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EXHIBIT 2.1
DATE: 21 MARCH 2001
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FAULDING HEALTHCARE PTY LTD
AND
▇.▇. ▇▇▇▇▇▇▇▇ & CO. LIMITED
and
CONNETICS AUSTRALIA PTY LTD
and
CONNETICS CORPORATION
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SHARE SALE AGREEMENT
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Lander & ▇▇▇▇▇▇
Lawyers
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: (▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇) ▇▇▇▇ ▇▇▇▇
e-mail: ▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
Our ref: PGW:67174#092
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION ........................................................2
1.1 Definitions......................................................................2
1.2 Interpretation..................................................................10
2. SALE OF SHARES .......................................................................11
2.1 Sale of Shares..................................................................11
3. PURCHASE PRICE AND PAYMENT ...........................................................11
3.1 Purchase Price..................................................................11
3.2 Payment of the Purchase Price...................................................12
4. PERIOD BEFORE COMPLETION .............................................................12
4.1 Conduct of Business pending Completion..........................................12
4.2 Purchaser's Access..............................................................13
4.3 No Alternate Transaction........................................................14
4.4 Prompt Disclosure...............................................................14
4.5 Insurance.......................................................................15
4.6 Vendor's Certificate............................................................15
5. CONDITIONS ...........................................................................15
5.1 General Conditions..............................................................15
5.2 Vendor's Conditions.............................................................16
5.3 Purchaser's Conditions..........................................................17
5.4 Parties must cooperate..........................................................18
5.5 Specific obligations of cooperation.............................................18
5.6 Notification of satisfaction of conditions......................................18
5.7 Termination on failure of conditions............................................19
5.8 Consequences of termination on failure of conditions............................19
5.9 Relevant Events for Purchaser...................................................19
5.10 Preservation of Purchaser's remedies............................................20
5.11 Acknowledgement by the Purchaser................................................20
6. COMPLETION ...........................................................................20
6.1 Completion - place and date.....................................................20
6.2 Vendor's obligations on Completion..............................................20
6.3 Purchaser's payment obligations on Completion...................................22
6.4 Escrow......................................................................... 23
6.5 Title Passes....................................................................23
6.6 Interdependence.................................................................23
7. WARRANTIES AND INDEMNITIES ...........................................................23
7.1 Vendor's warranties.............................................................23
7.2 Indemnity - Warranties..........................................................24
7.3 Reliance and Construction.......................................................24
7.4 Vendor's Guarantor's Warranties.................................................24
7.5 Vendor's Guarantor's Indemnity..................................................25
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7.6 Purchaser's Warranties..........................................................26
7.7 Purchaser's Indemnity...........................................................27
7.8 Purchaser's Guarantor's Warranties..............................................27
7.9 Purchaser's Guarantor's Indemnity...............................................28
7.10 Limitation of Liability of Purchaser and Purchaser's Guarantor..................29
7.11 Reduction of Liability of Purchaser and Purchaser's Guarantor...................30
7.12 Payment by Vendor for breach....................................................30
8. LIMITATION OF LIABILITY OF VENDOR AND THIRD PARTY CLAIMS..............................30
8.1 No reliance on and no liability for matters outside this Agreement..............30
8.2 Purchaser's and Purchaser's Guarantor's reliance on their own enquiries.........31
8.3 Limitation of Liability of Vendor and Vendor's Guarantor........................31
8.4 Reduction of Liability of Vendor and Vendor's Guarantor.........................32
8.5 Limitations do not apply........................................................32
8.6 Third Party Claims..............................................................32
8.7 Release by Vendor and Vendor's Guarantor........................................34
9. ASSESSMENT OF TAX ....................................................................34
9.1 Tax indemnity...................................................................34
9.2 Vendor requires notice of claim.................................................35
9.3 Payments........................................................................35
9.4 Vendor to bear costs of dispute.................................................35
9.5 Vendor to be reimbursed payment.................................................36
9.6 Involvement of Vendor in Tax audit..............................................36
9.7 No double recovery..............................................................36
10. POST-COMPLETION COVENANTS ............................................................36
10.1 Intellectual Property Protection................................................36
10.2 Vendor and Vendor's Guarantor not to solicit....................................37
10.3 Vendor and Vendor's Guarantor not to compete....................................37
10.4 Non-Solicitation and non-competition restraints independent and reasonable......38
10.5 Employees.......................................................................39
10.6 Purchaser's Access..............................................................39
10.7 Payments Received by Vendor or any Affiliate Post-Completion....................40
11. TRANSITIONAL ARRANGEMENTS ............................................................41
11.1 Superannuation..................................................................41
11.2 Payroll Services................................................................41
11.3 Additional Employee Benefits....................................................42
12. COMPANY AT COMPLETION ................................................................43
12.1 Completion Financial Position...................................................43
13. CONFIDENTIALITY AND INTELLECTUAL PROPERTY.............................................43
13.1 Agreement Non-Disclosure........................................................43
13.2 Confidential Information........................................................43
13.3 Permitted Disclosure............................................................44
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13.4 Disclosure to Officers..........................................................44
13.5 Disclosure of Material..........................................................44
13.6 Public Domain...................................................................45
13.7 Pre-existing Contracts..........................................................45
13.8 Notices of Entitlement..........................................................45
13.9 Filings.........................................................................45
13.10 Waiver..........................................................................46
13.11 Vendor Employee Confidentiality.................................................46
13.12 Company Employee Confidentiality................................................46
14. GST ..................................................................................47
14.1 GST to be added to amount payable...............................................47
14.2 Tax Invoice.....................................................................47
15. PURCHASER'S GUARANTEE ................................................................47
15.1 Guarantee.......................................................................47
15.2 Liability Unaffected by Other Events............................................48
15.3 Guarantee and Indemnity.........................................................48
16. VENDOR'S GUARANTEE ...................................................................48
16.1 Guarantee.......................................................................48
16.2 Liability Unaffected by Other Events............................................49
16.3 Guarantee and Indemnity.........................................................49
17. MISCELLANEOUS ........................................................................49
17.1 Notices.........................................................................49
17.2 Waiver..........................................................................50
17.3 Severance.......................................................................51
17.4 Successors and assigns..........................................................51
17.5 Further assurances..............................................................51
17.6 Assignment......................................................................51
17.7 Continuing obligations..........................................................51
17.8 Variation.......................................................................52
17.9 Applicable law..................................................................52
17.10 [ ]*............................................................................52
17.11 Counterparts....................................................................52
17.12 Stamp duties....................................................................52
17.13 Costs...........................................................................53
17.14 No Merger.......................................................................53
17.15 Entire Agreement................................................................53
17.16 Specific performance and injunctive relief......................................53
SCHEDULE 1...................................................................................1
SCHEDULE 2..................................................................................32
SCHEDULE 3..................................................................................34
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* Confidential Treatment Requested
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SCHEDULE 4..................................................................................38
SCHEDULE 5..................................................................................40
SCHEDULE 6..................................................................................42
SCHEDULE 7..................................................................................43
SCHEDULE 8..................................................................................44
ANNEXURE A (Profit & Loss Account and Balance Sheet)
ANNEXURE B (Consulting Agreement)
ANNEXURE C (Deed of Assignment)
ANNEXURE D (Injectable Transfer Agreement)
ANNEXURE E (Real Property Licence Deed)
ANNEXURE F (Documentary Disclosure)
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THIS AGREEMENT is dated 21 March 2001
PARTIES
FAULDING HEALTHCARE PTY LTD (ACN ▇▇▇ ▇▇▇ ▇▇▇) of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ("Vendor")
and
▇.▇. ▇▇▇▇▇▇▇▇ & ▇▇.▇▇▇▇▇▇▇ (▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇) of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ("Vendor's Guarantor")
and
CONNETICS AUSTRALIA PTY LTD (ACN 095 618 161) of ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ("Purchaser")
and
CONNETICS CORPORATION of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America ( "Purchaser's Guarantor")
RECITALS
A. Soltec Research Pty Ltd (ACN 006 363 891) of ▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ (the "Company") is a company limited by shares incorporated in
Victoria, Australia with its registered office at ▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
B. The Vendor is the legal and beneficial owner of all the shares in the
capital of the Company and is a wholly-owned subsidiary of the Vendor's
Guarantor.
C. The Purchaser is a wholly-owned subsidiary of the Purchaser's Guarantor.
D. The Vendor has agreed at the request of the Purchaser's Guarantor to sell
and the Purchaser has agreed at the request of the Vendor's Guarantor to
purchase the Shares (as defined below) on the terms and conditions
contained in this Agreement.
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AGREEMENT
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"Accounting Standards" means the Australian Accounting Standards
and Urgent Issues Group Consensus Views from time to time and if,
and to the extent that, any matter is not covered by Australian
Accounting Standards and Urgent Issues Group Consensus Views,
means generally accepted accounting principles applied from time
to time in Australia for companies similar to the Company.
"Affiliate" in relation to any person, means any other person
(whether an individual, body corporate, trust, partnership, joint
venture or other entity of any description) which, directly or
indirectly, controls or is controlled by, or is under common
control with a person. For the purposes of the preceding
sentence, "control" means direct or indirect possession of the
power to direct or cause the direction of the affairs or
management of a person, whether through ownership of voting
securities, by contract or otherwise, including without
limitation, the power to elect at least a majority of the board
of directors or other persons with substantial equivalent power
to manage or direct the affairs of such person.
"Agreement" means this agreement including all schedules and
annexures.
"Balance Date" means 28 February 2001.
"Bank Account" means the bank account of the Company, details of
which are set out in the Disclosure Letter.
"Business" means the innovation and product development business
primarily focussed on delivery technologies with applications in
consumer and prescription healthcare carried on by the Company.
"Business Day" means a day on which banks are open for business
generally in both Melbourne, Victoria, Australia and in San
Francisco, California, United States of America.
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"Business Names" means all names under which the Company conducts
its Business or which are used in connection with the Business,
being the names listed in schedule 5 under the heading "Business
Names."
"Claims or Actions" means any claims, demands or causes of action
(whether based in contract, tort, common law, statute or
otherwise) arising in connection with this Agreement or any part
of this Agreement (including, but not limited to, the Warranties)
or relating to the Shares or their sale to the Purchaser.
"Company" means Soltec Research Pty Ltd (ACN 006 363 891) of ▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
"Company Accounts" means the balance sheet of the Company as of
28 February 2001 and profit and loss accounts of the Company for
the period 1 July 2000 to 28 February 2001 annexed to this
Agreement and marked "A".
"Completion" means completion of the sale and purchase of the
Shares in accordance with the terms of this Agreement.
"Completion Date" means the later of 30 March 2001 or the date
which is five Business Days after the satisfaction of the
Conditions Precedent or such other date as the Vendor and the
Purchaser may agree in writing.
"Conditions Precedent" means the Mutual Conditions, the Vendor's
Conditions and the Purchaser's Conditions and any of them.
"Confidential Information" means in relation to the Company all
knowledge of secret processes, know-how, techniques, discoveries,
inventions, ideas, research, practices, systems, formulae,
formulations, manuals, customer databases, drawings, trade
secrets and special purpose computer programs, information
relating to finances, marketing and contractual arrangements with
customers (including, without limitation, licensees), licensors
or consultants and other confidential information and data
subsisting in or relating to the Business which by its nature, or
by the circumstances of its disclosure to the holder of
information, is or could reasonably be expected to be regarded as
confidential.
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"Constitution" means the constitution of the Company initialed by
the parties for the purposes of identification.
"Consulting Agreement" means a consulting agreement materially in
the form set out in the annexure marked "B" to be entered into
among the Purchaser's Guarantor, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Vendor's
Guarantor.
"Contaminant" means both "industrial waste" and "waste" as
defined in the Environment Protection Act 1970 (Vic) and any
solid, liquid, gas, radiation, or substance which may pollute
land so that the condition of the land is so changed as to make
or be reasonably expected to make the land or the product of the
land:
(a) noxious or poisonous;
(b) harmful or potentially harmful to the health or welfare of
human beings;
(c) poisonous, harmful or potentially harmful to animals, birds
or wildlife;
(d) poisonous, harmful or potentially harmful to plants or
vegetation;
(e) obnoxious or unduly offensive to the senses of human beings;
or
(f) detrimental to any beneficial use made of the land.
"Corporations Law" means the Corporations Law of Australia .
"Deed of Assignment" means a deed of assignment to be entered
into between the Vendor's Guarantor and the Company materially in
the form of annexure "C".
"Disclosure Letter" means the letter dated on or before the date
of this Agreement from the Vendor to the Purchaser disclosing:
(a) information constituting exceptions to the Warranties and
including references to the applicable Warranties with
respect to which an exception is claimed; and
(b) other information where required by this Agreement.
"Dollar" or "$" means the amount in Australian currency.
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"Domain Names" means the internet addresses licensed to the
Company and identified in schedule 5 under the heading "Domain
Names."
"Effective Date" means the date of this Agreement.
"Employee Contracts" means all contracts and arrangements made
between the Company or a Related Body Corporate of the Company
and the Employees, being the contracts and arrangements specified
in part 3 of schedule 4.
"Employee Entitlements" means in relation to each Employee, the
aggregate of all unpaid amounts and benefits to which the
Employee is entitled as at 15 February 2001 (or as otherwise
provided in clause 6.2(a)(xiv)) under any contract of employment,
law, award, determination or agreement relating to terms and
conditions of employment in respect of long service leave, annual
leave and sick leave accrued or arising in respect of the
Employee for the period of the Employee's service prior to 16
February 2001, details of which are set out in schedule 4.
"Employees" means the persons listed in part 1 of schedule 4 who
are providing services to the Company on site at the Real
Property or otherwise.
"Encumbrance" means an interest or power:
(a) reserved in or over any interest in any asset including,
without limitation, any retention of title; or
(b) created or otherwise arising in or over any interest in any
asset under a ▇▇▇▇ of sale, mortgage, charge (whether fixed
or floating), pledge, lien, trust or power;
by way of security for the payment of debt or any other monetary
obligation or the performance of any other obligation and whether
existing or agreed to be granted or created.
"Environment" has the same meaning as in the Environment
Protection ▇▇▇ ▇▇▇▇ (Vic).
"Environmental Law" means a law (including common law, acts of
parliaments, regulations, policies and by-laws and all licences,
permits, consents or approvals made under such laws) or a
provision of a law relating to:
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(a) the Environment, or any aspect of the Environment; or
(b) the use or substances or conduct which may harm the
Environment or employees of the Company.
"EPA" means the Environment Protection Authority or its
successor.
"Field" means"
[ ]*
"GST" has the meaning given in the GST Act.
"GST Act" means section 195-1 of the A New Tax System (Goods and
Services Tax) ▇▇▇ ▇▇▇▇ (Cth).
"GST Law" has the meaning given in the GST Act.
"Governmental Authority" means any federal, state, local or other
governmental, regulatory or administrative authority, agency or
commission or any tribunal, arbitral body or court.
"Injectables Division" means the injectables division of the
Company identified in schedule 2 and to be transferred to an
Affiliate of the Vendor's Guarantor pursuant to the Injectables
Transfer Agreement.
"Injectables Transfer Agreement" means an agreement to be entered
into among the Company, the Vendor's Guarantor, the Purchaser's
Guarantor and an Affiliate of the Vendor's Guarantor materially
in the form of annexure "D".
"Injectables Intellectual Property" means each invention,
know-how, patent application, confidential information and other
intellectual or industrial property referred to in the
Injectables Transfer Agreement.
"Intellectual Property Licences" means all agreements under which
the Company has at the Effective Date the exclusive or
non-exclusive right to use the names, products, techniques or
----------
* Confidential Treatment Requested
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intellectual property rights of third parties in the Business,
details of which are set out in schedule 5 under the heading
"Intellectual Property Licences."
"Intellectual Property" and "Intellectual Property Rights" mean:
(a) the Business Names and Trade Marks owned or used at any time
by the Company (whether registered or unregistered);
(b) the Confidential Information owned or used at any time by the
Company;
(c) the Patents, Patent Applications, Inventions, Know-how,
registered designs, unregistered designs, copyright and all
other similar rights owned or used at any time by the
Company;
(d) the Intellectual Property Licences; and
(e) the Domain Names.
Notwithstanding the foregoing, all references to Intellectual
Property and Intellectual Property Rights include all
intellectual and industrial property of or belonging to the
Company and all rights in connection with such property located
anywhere in the world but specifically excluding the Injectables
Intellectual Property.
"Invention" means an invention which is the subject of a Patent
Application or Patent or is protectable by the Company through
patent registration.
"Know-how" means know-how and technical information relating to
any Invention.
"Loss" means any loss (but not including any indirect or
consequential loss), claim, action, suit, proceeding, award,
judgment, demand, liability, obligation, damage, fine, penalty,
cost, charge, expense, Tax, outgoing, payment, diminution in
value or deficiency of any kind or character which the Vendor,
the Company or the Purchaser pays, suffers, or incurs or is
liable for including, without limitation:
(a) all interest and other amounts payable to third parties; and
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(b) all proper and reasonable legal and other expenses (on a
full indemnity or a solicitor and own client basis,
whichever is the greater) incurred in connection with
investigating or defending any Claims or Actions, whether or
not resulting in any liability and all amounts paid in
settlement of any Claim or Action.
"Material Contracts" means the development, supply, licence,
consulting, distribution and sale agreements, arrangements or
understandings entered into, existing, made or held by the
Company in connection with the Business listed in part I, part II
and part III of schedule 3.
"Mutual Condition Precedent" means a Condition Precedent referred
to in clause 5.1.
"Officer" means, in relation to a corporation, an officer within
the meaning of section 9 of the Corporations Law.
"Patents" and "Patent Applications" means those patents and
patent applications listed in schedule 5 under the heading
"Patents and Patent Applications."
"Purchase Price" means $32,000,000.00 (thirty two million
dollars).
"Purchaser's Condition Precedent" means a Condition Precedent
referred to in clause 5.3.
"Real Property" means the land and buildings at ▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇, being the land more particularly
described in certificate of title volume 9713 folio 290.
"Real Property Licence Deed" means a licence agreement among the
Company, the Vendor's Guarantor and an Affiliate of the Vendor's
Guarantor relating to the use of part of the Real Property by
that Affiliate materially the same as that annexed to this
Agreement as annexure "E".
"Related Body Corporate" has the meaning ascribed by the
Corporations Law.
"Relevant Environmental Authority" means all consents,
authorisations, permits and licences that the Company is required
to obtain under an Environmental Law in order to conduct the
operations of the Company.
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"Revenue Authority" means any Australian Federal, State,
Territory or local government authority or instrumentality
levying Tax.
"Shares" means all of the shares issued in the capital of the
Company, being 1,417,606 fully paid ordinary shares.
"Tax" means any income tax, capital gains tax, recoupment tax,
franking deficits tax, franking additional tax, pay-as-you-earn
remittances, prescribed payments, undistributed profits tax,
withholding tax (including deductions pursuant to the royalty
withholding obligation), foreign withholding tax, foreign tax,
fringe benefit tax, value added tax and goods and services tax,
customs duty, excise duty, sales tax, payroll tax, group tax,
land tax, stamp duty, financial institutions duty, debits tax,
municipal rates, water rates, gift duties and other charges,
levies and impositions, assessed or charged or assessable or
chargeable by or payable to any national, foreign, federal, state
or municipal taxation or excise authority, including any
interest, penalty, charge, fee or other amount imposed or made on
or in respect of the failure to file a return in respect of or to
pay any such tax, rates, duties, charges or levies.
"Tax Act" means the Income Tax Assessment ▇▇▇ ▇▇▇▇ (Cth) or the
Income Tax Assessment ▇▇▇ ▇▇▇▇ (Cth) or both the Income Tax
Assessment ▇▇▇ ▇▇▇▇ (Cth) and the Income Tax Assessment ▇▇▇ ▇▇▇▇
(Cth), as appropriate.
"Taxable Supply" has the meaning given in the GST Act.
"Third Party Rights" means any intellectual or industrial
property of a third party anywhere in the world including,
without limitation, a patent, design (whether or not registered),
trade or service ▇▇▇▇ (whether or not registered), copyright,
confidential information or trade secret, business process,
circuit layout designs and rights in relation to circuit layouts.
"Trade Marks" means trade marks, logos, symbols, get-up, service
marks and trade names (whether registered or not), details of
which are set out in schedule 5 under the headings "Registered
Trade Marks" and "Unregistered Trade Marks," and all associated
goodwill.
"Vendor's Condition Precedent" means a Condition Precedent
referred to in clause 5.2.
