a party to this Agreement and includes a person
who executes a Deed of Accession;
"Preferred Shareholder" means a Party who holds a Series A
Preferred Share and includes a Party who holds the beneficial
interest in a Series A Preferred Share registered in the name
of another person as nominee for that Party;
"Proposing Transferor" means a Shareholder that proposes to
Dispose of any Shares held by it;
"Related Body Corporate" has the meaning ascribed to that term
in the Corporations Law;
"Relevant Event" means, in relation to a Shareholder:
(a) that Shareholder making any arrangement or composition
with its creditors generally or any or all of them (other
than for the purposes of a bona fide scheme of solvent
amalgamation or reconstruction to which the other
Shareholders have consented in writing);
(b) that Shareholder becoming insolvent within the meaning of
that expression in the Corporations Law;
(c) a receiver, manager, receiver and manager, administrator
or trustee or other like custodian being appointed by any
person over all or a substantial part of that
Shareholder's undertaking or assets and such receiver,
manager, receiver and manager, administrator, trustee or
other like custodian is not discharged within 60 days of
being appointed;
(d) that Shareholder having a petition or summons lodged or
an order made or a resolution passed for its liquidation
or winding up (other than a voluntary liquidation for the
purposes of a
bona fide scheme of solvent amalgamation or
reconstruction to which the other Shareholders have
consented in writing) which is not discharged or revoked
within 30 days; or
(e) the power, whether held directly or indirectly and by
whatever means (whether or not enforceable at law or in
equity):
(i) to exercise or control the right to vote attached to
no less than 50% of the issued shares in that
Shareholder;
(ii) to Dispose of or exercise a right of disposal over
not less than 50% of the issued Shares of that
Shareholder;
(iii)to control the composition of the board of
directors of that Shareholder (which shall be
determined having regard to Section 47 of the
Corporations Law); or
(iv) to determine substantially the conduct of that
Shareholder's business activities,
shall reside in any persons other than those holding such
power on the date on which that Shareholder became a
Shareholder;
"Relevant Shares" means in relation to a transferee of Shares,
the Shares originally transferred to the Transferee and any
additional Shares issued or transferred to the Transferee by
virtue of the holding of those Shares or any of them;
"Second Tranche Date" means the date 10 Business Days after
the Investors have received a patent review satisfactory to
them from a patent attorney specified by the Investors
following the filing of a patent application in respect of new
compounds in accordance with the Business Plan;
"Senior Employee" means an employee whose rate of gross
contractual salary is $75,000 per annum or more;
"Series A Preferred Shares" means Series A Redeemable
Convertible Preferred Shares in the capital of the Company
having the rights ascribed to them by the Constitution;
"Share" means a share in the capital of the Company including,
without limitation, Ordinary Shares and Series A Preferred
Shares;
"Shareholder" means a Party who holds Shares and includes a
Party who holds the beneficial interest in Shares registered
in the name of another person as nominee for that Party;
"Specified Proportion" means, in relation to a Shareholder, a
fraction the numerator of which is the number of Shares held
by that Shareholder for the time being and the denominator of
which is
the total number of Shares (including the Shares held by the
said Shareholder) in issue for the time being (assuming that
in so calculating the number of Shares held by a Shareholder
and the total number of Shares in issue, all Series A
Preferred Shares have been converted in to Ordinary Shares);
"Subsidiary" has the meaning ascribed to that term by the
Corporations Law;
"Transfer Notice" means a Transfer Notice delivered by a
Shareholder pursuant to Clause 8.3(b);
"Transfer Shares" means the Shares that a Proposing Transferor
proposes to Dispose of;
"Trust" means the Australian Bioscience Trust constituted by a
deed of trust dated 20 August 1998 between Perpetual and RBML;
"Trust Deed" means the deed of trust constituting the Trust;
and
"Trustee" means Perpetual and any substitute or additional
trustee appointed to the Trust.
1.2 INTERPRETATION
In this Agreement, including the Recitals, except to the
extent that the subject or the context otherwise requires:
(a) reference to any legislation or to any provision of any
legislation shall include any modification or re-enactment of,
or any legislative provision substituted for, and all
legislation and statutory instruments issued under, such
legislation or such provision and shall include the
corresponding legislation in such other State or Territory of
the Commonwealth of Australia as may be relevant from time to
time;
(b) words (including words defined in this Agreement) denoting
the singular number shall include the plural and vice versa;
(c) words importing natural persons will include corporations,
firms, unincorporated associations, partnerships, trusts and
any other entities recognised by law and vice versa;
(d) words denoting any gender shall include all genders;
(e) the words "WRITTEN" and "IN WRITING" include any means of
visible reproduction of words in a tangible and permanently
visible form;
(f) reference to Clauses and Schedules are references to
clauses and schedules of this Agreement;
(g) where a word or phrase is defined, other parts of speech
and grammatical forms of that word or phrase shall have
corresponding meanings;
(h) reference to any document or agreement shall be deemed to
include references to such document or agreement as novated,
supplemented, varied or replaced from time to time;
(i) no rule of construction applies to the disadvantage of a
party because that party was responsible for the preparation
of this Agreement or any part of it; and
(j) a reference to the ownership of Shares by a Shareholder or
the Shares held by a Shareholder shall include, in relation to
a Party who holds the beneficial interest in Shares registered
in the name of another person as nominee for that Party, a
reference to the beneficial ownership of such Shares by that
Party or the Shares the beneficial interest in which is held
by that Shareholder.
1.3 HEADINGS
The headings to Clauses or Schedules are for the purposes of
more convenient reference only and do not form part of this
Agreement or effect its interpretation.
1.4 ACKNOWLEDGEMENT
RBML acknowledges the provisions of this Agreement and agrees
and undertakes that to the extent of its powers as manager of
the Trust that it shall exercise all such powers as are
available to it under the Trust Deed, do all such acts,
matters and things and sign, execute and deliver all such
instructions and documents to require the Trustee to comply
with its obligations under this Agreement.
2 CONDITION PRECEDENT
2.1 This Agreement and the performance of all obligations under this
Agreement (other than obligations under this Clause 2) are subject to
and conditional upon the Constitution being amended as set out in
Schedule 3.
2.2 The Company must ensure that the condition precedent in Clause 2.1
is satisfied on or before 31 October 1999.
2.3 If the condition precedent in Clause 2.1 is not satisfied on or
before 31 October 1999 (or such other date as the parties may agree),
this Agreement (other than this Clause 2) is automatically terminated
without any of the parties being liable to any other party pursuant to
this Agreement except under this Clause 2.
2.4 If the Second Tranche Date has not occurred on or before [ ], or
such other date as the Investors agree, the Investors' obligations
pursuant to Clause 3.2 are automatically terminated.
3 CAPITALISATION OF THE COMPANY AND OTHER MATTERS
3.1 On the Commencement Date RBML will procure that the Trustee
subscribe for a total of 250,000 fully paid Series A Preferred Shares at
a price of $1.00 per Share and shall accordingly complete, sign and
deliver to the Company an application form in respect of the Shares
being subscribed for by it accompanied by a cheque for the subscription
monies due.
3.2 On the Second Tranche Date, RMBL will procure that the Trustee
and/or such other persons as RBML determines subscribe for a total of
1,750,000 fully paid Series A Preferred Shares at a price of $1.00 per
share and shall accordingly complete sign and deliver to the Company an
application form in respect of the Shares being subscribed for by it
accompanied by a cheque for the subscription monies due. Any person
(other than the Trustee) who subscribes for Series A Preferred Shares
pursuant to this clause shall execute a Deed agreeing to become a Party
to this Agreement in a form acceptable to RBML.
3.3 The Company shall, upon each receipt from the applicant of its
respective applications, subscription monies or consideration in
accordance with Clauses 3.1 and 3.2, issue and allot Series A Preferred
Shares to the Trustee in accordance with each respective application and
issue the Trustee with share certificates for its respective Shares.
3.4 Unless otherwise agreed in writing between the Shareholders, the
subscription monies referred to in Clauses 3.1 and 3.2 shall be applied
by the Company solely for the purposes of the Business as detailed in
the Business Plan.
4 FURTHER FINANCING
4.1 Except as otherwise provided in this Agreement, none of the
Shareholders undertakes to provide any loan or Share capital to the
Company or to give any guarantee or indemnity in respect of any of the
Company's liabilities or obligations.
4.2 If, at any time prior to a public offering of any Shares, the
Company wishes to raise further funds, the Company must first offer the
right to provide to the Company all of the further funds to the
Preferred Shareholders in proportion to their respective holdings of
Series A Preferred Shares. If any Preferred Shareholder does not wish to
provide all or part of its proportion of the further funds, the other
Preferred Shareholders shall have the right to provide those further
funds in proportion to their respective holdings of Series A Preferred
Shares.
5 PUBLIC OFFERING
5.1 Each party (other than the Trustee) shall use its best endeavours to
ensure that an initial public offering of the Shares on the terms set
out in Clause 5.2, or any other means by which the Shareholders can
realise the value of their investment in the Shares, occurs within 36
months from the Commencement Date.
5.2 It is intended that the initial public offering raise at least $10
million by the offer of Shares at an issue price of at least $3.00 per
share.
6 DIVIDEND POLICY FOR ORDINARY SHARES
6.1 The Parties agree that there is no existing intention to declare
Dividends on any Ordinary Shares, and that no declaration of Dividends
on any Ordinary Shares shall occur until such time as the Company has
generated sufficient profits from the Business as would enable all
Dividends that have accrued on Series A Preferred Shares, pursuant to
the Constitution, to be met in full were those Dividends payable on the
day the Dividend on the Ordinary Shares is to be declared.
6.2 Subject to Clause 6.1, the Directors shall determine whether the
Company shall pay a Dividend on the Ordinary Shares in any year.
7 DISPOSAL AND ENCUMBRANCE OF SHARES
7.1 Subject to Clause 7.2, a Shareholder shall not Dispose of any legal
or equitable interest in any of its Shares except:
(a) by a transfer of the entire legal and beneficial interest
therein; and
(b) to a transferee permitted by the Constitution and this
Agreement.
7.2 A Shareholder may create an Encumbrance in respect of any of its
Shares if:
(a) BONA FIDE SECURITY
(i) such Encumbrance is granted bona fide as security
for a financing arrangement; and
(ii) in relation to the exercise or enforcement of any
power of sale or other right, power, authority,
remedy or discretion contained in or conferred under
or pursuant to the instrument creating the
Encumbrance or otherwise howsoever, it is a term or
condition that the person entitled to the benefit of
the Encumbrance ("the Chargee") and any person
(including any receiver or receiver and manager)
claiming through the Chargee ("an Administrator")
shall be required to:
(1) comply in all respects with the provisions of
this Agreement and the Constitution as if the
Chargee and the Administrator were each the
applicable Shareholder; and
(2) covenant with the Shareholders by a written
instrument in such form as the Shareholders may
require that if the Chargee and the
Administrator (or either of them) take
possession of the rights or benefits of the
applicable Shareholder under this Agreement,
which are subject to the Encumbrance, the
Chargee and the Administrator will each be
bound by the provisions of this Agreement and
the Chargee and the Administrator (or either of
them) will not exercise any power of sale
pursuant to the Encumbrance, except on terms
the same mutatis mutandis as those set forth in
this Agreement and the Constitution; or
(b) the prior written consent of all other Shareholders is
obtained.