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"Vendor's Fund" means the ▇. ▇. ▇▇▇▇▇▇▇▇ & Co. Limited
Superannuation Fund established under deed made 14 December 1982.
"Vendor's Solicitors" means Lander & ▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇.
"Warranties" means the representations, warranties, indemnities,
undertakings and other obligations of the Vendor of whatever kind
contained in this Agreement including, without limitation, those
set out in schedule 1.
1.2 INTERPRETATION
In this Agreement:
(a) words denoting the singular number include the plural and
vice versa;
(b) words denoting any gender include all genders;
(c) words importing natural persons include corporations, firms,
unincorporated associations, partnerships, trusts and any
other entities or groups recognised by law;
(d) reference to any legislation or to any provision of any
legislation includes any amendment, modification,
consolidation or re-enactment of, or any legislative
provision substituted for, and all legislative and statutory
instruments issued under, such legislation or such
provision;
(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 and annexures are
references to clauses and schedules and annexures of this
Agreement;
(g) reference to any party to this Agreement or any other
agreement or document includes the party's successor and
permitted assigns;
(h) where a word or phrase is defined, other grammatical forms
of that word or phrase have corresponding meanings;
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(i) reference to any document or agreement includes references
to such document or agreement as novated, supplemented,
varied or replaced from time to time except to the extent
excluded by the terms of this Agreement or that other
document or agreement;
(j) 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;
(k) the headings to clauses or schedules are for ease of
reference only and do not form part of this Agreement or
affect its interpretation;
(l) if any day appointed or specified by this Agreement for the
payment of any money or the doing of any act falls on a day
which is not a Business Day, the day appointed or specified
will be the next Business Day;
(m) a reference to a time or date in connection with the
performance of an obligation by a party is a reference to
the time and date in Melbourne, Victoria, Australia even if
the obligation is to be performed elsewhere; and
(n) the Warranties are to be construed separately, and the
meaning of each Warranty is in no way limited by reference
to any other covenant, warranty or representation contained
in this document.
2. SALE OF SHARES
2.1 SALE OF SHARES
The Vendor agrees, at the request of the Purchaser's Guarantor,
to sell the Shares to the Purchaser free from all Encumbrances,
and the Purchaser agrees, at the request of the Vendor's
Guarantor, to purchase the Shares from the Vendor free from all
Encumbrances, on the terms and conditions contained in this
Agreement.
3. PURCHASE PRICE AND PAYMENT
3.1 PURCHASE PRICE
The purchase price to be paid by the Purchaser to the Vendor in
consideration for the sale of the Shares is the Purchase Price.
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3.2 PAYMENT OF THE PURCHASE PRICE
The Purchase Price is payable on the Completion Date.
4. PERIOD BEFORE COMPLETION
4.1 CONDUCT OF BUSINESS PENDING COMPLETION
From the Effective Date until the Completion Date, unless the
Purchaser otherwise agrees in writing:
(a) the Vendor must use reasonable endeavours to preserve the
value of the prospects, condition, operations, business and
assets of the Company and must ensure that the Company
carries on the Business in the ordinary and usual course
consistent with past practice and so as to comply in all
material respects with all applicable laws of which it is
aware (having made proper enquiry); and
(b) the Vendor must ensure that the Company does not:
(i) increase, reduce or otherwise alter its share capital
from that shown in the Company Accounts unless set out
in clause 5.2 or grant any options or other rights for
the issue of shares or other securities or issue any
securities convertible into share capital;
(ii) increase, reduce or otherwise alter its loan facilities
from those shown in the Company Accounts unless set out
in clause 5.2;
(iii) alter the provisions of the Constitution;
(iv) declare or pay a dividend, make any other distribution
of its profits or repay any shareholder's loan or
advance unless set out in clause 5.2;
(v) make a distribution or revaluation of assets unless set
out in clause 5.2;
(vi) buy back any of its shares;
(vii) enter into any abnormal or unusual transaction which
relates to or adversely affects the Business unless set
out in clause 5.2;
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(viii) enter into any contract that involves an expenditure
by, or imposes obligations on the Company in excess of,
$10,000.00 or extends beyond a period of six months;
(ix) make any capital commitment, or sell or purchase any
asset, for more than $10,000.00 or assets that in the
aggregate cost more than $50,000.00;
(x) create any Encumbrance over or declare itself trustee
of any asset;
(xi) make any material Tax election or accounting method
changes, settle any Tax claim or extend any Tax
limitation period; or
(xii) make any material amendment to the terms and
conditions of employment (including, without
limitation, remuneration, superannuation entitlements
and other benefits) of any Employee except as required
by law or, with prior written notice to the Purchaser
any applicable industrial award, instrument or
agreement or hire any additional employee.
4.2 PURCHASER'S ACCESS
(a) The Vendor undertakes that prior to Completion it will
provide the Purchaser, its advisers and authorised
representatives all reasonable access during normal business
hours to all books and records and assets of and under the
control of the Company and to the Real Property, provided
that the Purchaser gives the Vendor prior notice of any need
for such access and such notice will not be unreasonably
denied by the Vendor.
(b) The Vendor will make all reasonable efforts, as requested
from time to time by Purchaser, to make the relevantly
responsible officers and employees of, and auditors and
other advisers to, the Company, the Vendor and the Vendor's
Guarantor reasonably available during normal business hours
to give access and provide assistance to the Purchaser, its
advisers and representatives as provided by clause 4.2(a).
The Purchaser will provide prior notice to the Vendor of
such requests, which such requests will not be unreasonably
denied.
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4.3 NO ALTERNATE TRANSACTION
For the period from the Effective Date to the Completion Date
(inclusive), the Vendor must not, and the Vendor must procure
that none of its respective Officers, employees, agents or
representatives nor any of the Company or the Vendor's or the
Company's Affiliates nor any of their Officers, employees, agents
or representatives, take, directly or indirectly, any of the
following actions:
(a) solicit, encourage, initiate or participate in any inquiry,
negotiations or discussions, or enter into any agreement,
with respect to any offer or proposal to acquire any
material part of the Company's business, properties or
technologies, or any amount of the Company's share capital,
whether by purchase of shares, assets, reconstruction or
otherwise, or effect any such transaction;
(b) disclose any information not customarily disclosed to any
third party concerning the Company's business, technologies
and properties, or afford to any person (other than the
Purchaser, the Purchaser's Guarantor or their
representatives) access to its properties, technologies,
books or records, not customarily afforded such access;
(c) assist or cooperate with any third party to make any
proposal to purchase all or any part of the Company's share
capital or all or any material part of the Company's assets;
or
(d) enter into any agreement with any third party providing for
the acquisition of the Company whether by purchase of
shares, assets, reconstruction or otherwise, or effect any
such transaction.
4.4 PROMPT DISCLOSURE
The Vendor will promptly disclose to the Purchaser full
particulars of any fact, matter, event or circumstance (including
any omission) which becomes known to the Vendor after the
Effective Date and before the Completion Date which:
(a) constitutes a material breach of or renders any Warranty
materially inaccurate or misleading; or
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(b) has or is likely to have a material adverse effect on the
prospects, condition, operations, business or assets of the
Company.
4.5 INSURANCE
Until the Completion Date the Vendor will maintain, or cause
there to be maintained, insurance on the assets of the Company in
accordance with its customary business practices and will not
cause such insurance to lapse or be cancelled prior to the
Completion Date. The Purchaser will be responsible for all such
insurance after the Completion Date.
4.6 VENDOR'S CERTIFICATE
On the second Business Day before the Completion Date, the Vendor
will deliver to the Purchaser a certificate confirming as at the
date of delivery:
(a) that the Vendor has complied with clause 4.1 or, to the
extent it has not, giving reasonable particulars of each
breach; and
(b) the Warranties are materially accurate, or, if the Vendor is
aware of anything which has occurred since the Effective
Date to make any such Warranty materially inaccurate, giving
reasonable particulars of the event and the nature of the
inaccuracy.
5. CONDITIONS
5.1 GENERAL CONDITIONS
The obligations of the Vendor and the Purchaser to effect
Completion are subject to the following:
(a) there not being any statute, rule or regulation enacted,
promulgated or deemed applicable to the transactions
contemplated by this Agreement by any Governmental Authority
that prevents Completion or has the effect of making any
transaction contemplated by this Agreement illegal or
contrary to public policy; and
(b) no action, suit, or proceeding concerning either the Vendor,
the Purchaser or the Company being pending by or before any
Governmental Authority wherein an
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unfavourable judgment, order, decree, stipulation or injunction
would either prevent any of the transactions contemplated by this
Agreement or cause the transaction contemplated by this Agreement
to be rescinded following Completion.
5.2 VENDOR'S CONDITIONS
The obligation of the Vendor to effect Completion is subject to
the prior satisfaction of the following conditions or their
satisfaction subject only to Completion:
(a) the transfer of the Injectables Division from the Company to
an Affiliate of the Vendor as set out in schedule 2 on the
terms set out in the Injectables Transfer Agreement;
(b) [ ]*
(c) the Company releasing the Vendor and each Related Body
Corporate from the obligation to repay any inter-company
loans after completion of the transactions referred to in
paragraphs (a), (b) and (d) of this clause;
(d) the transfer of the 80,154 shares owned by the Company in
the issued capital of the Purchaser's Guarantor to the
Vendor (or the Vendor's nominee);
(e) the representations and warranties of the Purchaser
contained herein being true and correct in all material
respects (without giving effect to any limitation as to
materiality in such representations and warranties) when
made:
(i) except for changes contemplated by this Agreement; and
(ii) to the extent that such representations and warranties
speak as of an earlier date, being true and correct as
of Completion as though made on that date;
provided that this condition does not apply in respect of
any representation or warranty known by the Vendor to be
incorrect prior to entering into this Agreement;
-----------------------
* Confidential Treatment Requested
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(f) the Purchaser having performed all obligations and
agreements and complied with all covenants contained in this
Agreement to be performed and complied with by Completion;
and
(g) the continuing guaranty by the Purchaser's Guarantor of the
obligations and warranties under this Agreement.
5.3 PURCHASER'S CONDITIONS
The obligation of the Purchaser to effect Completion is subject
to the prior satisfaction of the following conditions or their
satisfaction subject only to Completion:
(a) to the extent reasonably required in the determination of
the Purchaser and the Purchaser's counsel, the parties to
each of the Material Contracts (other than the Company)
giving their consent (in a form reasonably satisfactory to
the Purchaser) to the change in control of the Company which
occurs as a result of the transactions contemplated by this
Agreement;
(b) release of the Company from the ▇▇ ▇▇▇▇▇▇▇▇ Group deed of
cross guarantee lodged pursuant to ASIC Class Order 98/1418;
(c) the completion, to the Purchaser's reasonable satisfaction,
of its review of the diligence materials and of the Business
of the Company;
(d) the representations and warranties of the Vendor contained
herein being true and correct in all material respects
(without giving effect to any limitation as to materiality
in such representations and warranties) when made:
(i) except for changes contemplated by this Agreement; and
(ii) to the extent that such representations and warranties
speak as of an earlier date, being true and correct as
of Completion as though made on that date;
provided that this condition does not apply in respect of
any representation or warranty known by the Purchaser to be
incorrect prior to entering into this Agreement;
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(e) the Vendor having performed all obligations and agreements and
complied with all covenants contained in this Agreement to be
performed and complied with by Completion; and
(f) the continuing guaranty by the Vendor's Guarantor of the
obligations and warranties under this Agreement.
5.4 PARTIES MUST COOPERATE
Each party must cooperate with the others and use all reasonable
endeavours to obtain satisfaction of the Conditions Precedent.
5.5 SPECIFIC OBLIGATIONS OF COOPERATION
Without limiting the generality of clause 5.4:
(a) each of Vendor and the Purchaser respectively, must make any
applications deemed by it to be necessary and appropriate to
effect the purpose of this Agreement and each will supply
all necessary and appropriate information for the purpose of
enabling the Conditions Precedent to be satisfied;
(b) neither party may withdraw or procure the withdrawal of any
application made or information supplied under paragraph (a)
of this clause 5.5;
(c) no party may take any action that would or would be likely
to prevent or hinder completion of the satisfaction of the
Conditions Precedent; and
(d) each party must supply to the others copies of all
applications made and all information supplied for the
purpose of enabling the Conditions Precedent to be
satisfied.
5.6 NOTIFICATION OF SATISFACTION OF CONDITIONS
The Vendor must notify the Purchaser when the Vendor's Conditions
Precedent have been satisfied and promptly supply evidence of
satisfaction of the Vendor's Conditions Precedent to the
Purchaser.
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The Purchaser must notify the Vendor when the Purchaser's
Conditions Precedent have been satisfied and promptly supply
evidence of satisfaction of the Purchaser's Conditions Precedent
to the Vendor.
5.7 TERMINATION ON FAILURE OF CONDITIONS
If any of the Mutual Conditions Precedent occurs or any of the
Vendor's Conditions Precedent or the Purchaser's Conditions
Precedent is not satisfied and:
(a) in the case of Mutual Conditions, it is not waived by both
the Vendor and the Purchaser;
(b) in the case of the Vendor's Conditions Precedent, it is not
waived by the Vendor;
(c) in the case of the Purchaser's Conditions Precedent, it is
not waived by the Purchaser;
prior to 4 May 2001, this Agreement will terminate unless
otherwise agreed in writing between the Vendor and the Purchaser.
5.8 CONSEQUENCES OF TERMINATION ON FAILURE OF CONDITIONS
On termination under clause 5.7 or clause 5.9, this Agreement
will be considered to be rescinded from the start and of no
further effect and no party will have any further obligation to
any other party except for any breach of clauses 4.3, 5.4, 5.5,
13.1, 13.2, 13.4 and 13.5 and except under sections 15 and 16.
5.9 RELEVANT EVENTS FOR PURCHASER
The Purchaser may terminate this Agreement by giving written
notice to the Vendor before the Completion Date if any of the
following events occur:
(a) there is a material breach of any of clauses 4.1 to 4.6 by
the Vendor; or
(b) there has been a material adverse change to the prospects,
condition, operations, business or assets of the Company
since the Balance Date.
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5.10 PRESERVATION OF PURCHASER'S REMEDIES
If the Purchaser does not exercise its rights under clause 5.9,
its other rights and remedies against the Vendor will not be lost
or limited in any way.
5.11 ACKNOWLEDGEMENT BY THE PURCHASER
The Purchaser acknowledges that this Agreement is entered into on
the basis of the Vendor undertaking, and being permitted by the
Purchaser to undertake (as testified by the execution of this
Agreement by the Purchaser), the actions referred to in clause
5.2.
6. COMPLETION
6.1 COMPLETION - PLACE AND DATE
Completion will take place at the offices of the Vendor's
Solicitors on the Completion Date or at such other place as the
Vendor and the Purchaser agree in writing.
6.2 VENDOR'S OBLIGATIONS ON COMPLETION
On or before the Completion Date but subject to Completion the
Vendor, will:
(a) deliver to the Purchaser in accordance with clause 6.4:
(i) the share certificates for the Shares;
(ii) a completed instrument of transfer of the Shares to
the Purchaser in registrable form (subject to payment
of stamp duty) executed by the Vendor;
(iii) the document of title to the Real Property and all
other then existing assets of the Company and all
other then existing records and documents relating to
the business and property of the Company;
(iv) the share certificate books of the Company;
(v) the register of members, register of charges, minute
books, ledgers, journals and books of account, the
certificate of incorporation, the common seal;
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(vi) written and duly executed resignations of all
directors, secretaries and public officers of the
Company conditional upon and with effect from
Completion, with such resignations to be on terms
reasonably approved by the Purchaser, including
acknowledgments under seal that each of those persons
has no claim of any nature against the Company for
salary, fees, compensation for loss of office, loans or
otherwise;
(vii) all original Patents and Patent Applications and
assignments of rights relating thereto;
(viii) a counterpart of the Deed of Assignment executed by the
Vendor's Guarantor and the Company and dated the
Completion Date;
(ix) a counterpart of the Real Property Licence Deed
executed by the parties thereto;
(x) a counterpart of the Consulting Agreement executed by
the parties thereto;
(xi) a counterpart of the Injectables Transfer Agreement
executed by the parties thereto;
(xii) executed directions to the relevant bank revoking all
existing authorities to operate the Bank Account and
authorising the person or persons nominated in writing
for that purpose by the Purchaser at least three
Business Days prior to the Completion Date to operate
the Bank Account;
(xiii) evidence of termination of all service contracts or
other contractual arrangements between the Company and
the Vendor or any Related Body Corporate of the Vendor
identified as such on schedule 3 (excluding F22
identified in Part I of schedule 3); and
(xiv) an updated list of Employee Entitlements as at the
close of business on the second last Business Day
before Completion.
In the case of the items referred to in clauses 6.2(a)(iii)
and (v) delivery is to be made by leaving those items in a
safe and appropriate place at the Company's principal office
or at such other place as the Vendor and Purchaser may agree.
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(b) cause a meeting of the directors of the Company to be held,
at which:
(i) persons nominated in writing for that purpose by the
Purchaser at least three Business Days prior to the
Completion Date and having consented in writing to such
appointment will be appointed directors of the Company
effective from Completion;
(ii) a person nominated in writing for that purpose by the
Purchaser at least three Business Days prior to the
Completion Date and having consented in writing to such
appointment will be appointed secretary of the Company
effective from Completion;
(iii) the directors of the Company resolve to accept the
resignations referred to in clause 6.2(a)(vi) subject
to Completion;
(iv) the directors of the Company resolve to register the
transfer of the Shares referred to in clause 6.2(a)(ii)
and cancel the existing share certificate subject to
that transfer being stamped and subject to Completion;
and
(c) the directors of the Company resolve to approve the entry
into and execution by the Company of the Deed of Assignment,
the Real Property Licence Deed , the Injectables Transfer
Agreement and the Consulting Agreement, and the undertakings
referred to in clause 13.11 to which the Company is a party
and deliver a certified copy of the minutes of such meeting
to the Purchaser.
6.3 PURCHASER'S PAYMENT OBLIGATIONS ON COMPLETION
Subject to the Vendor satisfying its obligations under clause
6.2, the Purchaser will on Completion pay the Purchase Price into
the Vendor's bank account identified in writing by the Vendor to
the Purchaser at least five Business Days prior to the Completion
Date by telegraphic transfer by 5.00pm on the Completion Date or
as otherwise directed by the Vendor. The Purchaser will also
deliver to the Vendor at Completion a counterpart of the
Consulting Agreement and the Injectables Transfer Agreement
executed by the Purchaser's Guarantor.
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6.4 ESCROW
The documents referred to in clauses 6.2 and 6.3 will be
delivered to the Australian lawyers for the Purchaser to be held
by them in escrow pending satisfaction of the Purchaser's
obligations in clause 6.3 pursuant to the terms of an escrow
agreement to be in such terms as the Vendor may reasonably
require, which agreement must be delivered by the Vendor to the
Purchaser at least 5 Business Days prior to Completion and
returned executed by the Purchaser's Australian lawyers at least
2 Business Days prior to Completion.
6.5 TITLE PASSES
On Completion, all legal and beneficial right, title and interest
in the Shares will pass to the Purchaser free of all
Encumbrances.
6.6 INTERDEPENDENCE
The requirements of clauses 6.2 and 6.3 are interdependent and
must be carried out contemporaneously. No delivery or payment
will be deemed to have been made until all deliveries and
payments have been made.
7. WARRANTIES AND INDEMNITIES
7.1 VENDOR'S WARRANTIES
The Vendor represents and warrants to the Purchaser that each of
the Warranties is true and correct as at the Effective Date and,
unless stated in the Warranties to be correct at a particular
date, will remain true and correct until Completion and on
Completion, except that the Warranties are given subject to the
facts, matters and circumstances fairly and accurately disclosed
in this Agreement and the Disclosure Letter.
The Purchaser will not claim that any fact, matter or
circumstance so disclosed causes any of the Warranties to be
untrue or incorrect or misleading or causes the Warranties to be
breached to the extent that such fact, matter or circumstance is
fairly and accurately disclosed in this Agreement and the
Disclosure Letter.
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The Vendor acknowledges that the Warranties are not extinguished
or affected by any investigation made by or on behalf of the
Purchaser or by any other event or matter except as expressly set
out in this clause 7.1.
7.2 INDEMNITY - WARRANTIES
Subject to clauses 8.3 and 8.4, the Vendor will indemnify and
keep indemnified, defend and hold harmless the Purchaser from and
against any and all Losses incurred or suffered by or brought or
made against the Purchaser or the Company to the extent that such
Losses are caused by, arise out of or relate to any breach by the
Vendor of any of the Warranties or any other term of this
Agreement (including, without limitation, any Loss suffered or
incurred by the Purchaser by reason of the Shares being worth
less than they would have been worth had there been no such
breach of the Warranties or of any other term of this Agreement).