8 TRANSFER OF SHARES
Notwithstanding anything to the contrary contained in this Agreement or
in the Constitution:
8.1 TRANSFER OF SHARES
(a) The Company shall refuse to register the transfer of any
Share unless the transferee has or the transferees have
entered into a Deed of Accession and:
(i) such transfer is permitted by, or is made pursuant
to and in accordance with, Clauses 8.3, 8.4, 8.5 or
8.6 or the provisions of any agreement in writing
between all the Shareholders; or
(ii) the proposed transferee is approved in writing by
all the Shareholders (other than the Transferor of
the Share) before any instrument is executed to give
effect to such
transfer and, subject to such approval being given,
Clause 8.3 shall not apply to such transfer.
(b) Subject to Clause 8.1(c), the Company shall not be
entitled to decline to register the transfer of any Share
which otherwise qualifies under Clauses 8.1(a)(i) or
8.1(a)(ii).
(c) For the purpose of ensuring that a particular transfer of
Shares is permitted under this Agreement or under the
provisions of any agreement in writing between all the
Shareholders, the Company may require the transferor or
the person named as transferee in any transfer lodged for
registration to furnish the Company with such information
and evidence as the Company may think necessary or
relevant. Failing such information or evidence being
furnished to the satisfaction of the
Company within a period of 28 days after such request, the
Company shall be entitled to refuse to register the transfer
in question.
8.2 PERMITTED TRANSFERS
(a) A Shareholder may at any time transfer any of the Shares
held by it to the ultimate beneficial owner of those
Shares at the time of transfer.
(b) A transfer of any Shares pursuant to this Clause shall
only be treated as a permitted transfer if it is a
transfer of the entire legal interest in such Share free
from all Encumbrances.
(c) If a transfer pursuant to Clause 8.2(a) is to more than
one ultimate beneficial owner, those Shares transferred
and the rights and obligations under this Agreement shall
be held by and bind them jointly.
8.3 PRE-EMPTIVE RIGHTS
(a) Except as provided in Clauses 8.1, 8.2, 8.5 and 8.6 no
Share may be Disposed of unless the procedure provided
for in this Clause is followed.
(b) A Proposing Transferor shall be obliged to give notice in
writing to the Company that the Proposing Transferor
desires to Dispose of such Shares. The Transfer Notice
shall specify:
(i) the number and class of the Transfer Shares;
(ii) the price at which the Proposing Transferor wishes
to Dispose of the Transfer Shares (the "Transfer
Price"); and
(iii)the identity of a person who has indicated a bona
fide willingness to purchase the Transfer Shares at
such price (the "Transferee").
(c) The Transfer Notice shall constitute the Company as the
agent of the Proposing Transferor empowered to sell the
Transfer Shares (together with all rights attaching
thereto at the date of the Transfer Notice or at any time
thereafter) at the Transfer Price on the terms of this
Clause 8.3.
(d) The Transfer Notice shall not be revocable except with
the prior written consent of all the Shareholders.
(e) Within 7 days after the receipt of any Transfer Notice
the Company shall serve a copy of that Transfer Notice on
all the Preferred Shareholders other than the Proposing
Transferor (if applicable). In the case of a deemed
Transfer Notice, the Company shall similarly serve notice
on all the Preferred Shareholders (including the
Proposing Transferor) notifying them that the same has
been deemed to have been given.
(f) Subject as provided otherwise in this Agreement, or in
any agreement in writing between all the Shareholders,
the Transfer Shares shall first be offered for purchase
at the Transfer Price by the Company to all the Preferred
Shareholders (other than the Proposing Transferor) in the
Specified Proportions of those Preferred Shareholders.
(g) Any offer made pursuant to Clause 8.3(f) shall be made by
notice in writing and shall specify:
(i) the number and class of the Transfer Shares;
(ii) the proportionate entitlement of the relevant
Preferred Shareholder;
(iii) the Transfer Price; and
(iv) a period of 14 days within which the offer must be
accepted or shall lapse.
(h) If the Company does not receive acceptances in respect of
all the Transfer Shares within the periods of the offers
referred to in Clause 8.3(g), the Company shall forthwith
give notice in writing of that fact to the Proposing
Transferor and the remaining Transfer Shares in respect
of which acceptances have not been received shall
thereafter be offered, pro-rata, to those Preferred
Shareholders who have accepted an offer within the
periods of the offers referred to in Clause 8.3(g). Any
offer made pursuant to this Clause 8.3(h) shall be made
in accordance with Clause 8.3(g), except that the period
within which all offers must be accepted before lapsing
shall be 14 days.
(i) Subject to Clause 8.4, if the Company does not receive
acceptances in respect of all the Transfer Shares within
the periods of the offers referred to in Clauses 8.3(g)
or 8.3(h), the Company shall forthwith give notice in
writing of that fact to the Proposing Transferor, and the
Proposing Transferor may within a period of 3 months
after the date of such notice sell the Transfer Shares to
the Transferee named in the Transfer Notice at any price
which is not less than the Transfer Price (after
deducting, where appropriate, any Dividend declared, paid
or made after the date of the Transfer Notice in respect
of the Transfer Shares and which has been or is to be
retained by the Proposing Transferor).
(j) If any person or persons (including any other
Shareholder) (the "Purchasers") agree within the periods
referred to in Clauses 8.3(g), (h) or (i) (as the case
may be) to purchase all of the Transfer Shares, the
Company shall forthwith give notice in writing to the
Proposing Transferor and to the Purchasers and the
Proposing Transferor shall thereupon become bound upon
payment of the Transfer Price to the Proposing Transferor
(whose receipt shall be a good discharge to the Purchaser
and the Company therefor none of whom shall be bound to
see the application thereof) to transfer to each
Purchaser those Transfer Shares accepted by them. Every
such notice shall state the name and address of each
Purchaser, the number of Transfer Shares agreed to be
purchased by it and the place and time appointed by the
Company for the completion of the purchase (being not
less than 7 days nor more than 28 days after the date of
the said notice and not being at a place outside New
South Wales). Subject to the giving of such notice, the
purchase shall be completed at the time and place
appointed by the Company.
(k) If a Proposing Transferor, having become bound to
transfer any Transfer Shares pursuant to this Clause 8.3,
makes default in transferring the same the Company may
authorise some person (who shall be deemed to be the
attorney of the Proposing Transferor for the purpose) to
execute the necessary instrument of transfer of such
Transfer Shares and may deliver it on its behalf and the
Company may receive the purchase money and shall
thereupon (subject to such instrument being duly stamped)
cause the Transferee to be registered as the holder of
such Transfer Shares and shall hold such purchase money
on behalf of the Proposing Transferor. The Company shall
not be bound to earn or pay interest on any money so
held. The receipt of the Company for such purchase money
shall be a good discharge to the Transferee (who shall
not be bound to see to the application thereof) and after
the name of the Transferee has been entered in the
register of Shareholders in purported exercise of
the power conferred pursuant to this Clause 8.3(k), the
validity of the proceedings shall not be questioned by
any person.
(l) Without limiting Clause 8.1(c), the Company may require
to be satisfied that any Shares being transferred by the
Proposing Transferor pursuant to Clause 8.3(i) are being
transferred in pursuance of a bona fide sale for the
consideration stated in the transfer and if not so
satisfied may refuse to register the instrument of
transfer.
8.4 TRANSFER ON A RELEVANT EVENT
(a) Upon the happening of a Relevant Event, the Shareholder
in question shall be deemed to have immediately given a
Transfer Notice in respect of all the Shares as shall
then be registered in the name of that Shareholder.
(b) In the case of a Transfer Notice being given pursuant to
Clause 8.4(a), the price per Transfer Share which is so
specified in the Transfer Notice shall be:
(i) such price as shall be agreed in writing between all
of the Shareholders; or
(ii) in the absence of such agreement within 14 days
after the date on which the Transfer Notice is
deemed to have been given, the price will be
determined by an independent Chartered Accountant
(the "Expert") nominated by agreement between all
the Shareholders or, failing such nomination within
14 days after the request of any Shareholder to the
others therefor, nominated at the request of any
Shareholder by the President or other head for the
time being of the Institute of Chartered Accountants
of Australia. The Expert shall act as an expert and
not as an arbitrator and his written determination
shall in the absence of manifest error be final and
binding on all the Shareholders. For the foregoing
purpose, the Expert shall have access to all books
of account and records and all vouchers, cheques,
papers and documents that in any way relate to the
Business or the Company.
(c) The Expert will certify in writing the sum that in his
opinion is the fair market value of the Transfer Shares.
The price per Share shall be the sum equal to the fair
market value of the Transfer Shares (of that class)
certified by that Expert divided by the number of
Transfer Shares (of that class). The Company will use its
best endeavours to procure that the Expert determines the
price per Share within 21 days of being requested to do
so.
The costs and expenses of the Expert in determining the
price per Share shall be borne as to one half by the
Proposing Transferor and as to the other half by the
Purchasers (as defined in Clause 8.3(j)) pro rata
according to the number of Transfer Shares purchased by
them.
8.5 CO-SALE
(a) If a Proposing Transferor is permitted under this Clause
8 to sell all or any of its Shares to a third party
purchaser and the provisions of Clause 8.3 have been
complied with or waived by the Preferred Shareholders,
each of the Preferred Shareholders will have the right to
require by notice in accordance with Clause 8.5(b) the
Proposing Transferor to procure that the third party
acquire Shares from each of the Preferred Shareholders
who delivers such a notice, the number of Shares to be
calculated by multiplying the number of Transfer Shares
by the Specified Proportion of that Preferred
Shareholder, at the same price per Share and on the same
terms and conditions as the third party purchaser is to
acquire the Proposing Transferor's Shares and, if any of
the other Preferred Shareholders gives notice pursuant to
this Clause 8.5, the Proposing Transferor will only be
permitted to sell its Shares to the third party purchaser
if the third party purchaser also acquires the relevant
number of the other Preferred Shareholders' Shares at the
same price per Share and on the same terms and
conditions.
(b) A notice for the purposes of Clause 8.5(a) shall be in
writing addressed to the Proposing Transferor and given
to the Proposing Transferor within 14 days of receipt by
the other Preferred Shareholder of a notice from the
Proposing Transferor specifying the identity of the third
party purchaser, price per Share and terms and conditions
on which the Proposing Transferor's Shares are to be
sold.
(c) A Preferred Shareholder other than the Proposing
Transferor may sell its Shares to the third party
purchaser in accordance with Clause 8.5(a) without the
need to comply with the procedure set out in Clause 8.3.
8.6 TRANSFER OF ENTIRE INTEREST
An obligation to transfer a Share under the provisions of this
Clause 8 shall be deemed to be an obligation to transfer the
entire legal and beneficial interest in such Share free from
any Encumbrance.
8.7 WAIVER OF PROVISIONS
The provisions of this Clause 8 may be waived in whole or in
part in any particular case with the prior written consent of
all the Shareholders.
8.8 SHAREHOLDER OBLIGATION
Each Shareholder shall do everything within its power and
shall not fail to do anything within its power to ensure that
Shares in itself are not Disposed of in order to overcome or
avoid the transfer provisions of Clause 8.
9 ALLOTMENT OF SHARES
9.1 If, at any time prior to a public offering of any Shares of
the Company, the Company issues any additional Shares or
securities convertible into Shares, the Company shall offer to
each Preferred Shareholder for subscription, at the same price
and on the same terms and conditions, sufficient of such
Shares or securities as will enable that Preferred Shareholder
to maintain its proportionate ownership of Ordinary Shares
after such issue, assuming that in so calculating the amount
of Shares or securities to be offered and each Shareholder's
proportionate ownership of Ordinary Shares, all issued Series
A Preferred Shares have been converted into Ordinary Shares.
9.2 Clause 9.1 shall not apply to Shares or securities issued to
employees, consultants or directors for incentive purposes.