The rights of the Purchaser under this clause 7.2 to be
indemnified from and against any Losses are limited to the extent
(and only to the extent):
(a) the Purchaser has failed to take reasonable steps to avoid
or mitigate such Loss; or
(b) the Loss is adjudicated to have been contributed to by any
act or omission of the Purchaser.
7.3 RELIANCE AND CONSTRUCTION
(a) The Vendor acknowledges that the Purchaser has entered into
this Agreement in reliance on the Warranties.
(b) Each Warranty is to be construed independently of the others
and is not limited by reference to any other Warranty.
7.4 VENDOR'S GUARANTOR'S WARRANTIES
The Vendor's Guarantor warrants to the Purchaser that:
(a) it is a body corporate duly incorporated and validly
existing under the laws of the State of South Australia;
(b) it has the power and authority and has obtained each
authorisation required to enter into, deliver and perform
this Agreement and this Agreement constitutes a legal,
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valid and binding obligation of the Vendor's Guarantor
enforceable in accordance with its terms;
(c) each authorisation required to be obtained by the Vendor's
Guarantor for the execution, delivery and performance of
this Agreement by the Vendor's Guarantor was duly obtained
and any condition imposed in any authorisation has been
observed;
(d) the execution, delivery and performance of this Agreement
will not violate any law or have a material adverse effect
on the ability of the Vendor's Guarantor to perform its
obligations under this Agreement; and
(e) none of the following has occurred and is subsisting, or is
threatened, in relation to the Vendor or the Vendor's
Guarantor:
(i) an application to a court for an order, or the making
of any order, that it be wound up or that a liquidator
or provisional liquidator be appointed;
(ii) a resolution by the directors or members that it be
wound up;
(iii) the convening of a meeting or passing of a resolution
to appoint an official manager;
(iv) a scheme of arrangement or composition with, or
assignment for the benefit of, or other arrangement
with all or a class of creditors;
(v) the taking of any action to seize, take possession of
or appoint a receiver or receiver and manager over any
part of its assets;
(vi) the appointment of an administrator; or
(vii) any act or matter having a similar legal or economic
effect under the laws of any jurisdiction.
7.5 VENDOR'S GUARANTOR'S INDEMNITY
Subject to clauses 8.3 and 8.4, the Vendor's Guarantor will
indemnify and will keep indemnified, defend and hold harmless the
Purchaser from and against any and all Losses incurred or
suffered by or brought or made against the Purchaser or the
Company to the extent that such Losses are caused by, arise out
of or relate to any breach by the Vendor's
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Guarantor of any of the warranties in clause 7.4 or by the
Vendor's Guarantor of clauses 8.7, 10.1 to 10.3, 10.6, 10.7,
11.1, 11.2, 13.1, 13.2, 13.8, 13.9, 13.10 and section 16
(including, without limitation, any Loss suffered or incurred by
the Purchaser by reason of the Shares being worth less than they
would have been worth had there been no such breach). The rights
of the Purchaser under this clause 7.5 to be indemnified from and
against any Loss are limited to the extent (and only to the
extent):
(a) the Purchaser has failed to take reasonable steps to avoid
or mitigate such Loss; or
(b) the Loss is adjudicated to have been contributed to by any
act or omission of the Purchaser.
7.6 PURCHASER'S WARRANTIES
The Purchaser warrants to the Vendor that:
(a) it is a body corporate duly incorporated and validly
existing under the laws of the State of Victoria;
(b) it has the power and authority and has obtained each
authorization required to enter into, deliver and perform
this Agreement and this Agreement constitutes a legal, valid
and binding obligation of the Purchaser enforceable in
accordance with its terms;
(c) each authorization required to be obtained by the Purchaser
for the execution, delivery and performance of this
Agreement by the Purchaser and for the investment in the
Company was duly obtained and any condition imposed in any
authorisation has been observed; and
(d) the execution, delivery and performance of this Agreement
will not violate any law or have a material adverse effect
on the Purchaser's ability to perform its obligations under
this Agreement.
(e) none of the following has occurred and is subsisting, or is
threatened, in relation to the Purchaser or the Purchaser's
Guarantor:
(i) an application to a court for an order, or the making
of any order, that it be wound up or that a liquidator
or provisional liquidator be appointed;
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(ii) a resolution by the directors or members that it be
wound up;
(iii) the convening of a meeting or passing of a resolution
to appoint an official manager;
(iv) a scheme of arrangement or composition with, or
assignment for the benefit of, or other arrangement
with all or a class of creditors;
(v) the taking of any action to seize, take possession of
or appoint a receiver or receiver and manager over any
part of its assets;
(vi) the appointment of an administrator; or
(vii) any act or matter having a similar legal or economic
effect under the laws of any jurisdiction.
7.7 PURCHASER'S INDEMNITY
Subject to clauses 7.10 and 7.11, the Purchaser will indemnify
and keep indemnified, defend and hold harmless the Vendor from
and against any and all Losses incurred or suffered by or brought
or made against the Vendor to the extent that such Losses are
caused by, arise out of or relate to any breach by the Purchaser
of the warranties in clause 7.6 or any other term of this
Agreement. The rights of the Vendor under this clause 7.7 to be
indemnified from and against any Loss are limited to the extent
(and only to the extent);
(a) the Vendor has failed to take reasonable steps to avoid or
mitigate such Loss; or
(b) the Loss is adjudicated to have been contributed to by any
act or omission of the Vendor.
7.8 PURCHASER'S GUARANTOR'S WARRANTIES
The Purchaser's Guarantor warrants to the Vendor that:
(a) it is a corporation duly incorporated and validly existing
under the laws of the State of Delaware;
(b) it has the power and authority and has obtained each
authorization required to enter into, deliver and perform
this Agreement and this Agreement constitutes a legal,
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valid and binding obligation of the Purchaser's Guarantor
enforceable in accordance with its terms;
(c) each authorization required to be obtained by the
Purchaser's Guarantor for the execution, delivery and
performance of this Agreement by the Purchaser's Guarantor
was duly obtained and any condition imposed in any
authorization has been observed;
(d) the execution, delivery and performance of this Agreement
will not violate any law or otherwise have a material
adverse effect on the ability of the Purchaser's Guarantor
to perform its obligations under this Agreement; and
(e) none of the following has occurred and is subsisting, or is
threatened, in relation to the Purchaser or the Purchaser's
Guarantor:
(i) an application to a court for an order, or the making
of any order, that it be wound up or that a liquidator
or provisional liquidator be appointed;
(ii) a resolution by the directors or members that it be
wound up;
(iii) the convening of a meeting or passing of a resolution
to appoint an official manager;
(iv) a scheme of arrangement or composition with, or
assignment for the benefit of, or other arrangement
with all or a class of creditors;
(v) the taking of any action to seize, take possession of
or appoint a receiver or receiver and manager over
any part of its assets;
(vi) the appointment of an administrator; or
(vii) any act or matter having a similar legal or economic
effect under the laws of any jurisdiction.
7.9 PURCHASER'S GUARANTOR'S INDEMNITY
Subject to clauses 7.10 and 7.11, the Purchaser's Guarantor will
indemnify and keep indemnified, defend and hold harmless the
Vendor from and against any and all Losses incurred or suffered
by or brought or made against the Vendor to the extent that such
Losses are caused by, arise out of or relate to any breach by the
Purchaser's Guarantor of the
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warranties in clause 7.8. The rights of the Vendor under this
clause 7.9 to be indemnified from and against any Loss are
limited to the extent (and only to the extent):
(a) the Vendor has failed to take reasonable steps to avoid or
mitigate such Loss; or
(b) the Loss is adjudicated to have been contributed to by any
act or omission of the Vendor.
7.10 LIMITATION OF LIABILITY OF PURCHASER AND PURCHASER'S GUARANTOR
The Purchaser and the Purchaser's Guarantor will not be liable
for any Losses of the Vendor or the Vendor's Guarantor:
(a) to the extent that the Loss is caused by, arises out of or
results from any act, matter, omission, transaction or
circumstance which would not have occurred but for any
legislation not in force at the Effective Date or any change
of any law or administrative practice of any Governmental
Authority, including any such legislation or change which
takes effect retrospectively or any increase in the rates of
Tax liable to be paid or any imposition of Tax not in effect
at the Effective Date; or
(b) unless notice of the Claim or Action is given in writing by
the Vendor or the Vendor's Guarantor to the Purchaser or the
Purchaser's Guarantor (as appropriate) within two years of
the Completion Date (setting out reasonable details of the
fact, circumstance or matter giving rise to the Claim or
Action, the nature of the Claim or Action and, if reasonably
practicable, the calculation of the Losses suffered) but in
any event as soon as reasonably practicable after the Vendor
or the Vendor's Guarantor becomes aware of the fact,
circumstance or matter on which the Claim or Action is
based; or
(c) where the amount of the Loss when aggregated with all other
Losses of the Vendor and the Vendor's Guarantor is less than
$50,000 provided that once such threshold is reached, the
Vendor and the Vendor's Guarantor are entitled to recover
the entire amount of all Losses and not just that part that
exceeds $50,000; or
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(d) to the extent such Losses exceed [ ]*; or
(e) where the Claim or Action arises after the date that is two
years after the Completion Date.
7.11 REDUCTION OF LIABILITY OF PURCHASER AND PURCHASER'S GUARANTOR
The Purchaser's and the Purchaser's Guarantor's liability for any
Losses will be reduced:
(a) to the extent that the Claim or Action arises in
circumstances against which the Vendor or the Vendor's
Guarantor is insured for the loss or damage suffered by it
and the Vendor or the Vendor's Guarantor recovers the amount
of loss or damage under such insurance;
(b) to the extent that the Vendor or the Vendor's Guarantor
realises a savings in Tax as a result of the Loss;
less in each such case Losses incurred or suffered by the Vendor
or the Vendor's Guarantor relating to obtaining such insurance
and proceeds or such Tax savings.
7.12 PAYMENT BY VENDOR FOR BREACH
Any amount payable by the Vendor to the Purchaser or the
Purchaser's Guarantor pursuant to clause 7.2 or 9.1 will be
treated as a reduction in the Purchase Price and the Purchase
Price will be deemed to have been reduced by the amount of such
payment (and the Purchaser will be deemed to have paid the
Purchase Price reduced accordingly).
8. LIMITATION OF LIABILITY OF VENDOR AND THIRD PARTY CLAIMS
8.1 NO RELIANCE ON AND NO LIABILITY FOR MATTERS OUTSIDE THIS
AGREEMENT
The Purchaser and the Purchaser's Guarantor acknowledge and
warrant that they do not rely on any representation or warranty
made by or on behalf of the Vendor which is not set out in this
Agreement.
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* Confidential Treatment requested
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8.2 PURCHASER'S AND PURCHASER'S GUARANTOR'S RELIANCE ON THEIR OWN
ENQUIRIES
The Purchaser and the Purchaser's Guarantor acknowledge and
warrant that they have examined, and relied solely on the
contents of this Agreement, the Disclosure Letter, the Warranties
and the warranties given by the Vendor's Guarantor in clause 7.4
and the information set out in the documents specified in
annexure "F".
8.3 LIMITATION OF LIABILITY OF VENDOR AND VENDOR'S GUARANTOR
The Vendor and the Vendor's Guarantor will not be liable for any
Losses of the Purchaser or the Purchaser's Guarantor:
(a) to the extent that the Loss is caused by, arises out of or
results from any act, matter, omission, transaction or
circumstance which would not have occurred but for any
legislation not in force at the Effective Date or any change
of any law or administrative practice of any Governmental
Authority, including any such legislation or change which
takes effect retrospectively or any increase in the rates of
Tax liable to be paid or any imposition of Tax not in effect
at the Effective Date; or
(b) unless notice of the Claim or Action is given in writing by
the Purchaser or the Purchaser's Guarantor to the Vendor or
the Vendor's Guarantor (as appropriate) within two years of
the Completion Date (setting out reasonable details of the
fact, circumstance or matter giving rise to the Claim or
Action, the nature of the Claim or Action and, if reasonably
practicable, the calculation of the Losses suffered) but in
any event as soon as reasonably practicable after the
Purchaser or the Purchaser's Guarantor becomes aware of the
fact, circumstance or matter on which the Claim or Action is
based; or
(c) where the amount of the Loss when aggregated with all other
Losses of the Purchaser and the Purchaser's Guarantor is
less than $50,000 provided that once such threshold is
reached, the Purchaser and the Purchaser's Guarantor will be
entitled to recover the entire amount of all Losses and not
just that part that exceeds $50,000; or
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(d) to the extent such Losses exceed [ ]*; or
(e) where the Claim or Action arises after the date that is two
years after the Completion Date.
8.4 REDUCTION OF LIABILITY OF VENDOR AND VENDOR'S GUARANTOR
The Vendor's and the Vendor's Guarantor's liability for any
Losses will be reduced:
(a) to the extent that the Claim or Action arises in
circumstances against which the Purchaser or the Purchaser's
Guarantor is insured for the loss or damage suffered by it
and the Purchaser or the Purchaser's Guarantor recovers the
amount of loss or damage under such insurance;
(b) to the extent that the Purchaser or the Purchaser's
Guarantor realises a savings in Tax as a result of the Loss;
less in each such case Losses incurred or suffered by the
Purchaser or the Purchaser's Guarantor relating to obtaining such
insurance and proceeds or such Tax savings.
8.5 LIMITATIONS DO NOT APPLY
The provisions of clauses 8.3 and 8.4 do not apply to any Losses
of the Purchaser or the Purchaser's Guarantor that are caused by,
arise out of or are related to:
(a) a breach of any of the Warranties set forth in paragraphs
7A.10 of schedule 1;
(b) fraud, dishonesty or wilful concealment by the Vendor, the
Vendor's Guarantor or any of their respective Officers or
employees.
8.6 THIRD PARTY CLAIMS
If any claim, demand, action or proceeding (including any request
for information, notice to produce documents, audit, review or
request for a meeting) is made or instituted against the Company,
the Purchaser or the Purchaser's Guarantor after Completion,
other than in respect of a notice of assessment of Tax, in
respect of which the Purchaser or the Purchaser's
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Guarantor may seek to make any Claim or Action against the Vendor
or the Vendor's Guarantor (any such claim, demand, action or
proceeding being hereinafter called a "Third Party Claim"), the
following procedure applies:
(a) the Purchaser or the Purchaser's Guarantor will give prompt
written notice of the Third Party Claim to the Vendor or the
Vendor's Guarantor (as the case may be) and will consult
with the Vendor or the Vendor's Guarantor (as the case may
be) concerning such claim provided, however, that the
failure to give such notice does not relieve the Vendor or
the Vendor's Guarantor (as the case may be) of its
obligations under this Agreement unless the ability of the
Vendor or the Vendor's Guarantor to defend the Third Party
Claim is materially impaired as a result of such failure to
give notice;
(b) the Purchaser will not itself, nor allow the Company, to
admit, compromise, settle or pay any Third Party Claim or
take any other steps which may in any way prejudice the
defence of the claim without the prior written consent of
the Vendor or the Vendor's Guarantor (as the case may be),
except as may be reasonably required in order to prevent any
judgment against the Company or where the Vendor or the
Vendor's Guarantor has not agreed within 30 Business Days
after receiving notice under paragraph (a) to defend the
Third Party Claim or is not proceeding with such defence in
good faith;
(c) if and so long as the Vendor or the Vendor's Guarantor has
agreed to defend the Third Party Claim and is proceeding
with such defence in good faith, the Purchaser will or will
procure that the Company will permit the Vendor or the
Vendor's Guarantor (as the case may be) at the Vendor's
expense or the Vendor's Guarantor's expense, to take such
reasonable action in the name of the Company to defend or
otherwise settle the Third Party Claim as the Vendor or the
Vendor's Guarantor (as the case may be) may reasonably
require provided that the legal counsel engaged by the
Vendor or the Vendor's Guarantor to conduct the defence is
acceptable to the Purchaser (acting reasonably) and the
Purchaser and the Purchaser's Guarantor may participate in
the defence at their expense; and
(d) the Purchaser will ensure that the Vendor and the Vendor's
Guarantor and their representatives are given reasonable
access at the Vendor's expense to such of the
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documents and records of the Company and of the Purchaser as are
in the possession or under the control of the Purchaser or the
Company as may be reasonably required by the Vendor or the
Vendor's Guarantor in relation to any action taken or proposed to
be taken by the Vendor or the Vendor's Guarantor (as the case may
be) under clause 8.6(c).
8.7 RELEASE BY VENDOR AND VENDOR'S GUARANTOR
The Vendor and the Vendor's Guarantor each undertake to deliver
to the Purchaser on demand on or after the Completion Date a deed
of release in form and substance reasonably satisfactory to the
Purchaser duly executed by the Vendor and the Vendor's Guarantor
which releases the Company from all claims which the Vendor or
the Vendor's Guarantor might have against the Company or its
Officers or employees on any account based upon facts, events or
circumstances arising on or prior to the Completion Date.
9. ASSESSMENT OF TAX
9.1 TAX INDEMNITY
Subject to clause 9.2 to 9.5 (inclusive) and subject to any
agreed exclusion set out in the Disclosure Letter, the Vendor
must pay the following amounts to the Purchaser:
(a) the amount of any Tax which the Company may be called upon
to pay and which is not provided for in the Company Accounts
in respect of any income year ending before the Completion
Date and in respect of the period from the first day of the
next income year to the Completion Date (on the assumption
that this period is a year of income) which has not been
paid prior to the Completion Date;
(b) the amount of any liability for Tax which may arise as a
consequence of the Company or the Vendor having obtained
relief (whether by way of deferred capital gains tax or
otherwise) and which has or will become payable as a result
of entry into or performance of this Agreement;
(c) the amount of any liability to any current or former Related
Body Corporate of the Company (including the Vendor) as a
result of any Tax loss transferred by the
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Company to that current or former Related Body Corporate
prior to the Completion Date being disallowed, in whole or
in part; and
(d) the amount of any liability of the Company for Tax which may
arise as a consequence of or relating to the transactions
contemplated by paragraphs (a) to (d) of clause 5.2,
but in each case only to the extent that the amount exceeds the
amount of the provision for them in the balance sheet appearing
in the Company Accounts.
9.2 VENDOR REQUIRES NOTICE OF CLAIM
The Vendor is not obliged to pay any amount under clause 9.1(a),
(b) or (c) unless the Purchaser, within 30 days after receipt by
the Company of any relevant assessment or demand from the
taxation or excise authority, gives to the Vendor written notice
of the claim and a copy of the relevant parts of that assessment
or demand.
9.3 PAYMENTS
Payments under clause 9.1 must be made to the Purchaser no later
than seven days before the latest date on which the Company is
required by law to make payment of the relevant amount.
9.4 VENDOR TO BEAR COSTS OF DISPUTE
Where:
(a) notice is given in accordance with clause 9.2;
(b) the Vendor, within 30 days after receiving notice in
accordance with clause 9.2, gives the Purchaser notice that
the Vendor proposes to dispute on behalf of the Company or
the Purchaser (as the case may be) the assessment; and
(c) the Vendor has complied with clause 9.3,
the Purchaser must take, or cause the Company to take, such
action as the Vendor may reasonably request (by notice to the
Purchaser) to object to, appeal against or settle the assessment,
if the Vendor enters into a deed (in a form approved by the
Purchaser which
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approval will not be unreasonably withheld) agreeing to bear all
the costs and expenses of taking such actions (including, without
limitation, the reasonable costs to the Purchaser or the Company
(as the case may be) involved in engaging its staff in the matter
and any costs awarded in favor of any government or taxation or
excise authority).
9.5 VENDOR TO BE REIMBURSED PAYMENT
Where a payment has been made by the Vendor under clause 9.1 and
the matter in respect of which the payment is made is ultimately
resolved in favor of the Company, the Purchaser must cause the
Company within seven days following receipt of the money from the
relevant taxation authority, to pay an equivalent amount to the
Vendor. If the amount of Tax the Company is called upon to pay
will result in a Tax credit or rebate or deduction being able to
be claimed by the Company then the amount to be paid by the
Vendor under clause 9.1 will be reduced by the amount of the Tax
credit, rebate or deduction claimable.
9.6 INVOLVEMENT OF VENDOR IN TAX AUDIT
The Vendor has the right to be actively involved in any Tax audit
conducted by the Australian Taxation Office concerning the
Company insofar as the audit relates to any period or periods
prior to the Completion Date. The Purchaser will cause the
Company to give reasonable written notice to the Vendor of any
Tax audit.