10 EMPLOYEE SHARE OR OPTION INCENTIVE PLAN
The Parties acknowledge that it is intended that, after the completion
of certain milestones, the Company will create and maintain an employee
share or option incentive plan on the basis that if the shares were
issued or options were fully exercised, the shares so issued would
constitute up to 15% of the Ordinary Shares on issue determined as if
all shares, and securities convertible in to Ordinary Shares had been
converted, and on such other terms and conditions as are determined by
the Board.
11 WARRANTIES, UNDERTAKINGS AND OBLIGATIONS
11.1 The Company represents and warrants to each of the manager and
trustee of each Licensed Fund that it is an Eligible Investee
Company and there has been no material adverse change to the
financial position of the Company as at September 1999 as
described in the Business Plan; and
11.2 The Company shall:
(a) proactively inform the manager of each Licensed Fund and
respond to any requests from a manager of a Licensed Fund
in a timely and expeditious manner, of any information
concerning the status of the Company as an Eligible
Investee Company or a change in the status of an
Associate or Related Body Corporate of the Company, and
any information that a manager of a Licensed Fund may
require to comply with its obligations under the relevant
IIF Management Licence;
(b) provide to the manager of each Licensed Fund on the date
of this Agreement and thereafter within 14 days of
receiving a request from a manager of a Licensed Fund so
to provide (on at least an annual basis) the following
information:
(i) the names of all officers and senior executives of
the Company and its Related Bodies Corporate;
(ii) the names of all the Company's Related Bodies
Corporate;
(iii)confirmation that no moneys invested by, or on
behalf of, a Licensed Fund will be used to discharge
a debt to, or acquire an asset from, the manager or
trustee of a Licensed Fund or any of their officers
or Related Bodies Corporate;
(iv) confirmation that the Company will not be acquiring
any goods or services from the manager or trustee of
the Licensed Fund or any of their officers or
Related Bodies Corporate;
(v) confirmation that the Company does not owe any money
on any account whatever to the manager or trustee of
a Licensed Fund or any of their officers or Related
Bodies Corporate; and
(vi) confirmation that in respect of any other holder of
a IIF Management Licence or another Licensed Fund
("Other Relevant Party"), the Company:
(1) cannot Control, or influence materially, the
Other Relevant Party's activities or internal
affairs;
(2) is not a member or beneficiary of or partner in
the Other Relevant Party;
(3) is not in a position to cast, or to Control the
casting of, a vote at a meeting of the equity
holders in the Other Relevant Party or to
Control or influence
materially the Other Relevant Party's internal
affairs;
(4) has no power to dispose of, or to exercise
Control over the disposal of, a security in or
issued by the Other Relevant Party;
(5) is not owed a debt by and is not a creditor of
the Other Relevant Party; or
(6) does not act as agent for the Other Relevant
Party in any transaction or dealing,
(c) represent and warrant that the information provided by
the Company pursuant to clause 11.2(b) is true and
correct; and
(d) ensure that it does all matters and things as are
confirmed in the information provided by the Company
pursuant to clause 11.2(b).
(e) A reference in this Clause 11.2 to "Control" of a
corporation is a reference to the possession directly or
indirectly of the power whether or not having statutory,
legal or equitable force, and whether or not based on
statutory, legal or equitable rights, directly or
indirectly to:
(i) control more than 50% of the membership of the board
of directors of that corporation; or
(ii) control more than 50% of its voting shares; or
(iii)direct or cause the direction of the management and
policies of the manager,
whether by means of trusts, agreements, arrangements,
understandings, practices, the ownership of any interest in
shares or stock of that company or otherwise.
(f) A reference in this Clause 11.2 to "Control" of a
corporation or other person who is or proposes to act as
a trustee is a reference to the possession directly or
indirectly of the power to:
(i) control the trustee;
(ii) control any decisions of the trustee as trustee of
the relevant trust;
(iii) appoint, remove or replace the trustee;
(iv) appoint, remove or replace a majority of the
directors of the trustee; or
(v) direct the allocation of any benefits under the
relevant trust.
(g) A reference in this Clause 11.2 to "Control" of an event,
outcome or result or the exercise of a right, power,
authority, discretion or remedy means the possession,
directly or indirectly, of the power to bring about or
direct that event outcome or result or direct the
exercise of that right, power, authority, discretion or
remedy.
12 MANAGEMENT OF THE COMPANY
12.1 The Board shall be responsible for the overall direction and
control of the management of the Company and the formulation
of the polices to be applied in the conduct of the Business.
12.2 The Board will consist of 5 directors, namely:
(a) an independent Chairman appointed by simple majority of
all Shareholders;
(b) a managing director appointed by simple majority of all
Shareholders;
(c) two directors appointed by simple majority of all
Preferred Shareholders, at least one of whom shall at all
times be an appointee of RBML; and
(d) one director appointed by Praxis USA.
12.3 The persons who have appointed a director referred to in
Clause 12.2 shall have the right from time to time to remove
any such director and appoint another director in his place.
12.4 The Company will pay to its non-executive directors:
(a) such fees as are determined by majority of the Board; and
(b) reasonable travel and related expenses incurred in
attending Board meetings or conducting business on the
Company's behalf and as authorised by the Board.
12.5 Unless otherwise agreed in writing between the Shareholders
and save as otherwise provided or contemplated in this
Agreement the Shareholders shall exercise their powers in
relation to the Company so as to ensure that:
(a) the Company carries on and conducts its business and
affairs in a proper and efficient manner and for its own
benefit;
(b) the Company transacts all of its business on arm's length
terms;
(c) the Company shall maintain with a well-established and
reputable insurer adequate insurance coverage against all
risks usually insured against by companies carrying on
the same or a similar business and (without prejudice to
the generality of the foregoing) for the full replacement
or reinstatement value of all its assets of an insurable
nature;
(d) the Company allots and issues its Shares and other
securities at the best price reasonably obtainable in the
circumstances;
(e) the Company shall not acquire, dispose, hire, lease,
licence or receive licences of any assets, goods, rights
or services otherwise than at the best price reasonably
obtainable in the circumstances;
(f) the Company shall keep books of account and therein make
true and complete entries of all its dealings and
transactions of and in relation to its business;
(g) the Company fulfils its obligations under this Agreement;
(h) the Company shall prepare its accounts in accordance with
the Corporations Law and shall adopt such accounting
policies as may from time to time be generally accepted
in Australia;
(i) the Company shall prepare such accounts in respect of
each financial year as are required by statute and
procure that such accounts are audited as soon as
practicable and in any event not later than three months
after the end of the relevant financial year; and
(j) if the Company requires any approval, consent or licence
for the carrying on of its Business in the places and in
the manner in which it is for the time being carried on
or proposed to be carried on the Company will use its
best endeavours to obtain and maintain the same in full
force and effect.