9.7 NO DOUBLE RECOVERY
To the extent that the Purchaser or the Company has recovered an
amount referred to in clause 9.1 in respect of a matter that is
also the subject matter of a Warranty, the Purchaser will not be
entitled to recover that amount in respect of any breach of that
Warranty.
10. POST-COMPLETION COVENANTS
10.1 INTELLECTUAL PROPERTY PROTECTION
After Completion, the Vendor and the Vendor's Guarantor will not,
and the Vendor's Guarantor will procure that none of its
Affiliates, use or employ any of the Intellectual Property in any
manner whatsoever without the prior written consent of the
Purchaser.
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10.2 VENDOR AND VENDOR'S GUARANTOR NOT TO SOLICIT
For the sole purpose of protecting the Purchaser in respect of
the goodwill of the Business, each of the Vendor and the Vendor's
Guarantor undertakes to the Purchaser that it will not, and that
it will procure that each of its Affiliates will not, for a
period of:
[ ]*
do any one or more of the following:
(A) on its own account or for any person, enterprise, firm,
trust, joint venture, or syndicate cause any existing
customer (including any licensee) or licensor of the
Company to cease transacting business with the Company
(including any licensee or licensor of the Company);
(B) on its own account or for any person, enterprise, firm,
trust, joint venture, or syndicate entice away or
attempt to entice away from the Company any employee of
the Company; and
(C) personally or by its employees or agents or by
circulars, letters or advertisements whether on its own
account or for any person, enterprise, firm, trust,
joint venture, or syndicate take any actions directly
intended to materially, negatively impact the business
of the Company.
For the avoidance of doubt but without in any way limiting the
operation of clause 10.3, the Purchaser agrees with the Vendor
and the Vendor's Guarantor that this clause is not intended to
prevent either of the Vendor or the Vendor's Guarantor engaging
in competitive activity generally.
10.3 VENDOR AND VENDOR'S GUARANTOR NOT TO COMPETE
For the sole purpose of protecting the Purchaser in respect of
the goodwill of the Business, each of the Vendor and the Vendor's
Guarantor undertakes to the Purchaser that it will not, and that
it will procure that each of its Affiliates will not, within:
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* Confidential Treatment Requested
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[ ]*
be directly or indirectly engaged, concerned or interested
whether on its own account or as a member, shareholder,
consultant, agent, beneficiary, trustee or otherwise in any
enterprise, corporation, firm, trust, joint venture, or syndicate
which is:
[ ]*
except that the foregoing does not restrict the Vendor, the
Vendor's Guarantor and any of their respective Affiliates
from:
[ ]*
10.4 NON-SOLICITATION AND NON-COMPETITION RESTRAINTS INDEPENDENT AND
REASONABLE
Each of the Vendor and the Vendor's Guarantor acknowledges that
each of the prohibitions and restrictions contained in the
provisions of clause 10.2 and 10.3:
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* Confidential Treatment Requested
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(a) must be read and construed and will have effect as a
separate, severable and independent prohibition or
restriction and will be enforceable accordingly;
(b) is reasonable as to period, territorial limitation and
subject matter; and
(c) confers a benefit on the Purchaser which is no more than
that which is reasonably and necessarily required by the
Purchaser for the maintenance and protection of the goodwill
of the Business.
It is the intention of the parties that all combinations of such
prohibitions and restrictions will apply and be enforceable and
that only those which a court, in exercising its discretion, may
hold to be an unreasonable restraint of trade will be severed.
10.5 EMPLOYEES
[ ]*
10.6 PURCHASER'S ACCESS
(a) The Vendor and the Vendor's Guarantor each undertakes that
after Completion it will provide the Purchaser's Guarantor,
its advisers and authorised representatives all reasonable
access during normal business hours to all books and records
and assets of and under the control of the Vendor and the
Vendor's Guarantor relating to the Company that are
reasonably necessary to enable the Purchaser's Guarantor and
its auditors to prepare and finalise an audit of the
Company's financial statements for such periods as are
required in order for the Purchaser's Guarantor to comply
with the applicable rules and regulations of the United
States Securities
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* Confidential Treatment Requested
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and Exchange Commission, provided that the Purchaser's
Guarantor gives the Vendor and the Vendor's Guarantor, as
applicable, reasonable prior notice of any need for such
access.
(b) The Vendor and the Vendor's Guarantor each will make all
reasonable efforts, as requested from time to time by the
Purchaser's Guarantor, to make the relevantly responsible
officers and employees of, and auditors and other advisers
to, the Vendor and the Vendor's Guarantor reasonably
available during normal business hours to give access and
provide assistance to the Purchaser's Guarantor, its
advisers and representatives as provided by clause 10.6(a).
The Purchaser's Guarantor will provide reasonable prior
notice to the Vendor and the Vendor's Guarantor, as
applicable, of such requests, and such requests will not be
unreasonably denied.
(c) The Purchaser's Guarantor will reimburse the Vendor or the
Vendor's Guarantor, as applicable, for reasonable fees and
expenses of outside auditors or advisers it incurs, but the
Purchaser's Guarantor will not be liable for any other costs
incurred by the Vendor or the Vendor's Guarantor, in
providing the access and assistance requested by the
Purchaser's Guarantor pursuant to this clause 10.6. The
Vendor or the Vendor's Guarantor, as applicable, will submit
invoices to the Purchaser's Guarantor for any fees and
expenses for which it is entitled to be reimbursed pursuant
to this clause, and the Purchaser's Guarantor will pay such
invoices within 30 days of receipt.
10.7 PAYMENTS RECEIVED BY VENDOR OR ANY AFFILIATE POST-COMPLETION
The Vendor and the Vendor's Guarantor each undertakes to remit,
and to cause each of its Affiliates to remit, promptly (and in no
event later than five Business Days after receipt) to the Company
any payments received by it or any of its Affiliates after
Completion attributable to the accounts receivable set forth on
schedule 6 by wire transfer of immediately available funds to the
Bank Account.
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11. TRANSITIONAL ARRANGEMENTS
11.1 SUPERANNUATION
(a) The Vendor's Guarantor undertakes to the Purchaser to ensure
that the Company is permitted to continue to participate as
an employer in the Vendor's Fund in respect of its employees
for a period to be agreed between the Vendor's Guarantor and
the Purchaser but in any event being a period not exceeding
six months after the Completion Date (the "Superannuation
Transition Period"). During the Superannuation Transition
Period:
(i) the Company must contribute to the Vendor's Fund in
respect of its employees at the same rate and manner as
applied immediately prior to Completion; and
(ii) the Purchaser must procure the Company to establish or
identify a complying superannuation fund (within the
meaning of the Tax Act) (the "Purchaser's Fund") and
will invite the Company's employees who are members of
the Vendor's Fund to transfer their entitlements to the
Purchaser's Fund.
(b) The Purchaser acknowledges that at the end of the
Superannuation Transition Period, the Company will cease to
be eligible to participate as an employer in the Vendor's
Fund and will cease contributions in respect of its
employees to the Vendor's Fund.
(c) The Vendor's Guarantor agrees that during the Superannuation
Transition Period, there will be no change to the governing
rules of the Vendor's Fund in so far as they apply to the
employees of the Company other than with the consent of the
Purchaser (which consent will not be unreasonably withheld)
or to meet a change in any law which applies generally to
regulated superannuation funds.
11.2 PAYROLL SERVICES
(a) The Vendor's Guarantor undertakes to the Purchaser to
provide payroll services to the Company in a manner, to the
extent and at a time substantially consistent with the
manner in which the Vendor's Guarantor performs payroll
services to the
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Company as at the Effective Date for a period of 45 days
from the Completion Date (the "Payroll Transition Period").
(b) The Vendor's Guarantor agrees to provide such reasonable
assistance to the Company and the Purchaser during the
Payroll Transition Period as the Company and the Purchaser
may request to assist the Company to efficiently and
expeditiously develop the ability to perform the payroll
services itself from the end of the Payroll Transition
Period.
(c) The Purchaser will procure that the Company provides to the
Vendor's Guarantor on a timely basis all such information as
the Vendor's Guarantor may request to enable it to provide
the payroll services.
For the purposes of this clause 11.2 "Payroll Services" means:
(i) processing of normal payroll and coordination with
the payroll service provider to effect payment to
employees;
(ii) submitting applicable taxes (if not so submitted by
the payroll service provider);
(iii) submitting superannuation contribution payments (if
not so submitted by the payroll service provider);
(iv) processing and submitting all other payroll related
filings;
(v) identification and payment of other employee benefits
(car leases, bonuses, commissions, etc.); and
(vi) delivering payslips to employees.
11.3 ADDITIONAL EMPLOYEE BENEFITS
[ ]*
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12. COMPANY AT COMPLETION
12.1 COMPLETION FINANCIAL POSITION
The Vendor warrants to the Purchaser that at Completion the
assets and liabilities and the value of those assets and
liabilities of the Company will not differ materially from the
assets and liabilities and the values set out in schedule 6. The
agreed assets and liabilities are intended by the Vendor and the
Purchaser, amongst other things, to provide working capital for
the Company. In the event that the royalty or other revenue
actually received by the Company prior to the Completion Date is
higher or lower than the amount recorded as a receivable, there
will be no adjustment to the Purchase Price.
13. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
13.1 AGREEMENT NON-DISCLOSURE
No announcement or communication concerning the existence or
terms or conditions of this Agreement may be made or authorized
by any of the parties to this Agreement after the Effective Date
without the prior written consent of the other parties except as
permitted by clauses 13.2, 13.3, 13.4 and 13.6.
13.2 CONFIDENTIAL INFORMATION
Subject to clauses 13.3 and 13.4, each of the Vendor and the
Vendor's Guarantor covenants that it will not, and will procure
that each of its Affiliates will not, after the Effective Date,
without the prior written consent of the Purchaser, disclose the
Confidential Information (if any) in its possession and that it
will, and will procure that its Affiliates will, enforce all
confidentiality undertakings from third parties in relation to
the Confidential Information. The provisions of this clause cease
to operate if this Agreement terminates under clause 5.7 or
clause 5.9 or if this Agreement is terminated due to default by
the Purchaser or the Purchaser's Guarantor.
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13.3 PERMITTED DISCLOSURE
A party may disclose anything in respect of this Agreement or the
terms of the sale of the Shares as required:
(a) by any applicable law; or
(b) by the recognised stock exchange on which its shares or
those of any Related Body Corporate are listed or quoted;
but, to that extent, it must consult with other parties before
making the disclosure and they will use all reasonable endeavours
to agree on the form and content of the disclosure.
13.4 DISCLOSURE TO OFFICERS
A party may disclose anything in respect of this Agreement or the
terms of the sale of the Shares to the Officers, employees and
professional advisers of that party and its Related Bodies
Corporate. It must use all reasonable endeavours to ensure that
the matters disclosed are kept confidential and will be liable
for any Losses caused by the failure of such persons to keep such
matters confidential.
13.5 DISCLOSURE OF MATERIAL
Subject to clauses 13.3 and 13.4, each of the Purchaser and the
Purchaser's Guarantor covenants that it will not, and will
procure that each of its Affiliates will not, prior to
Completion, without the prior written consent of the Vendor,
disclose the Confidential Information (if any) in its possession
and that it will, and will procure that its Affiliates will,
enforce all confidentiality undertakings from third parties in
relation to the Confidential Information. In the event of this
Agreement terminating under clause 5.7 or clause 5.9 or if this
Agreement is terminated due to default by the Purchaser or the
Purchaser's Guarantor each of the Purchaser and the Purchaser's
Guarantor will forthwith return all Confidential Information in
its possession without taking copies thereof.
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13.6 PUBLIC DOMAIN
The confidentiality obligations in clauses 13.1 to 13.5 do not
apply to any information which comes into the public domain or
into the possession of a party other than by a breach by a party
of its obligations under this Agreement.
13.7 PRE-EXISTING CONTRACTS
The confidentiality obligations in clauses 13.1 to 13.5 do not
apply to any information that has been provided or made available
to the Vendor or the Vendor's Guarantor or the Purchaser or the
Purchaser's Guarantor pursuant to the licence agreement dated 14
June 1996, the licence agreement dated 28 June 1998, the licence
agreement dated 14 July 1999, the confidentiality agreement dated
26 August 1999 or the licence agreement dated 9 December 1999,
each between the Company and the Purchaser's Guarantor which
confidentiality obligations will remain in full force and effect.
13.8 NOTICES OF ENTITLEMENT
The Vendor and the Vendor's Guarantor will, and will procure that
their respective employees provide and will use their respective
reasonable endeavours to procure that their respective patent
attorneys and other advisers and the Company, its employees,
patent attorneys and other advisers provide, all necessary
assistance to the Purchaser (including, but not limited to,
providing access to and copies of all necessary documents and
other information) for the purposes of preparing prior to
Completion Notices of Entitlement or substitute Notices of
Entitlement for filing with the Australian Patent Office in
respect of the Patent Applications listed in schedule 7 which
correctly reflect the basis of the Company's entitlement to be
granted a patent in respect of those patent applications as set
out in the Deed of Assignment.
13.9 FILINGS
The Vendor and the Vendor's Guarantor will, and will procure that
their respective employees will, and will use their respective
reasonable endeavours to procure that their respective patent
attorneys and other advisers and, prior to Completion the
Company, its employees, patent attorneys and other advisers
provide, all necessary assistance to the
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Purchaser for the purposes of preparing all necessary notices to,
or filings with, any relevant Governmental Authority in respect
of the change in ownership of the Company contemplated by this
Agreement.
13.10 WAIVER
The Vendor's Guarantor agrees to waive with effect from the
Completion Date all its rights under the agreements set out in
part 4 of schedule 4 and to give notice to the Employees as soon
as practicable following Completion that those agreements no
longer bind the Employees.
13.11 VENDOR EMPLOYEE CONFIDENTIALITY
The Vendor will use its reasonable endeavours to have:
(a) confidentiality undertakings executed by each of the
injectables employees referred to in schedule 2 in favour of
the Company in relation to the confidential information of
the Company, the Purchaser's Guarantor and its Related
Bodies Corporate (in a form reasonably acceptable to the
Purchaser); and
(b) confidentiality undertakings and intellectual property
assignments executed by each of the Employees in favour of
the Company (in a form reasonably acceptable to the
Purchaser)
by Completion.
13.12 COMPANY EMPLOYEE CONFIDENTIALITY
The Purchaser will use its reasonable endeavours to have
confidentiality undertakings executed by each of the Employees
immediately following Completion in favour of the Vendor and the
Vendor's Affiliate referred to in the Injectables Transfer
Agreement in relation to the confidential information of those
companies (in a form reasonably acceptable to the Vendor).
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14. GST
14.1 GST TO BE ADDED TO AMOUNT PAYABLE
Unless otherwise expressly stated, all amounts payable under this
Agreement are expressed to be exclusive of GST. If GST is payable
on a Taxable Supply, the amount payable for that Taxable Supply
will be the amount expressed in this Agreement plus GST.
14.2 TAX INVOICE
If GST is payable on a Taxable Supply made by one party (the
"Supplier" ) to another party (the "Receiver" ) under this
Agreement, then the Supplier must provide the Receiver with a Tax
Invoice before the Receiver is required to pay any amount to the
Supplier.
15. PURCHASER'S GUARANTEE
15.1 GUARANTEE
(a) In consideration of the Vendor entering into this Agreement
and at the request of the Vendor's Guarantor, the
Purchaser's Guarantor guarantees (unconditionally and
irrevocably) to the Vendor the performance of the
Purchaser's obligations under this Agreement.
(b) If the Purchaser fails to perform its obligations under this
Agreement when they are due, the Purchaser's Guarantor must
immediately on demand from the Vendor cause the Purchaser to
duly and punctually perform its obligations under this
Agreement or perform those obligations itself.
(c) Subject to clauses 7.10 and 7.11, the Purchaser's Guarantor
indemnifies the Vendor against any Loss suffered, paid or
incurred by the Vendor in relation to:
(i) any failure or delay by the Purchaser in the
performance of any of its obligations under this
Agreement; or
(ii) any failure by the Purchaser's Guarantor to cause the
Purchaser to perform its obligations under this
Agreement.
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15.2 LIABILITY UNAFFECTED BY OTHER EVENTS
Save as set out in clauses 7.10 and 7.11, the liability of the
Purchaser's Guarantor under clause 15.1 is not affected by any
act, omission or thing which, but for this provision, might in
any way operate to release or otherwise exonerate or discharge
the Purchaser's Guarantor from any of its obligations, including
(without limitation) the grant to the Purchaser or any other
person of any time, waiver or other indulgence, or the discharge
or release of the Purchaser or any other person from any
obligation.
15.3 GUARANTEE AND INDEMNITY
This clause:
(a) extends to cover this Agreement as amended, varied or
replaced, with the consent of the Purchaser's Guarantor; and
(b) is a continuing guarantee and indemnity and remains in full
force and effect for so long as the Purchaser has any
liability or obligation to the Vendor under this Agreement
and until all of those liabilities or obligations have been
fully discharged.
16. VENDOR'S GUARANTEE
16.1 GUARANTEE
(a) In consideration of the Purchaser entering into this
Agreement and at the request of the Purchaser's Guarantor,
the Vendor's Guarantor guarantees (unconditionally and
irrevocably) to the Purchaser the performance of the
Vendor's obligations under this Agreement.
(b) If the Vendor fails to perform its obligations under this
Agreement when they are due, the Vendor's Guarantor must
immediately on demand from the Purchaser cause the Vendor to
duly and punctually perform its obligations under this
Agreement or perform those obligations itself.
(c) Subject to clauses 8.3 and 8.4, the Vendor's Guarantor
indemnifies the Purchaser against any Loss suffered, paid or
incurred by the Purchaser in relation to:
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49
(i) any failure or delay by the Vendor in the performance of any
of its obligations under this Agreement; or
(ii) any failure by the Vendor's Guarantor to cause the Vendor to
perform its obligations under this Agreement.
16.2 LIABILITY UNAFFECTED BY OTHER EVENTS
Save as set out in clauses 8.3 and 8.4,the liability of the
Vendor's Guarantor under clause 16.1 is not affected by any act,
omission or thing which, but for this provision, might in any way
operate to release or otherwise exonerate or discharge the
Vendor's Guarantor from any of its obligations including (without
limitation) the grant to the Vendor or any other person of any
time, waiver or other indulgence, or the discharge or release of
the Vendor or any other person from any obligation.
16.3 GUARANTEE AND INDEMNITY
This clause:
(a) extends to cover this Agreement as amended, varied or
replaced, with the consent of the Vendor's Guarantor; and
(b) is a continuing guarantee and indemnity and remains in full
force and effect for so long as the Vendor has any liability
or obligation to the Purchaser under this Agreement and
until all of those liabilities or obligations have been
fully discharged.
17. MISCELLANEOUS
17.1 NOTICES
Any notice given pursuant to this Agreement must be in writing
and may be given by pre-paid express courier addressed to the
other party at the address specified in this Agreement or as
subsequently notified in writing, or by hand delivery or
facsimile or electronic transmission to the same address and any
such notice is deemed to have been received:
(a) if served by express courier on the date signed for;
55
50
(b) if served by hand delivery, on the date delivered by hand;
(c) if sent by facsimile transmission, when the transmitting
machine produces a written report that the notice has been
effectively sent to the other party;
(d) if sent by electronic transmission, when the transmitting
machine produces a written report that the notice has been
effectively sent to the other party, if the sender confirms
such notice by express courier, hand delivery or facsimile
transmission as specified above;
provided that if the notice is deemed under paragraph (c) or (d)
to have been received on a Saturday, Sunday or a non-Business
Day, it will be deemed to have been received on the next Business
Day.
The address for service of any notice is:
Vendor and the Vendor's Guarantor: ▇ ▇ ▇▇▇▇▇▇▇▇ & Co Limited
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Company Secretary
Purchaser and the Purchaser's Guarantor: Connetics Corporation
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
5200 Republic Plaza, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ ▇▇▇
Facsimile (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇
17.2 WAIVER
A waiver by either party of any breach or a failure to enforce or
to insist upon the observance of a condition of this Agreement
will not be a waiver of any other or of any
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subsequent breach. No waiver under this Agreement will be binding
unless in writing and signed by the party giving the waiver.
17.3 SEVERANCE
If any part of this Agreement is invalid, unenforceable, illegal,
void or voidable for any reason, this Agreement will be construed
and be binding on the parties as if the invalid, unenforceable,
illegal, void or voidable part had been deleted from this
Agreement or read down to the extent necessary to overcome the
difficulty.