The word "Company" where used in this paragraph shall be
deemed to include each of the other companies in the Group (if
any) from time to time to the intent and effect that the
provisions of this Clause 12.5 shall apply in relation to each
such company as they apply in relation to the Company.
12.6 The Company shall provide to each Preferred Shareholder:
(a) annual financial statements, certified by an accounting
firm of nationally recognised standing within 4 months of
the end of each financial year;
(b) regular financial statements (including income
statements, balance sheets and cash-flow statements) in a
form acceptable to the Shareholders;
(c) an annual operating and financial plan agreed to by the
Board prior to the beginning of each fiscal year and any
revisions thereof promptly upon their adoption by the
Board;
(d) quarterly technical summary updates measured against
milestones in such form as the Shareholders may
reasonably require within 14 days of the end of each
calendar quarter; and
(e) such other information as to its financial and business
affairs as any Preferred Shareholder may reasonably
require.
12.7 The Preferred Shareholders have the right at all times to
appoint and instruct an independent chartered accountant to
the Company for the purposes of reviewing the financial
statements and other records and books of account of the
Company, and the Company shall permit the independent
accountant reasonable access to its records and books of
account. The costs of the independent accountant shall be
borne by the appointing Preferred Shareholder.
13 MEETINGS OF DIRECTORS
13.1 The Company shall convene meetings of the Directors at least 9
times per year or as otherwise agreed from time to time by the
Board.
13.2 After a meeting of the Directors to be held in June of each
year the Company shall present to each of the Directors for
consideration:
(a) comprehensive financial operating budgets, capital
budgets and cashflow budgets in a form acceptable to the
Directors; and
(b) business financial plans for the Company and its
Subsidiaries (if any) in respect of the period of 3 years
to commence on the 1st day of July in that year.
13.3 The quorum for a meeting of directors will be 3
directors, at least one of whom shall at all times be an
appointee of a Preferred Shareholder.
14 MATTERS REQUIRING DIRECTORS APPROVAL
Unless this Agreement otherwise provides, the Company will not, and
none of the other companies in the Group (if any) will do any of the
following, without the prior approval of a resolution of at least 4 of
the Directors (one of whom was appointed by RBML):
14.1 enter into, vary or terminate any contract or arrangement
(whether legally binding or not) with any of its Directors or
any Shareholder or with any Related Body Corporate of a
Shareholder;
14.2 enter into any material contract or arrangement outside the
ordinary course of its Business or whereby any person would or
might receive remuneration calculated by reference to its
income or profits;
14.3 vary the terms of service (including compensation,
remuneration and emoluments) of a Director;
14.4 enter into any transaction or series of related transactions
(whether at one time or over a period of time) involving the
incurring of any capital expenditure or liability or the
disposal of any capital asset or assets and which involves a
total outlay or receipt, in any period of twelve consecutive
months, of more than $100,000 (or such larger sum as the
Shareholders may from time to time agree in writing) or a sum
equal to 10% of the net assets of the Company and its
Subsidiaries (if any) as shown in the latest audited
consolidated accounts of the Company and its Subsidiaries (if
any) or, if it has no Subsidiaries, in its latest audited
accounts, whichever amount shall be the higher, but excepting
transactions authorised expressly or impliedly in any current
capital expenditure budget; for these purposes expenditure
shall be deemed to be "Capital Expenditure" and an asset shall
be deemed to be a "Capital Asset" if, in either case, it would
be treated as such in accounts prepared in accordance with
accounting principles generally accepted in Australia;
14.5 borrow any money or obtain any advance, credit or financial
accommodation in any form (other than normal trade credit not
exceeding $50,000 or other than on normal banking terms for
unsecured overdraft facilities not exceeding $50,000) or vary
the terms and conditions of any borrowings or bank mandates;
14.6 create or allow to subsist any Encumbrance over all or a
substantial part of all of its assets;
14.7 lend any money to any person (other than by way of deposit
with a bank or other institution the normal business of which
includes the acceptance of deposits) or grant any credit to
any person (except to its customers in the normal course of
business) or give any guarantee, indemnity or security in
respect of the obligations of any other person;
14.8 enter into any death, retirement, profit sharing, bonus, share
option, employee incentive plan or other scheme for the
benefit of the officers or employees of the Company or any
material variation (including any increase in the percentage
amount of the contributions) of any such scheme;
14.9 commence any legal or arbitration proceedings other than
routine debt collection;
14.10 make any claim, disclaimer, surrender, election or consent of
a material nature for tax purposes;
14.11 make any early repayments of any of its indebtedness; or
14.12 permit any power or authority of its Directors to be delegated
to an executive officer or committee of Directors or to any
other person whatsoever.