17.4 SUCCESSORS AND ASSIGNS
This Agreement will be binding on and continue for the benefit of
each party, its successors and permitted assigns.
17.5 FURTHER ASSURANCES
The parties will do everything reasonably necessary to give
effect to this Agreement and to the transactions contemplated by
it and will use all reasonable endeavours to cause relevant third
parties to do likewise.
17.6 ASSIGNMENT
This Agreement is personal to and may not be assigned by any
party without the consent in writing of the others except that
after Completion the Vendor or the Purchaser may assign its
rights under this Agreement to any Affiliate provided the
assigning party and its guarantor will remain liable under this
Agreement as if such assignment had not taken place.
17.7 CONTINUING OBLIGATIONS
The expiration or termination of this Agreement does not operate
to terminate any of the continuing obligations under this
Agreement and they will remain in full force and effect and
binding on the party concerned.
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17.8 VARIATION
No variation of this Agreement (other than a waiver which is
governed by clause 17.2) will be binding on the parties unless in
writing and signed by all parties.
17.9 APPLICABLE LAW
(a) This Agreement is governed by and construed in accordance
with the law of [ ]*.
(b) [ ]*
(c) The parties agree that service of process in any such action
or proceeding may be effected by mailing a copy thereof by
certified mail (or any substantially similar form of mail),
postage prepaid, return receipt requested to the other
parties thereto at their addresses set forth in clause 17.1
or as otherwise notified in writing to the other parties.
The parties agree that such service, to the fullest extent
permitted by law is deemed in every respect effective
service of process upon the parties in any suit, action or
proceeding. Nothing herein affects any party's right to
serve process in any other manner permitted by law.
17.10 [ ]*
17.11 COUNTERPARTS
This Agreement may be signed in any number of counterparts and
all such counterparts taken together are deemed to constitute one
and the same document.
17.12 STAMP DUTIES
[ ]*
----------
* Confidential Treatment Requested
58
53
17.13 COSTS
[ ]*
17.14 NO MERGER
The rights and obligations of the parties contained in this
Agreement are continuing agreements and, accordingly, are not
merged or extinguished by or upon Completion or prejudiced or
affected by the Purchaser's acceptance of the Shares under this
Agreement or by the payment of all or part of the Purchase Price
or any other money payable under this Agreement but will remain
in full force and effect.
17.15 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and basis of the
transaction between the parties in relation to its subject matter
and supercedes all other communications, negotiations,
arrangements and agreements between the parties whether oral or
in writing including, without limitation, the Letter of Intent
between the Vendor's Guarantor and the Purchaser's Guarantor
dated 13 February 2001 and the Deed of Confidentiality between
the Company and the Purchaser's Guarantor dated January 2001. The
parties have negotiated the terms of this Agreement with the
assistance of their legal advisers.
17.16 SPECIFIC PERFORMANCE AND INJUNCTIVE RELIEF
Each party acknowledges that monetary damages alone may not be
adequate compensation for a breach of this Agreement by another
party, including, without limitation, clause 4.3, and sections
10, 11 and 13 and each party not in default hereunder is entitled
seek specific performance or injunctive relief from a court of
competent jurisdiction as provided in clause 17.9(b) as a remedy
for any breach or threatened breach of this Agreement, in
addition to any other remedies available at law or in equity
under or independently of this Agreement.
----------
* Confidential Treatment Requested
59
EXECUTED as an agreement.
THE COMMON SEAL of FAULDING )
HEALTHCARE PTY LTD (ACN ▇▇▇ ▇▇▇ ▇▇▇) ) SEAL
was affixed in the presence of: )
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------- -----------------------------------
Signature of secretary Signature of director
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------- -----------------------------------
Name of secretary (please print) Name of director (please print)
THE COMMON SEAL of ▇. ▇. ▇▇▇▇▇▇▇▇ & )
CO. LIMITED (ACN 007 870 984) ) SEAL
was affixed in the presence of: )
/s/ ▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------- -----------------------------------
Signature of secretary Signature of director
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------- -----------------------------------
Name of secretary (please print) Name of director (please print)
EXECUTED by CONNETICS AUSTRALIA
PTY LTD (ACN 095 618 161) by being signed by:
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------- -----------------------------------
Signature of director/secretary Signature of director
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------- -----------------------------------
Name of director/secretary (please print) Name of director (please print)
EXECUTED by CONNETICS CORPORATION
by being signed by:
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------- -----------------------------------
Signature of Chief Executive Officer Signature of Chief Financial
Officer
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------- -----------------------------------
Name of Chief Executive Officer (please Name of Chief Financial Officer
print) (please print)
60
SCHEDULE 1
WARRANTIES
7A.1. POWER AND AUTHORITY
--------------------------------------------------------------------------------
7A.1.1 POWER OF VENDOR
The Vendor is a body corporate duly incorporated and validly
existing under the laws of South Australia and has the power and
authority and has obtained each authorisation required to enter
into, deliver and perform this Agreement and this Agreement
constitutes a legal, valid and binding obligation on the Vendor
enforceable in accordance with its terms.
7A.1.2 AUTHORISATIONS
Each authorisation required to be obtained by the Vendor for
execution, delivery and performance of this Agreement by the
Vendor and for the investment in the Company by the Vendor was
duly obtained. Any condition imposed in any authorisation has
been observed.
7A.1.3 INCORPORATION AND POWER
The Company:
(a) is a body corporate duly incorporated and validly existing
under the laws of the State of Victoria, Australia;
(b) has the power to own its assets and carry on its business as
it is now being conducted; and
(c) is duly registered and authorised to do business in every
jurisdiction which, by nature of its business and assets
makes registration or authorisation necessary.
7A.1.4 CONSTITUENT DOCUMENTS
The business and affairs of the Company have been conducted in
accordance with the Constitution. The copy of the Constitution
delivered to the Purchaser and initialed by the Vendor for the
purposes of identification is the constitution of the Company
including all resolutions affecting it.
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7A.2. SHARE CAPITAL AND STRUCTURE
--------------------------------------------------------------------------------
7A.2.1 SHARES
The Shares comprise the entire issued share capital of the
Company and:
(a) have been validly allotted and issued and are fully paid up
and no moneys are owing in respect of them;
(b) no person has any right or option to subscribe for or to
otherwise acquire any unissued shares in the capital of the
Company or any securities convertible into or exchangeable
for or which otherwise confer on the holder of it any right
(whether or not upon the happening of any contingency or
after any lapse of time and whether or not upon the payment
or delivery of any consideration) to acquire any unissued
shares in the capital of the Company nor is the Company
committed to grant or issue any such option, right or
security;
(c) the Vendor is the sole legal and beneficial owner of the
Shares;
(d) the Shares are free of any Encumbrance or adverse claim or
interest and carry no rights and are subject to no terms
other than as set out in the Constitution, and the Vendor
has complete and unrestricted power and right to sell,
assign and transfer full right, title and interest in the
Shares to the Purchaser free from any Encumbrance;
(e) there are no outstanding subscription agreements, options,
contracts, calls, rights of first refusal, commitments,
rights or demands of any kind relating to the issued or
unissued shares in the capital of the Company;
(f) the Shares are free from any claim by, or entitlement of,
any previous shareholder of the Company, former partner or
business associate of any of the Vendor or any third party;
(g) there is no shareholder agreement, voting trust, proxy or
other agreement or understanding relating to the shares in
the capital of the Company;
(h) none of the Shares have been issued in violation of any
pre-emptive or similar rights; and
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(i) on Completion, the Purchaser will acquire full legal and
beneficial title to the Shares free from any Encumbrance or
claim of any person.
7A.2.2 STRUCTURE
The Company:
(a) is not the holder or beneficial owner of any shares or other
capital in any body corporate (wherever incorporated) other
than 80,154 shares in the capital of the Purchaser's
Guarantor;
(b) is not a member of any partnership or other unincorporated
association;
(c) is not the manager, trustee or representative of any trust
or scheme involving managed investment schemes (within the
meaning of the Corporations Law);
(d) does not have a permanent establishment (as that expression
is defined in any relevant double taxation agreement)
outside Australia.
7A.2.3 NO FINDER'S FEE
Neither the Vendor nor the Vendor's Guarantor has taken any
action under which any person is, or will be, entitled to receive
from the Company any finder's fee, brokerage or other commission
in connection with the acquisition of the Shares.
7A.3. SOLVENCY
--------------------------------------------------------------------------------
7A.3.1 NO INSOLVENCY REGIME
None of the following has occurred and is subsisting, or is
threatened, in relation to the Company or the Vendor:
(a) an application to a court for an order, or the making of any
order, that it be wound up or that a liquidator or
provisional liquidator be appointed;
(b) a resolution by the directors or members that it be wound
up;
(c) the convening of a meeting or passing of a resolution to
appoint an official manager;
(d) a scheme of arrangement or composition with, or assignment
for the benefit of, or other arrangement with all or a class
of creditors;
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(e) the taking of any action to seize, take possession of or
appoint a receiver or receiver and manager over any part of
its assets;
(f) the appointment of an administrator; or
(g) any act or matter having a similar legal or economic effect
under the laws of any jurisdiction.
7A.3.2 NO RIGHTS ETC.
To the best of the Vendor's knowledge, there are no facts,
matters or circumstances which give any person the right to apply
to liquidate or to wind up the Company or the Vendor or place the
Company or the Vendor under official management.
7A.4. ACCOUNTS
--------------------------------------------------------------------------------
7A.4.1 ACCOUNTS
The Company Accounts:
(a) have been prepared in accordance with the Corporations Law
and applicable Accounting Standards;
(b) show a true and fair view of:
(i) the assets and liabilities and of the state of affairs,
financial position and results of the Company as at and
up to the Balance Date; and
(ii) the profit and loss of the Company for the financial
period ended on the Balance Date;
(c) have been prepared in accordance with the same accounting
policies as were applied in the corresponding accounts for
the preceding three financial periods (save any changes to
such accounting policies arising out of any changes to the
Accounting Standards);
(d) are not affected by any abnormal or extraordinary item;
(e) take account of all gains and losses, whether realised or
unrealised, arising from foreign currency transactions and
on translation of foreign current financial statements;
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(f) include reserves and provisions for Taxation that are
sufficient to cover all Tax liabilities of the Company in
respect of all periods up to the Balance Date;
(g) provide for all liabilities for long service leave and
annual leave entitlements including, without limitation, the
Employee Entitlements;
(h) provide for all other liabilities (whether quantified,
contingent or otherwise) of the Company at the Balance Date;
(i) include adequate bad debt reserves and allowances; and
(j) give full particulars in the notes of all contingent
liabilities and commitments and any other liabilities which
cannot be quantified.
7A.4.2 RECEIVABLES
The receivables included in the Company Accounts:
(a) have realised; or
(b) will realise in the ordinary course of business no later
than 120 days after the due date,
the total nominal amounts of the debts less the total of any
provisions for bad or doubtful debts included in the Company
Accounts in respect of receivables due.
7A.4.3 FINANCING
The Company has not and is not engaged in financing of a type
that is not required to be shown or reflected in the Company
Accounts.
7A.4.4 NO WRITE DOWNS
No receivable owed to the Company has been written down or
written off in the financial year ended on the Balance Date,
other than receivables which were comprised in the amount of any
bad debts shown in the Company Accounts.
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7A.4.5 PROFITS
The profits or losses of the Company shown in the Company
Accounts for the financial period ended on the Balance Date and
the trend of profits or losses shown in those accounts over the
three preceding financial periods have not resulted to any
material extent from:
(a) inconsistencies of accounting practices;
(b) the inclusion of abnormal or extraordinary items of income
or expenditure;
(c) transactions entered into other than on normal commercial
terms; or
(d) any other factors rendering the profits or losses for all or
any of those periods abnormally high or low.
7A.4.6 ASSETS
Each of the following is reflected in the Company Accounts:
(a) redundant, obsolete, excessive and slow moving inventories
of the Company have been written off or written down to an
amount not greater than their net realisable value in the
ordinary and usual course of business;
(b) the rates of depreciation applied to the property, plant and
equipment of the Company have been consistently applied over
previous accounting periods of the Company and the rates of
depreciation are adequate to write down the value of the
fixed assets to their net realisable value as at the end of
their useful working life;
(c) the value attributed to the fixed assets of the Company does
not exceed their current market value as at the Balance
Date.
7A.4.7 NO SET-OFFS
There is no set-off arrangement between the Company and any other
person.
7A.5. POST BALANCE DATE EVENTS
--------------------------------------------------------------------------------
7A.5.1 CONDUCT SINCE BALANCE DATE
Since the Balance Date:
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(a) the business of the Company has continued in the ordinary
and usual course and not otherwise;
(b) except for disposals in the ordinary and usual course of
business and at not less than market value, the property of
the Company has been and remains in the possession or under
the control of the Company;
(c) the Company has not made any capital expenditure, other than
capital expenditures of less than $100,000.00 in total;
(d) no decision has been made to defer any capital expenditure
of the Company;
(e) there has been no material adverse change in the financial
condition, business, results of operations, assets or
prospects of the Company;
(f) all debts which have become owing to the Company have been
paid in full or will be paid in full in the ordinary course
of business, except to the extent that such debts are in
aggregate equal to or less than the provision for doubtful
debts disclosed in the Company Accounts;
(g) no asset of the Company has been written down or written off
(other than usual and normal depreciation at the rates
reflected in the Company Accounts);
(h) no contract has been terminated or has expired which could
reasonably be expected to have a material adverse effect on
the profitability of any business conducted by the Company;
(i) the Company has not received any notice or threat of
termination of a contract which could reasonably be expected
to have a material adverse effect on the profitability of
the business conducted by the Company;
(j) the Company has not purchased, redeemed or repaid any share
capital or given any financial assistance in connection with
any acquisition of its own share capital or the share
capital of any Related Body Corporate;
(k) no share or loan capital, security or other right
convertible into shares or loan capital has been issued by
the Company;
(l) the Company has not declared, paid or made any dividend or
other distribution;
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(m) the Company has not waived any right or debt owed to it,
except in respect of trading debts which are in aggregate
less than the provision for doubtful debts disclosed in the
Company Accounts;
(n) the Company has not entered into a contract of service with
any of its Officers or employees or increased, or agreed to
increase, the rate of compensation or changed or agreed to
change the benefits payable to any of its Officers or
employees except as required by law;
(o) the rights attaching to the Shares have not altered and no
alteration has been made to the capital structure of the
Company;
(p) the Company has not implemented any new accounting or
valuation method for its business, assets, property or
rights, save for any changes arising out of changes in the
Accounting Standards;
(q) no customer (including, without limitation, licensees) of
the Company that represented more than one percent of the
revenue of the Company during the financial year ended on
the Balance Date or the eight month period ended on 28
February 2001:
(i) materially reduced the level of revenue paid to the
Company;
(ii) indicated an intention to cease or materially reduce
payment of revenue to the Company after Completion; or
(iii) materially altered the terms of its contractual
relationship with the Company;
save as set out in the Disclosure Letter; and
(r) no resolutions have been passed by the members or directors
of the Company except in the ordinary and usual course of
business and those necessary to give effect to this
Agreement.
7A.5.2 INVENTORIES
The level of inventories of the Company as at Completion will not
be materially different from its level of inventories at the
Balance Date.
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7A.5.3 EXEMPTION
The parties acknowledge that the provisions of paragraphs 7A.5.1
and 7A.5.2 of this schedule are subject to the entitlement of the
Vendor to effect the transactions referred to in clause 5.2 and
that such transactions are exceptions to paragraphs 7A.5.1 and
7A.5.2.
7A.6. FINANCIAL ARRANGEMENTS
--------------------------------------------------------------------------------
7A.6.1 DISCLOSURE
There are no Encumbrances affecting any asset of the Company
other than any retention of title clauses which may apply to
assets purchased by the Company in respect of which the purchase
price remains outstanding and other than as are reflected in the
Company Accounts.
7A.6.2 GUARANTEES
The Company is not, nor is it potentially, liable under any
guarantee, indemnity or similar obligation for the obligations of
any other person other than a deed of cross guarantee pursuant to
ASIC Class Order 98/1417 which will be released prior to
Completion.
7A.6.3 LETTERS OF COMFORT
The Company has not provided any letter of comfort or made any
representation or given any undertaking to any person in respect
of the obligations or solvency of any other person or in support
of or as an inducement to or otherwise in connection with the
provision of financial accommodation whether or not considered by
the Company to be legally binding.
7A.6.4 FINANCIAL ACCOMMODATION
There is no agreement, arrangement or understanding pursuant to
which the Company receives or is entitled to receive any
financial accommodation from any person or has granted any
financial accommodation to any person other than from the Vendor
or Affiliates of the Vendor which will terminate on Completion.
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7A.7. LIABILITIES
--------------------------------------------------------------------------------
7A.7.1 CUSTOMER CLAIMS
To the best of the Vendor's knowledge, there are no deficiencies
or defects (whether potential or actual) in any services supplied
or provided by the Company which may result in claims being made
against the Company or for which the Company may become liable or
responsible.
7A.7.2 GRANTS
No transaction contemplated by this Agreement could result in the
Company being liable to refund the whole or any part of any grant
received from any public authority. [ ]*
7A.7.3 CONTINGENT LIABILITIES
As of the Balance Date, the Company did not have any contingent
obligations or liabilities other than as disclosed in the Company
Accounts.
7A.8. COMMITMENTS
--------------------------------------------------------------------------------
7A.8.1 PURCHASE AGREEMENT
There are no existing agreements for the purchase by the Company
of any trading stock other in the ordinary course of business.
7A.8.2 LOSS AGREEMENT
Other than the contracts referred to in schedule 3, the Company
is not a party to any material agreement or material commitment
entered into which is outside the ordinary course of business and
which is likely to result in a material loss to the Company when
performed by the Company in accordance with its express or
implied terms or which is not on arm's length terms.
7A.8.3 FOREIGN CURRENCY TRANSACTIONS
The Company is not currently party to any dealing in foreign
currency including, but not limited to, any foreign currency
derivatives transaction.
----------
* Confidential Treatment Requested
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7A.8.4 NOTICE OF IMPAIRMENT
No notice or process has been served on the Company which might
impair the exercise of its rights under any agreement to which it
is a party.
7A.8.5 POWER OF ATTORNEY
No power of attorney given by the Company is in force.
7A.8.6 LIMITATION ON AGREEMENT
Other than the agreements referred to in schedule 3, no agreement
entered into by the Company:
(a) is terminable on more than one month's notice;
(b) has a value of, or provides a commitment or exposure of,
$50,000 or more; or
(c) has been entered into with a customer other than in the
ordinary course of business.
7A.8.7 OFFERS
No outstanding offer, tender, quotation or the like given by the
Company is capable of giving rise to a contract merely by a
unilateral act of a third party, other than in the ordinary
course of business and consistent with past practice.
7A.9. SUPERANNUATION AND STAFF
--------------------------------------------------------------------------------
7A.9.1 SUPERANNUATION FUND
(a) The Vendor's Fund is:
(i) a regulated superannuation fund within the meaning of
the Superannuation Industry (Supervision) ▇▇▇ ▇▇▇▇; and
(ii) a complying superannuation fund within the meaning of
the Tax Act.
(b) The Vendor is not aware of any fact or circumstance which
may affect the Vendor's Fund's status as a complying
superannuation fund (within the meaning of the Tax Act).
(c) The Purchaser has been provided with a copy of:
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(i) the governing rules and member booklets in respect of
the Vendor's Fund and those governing rules and member
booklets are up to date and complete; and
(ii) the most recent accounts and financial statements in
relation to the Vendor's Fund together with the
auditor's report in relation to those accounts and
financial statements.
(d) All Employees are members of the Vendor's Fund and the
Company does not contribute to any other fund in respect of
any Employee.
(e) The Company has:
(i) paid or remitted all superannuation contributions which
are due and payable in respect of the Employees or any
contractors of the Company under any agreement or award
relating to contributions which the Company is require
to make or to remit; and
(ii) in respect of each contribution period prior to
Completion (within the meaning of the Superannuation
Guarantee (Administration) Act 1992), contributed in
respect of each Employee or contractor of the Company
at a rate sufficient to avoid a liability to a
superannuation guarantee shortfall under that Act in
respect of that Employee or contractor.
(f) There are no arrangements in place in respect of any
Employee or contractor in respect of his or her
superannuation entitlements or otherwise which has not been
disclosed to the Vendor.
7A.9.2 PARTICULARS OF EMPLOYEES
The Employee Entitlements are correct as at 15 February 2001 and
full and correct particulars of the Employees are contained in
the records of ▇. ▇. ▇▇▇▇▇▇▇▇ & Co. Limited which have been made
available to the Purchaser for inspection prior to the Effective
Date.
7A.9.3 TERMS OF EMPLOYMENT
The Employees and the employees referred to in schedule 2 are the
only employees of the Company and are all the persons employed in
the Business (save for ▇▇▇▇ ▇▇▇▇▇▇▇▇▇).
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7A.9.4 EMPLOYEE CONTRACTS
Each of the Employee Contracts is valid and binding and there is
no party in breach of, or in default under, any such contract.
The Vendor warrants that the Employees are employed as set out in
the Disclosure Letter.
The details of employment contained in each Employment Contract
together with the terms set out in part 4 of schedule 4 are
correct and there are no "in principle" or unwritten agreements
to provide Employees additional benefits.
7A.9.5 INDUSTRIAL AWARDS AND DISPUTES
The Company is not involved in any industrial dispute, and there
are no applicable awards or industrial agreements relating to the
Employees save as set out in the Disclosure Letter.
Save as set out in the Disclosure Letter, all legal obligations
to the Employees and the Injectables Employees in relation to all
matters concerning their employment including, without
limitation, those obligations under any applicable laws and
regulations, awards, industrial agreements or contracts with the
Employees have been complied with and there is no breach of, or
default under any such laws, regulations, awards, industrial
agreements or contracts and, to the best of the Vendor's
knowledge, there are no facts, matters or circumstances that
would give rise to a claim by any of the Employees or the
Injectables Employees against the Company for such a breach or
default.
"Injectables Employees" means the persons listed in paragraph 1
of schedule 2.
7A.10. TAXATION
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7A.10.1 ACCOUNTS
The Company Accounts contain provisions adequate to cover Tax for
or in respect of the Company for all periods up to the Balance
Date save as set out in the Disclosure Letter.
7A.10.2 TAX SINCE THE BALANCE DATE
Since the Balance Date, no additional liability for Tax has
accrued to the Company otherwise than as a result of trading
activities in the ordinary course of business.
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7A.10.3 DEDUCTIONS
The Company has deducted all Tax required to be deducted from any
payments made by it. When necessary, the Company has accounted
for that Tax in accordance with relevant law.
7A.10.4 PAYMENT OF TAX
All Tax which has been or is deemed to have been assessed or
imposed on the Company, or has been required to be withheld from
any payment made by the Company to another person:
(a) which is due and payable, has been paid by the final date
for payment by the Company; and
(b) which is not yet payable but become payable before
Completion, will be paid by the due date.
The Company has not entered into any agreement or arrangement
which extends the period for assessment or payment of any Tax
save the Company has deferred the final Tax instalment for
1999/2000 in accordance with section 221AZKC of the Tax Act.
7A.10.5 APPLICATIONS
All particulars given to any Revenue Authority in connection with
or affecting any application for any ruling, consent or clearance
on behalf of the Company fully and accurately disclosed all facts
and circumstances material for the decision of the Revenue
Authority. To the best of the Vendor's knowledge, each ruling,
consent or clearance is valid and effective. Each transaction for
which that ruling, consent or clearance has previously been
obtained has been carried into effect in accordance with the
terms of the relevant application, ruling, consent or clearance.
7A.10.6 NO ADDITIONAL TAXES
Since the Balance Date, the Company has not become liable to pay
any additional Tax, on or in respect of the failure to file a
return in respect of or to pay any Tax.
7A.10.7 RETURNS
All necessary information, notices, computations and returns in
relation to Tax have:
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(a) been properly and duly submitted by the Company to each
relevant Revenue Authority in respect of Tax for or in
respect of the Company for all periods up to the Effective
Date; and
(b) will continue to be submitted in respect of periods after
the date of this Agreement until the Completion Date in
respect of those later periods.
There is no unresolved correspondence or dispute with any Revenue
Authority. The Vendor has no notice of the Commissioner of
Taxation or any other Revenue Authority having at any time
carried out or at present conducting any investigations into all
or any part of the business or affairs of the Company.
[ ]*
7A.10.8 FRANKING
The Company:
(a) maintains and has retained for the period required by law,
accurate records of franking credits and franking debits (as
defined in the Tax Act) in respect of its current and
earlier accounting periods;
(b) has franked to the required amount any dividend paid since
the Balance Date; and
(c) has not franked any dividend paid since the Balance Date to
the extent that a franking deficit has or will arise at the
end of the succeeding franking year.
7A.10.9 RECORDS OF ASSETS
The Company maintains and has retained for the period required by
law accurate records of all assets to which Part 3-1 and Part 3-3
of the Tax Act applies or has applied.
7A.10.10 STAMP DUTY
All stamp duty and other similar taxes payable in respect of
every Material Contract or significant transaction to which the
Company is or has been a party, or by which the
----------
* Confidential Treatment Requested
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Company derives, has derived or will derive a substantial
benefit, has been duly paid. No Material Contract which is
required by law to be stamped is unstamped or insufficiently
stamped. No event has occurred as a result of which any duty has
become payable, from which the Company may have obtained relief.
7A.10.11 GST SYSTEM
The Company has a full operational system necessary to comply, at
a reasonable cost and in all reasonable respects, with the
requirements of the GST Law.
7A.10.12 GST TRADE PRACTICES
The Company and, to the best of the Vendor's knowledge anybody
acting for or on behalf of the Company, has complied with:
(a) Part VB of the Trade Practices ▇▇▇ ▇▇▇▇ and any legislation
of a State or Territory giving effect to that Act; and
(b) any guidelines issued pursuant to section 75AV of the Trade
Practices ▇▇▇ ▇▇▇▇ or any legislation of any State or
Territory giving effect to that section.
7A.10.13 U.S. REAL PROPERTY HOLDING CORPORATION
The Company is not and has not been a United States real property
holding corporation within the meaning of Section 897(c)(2) of
the United States Internal Revenue Code of 1986, as amended (the
"U.S. Code") during the applicable period specified in Section
897(c)(1)(A)(ii) of the U.S. Code.
7A.11. INTELLECTUAL PROPERTY
--------------------------------------------------------------------------------
7A.11.1 OWNERSHIP
(a) Schedule 5 is a complete and accurate list of the
Intellectual Property Rights, constituting all material
Intellectual Property used by the Company in connection with
the Business.
(b) All Intellectual Property is either:
(i) the legal and beneficial property of the Company
solely, free and clear of any restriction or
Encumbrance; or
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(ii) used by the Company under a contract which entitles the
Company to use that Intellectual Property, being a
contract described as an Intellectual Property Licence.
7A.11.2 GENERAL WARRANTIES
(a) To the best of the Vendor's knowledge, all application,
registration and renewal fees in respect of any registered
Intellectual Property owned by the Company have been fully
paid on a timely basis.
(b) Save as set out in the Disclosure Letter, at no time has
there been a claim brought to the attention of the Vendor
that any of the Intellectual Property applications and
registrations listed in schedule 5 are invalid, liable to
cancellation or other removal, or are unlikely to be granted
in their current form, whether in whole or in part.
(c) Except as listed in schedule 3, the Company has not
licensed, entered into any agreement or arrangement or
granted any rights to any third party to use any right,
title or interest in the Intellectual Property owned by the
Company or used by the Company pursuant to an Intellectual
Property Licence.
(d) Except as listed in schedule 5 under the heading
"Intellectual Property Licences," the Company has not been
licensed or otherwise authorised to use any Third Party
Rights.
7A.11.3 NO INFRINGEMENTS BY THIRD PARTIES
(a) To the best of the Vendor's knowledge, no right, title or
interest in the Intellectual Property is:
(i) at present being infringed or is the subject of any
allegation of infringement by a third party, or
(ii) being used by a third party, other than pursuant to a
contract listed in parts I, II and III of schedule 3;
(b) To the best of the Vendor's knowledge, no third party is in
breach, or has at any time breached, the terms of any
Material Contract relating to that party's permitted use of
the Intellectual Property owned or used by the Company.
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7A.11.4 NO INFRINGEMENT BY COMPANY
There are no actual claims and to the best of the Vendor's
knowledge, there are no threatened claims that the Company has
now or ever infringed or wrongfully used, any Third Party Rights
save as set out in the Disclosure Letter.
To the best of the Vendor's knowledge the Company is not
infringing, and has not infringed, any Third Party Rights.
7A.11.5 CONFIDENTIAL INFORMATION
To the best of the Vendor's knowledge, the Confidential
Information and all Intellectual Property Rights in the
Confidential Information are the exclusive property of the
Company save as disclosed in schedule 3 or where the subject of
an Intellectual Property Licence.
7A.11.6 BUSINESS NAMES
The Company does not carry on business under any name other than
its corporate name or the name "Soltec Research" save that the
Company previously used the name "Faulding-Soltec DDS" in certain
marketing material.
7A.11.7 USE OF INTELLECTUAL PROPERTY
The Company has not entered into any agreement which restricts
the disclosure or use by the Company of any Intellectual Property
except as disclosed in schedule 3. Without limiting the operation
of paragraphs 7A.12.1 to 7A.12.4 below, in relation to the
agreements disclosed in parts I, II and III of schedule 3 and to
the best of the Vendor's knowledge :
(a) they are valid, binding and enforceable;
(b) the Company has not received notice of any breach of any of
the terms of each contract to which it is a party; and
(c) no licensee under those contracts may currently exercise any
right to terminate any licence granted under those contracts
for a breach or failure to perform by the Company or to
claim damages or other compensation for a breach or failure
to perform by the Company.
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7A.11.8 INTELLECTUAL PROPERTY LICENSES
In relation to each of the Intellectual Property Licences, to the
best of the Vendor's knowledge,:
(a) they are valid, binding and enforceable;
(b) the Company has not received notice of any breach of any
terms of each contract to which it is a party; and
(c) no licensor under those contracts may currently exercise any
right to terminate any licence granted under those contracts
for a breach or failure to perform by the Company or to
claim damages or other compensation for a breach or failure
to perform by the Company.
7A.11.9 TRADE MARKS
Without limiting the generality of paragraphs 7A.11.1 to 7A.11.8
above:
(a) the Company is:
(i) the registered proprietor or applicant for the
registered Trade Marks; and
(ii) the sole legal and beneficial owner of all common law
and other rights attaching to the registered Trade
Marks;
(b) no rights in or to any of the registered Trade Marks are
held by any other person save under any of the agreements
referred to in parts I and II of schedule 3;
(c) the registration of each of the registered Trade Marks is
valid, subsisting and properly registered in the name of the
Company and was not obtained through fraud, false suggestion
or misrepresentation;
(d) any Trade ▇▇▇▇ application, or amendment to any Trade ▇▇▇▇
application (including any application that has since become
registered) was not made through fraud, false suggestion or
misrepresentation;
(e) to the best of the Vendor's knowledge, there is no matter,
fact or circumstance which would or would be likely to
render void or voidable, or otherwise
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susceptible to removal of, the registration of any of the
Trade Marks registered in Australia, including on the
grounds of:
(i) any use being misleading or deceptive;
(ii) generic use or use of the ▇▇▇▇ as a descriptor rather
than a trade ▇▇▇▇;
(iii) non-use;
save as set out in the Disclosure Letter.
(f) to the best of the Vendor's knowledge, none of the
registered Trade Marks have been, or are being, used in the
countries in which they are registered and in the class in
respect of which they are registered by any person other
than the Company except pursuant to the licence agreements
disclosed in schedule 3.
7A.12. AGREEMENTS AND COMMITMENTS
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7A.12.1 ROYALTY AGREEMENTS; PROFIT SHARING
(a) The Company is not a party to any agreement in terms of
which it has received any royalties during the period from 1
July 2000 to 28 February 2001 other than as set out in the
documents described in part I of schedule 3 or in terms in
which it may in the future receive any royalties or profit
sharing other than as set out in the documents described in
part II of schedule 3.
(b) The Company is not a party to any agreement in terms of
which it is or will be bound to waive or abandon any rights
other than as set out in the documents described in schedule
3.
(c) The Company is not a party to any agreement in terms of
which it is or will be bound to pay any royalties or share
of profits or other sub-payment other than as set out in the
documents described in part III of schedule 3.
7A.12.2 BINDING CONTRACTS
No contract to which the Company is a party or is otherwise
bound:
(a) is outside the ordinary and proper course of business or is
otherwise unusual;
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(b) imposes or is likely to impose an obligation on the Company
to make payments exceeding $5,000 after the Effective Date
or involves or is likely to involve obligations or
liabilities which, by reason of their nature or magnitude,
should reasonably be made known to any intending purchaser
of the Shares;
(c) is incapable of being fulfilled or performed on time, or
only with undue or unusual expenditure of money or effort;
(d) is not on arm's length terms;
(e) provides that the Company (or any other person) will act as
distributor of goods or services or as agent for another
person;
(f) is with the Vendor or a Related Body Corporate of the
Vendor; or
(g) limits the freedom of the Company or any of its employees to
engage in any activity or business in any area;
save as set out in the contracts set forth in annexure F.
7A.12.3 CONTRACTS AFFECTED BY THIS AGREEMENT
No party is entitled under any agreement because of any change in
the underlying legal or beneficial ownership of the Shares, or
the compliance with this Agreement:
(a) to terminate the agreement; or
(b) to require the adoption of terms less favourable to the
Company; or
(c) to do anything which would:
(i) adversely affect the interests, business or assets of
the Company; or
(ii) result in any of the assets of the Company being
disposed of or charged;
save as set out in the Material Contracts.
7A.12.4 NO DEFAULT
To the best of the Vendor's knowledge, no party to any agreement
to which the Company is a party is:
(a) in default; or
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(b) but for the requirements of notice or lapse of time or both,
would be in default and the default could be reasonably
expected to have a material adverse effect on its business,
assets or financial condition.
7A.12.5 COMPETITION LAW
To the best of the Vendor's knowledge, the Company is not a party
to any agreement or arrangement or understanding or in any way
engaged in any conduct or practice which constitutes an
infringement of any provision of the Trade Practices ▇▇▇ ▇▇▇▇ or
of any similar legislation in any State or other country in which
the Company carries on business.
7A.12.6 OTHER AGREEMENTS
The Company is not a party to any service contracts or other
contractual arrangements with the Vendor or any Related Body
Corporate of the Vendor other than those referred to in clause
6.2(c) when executed or as identified as such an arrangement in
part I of schedule 3.
7A.13. ASSETS
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7A.13.1 TITLE
Save as set out in clause 5.2, all of the assets used by the
Company in the Business are, and will be at Completion:
(a) owned legally and beneficially by the Company (including the
Real Property), except for any asset disclosed in the
Disclosure Letter as being subject to hire purchase, lease
or rental agreements which the Company has, and will have at
Completion, a legally enforceable right to use; and
(b) are, and will be at Completion all of the Assets necessary
to conduct the Business save as set out in the Disclosure
Letter
and save for computer software licences or user agreements in the
name of the Faulding Group set forth on schedule 2 and which will
cease to be available to the Company following Completion.
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The Company has duly and punctually observed and performed the
terms and conditions of each hire purchase, lease or rental
agreements to which it is a party. No such hire purchase, lease
or rental agreement has been terminated or expired.
7A.13.2 CONDITION
Each item of plant and equipment used by the Company:
(a) is, consistent with its age, in good repair and condition;
(b) is in satisfactory working order;
(c) is capable of doing the work for which it was designed or
purchased and will be capable (subject to fair wear and
tear) of doing so over the period of time in which it will
be written down to the net amount expected to be recovered
on disposal of the asset at the end of its useful life in
the accounts of the Company under its current accounting
policies;
(d) is not surplus to the requirements of the Company; and
(e) is recorded in the plant and equipment registers of the
Company.
7A.13.3 PLANT AND EQUIPMENT REGISTER
The plant and equipment registers of the Company are complete and
accurate in all respects. They set out, in respect of each item
recorded in them, the date the item was acquired, its cost,
current book value, current tax depreciated value and its
location.
7A.13.4 INVENTORIES
All current assets of the Company (including inventories),
whether in hand, in transit or in bond, are of good and
merchantable quality. To the best of the Vendor's knowledge, they
are fit for the purpose for which they are intended to be used
and conform with all relevant descriptions, specifications, laws
and standards.
7A.13.5 LOCATION
All tangible assets owned, leased or hired by the Company are
located at the Real Property (other than any vehicles in the
course of being used for the purposes of the Company's
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business). No asset located at the Real Property is owned by any
person other than the Company other than personal effects.
7A.13.6 NO IMPAIRMENT
No notice has been served on the Company or the Vendor by any
Governmental Authority which might materially impair, prevent or
otherwise interfere with the Company's use of or proprietary
rights in any of its assets.
7A.14. INSURANCE
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7A.14.1 DISCLOSURE
Schedule 8 and the Insurance Manual of the Faulding Group contain
complete and accurate particulars of all insurance policies taken
out by or for the benefit of Company.
7A.14.2 CURRENCY
Each insurance policy held by or for the benefit of the Company
is currently in full force and effect and all applicable premiums
paid. No policy is subject to special or unusual terms or
restrictions or to the payment of premiums exceeding the normal
commercial premium applying to policies of the same kind. Nothing
has been done or omitted to be done which would make any policy
of insurance void or voidable or which would permit an insurer to
cancel the policy or refuse or reduce a claim or materially
increase the premiums payable under the policies.
7A.14.3 COVERAGE
The Company is, and has been for the past four years, insured
with insurance companies duly authorised to carry on insurance
business in Australia (or, where appropriate, outside Australia):
(a) for the full replacement or reinstatement value of all its
insurable property, against fire, earthquake and other risks
normally insured against by persons carrying on the same
nature of business as that carried on by the Company,
subject only to customary exclusions; and
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(b) in relation to matters not involving insurable property, for
amounts and against those risks (including workers
compensation, product liability and public liability)
normally insured against by persons carrying on the same
nature of business as that carried on by the Company,
subject only to customary exclusions.
7A.14.4 NO CLAIMS
There are no claims made by the Company or any person on its
behalf under any insurance policy held or previously held by the
Company which are outstanding. To the best of the Vendor's
knowledge, no event (other than one which has given rise to a
claim which is not outstanding) has arisen which may give rise to
a claim under any insurance policy. Without limiting the
preceding provisions, to the best of the Vendor's knowledge any
claim which might be made against the Company by an employee or
▇▇▇▇▇▇▇ or third party in respect of any accident or injury is
fully covered by insurance although any claim may give rise to
policy excesses or increased excesses under such insurance.
7A.14.5 INSURANCE REQUIRED BY LAW
The Company has effected all insurances required by law to be
effected by.
7A.15. RECORDS AND CORPORATE MATTERS
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7A.15.1 ACCOUNTS AND RECORDS
All accounts, books, ledgers and financial and all other records
of the Company:
(a) have been fully and properly maintained and contain complete
and accurate records of all matters required to be entered
in them by any relevant legislation;
(b) do not contain or reflect any material inaccuracies or
discrepancies;
(c) give a true and fair view of the trading transactions, state
of affairs, results, financial and contractual position and
assets and liabilities of the Company;
(d) have been prepared in accordance with applicable Accounting
Standards;
(e) are in the possession and unqualified control of the Company
or the Vendor's Guarantor; and
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(f) for employee records, contain adequate and suitable records
regarding the service of each of its employees.
7A.15.2 FILINGS
All documents required to be filed with the Australian Securities
and Investments Commission under any relevant legislation have
been duly filed.
7A.15.3 RECTIFICATION OF REGISTERS
The Company has no notice of any application or intended
application under the Corporations Law or other relevant
legislation to rectify any register which it is required by law
to maintain.
7A.16. REAL PROPERTY
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7A.16.1 REAL PROPERTY
(a) The Real Property comprises all the freehold and leasehold
and premises owned, used or occupied by the Company.
(b) The Company does not have any freehold or leasehold interest
in land except for the Real Property.
(c) The Company is the legal and beneficial owner, and
registered proprietor of the Real Property. The Company has
good and marketable title to the Real Property.
(d) There are no covenants, encumbrances, restrictions or other
legally binding arrangements affecting the Real Property
other than those disclosed by the usual searches.
7A.16.2 OCCUPATION
The Company has exclusive occupation and quiet enjoyment of the
Real Property save as set out in the Real Property Licence Deed.
7A.16.3 DOCUMENTS OF TITLE
The Company has possession of the documents of title to the Real
Property.
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7A.16.4 CONSENTS
Each consent required under any legislation for every development
carried out in relation to the Real Property has been properly
obtained. Any conditions or restrictions imposed in any consent
have been observed and performed.