15 MATTERS REQUIRING PREFERRED SHAREHOLDERS APPROVAL
15.1 Unless this Agreement otherwise provides, the Company will
not, and none of the other companies in the Group (if any)
will do any of the following, without the prior approval of
two thirds of the Preferred Shareholders:
(a) issue, allot, redeem, purchase or grant options over any
of its Shares, debentures or other securities or
reorganise its share capital in any way except:
(i) where the number of Shares, debentures or other
securities to be issued, allotted, redeemed or
purchased does not exceed, within any 12 month
period, 10% of the total number of Shares,
debentures or other securities of the same class;
(ii) in relation to an Employee Share Plan; or
(iii)in relation to all options currently on issue at
the Commencement Date;
(b) pay or make any Dividend or other distribution including
without limiting the foregoing make any distribution out
of capital profits or capital reserves (including any
share premium account or capital redemption reserve fund)
except pursuant to the provisions of Clause 5.1;
(c) amend the provisions of its Constitution or pass any
resolution for winding up;
(d) acquire or make any investment in another company or
business;
(e) change the nature or scope of its business to a material
extent or commence any material new business not being
ancillary or incidental to such business as defined in
the Company's current Business Plan;
(f) merge or amalgamate with any person;
(g) incur any material research and development expenditure
in excess of $250,000 in any 12 month period otherwise
than in accordance with the research and development
budget agreed to by the Shareholders for the year in
question; or
(h) modify or abrogate any rights for the time being attached
to any Shares.
15.2 If the Shareholders (or any of them) have been requested by
the Board or another Shareholder to provide their approval,
consent or determination in relation to any matter relating to
the Company, and the request:
(a) does not stipulate a time and date by which the approval,
consent or determination is to be given or made, the
Shareholder must give or withhold its approval or consent
or make the determination within 14 days after receiving
the request from the Board or other Shareholder; or
(b) stipulates a time and date by which the approval, consent
or determination is to be given or made, the Shareholder
must give or withhold its approval or consent or make the
determination within that timeframe.
If the Shareholder does not, it will be deemed to have given
its approval or consent, or made a favourable determination on
the expiry of the 14 day period or the stipulated timeframe.
16 MANAGEMENT AND PERSONNEL
16.1 Each Party, including the Company, shall keep all information
which it obtains concerning the Business, affairs or assets of
the Company strictly confidential and shall not, and shall
procure that their respective officers, employees, agents and
auditors do not, without the prior written consent of all the
other Parties, disclose any of the above information to any
third party except:
(a) if required to make such disclosure by any court of
competent jurisdiction or in order to enforce any rights
under this instrument in any proceedings;
(b) pursuant to any court order;
(c) pursuant to any law or regulation having the force of
law;
(d) pursuant to any requirements of the Australian Stock
Exchange Limited;
(e) in circumstances where the information has come within
the public domain otherwise than by reason of a breach by
one of the Parties of the provisions of this Clause;
(f) to a bona fide intending purchaser of at least 5% of any
class of Shares or to a bona fide intending director
provided such purchaser or director agrees to observe the
confidentiality provisions of this Clause;
(g) in the normal and ordinary course of the Business of the
Company;
(h) pursuant to any other contract or legal obligation upon
the Company;
(i) nothing in this Clause shall prohibit a Director from
providing information to his appointor; or
(j) nothing in this Clause shall prohibit any Shareholder
from disclosing the information, on a confidential basis,
to employees or officers of any Related Body Corporate of
that Shareholder to the extent as is reasonably required
to satisfy any reporting obligations that Related Body
Corporate has to the ultimate beneficial owner of the
Shares.
16.2 The Company shall ensure that the contract of employment
entered into with all employees of the Company contains
confidentiality obligations in a form reasonably acceptable to
the Preferred Shareholders, or if there is not such written
contract, that the employee executes a Confidentiality Deed.
16.3 The Company shall ensure that the contract of employment
entered into with all Senior Employees contains a restrictive
covenant in relation to future employment in a form reasonably
acceptable to the Preferred Shareholders or, if there is no
such written contract that each Senior Employee executes a
restrictive covenant in relation to future employment in a
form reasonably acceptable to the Preferred Shareholders.
16.4 The personnel requirements of the Company will be determined
by the Board.
17 SUBSCRIPTION COSTS
17.1 Subject to Clause 17.2 being met, the Company will bear all
reasonable legal expenses of the Preferred Shareholders
associated with the preparation, negotiation and completion of
this Agreement and the amendment to the Constitution to
include the terms of issue of the Series A Preferred Shares.
17.2 On or before the Commencement Date, each of the Company and
the Shareholders shall, where appropriate, duly and punctually
hold the meetings, give the notices and otherwise comply with
all the requirements of RBML regarding compliance with Section
260B of the Corporations Law so that to the extent required by
RBML any and all financial assistance, as referred to in
Clause 17.1 given by the Company is not prohibited by Section
260A of the Corporations Law.
17.3 If the Shareholders do not approve the giving of financial
assistance as referred to in Clause 17.1 pursuant to Section
260B of the Corporations Law, the Shareholders will bear, in
their Specified Proportions, all reasonable legal expenses of
RBML associated with the preparation, negotiation and
completion of this Agreement and the amendment to the
Constitution.
18 INDEMNITY FROM PRAXIS USA
Praxis USA indemnifies and agrees to keep indemnified each of the
Shareholders and the Company against all proceedings, claims, damages,
costs, expenses, losses and liabilities of whatever nature which may be
suffered, incurred, paid or sustained by any of the Shareholders or the
Company whether directly or indirectly as a result of any claim, action
or proceedings brought by any shareholder of Praxis USA against Praxis
USA or any of the Shareholders or the Company in relation to the
subscriptions and transactions contemplated by, or the conduct of the
Business in accordance with, this Agreement, including without
limitation, the Licence and Research & Development Agreements and the
Licence Agreements.
19 PUBLICITY
19.1 No public announcement of the holding of Shares as
contemplated in this Agreement shall be made by any of the
Parties otherwise than as a joint announcement in a form
approved by all the Parties.
19.2 Subject to Clause 19.1 and except to the extent required by
law or by the rules of any stock exchange, no Party shall make
any disclosure in relation to any other terms or conditions of
this Agreement.