7A.16.5 NOTICES
The Company has not received any notice from any public
authority, and to the best of the Vendor's knowledge, there are
no proposals made or intended to be made by any public authority:
(a) concerning the acquisition or resumption of the whole or any
part of the Real Property;
(b) requiring the doing of work or expenditure of money on or in
relation to the Real Property or any footpath or road
adjoining any of the Real Property where the total cost
could reasonably be expected to exceed $10,000; or
(c) which would adversely affect the whole or any part of the
Real Property.
7A.16.6 NO BREACH OF LEGISLATION
To the best of the Vendor's knowledge, no breach of any law has
been committed in relation to the Real Property or the use and
occupation of the Real Property for purposes relating to the
Business.
7A.16.7 BUILDINGS
All buildings or other erections included in the Real Property
are in such condition and state of repair as to be substantially
fit for the purpose for which they are at present used, their
construction and position on the land and the connections of
those buildings or other erections to power and waste disposal
services have been approved and they otherwise comply with all
applicable laws.
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7A.17. ENVIRONMENTAL LAWS
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7A.17.1 AUTHORISATIONS
All Relevant Environmental Authorities necessary under Australian
Environmental Law to conduct lawfully the business of the Company
on or from the Real Property have been obtained. To the best of
the Vendor's knowledge, all Relevant Environmental Authorities
are and have been at all relevant times effective.
7A.17.2 COMPLIANCE WITH AUTHORISATIONS
The Company complies with all Relevant Environmental Authorities
and is not aware of any breach or likely breach of them. The
Company has not received any notice, order, claim, demand or like
communication which might adversely affect the use of such Real
Property for the conduct of its business.
7A.17.3 NO CONTAMINATION
There is no Contaminant on, under or emanating from any land the
existence of which was caused or contributed to by the Company
other than as permitted under any Relevant Environmental
Authority. This paragraph does not apply in respect of periods
prior to the date of occupation of the Real Property by the
Company.
7A.17.4 NO HAZARDOUS MATERIALS
There is no hazardous, toxic or poisonous material or any other
material that is harmful to the Environment, including asbestos,
present on Real Property other than those used by the Company in
the ordinary and proper course of its business and in relation to
which applicable laws are being complied with and effective
precaution and waste disposal arrangements have been implemented.
7A.17.5 OTHER ENVIRONMENTAL WARRANTIES
There are no:
(a) Clean Up or remediation measures being taken or required in
respect of the Real Property as a result of any Contaminant
on the Real Property prior to Completion;
(b) Clean Up or remediation measures being taken or required in
respect of any other property or improvements on the Real
Property as a result of any Contaminant on,
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or which emanated from, the Real Property as a result of the
Company's use of the Real Property prior to Completion; and
(c) claims of any description whatsoever made by a third party
to the Vendor or to the best of the Vendor's knowledge,
otherwise existing, which arise directly or indirectly as a
result of any Contaminant on, or which emanated from, the
Real Property as a result of the Company's use of the Real
Property prior to Completion.
For the purpose of this clause:
"Clean Up" has the meaning given to it in section 4 of the
Environment Protection ▇▇▇ ▇▇▇▇ (Vic).
7A.18. ABSENCE OF LITIGATION AND COMPLIANCE WITH LAWS
--------------------------------------------------------------------------------
7A.18.1 DISPUTES
The Company is not engaged in any suit, proceedings, application,
claim, prosecution, litigation, arbitration proceedings or
administrative or governmental investigation or challenge as
plaintiff, defendant, third party or in any other capacity
including in relation to product liability, occupational health
and safety or workers' compensation claims. There are no such
matters pending or threatened in respect of which verbal or
written communication has been given or received by or against
the Company.
7A.18.2 INVESTIGATIONS
There is no outstanding dispute, enquiry or investigation between
the Company and the Australian Securities and Investments
Commission, the Australian Competition and Consumer Commission,
the Australian Taxation Office, or any other regulatory authority
or agency.
7A.18.3 ORDERS
The Company is not the subject of any order, waiver, declaration,
exemption or notice granted or issued by the Australian
Competition and Consumer Commission, the Australian Securities
and Investments Commission, or any predecessor of those bodies or
any other person under the Corporations Law or any previous
corresponding legislation.
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7A.18.4 JUDGMENT
There is no unsatisfied judgment against the Company.
7A.18.5 COMPLIANCE WITH LAWS
To the best of the Vendor's knowledge, the Company has duly
observed and complied in all respects with the provisions of all
laws and regulations and all orders, notices, awards and
determinations made by any statutory or other competent authority
in any way relating to or binding on the Company or any property
owned or occupied by the Company.
7A.18.6 PERMITS
All permits, licences and registrations necessary for the conduct
of the business of the Company are validly subsisting and are
held by the Company.
7A.19. ACCURACY OF INFORMATION
--------------------------------------------------------------------------------
7A.19.1 DISCLOSURE LETTER, SCHEDULES AND ANNEXURES
The information set out in each of the Disclosure Letter,
schedules and annexures is complete and accurate in all respects.
7A.19.2 DISCLOSURE
To the best of the Vendor's knowledge, all information given by
or on behalf of the Company to the Purchaser or to any director,
agent or adviser of the Purchaser concerning the Business, is
accurate in all respects. None of that information is misleading
in any material particular, whether by inclusion of misleading
information or omission of material information or both.
7A.19.3 FULL DISCLOSURE
Prior to the execution of this Agreement the Vendor has disclosed
in writing to the Purchaser all material facts, information and
circumstances relating to the Business or assets or liabilities
of the Company or otherwise relating to the subject matter of
this Agreement which might, if disclosed, reasonably be expected
to affect the decision of a reasonable purchaser to enter into
this Agreement or materially affect the price at which or the
terms on which a reasonable purchaser might be willing to
purchase the Shares.
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7A.19.4 COPIES OF DOCUMENTS
All copies of the documents described in the annexure F given to
the Purchaser or to its agents by the Vendor or the Company, or
on its or their behalf, are true and complete copies.
7A.19.5
Where a Warranty is stated to be made to the best of the Vendor's
knowledge (or words to similar effect), the Vendor warrants that
it has made (or caused to be made on its behalf) commercially
reasonable enquiries in relation to the subject matter of the
Warranty.
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SCHEDULE 2
INJECTABLES DIVISION
[ ]*
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SCHEDULE 3
CONTRACTS
SOLTEC LICENSE AGREEMENTS SCHEDULE
PART I - CURRENT LICENSE AGREEMENTS
CODE DATE LICENSEE DESCRIPTION TERRITORY
[ ]*
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PART II - CURRENT DEVELOPMENT AND OPTION AGREEMENTS
CODE DATE LICENSEE DESCRIPTION TERRITORY
[ ]*
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PART III - AGREEMENTS WITH REQUIREMENTS TO MAKE SUB-ROYALTY PAYMENTS TO THIRD
PARTIES
DATE LICENSEE DESCRIPTION TERRITORY
[ ]*
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PART IV - INACTIVE OR EXPIRED LICENSE OR OPTION AGREEMENTS
CODE DATE COMPANY DESCRIPTION PRODUCT
[ ]*
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SCHEDULE 4
PART 1 - EMPLOYEES
[ ]*
PART 2 - EMPLOYEE ENTITLEMENTS
ACCRUED ACCRUED
SALARY ANNUAL SICK LEAVE LONG SERVICE TOTAL LEAVE
NAME POSITION PACKAGE LEAVE(DAYS) (DAYS) LEAVE (DAYS) VALUE
---- -------- ------- ----------- ---------- ------------ -----------
[ ]*
PART 3 - EMPLOYEE CONTRACTS
[ ]*
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PART 4 - SECRECY, CONFIDENTIAL INFORMATION AND NON-DISCLOSURE
UNDERTAKINGS BY AN EMPLOYEE OR TEMPORARY EMPLOYEE
[ ]*
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SCHEDULE 5
INTELLECTUAL PROPERTY RIGHTS
BUSINESS NAMES
Soltec Research Pty Ltd
Soltec Research
REGISTERED TRADE MARKS
Hexifoam (New Zealand) - 602944
Xpress (Australia) - 737914
Hexifoam (Australia) - 394796
Hexifoam (Vietnam) - 6944
Liquipatch (Australia) - 722076
UNREGISTERED TRADE MARKS (BEING TRADE MARKS NOT REGISTERED IN ANY COUNTRY)
[ ]*
PATENTS AND PATENT APPLICATIONS
PROJECT NAME JURISDICTION PATENT/APPLICATION NO.
[ ]*
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INTELLECTUAL PROPERTY LICENCES
DATE OF
REFERENCE AGREEMENT OTHER PARTY TYPE OF AGREEMENT PRODUCT DESCRIPTION
[ ]*
DOMAIN NAMES
▇▇▇▇▇▇.▇▇▇.▇▇
OTHER INTELLECTUAL PROPERTY RIGHTS
CONFIDENTIAL INFORMATION
INVENTIONS
KNOW-HOW
UNREGISTERED DESIGNS
COPYRIGHTS
ANY RIGHTS SIMILAR TO THOSE REFERRED ABOVE.
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SCHEDULE 6
AGREED ASSETS AND LIABILITIES
[ ]*
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SCHEDULE 7
PATENT APPLICATIONS
--------------------------------------------------------------------------------
PROJECT NAME JURISDICTION PATENT/APPLICATION NO.
[ ]*
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SCHEDULE 8
INSURANCE
SCHEDULE OF INSURANCE POLICIES - SOLTEC RESEARCH PTY LTD
(Included on Faulding Group Insurance Programme
as a fully owned subsidiary of ▇ ▇ ▇▇▇▇▇▇▇▇ & Co Limited)
CLASS OF INSURANCE INSURER POLICY NO PROPERTY INSURED SUM INSURED
[ ]*
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ANNEXURE A
Profit and Loss Account
and
Balance Sheet
1 July 2000
to
28 February 2001
(identified in Column A)
[ ]*
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ANNEXURE B
CONSULTING AGREEMENT
105
CONSULTING AGREEMENT
This Agreement is made March __, 2001, between Connetics
Corporation, a Delaware corporation, located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Company"), and ▇.▇. ▇▇▇▇▇▇▇▇ & ▇▇., ▇▇▇▇▇▇▇ (▇▇▇ ▇▇▇ ▇▇▇
984), located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
("Consultant").
Recitals
Whereas on the date hereof pursuant to a Share Sale Agreement dated
on or about 19 March 2001 (the "Share Sale Agreement") among Consultant,
Faulding Healthcare Pty Ltd, a wholly owned subsidiary of Consultant, the
Company and Connetics Australia Pty Ltd, a wholly owned subsidiary of the
Company (the "Purchaser"), the Purchaser has purchased all of the issued and
outstanding share capital of Soltec Research Pty Ltd ("Soltec Research") from
the Vendor; and
Whereas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Designated Employee") is employed by
the Consultant in the role of Vice President, Injectable Product Development,
Faulding Pharmaceuticals - Asia Pacific and in the role of Managing Director of
Soltec Research; and
Whereas the Company wishes to engage Designated Employee, through
the Consultant, to provide the consulting services specified herein in order to
provide for a smooth transition of the business of Soltec Research to the
Purchaser, and the Consultant is willing to provide such services;
Agreements
In consideration of the mutual covenants herein contained, the parties hereby
agree as follows:
1. SERVICES. Consultant agrees to provide such advisory and
consulting services to the Company as the Company may request from time to time,
so that the Company may continue to have the benefit of the Designated
Employee's experience in, and his knowledge, of the Business (as defined in the
Share Sale Agreement). The Consultant agrees to make the Designated Employee
available, and to cause the Designated Employee to devote his reasonable efforts
to the performance of his duties hereunder, for:
(a) subject to the Designated Employee's taking his accrued sick leave and
annual leave as necessary, approximately [ ]*; and
(b) such period of time as is required for the Designated Employee to take
[ ]* during the term of this Agreement for the period of time (not
exceeding in each case seven days) that the Company reasonably
requests.
Without limiting the foregoing, the Consultant and the Designated Employee
agree that the Designated Employee will render advice and assistance at the
principal office of the Company and Soltec Research in Australia or at such
other locations as may be reasonably requested by the
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Company, in the orderly transfer of the Business and its continuing operation,
including, without limitation:
a) developing the 2001 budget/2002 forecast,
b) managing the operations of Soltec Research,
c) managing the recruitment of staff,
d) coordinating business development activities,
e) providing advice and assistance in negotiations with licensees and
suppliers,
f) advising the Company with respect to past operating procedures of
Soltec Research,
g) providing customer service and sales and marketing assistance and
h) fulfilling such other duties and responsibilities as may be reasonably
assigned by the Company from time to time in connection with the
smooth transition of the Business and its continuing operation.
Such foregoing services are hereinafter referred to as "Services." Consultant
agrees to provide the Services only and exclusively by and through the
Designated Employee. The Designated Employee is not required to provide any
services which are:
(1) not commensurate with the title "Managing Director", being services of the
nature similar to those previously provided by him to Soltec Research
immediately prior to the execution of this agreement; or
(2) illegal or, in the reasonable view of the Consultant, unethical.
2. TERM AND TERMINATION.
2.1 GENERAL. This Agreement shall continue for a period of six months
from the date of this Agreement unless earlier terminated by the Company upon
one month's prior written notice to Consultant. This Agreement shall terminate
automatically in the event of the Designated Employee's death. This Agreement
may be terminated by the Consultant upon one month's prior written notice to the
Company in the event of the contemplated termination of the Designated
Employee's employment with Consultant; such termination shall be effective upon
the termination of the Designated Employee's employment with Consultant and any
affiliates of Consultant.
2.2 LIABILITY UPON TERMINATION. Upon termination of this Agreement, the
Company shall have no further obligation under this Agreement to make any
payments to Consultant after the date of termination, other than payments
accrued to Consultant prior to the date of termination. The provisions of
Sections 8 through 14 of this Agreement shall survive the termination or
expiration of this Agreement.
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3. PAYMENT FOR SERVICES; EXPENSES.
3.1 FEES. The Company shall pay Consultant, and Consultant shall accept
for the Services under this Agreement, compensation based on the number of hours
the Designated Employee actually spends performing the Services at the rate of
[ ],* together with the costs to the Consultant of employing the Designated
Employee, including pro rata annual, long service and sick leave, superannuation
benefits, worker's compensation and other applicable insurance costs and payroll
and other costs of the Consultant reasonably applicable to employing the
Designated Employee.
3.2 EXPENSES. Upon receipt by the Company of copies of receipts or other
appropriate evidence of expenditures by the Designated Employee, the Company
shall within 14 days reimburse Consultant for reasonable travel and other
expenses (business class air fare, ground transportation, lodging and meals) for
travel and entertainment incurred by the Designated Employee, at the request and
with the prior written approval of the Company (either generally or
specifically), in rendering Services pursuant to this Agreement.
3.3 INVOICES. At the end of each calendar month in which Consultant has
rendered Services pursuant to this Agreement and upon termination of this
Agreement, Consultant shall submit to the Company an itemized statement of time
and expenses and other costs referred to above devoted to such Services by the
Designated Employee. Such statements will be paid by the Company within 14 days
after the Company's receipt thereof.
4. INDEPENDENT CONTRACTOR. It is understood and agreed that Consultant
shall perform the Services as an independent contractor and consultant. The
Designated Employee shall not be deemed to be an employee of the Company. The
Designated Employee shall not be entitled to any benefits provided by the
Company to its employees, and the Company will make no deductions from any of
the payments due to Consultant hereunder for state or federal tax purposes.
Consultant agrees that Consultant shall be responsible for any and all taxes and
other payments due on payments received by Consultant from the Company hereunder
and for all compensation, withholding, and all other employment-related benefits
due to the Designated Employee.
5. REPORTS. The Consultant will cause the Designated Employee to keep
reports describing his activities performed in connection with the Services,
accurately documenting the performance of tasks performed or accomplished by the
Designated Employee and the actual hours devoted by the Designated Employee to
each task. Such reports shall be in a form similar to that currently provided to
the Consultant by the Designated Employee relating to the services the
Designated Employee provides to Soltec Research. Consultant shall submit to the
Company (to the attention of the Chief Financial Officer) copies of such reports
on a monthly basis, and promptly shall submit any other reports reasonably
requested from time to time by the Company.
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6. REPRESENTATIONS AND WARRANTIES OF CONSULTANT AND THE DESIGNATED
EMPLOYEE.
6.1 ORIGINAL DEVELOPMENT. Each of Consultant and the Designated Employee
represents and warrants that (i) during the term of this Agreement, neither
Consultant nor Designated Employee will disclose to the Company, or use, or
induce the Company to use, any confidential, proprietary or trade secret
information of any person other than Soltec Research; (ii) none of the property
and confidential, proprietary and trade secret information belonging to any
employer or prior employer has been or will be used in connection with rendering
any of the Services hereunder; and (iii) performance of the terms of this
Agreement will not breach any agreement to keep such information in confidence
or in trust. Neither Consultant nor the Designated Employee has entered into,
and each of them further agrees not to enter into, any oral or written agreement
in conflict herewith.
6.2 OTHER AGREEMENTS. Consultant and the Designated Employee represent
and warrant that Consultant's signing of this Agreement and the performance of
Consultant's and the Designated Employee's Services hereunder are not and will
not be in violation of any other contract, agreement or understanding to which
Consultant or the Designated Employee is a party or by which either of them is
bound.
7. COMPLIANCE WITH LAWS. In the performance of the Services, neither
Consultant nor the Designated Employee will knowingly undertake nor knowingly
cause, nor permit to be undertaken, any activity which either (i) is illegal
under any laws, decrees, rules, or regulations in effect in the United States,
Australia or any applicable countries; or (ii) would have the effect of causing
the Company or Soltec Research to be in violation of any laws, decrees, rules,
or regulations in effect in the United States, Australia or any applicable
countries. During the course of the performance of the Services, it is expected
that Consultant and the Designated Employee will receive information which is
considered material inside information within the meaning and intent of the
United States federal securities laws and the rules and regulations thereunder.
Consultant and the Designated Employee will not disclose this information to
others except as authorized in writing by the Company, and will not use this
information directly or indirectly for its/his benefit or as a basis for advice
to any other party concerning any decision to buy, sell or otherwise trade in
the Company's securities.
8. CONFIDENTIAL INFORMATION.
8.1 CONFIDENTIALITY. In connection with this Agreement, the Company may
disclose to Consultant or the Designated Employee, and Consultant and Designated
Employee have, certain information (i) that is marked or otherwise identified,
orally or in writing, as confidential or proprietary information of the Company
or any affiliate of the Company ("Confidential Information") prior to, upon or
promptly after receipt by Consultant or the Designated Employee; or (ii) which
Consultant or the Designated Employee should recognize from the circumstances
surrounding the disclosure to be Confidential Information. Consultant and
Designated Employee (x) shall hold all Confidential Information in confidence
and will use such information only for the purposes of fulfilling Consultant's
obligations hereunder and for no
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other purpose, and (y) shall not disclose, provide, disseminate or otherwise
make available any Confidential Information of the Company to any third party,
in either case without the express written permission of the Company.
8.2 SCOPE. The obligations in Section 8.1 and in Section 8.3 shall not
apply to (a) use or disclosure of any information pursuant to the exercise of
Consultant's rights under this Agreement; (b) information that is or becomes
generally known or available by publication, commercial use or otherwise through
no fault of Consultant or the Designated Employee; (c) information that is
lawfully obtained from a third party who has the right to make such disclosure
without restriction; (d) any disclosure required by applicable law, provided
that Consultant or the Designated Employee, as the case may be, shall use
reasonable efforts to give advance notice to and cooperate with the Company in
connection with any efforts to prevent such disclosure; or (e) information that
is released for publication by the Company in writing.
8.3 THIRD PARTY INFORMATION. Consultant and the Designated Employee
recognize that the Company has received and in the future will receive from
third parties their confidential or proprietary information subject to a duty on
the Company's part to maintain the confidentiality of such information and to
use it only for certain limited purposes. Consultant and the Designated Employee
agree that each owes the Company and such third parties, during the term of this
Agreement and thereafter, a duty to hold all such confidential and proprietary
information in the strictest confidence and not to disclose it to any person,
firm, or corporation (except as necessary in carrying out their respective work
for the Company in a manner consistent with the Company's agreement with such
third party) or to use it for the benefit of anyone other than for the Company
or such third party (consistent with the Company's agreement with such third
party) without the express written authorization of the Company.