20 NOTICES
Any notice required to be given under this Agreement by any Party to
another shall be:
20.1 in writing addressed to the address of the intended recipient
shown in this Agreement below or to such other address as has
been most recently notified by the intended recipient to the
Party giving the notice:
IN THE CASE OF THE COMPANY:
▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ Capital Territory 2601
Facsimile:
Attention:
IN THE CASE OF PRAXIS USA:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America 84101
Facsimile:
Attention:
IN THE CASE OF THE TRUSTEE:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 02 9221 1889
Attention: Senior Manager, Unit Trusts: ▇▇▇▇ ▇▇▇▇▇▇
IN THE CASE OF RBML:
▇▇▇▇▇ ▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile: 03 9254 4940
Attention: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
20.2 signed by a person duly authorised by the sender; and
20.3 deemed to have been given and served:
(a) where despatched by hand, at the time delivery;
(b) where despatched by facsimile transmission, 24 hours
after the time recorded on the transmission report
unless:
(i) within those 24 hours the intended recipient has
informed the sender that the transmission was
received in an incomplete or garbled form; or
(ii) the transmission result report of the sender
indicates a faulty or incomplete transmission; and
(c) where despatched by registered mail, on acknowledgment of
receipt by or on behalf of the recipient,
but if such delivery or receipt is on a day on which
commercial premises are not generally open for business in the
place of receipt or is later than 4.00 p.m. (local time) on
any day, the notice shall be deemed to have been given and
served on the next day on which commercial premises are
generally open for business in the place of receipt.
21 INCONSISTENCY WITH CONSTITUTION
In the event that there is any inconsistency between this Agreement and
the Constitution, this Agreement shall prevail.
22 FURTHER ASSURANCES
Each Party shall take all such steps, execute all such documents and do
all such acts and things as may be reasonably required by the other
Parties to give effect to any of the transactions contemplated by this
Agreement.
23 NON-WAIVER
Other than as otherwise specified in this Agreement, neither the
failure of any Party to enforce at any time any of the provisions of
this Agreement nor the granting of any time or other indulgence shall
be construed as a waiver of that provision or of the right of that
Party thereafter to enforce that or any other provision.
24 COSTS
Other than as otherwise specified in this Agreement, the Parties shall
bear their own costs arising out of the preparation of this Agreement
save that the Company shall bear any stamp duty chargeable on this
Agreement and on any instruments (other than a transfer of Shares)
required to be entered into pursuant to this Agreement and the Company
indemnifies the other Parties against the liability for all such stamp
duty.
25 AMENDMENT
This Agreement may not be amended except by the unanimous written
consent of all Parties.
26 TRUSTEES LIMITATION OF LIABILITY PROTECTION CLAUSE
26.1 The Trustee enters into this Agreement only in its capacity as
trustee of the Trust and in no other capacity. A liability
arising under
or in connection with this Agreement is limited to and can be
enforced against the Trustee only to the extent to which it
can be satisfied out of property of the Trust out of which the
Trustee is actually indemnified for the liability. This
limitation of the Trustee's liability applies despite any
other provision of this Agreement and extends to all
liabilities and obligations of the Trustee in any way
connected with any representation, warranty, conduct,
omission, agreement or transaction related to this Agreement.
26.2 The parties other than the Trustee may not ▇▇▇ the Trustee in
any capacity other than as trustee of the Trust, including
seek the appointment of a receiver (except in relation to
property of the Trust), a liquidator, an administrator or any
similar person to the Trustee or prove in any liquidation,
administration or arrangement of or affecting the Trustee
(except in relation to property of the Trust).
26.3 The provisions of this Clause 26 shall not apply to any
obligation or liability of the Trustee to the extent that it
is not satisfied because under the Trust Deed establishing the
Trust or by operation of law there is a reduction in the
extent of the Trustee's indemnification out of the assets of
the Trust, as a result of the Trustee's fraud, negligence or
breach of trust.
26.4 It is acknowledged that RBML as the manager of the Trust is
responsible under the Trust Deed establishing the Trust for
performing a variety of obligations relating to the Trust,
including under this Agreement. No act or omission of the
Trustee (including any related failure to satisfy its
obligations or breach of representation or warranty under this
Agreement) will be considered fraud, negligence or breach of
trust of the Trustee for the purpose of this Clause 26.3 to
the extent to which the act or omission was caused or
contributed to by any failure by the manager or any other
person to fulfil its obligations relating to the Trust or by
any other act or omission of the manager or any other person.
27 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and such
counterparts together shall constitute one and the same instrument.
28 GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with
the laws for the time being in force in the State of Victoria and each
party submits to the non-exclusive jurisdiction of the Courts of or
exercising jurisdiction in that State.
IN WITNESS WHEREOF the parties have executed this Agreement on the date written
above.
THE COMMON SEAL of PRAXIS )
PHARMACEUTICALS AUSTRALIA PTY )
LIMITED (ACN 082 811 630) was hereto )
affixed in accordance with its Constitution )
in the presence of: )
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name of Director (Print)
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Director/Secretary
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name of Director/Secretary (Print)
EXECUTED by PRAXIS )
PHARMACEUTICALS INC. by its )
authorised officer in the presence of: )
)
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Authorised Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name of Authorised Officer (Print)
CEO Title
EXECUTED BY PERPETUAL
TRUSTEES NOMINEES LIMITED
(ACN 000 341 533)
PERPETUAL TRUSTEES NOMINEES LIMITED (CAN
000 341 533) By its Attorneys who
declare that they have no notice of
revocation of the Power of Attorney
under which this document is signed.
THE COMMON SEAL of ROTHSCHILD )
BIOSCIENCE MANAGERS LIMITED )
(ACN 072 515 247) was hereto affixed in )
accordance with its Constitution in the )
presence of: )
/s/ G.C.D. Brooke Director
G.C.D. Brooke Name of Director (Print)
/s/ M.D. ▇▇▇▇▇▇▇▇▇ /Secretary
M.D. ▇▇▇▇▇▇▇▇▇ Name of /Secretary (Print)