9. INTELLECTUAL PROPERTY.
9.1. OWNERSHIP. All materials and all Intellectual Property made,
contributed to, developed or prepared for the Company by Consultant or the
Designated Employee in performing the Services hereunder, are Confidential
Information and the property of the Company, and all right, title and interest
therein shall vest in the Company. To the extent that title to such materials
and Intellectual Property may not, by operation of law, vest in the Company, all
right, title and interest therein are hereby irrevocably assigned to the Company
by Consultant and the Designated Employee. Consultant and the Designated
Employee agree to give the Company and any person designated by the Company any
reasonable assistance, at the cost and expense of the Company, to perfect the
rights defined in Section 9.1 and in Section 9.2. In this Section 9
"Intellectual Property" means all industrial and intellectual property rights
whether protectable by statute, at common law or in equity, including all
copyright and similar rights which may subsist or may hereafter subsist in works
or other subject matter, rights in relation to inventions (including all patents
and patent applications), trade secrets and know-how, rights in relation to
designs (whether or not registerable), rights in relation to registered and
unregistered trade marks, circuit layout designs and rights in relation to
circuit layouts, but excludes non-assignable moral rights and similar
non-assignable personal rights of authors and producers.
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9.2. MORAL RIGHTS. Designated Employee hereby, to the fullest extent
permitted by law (either present or future), irrevocably and unconditionally
consents to the Company doing anything in relation to any works or other subject
that (but for these consents) would otherwise infringe any moral rights or
similar non-assignable, personal rights that Designated Employee may otherwise
have anywhere in the world.
10. INDEMNIFICATION.
10.1 INDEMNIFICATION BY CONSULTANT. Consultant will defend, indemnify
and hold the Company harmless from and against any and all liabilities, losses,
damages, costs and expenses (including legal fees and expenses) (collectively,
"Losses") associated with any claim or action brought against the Company by a
third party arising out of (i) any breach of any of the representations and
warranties of Consultant or the Designated Employee contained herein, or (ii)
any breach or alleged breach of any other covenant contained herein. The Company
shall notify Consultant promptly of any such claim in writing, provided,
however, that the failure to give such notice shall not relieve Consultant of
Consultant's obligations hereunder except to the extent that Consultant was
actually and materially prejudiced by such failure. Consultant will have the
sole right to conduct the defense of any such claim or action and all
negotiations for its settlement or compromise unless otherwise agreed to in
writing. However, if Consultant, after receiving notice of any such claim, fails
immediately to begin the defense of such claim or action, the Company may
(without further notice to Consultant) retain counsel and undertake the defense,
compromise, or settlement of such claim or action at the expense of Consultant.
10.2 INDEMNIFICATION BY COMPANY. Company will defend, indemnify and
hold the Consultant and Designated Employee harmless from and against any and
all Losses associated with any claim or action brought against them or either of
them by a third party arising out of the performance of the Services, except for
any Losses arising out of (a) a breach by the Consultant or the Designated
Employee of any representation, warranty or covenant in this Agreement, (b) the
gross negligence or willful misconduct of the Consultant or Designated Employee
and (c) any actions of the Consultant or the Designated Employee that are
outside the scope of the Services and are otherwise without the Company's
consent or direction. The Consultant shall notify Company promptly of any such
claim in writing, provided, however, that the failure to give such notice shall
not relieve Company of Company's obligations hereunder except to the extent that
Company was actually and materially prejudiced by such failure. Company will
have the sole right to conduct the defense of any such claim or action and all
negotiations for its settlement or compromise unless otherwise agreed to in
writing. However, if Company, after receiving notice of any such claim, fails
immediately to begin the defense of such claim or action, the Consultant may
(without further notice to Company) retain counsel and undertake the defense,
compromise, or settlement of such claim or action at the expense of Company.
11. RETURN OF COMPANY PROPERTY. On termination of this Agreement, or at any
time the Company so requests, Consultant and the Designated Employee will
deliver immediately to the Company all property belonging to the Company and all
material containing or constituting
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Confidential Information, including any copies in its or his possession or
control, whether prepared by Consultant or by others, including without
limitation the Designated Employee.
12. [ ]*.
13. APPLICABLE LAW
(a) This Agreement is governed by and construed in accordance with the law
of [ ]*
(b) [ ]*
(c) The parties agree that service of process in any such action or
proceeding may be effected by mailing a copy thereof by certified mail
(or any substantially similar form of mail), postage prepaid, return
receipt requested to the other parties thereto at their addresses set
forth in this Agreement. The parties agree that such service, to the
fullest extent permitted by law:
(i) is deemed in every respect effective service of process upon the
parties in any suit, action or proceeding, and
(ii) is valid personal service upon delivery.
Nothing herein affects any party's right to serve process in any other
manner permitted by law.
14. [ ]* INJUNCTIVE RELIEF
(a) [ ]*
(b) Consultant and the Designated Employee recognize that nothing in this
Agreement is intended to limit any remedy of the Company under the California
Uniform Trade Secrets Act. In addition, Consultant and the Designated Employee
recognize that the obligations provided under Sections 8 and 9 of this Agreement
are necessary and reasonable in order to protect the Company and its business,
and Consultant and the Designated Employee expressly agree that monetary damages
would be inadequate to compensate the Company for the breach thereof.
Accordingly, Consultant and the Designated Employee agree and acknowledge that
any such violation or threatened violation will cause irreparable injury to the
Company and that, in
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addition to any other remedies that may be available, in law, in equity or
otherwise, the Company shall be entitled to obtain injunctive relief against the
breach or threatened breach by Consultant or the Designated Employee of Sections
8 and/or 9, without the necessity of proving actual damages or posting of any
bond or security.
15. NO WAIVER. No failure or delay on the part of a party in exercising any
right under this Agreement will operate as a waiver of, or impair, any such
right. The failure of either party to enforce at any time any of the provisions
of this Agreement, or the failure to require at any time performance by the
other party of any of the provisions of this Agreement, shall in no way be
construed to be a present or future waiver of such provisions, nor in any way
affect the validity of either party to enforce each and every such provision
thereafter.
16. PARTIAL INVALIDITY. If any provision of this Agreement is held to be
invalid, illegal, or unenforceable by a court of competent jurisdiction: (a)
such provision will be deemed amended to conform to applicable laws of such
jurisdiction so as to be valid and enforceable, or, if it cannot be so amended
without materially altering the intention of the parties, it will be stricken;
(b) the remaining provisions shall remain in full force and effect; (c) the
validity, legality and enforceability of such provision will not in any way be
affected or impaired thereby in any other jurisdiction; and (d) the remainder of
this Agreement will remain in full force and effect. The parties agree to
renegotiate in good faith any term held invalid and to be bound by the mutually
agreed substitute provision in order to give the most approximate effect
intended by the parties.
17. ASSIGNMENT. Consultant shall not assign, sell, transfer, delegate or
otherwise dispose of, whether voluntarily or involuntarily, or by operation of
law, any rights or obligations under this Agreement. Any purported assignment,
transfer, or delegation by Consultant shall be null and void.
18. GENERAL. This Agreement supersedes and replace any existing agreement
entered into by Consultant, the Designated Employee and Company relating
generally to the same subject matter, and may be modified only in a writing
signed by the Company. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year set forth above.
Connetics Corporation
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
▇.▇. ▇▇▇▇▇▇▇▇ & Co. Limited
By:
----------------------------------
Name:
--------------------------------
Its:
---------------------------------
DESIGNATED EMPLOYEE:
I agree to be bound by the provisions of the
Consulting Agreement expressed to be
applicable to me.
------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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ANNEXURE C
DEED OF ASSIGNMENT
115
DEED OF ASSIGNMENT AND
CONFIRMATION
--------------------------------
▇.▇. ▇▇▇▇▇▇▇▇ & CO. LIMITED
and
SOLTEC RESEARCH PTY LTD
116
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & HEDDERWICKS
Stock Exchange Centre
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Tel ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
Fax ▇▇ ▇ ▇▇▇▇ ▇▇▇▇
rjam M0110886525v7 ▇▇▇▇▇▇ ▇▇▇
(C)▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Hedderwicks 2001
117
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
DEED OF ASSIGNMENT AND CONFIRMATION & HEDDERWICKS
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TABLE OF CONTENTS
1. DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 2
2. CONFIRMATION OF ASSIGNMENTS 3
3. ASSIGNMENT 3
4. WAIVER 3
5. GENERAL 4
5.1 Entire agreement 4
5.2 Amendment 4
5.3 Further assurances 4
5.4 No merger 4
5.5 Costs and stamp duty 4
5.6 Governing law and jurisdiction 5
5.7 Counterparts 5
SCHEDULE 1 6
Personnel 6
SCHEDULE 2 7
Patents and Patent Applications 7
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DATE
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PARTIES
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1. ▇.▇. ▇▇▇▇▇▇▇▇ & ▇▇. ▇▇▇▇▇▇▇ (▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇) of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ (the ASSIGNOR).
2. SOLTEC RESEARCH PTY LTD (ACN 006 363 891) of ▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ (the ASSIGNEE).
[ ]*
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IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
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1.1 DEFINITIONS
The following definitions apply unless the context requires otherwise.
CORPORATIONS LAW means the Corporations Law of Australia.
EFFECTIVE DATE means the date of this Deed.
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INVENTIONS means any inventions made, or contributed to, by Soltec
Personnel up to and including the date of this Deed, and includes
all inventions described or disclosed in the Patents and Patent
Applications, but does not include the rights and interests of the
Assignor in the intellectual property listed in Schedule 2 of an
Injectables Transfer Agreement between the Assignee, DBL Australia
Pty Ltd, the Assignor and Connetics Corporation dated _____________.
PATENTS and PATENT APPLICATIONS means, respectively, the patents and
patent applications listed in Schedule 2 and, respectively, any
other patents or patent applications in respect of any of the
Inventions.
POST 1996 INVENTIONS means the inventions described or disclosed in
the patent and patent applications listed in Schedule 3.
RELATED BODY CORPORATE has the meaning given in the Corporations
Law.
SOLTEC PERSONNEL means:
(a) all persons who have been engaged to carry out any work,
research or development for the Assignee, and includes all
present and former employees, consultants and directors of the
Assignee;
(b) all persons of any description (including present and former
employees, consultants and directors of the Assignor or its
Related Bodies Corporate) who have carried out any work,
research or development for the Assignee at the Assignee's
premises,
and includes the personnel listed in Schedule 1.
1.2 INTERPRETATION
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 or Schedule is a reference to a clause
of, or a schedule to, this Deed.
(f) A reference to an agreement or document (including, without
limitation, a reference to this Deed) is to the agreement or
document as amended, varied, supplemented, novated or replaced,
except to the extent prohibited by this Deed or that other
agreement or document.
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(g) A reference to a party to this Deed or another agreement or
document includes the party's successors, permitted substitutes
and permitted assigns (and, where applicable, the party's 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 conduct includes, without limitation, an
omission, statement or undertaking, whether or not in writing.
(j) A reference to an AGREEMENT includes any undertaking, deed,
agreement and legally enforceable arrangement, whether or not
in writing, and a reference to a document includes an agreement
(as so defined) in writing and any certificate, notice,
instrument and document of any kind.
(m) The meaning of general words is not limited by specific
examples introduced by INCLUDING, or FOR EXAMPLE, or similar
expressions.
(n) Nothing in this Deed is to be interpreted against a party
solely on the ground that the party put forward this Deed or
any part of it.
2. CONFIRMATION OF ASSIGNMENTS
--------------------------------------------------------------------------------
[ ]*
3. ASSIGNMENT
--------------------------------------------------------------------------------
With effect from the Effective Date, the Assignor assigns to the
Assignee:
(a) all of the Assignor's right, title and interest, if any, in and
to the Inventions;
(b) all of the Assignor's right, title and interest, if any, in and
to the Patents and the Patent Applications.
4. WAIVER
--------------------------------------------------------------------------------
(a) The Assignor irrevocably waives all claims of whatever nature
and however arising which the Assignor may now have or at any
time hereafter might have or, but for this Deed, might have had
arising out of or in any way connected with or incidental to
the Inventions, the Patents or the Patent Applications.
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(b) If any of the Assignor's Related Bodies Corporate at any time
wish to make any claim arising out of or in any way connected
with or incidental to the Inventions, the Patents or the Patent
Applications, the Assignor will procure a waiver of equivalent
scope to the waiver in paragraph (a) from the relevant Related
Body Corporate for the benefit of the Assignee.
5. GENERAL
--------------------------------------------------------------------------------
5.1 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.
5.2 AMENDMENT
No amendment or variation of this Agreement is valid or binding on a
party unless made in writing executed by all parties.
5.3 FURTHER ASSURANCES
The Assignor must promptly execute all documents, forms and
authorisations and do any and all such acts and things as may be
considered by the Assignee to be necessary or desirable in
connection with the assignments referred to in Clauses 2 and 3 or in
order to give effect to the provisions of this Deed and the
transactions contemplated by it including defending the validity of
any of the Patents or Patent Applications.
5.4 NO MERGER
The rights and obligations of the parties will not merge on the
completion of any transaction contemplated by this Agreement. They
will survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing a transaction.
5.5 COSTS AND STAMP DUTY
Each party must bear its own costs arising out of the negotiation,
preparation and execution of this Deed. All stamp duty (including
fines, penalties and interest) that may be payable on or in
connection with this Agreement and any instrument executed under
this Agreement must be borne by the Assignor. The Assignor must
indemnify the Assignee on demand against any liability for that
stamp duty or any payment made by the Assignee in respect of stamp
duty.
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5.6 GOVERNING LAW AND JURISDICTION
This Agreement is governed by the laws of [ ]*
5.7 COUNTERPARTS
This Agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one instrument.
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SCHEDULE 1
PERSONNEL
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[ ]*
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SCHEDULE 2
PATENTS AND PATENT APPLICATIONS
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PROJECT NAME JURISDICTION PATENT/APPLICATION NO.
[ ]*
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SCHEDULE 3
POST 1996 INVENTIONS
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[ ]*
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EXECUTED as a Deed.
▇.▇. ▇▇▇▇▇▇▇▇ & CO. LIMITED
--------------------------------------------------------------------------------
SIGNED SEALED AND DELIVERED for and on
behalf of ▇.▇. ▇▇▇▇▇▇▇▇ & CO. LIMITED by:
-----------------------------------------
DIRECTOR
-----------------------------------------
PRINT NAME
-----------------------------------------
DIRECTOR/SECRETARY
-----------------------------------------
PRINT NAME
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SOLTEC RESEARCH PTY LTD
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SIGNED SEALED AND DELIVERED for and on
behalf of SOLTEC RESEARCH PTY LTD by:
--------------------------------------
DIRECTOR
--------------------------------------
PRINT NAME
--------------------------------------
DIRECTOR/SECRETARY
--------------------------------------
PRINT NAME
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128
ANNEXURE D
INJECTABLES TRANSFER AGREEMENT
129
DATE: 2001
----------------------------------------
SOLTEC RESEARCH PTY LTD
and
DBL AUSTRALIA PTY LTD
and
▇. ▇. ▇▇▇▇▇▇▇▇ & CO. LIMITED
and
CONNETICS CORPORATION
----------------------------------------
INJECTABLES TRANSFER AGREEMENT
----------------------------------------
Lander & ▇▇▇▇▇▇
Lawyers
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: (▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇) ▇▇▇▇ ▇▇▇▇
e-mail: ▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
Our ref: MKC:67174.085
130
TABLE OF CONTENTS
1. INTERPRETATION.......................................................................................1
1.1 Definitions....................................................................................1
1.1 Construction...................................................................................4
2. AGREEMENT TO SELL AND BUY ASSETS AND ASSUME LIABILITIES..............................................5
2.1 Sale and purchase..............................................................................5
2.2 Assumption of liabilities......................................................................5
3. PURCHASE PRICE.......................................................................................6
3.1 Time of Payment................................................................................6
3.2 Calculation of Purchase Price..................................................................6
3.3 Values for Accounts............................................................................6
4. COMPLETION...........................................................................................6
4.1 Completion.....................................................................................6
4.2 Vendor's Obligations on Completion.............................................................6
4.3 Purchaser's Obligations on Completion..........................................................7
4.4 Risk...........................................................................................7
5. EMPLOYEES............................................................................................7
5.1 Notification to Employees......................................................................7
5.2 Offers of Employment to Employees..............................................................7
5.3 Transfer of Employees..........................................................................7
5.4 Adjustment to Purchase Price...................................................................8
6. EMPLOYEE LIABILITIES.................................................................................8
7. INTELLECTUAL PROPERTY................................................................................8
7.1 Waiver.........................................................................................8
7.2 Acknowledgement................................................................................8
8. CONFIDENTIALITY......................................................................................8
8.1 Permitted Disclosure...........................................................................8
8.2 Exceptions.....................................................................................9
9. RESTRAINT OF TRADE...................................................................................9
9.1 Vendor and Connetics not to compete............................................................9
9.2 Non-Solicitation..............................................................................10
9.3 Non-Solicitation and Non-competition restraints independent and reasonable....................10
9.4 Injunctive Relief.............................................................................11
9.5 Termination of Obligations....................................................................11
10. PURCHASER'S GUARANTEE...............................................................................11
10.1 Guarantee..................................................................................11
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3
10.2 Liability Unaffected by Other Events.......................................................12
10.3 Guarantee and Indemnity....................................................................12
11. INDEMNITY & RELEASE.................................................................................12
11.1 Indemnity..................................................................................12
11.2 Release....................................................................................13
11.3 Termination of Obligations.................................................................13
12. GOODS & SERVICES TAX................................................................................13
12.1 Definitions................................................................................13
12.2 Amounts Exclusive of GST...................................................................14
12.3 Consideration Increased by Amount of GST...................................................14
12.4 Vendor's Covenants.........................................................................14
12.5 Reimbursements.............................................................................15
12.6 Adjustments................................................................................15
13. GENERAL.............................................................................................15
13.1 Mutual assistance..........................................................................15
13.2 Non-assignable.............................................................................15
13.3 Waiver.....................................................................................15
13.4 Notice.....................................................................................16
13.5 Costs and expenses.........................................................................17
13.6 Severance..................................................................................17
13.7 Counterparts...............................................................................18
13.8 Amendment..................................................................................18
13.9 Entire Agreement...........................................................................18
132
THIS AGREEMENT is dated 2001
PARTIES
SOLTEC RESEARCH PTY LTD (ACN 006 363 891) of ▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
("Vendor")
-and-
DBL AUSTRALIA PTY LTD (ACN 004 327 440) of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ("Purchaser")
-and-
▇. ▇. ▇▇▇▇▇▇▇▇ & CO. LIMITED (ACN 007 870 984) of ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ("Purchaser's Guarantor")
-and-
CONNETICS CORPORATION of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America ("Connetics")
AGREEMENT
1. INTERPRETATION
--------------------------------------------------------------------------------
1.1 DEFINITIONS
In this Agreement, unless the subject or the context otherwise
requires:
"Affiliate" in relation to any person, means any other person
(whether an individual, body corporate, trust, partnership, joint
venture or other entity of any description) which, directly or
indirectly, controls or is controlled by, or is under common control
with a person. For the purposes of the preceding sentence, "control"
means direct or indirect possession of the power to direct or cause
the direction of the affairs or management of a person, whether
through ownership of voting securities, by contract or otherwise,
including without limitation, the power to elect at least a majority
of the board of directors or other persons with substantial
equivalent power to manage or direct the affairs of such person.
"Agreement" means this agreement including all schedules and
annexures.
1
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2
"Assets" means the following assets owned by the Vendor:
a) Intellectual Property Rights;
b) Plant and Equipment;
[ ]*
"Assumed Liabilities" means the obligations and liabilities referred
to in clause 2.2.
"Business" means research and development of [ ]*.
"Business Day" means a day on which banks are open for general
banking business in Melbourne, Victoria other than a Saturday or
Sunday.
"Completion" means payment of the Purchase Price and completion of
the other steps in section 4.
"Completion Date" means the day which is at least 5 business days
before the date of completion of the Share Sale Agreement.
"Confidential Information" means all knowledge of secret processes,
know-how, techniques, discoveries, inventions, ideas, research,
practices, systems, formulae, formulations, manuals, customer
databases, drawings, trade secrets and special purpose computer
programs, information relating to finances, marketing and
contractual arrangements with customers (including, without
limitation, licensees), suppliers,
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3
licensors or consultants and other confidential information and data
subsisting in or relating to the Business which by its nature, or by
the circumstances of its disclosure to the holder of information, is
or could reasonably be expected to be regarded as confidential,
including without limitation both written and oral information.
"Employees" means the persons specified in schedule 3 but excluding
any person who ceases to be an employee of the Vendor after the date
of this Agreement but prior to the Completion Date.
"Employee Liabilities" means all liabilities of the Vendor to the
Employees, including but not limited to,:
(a) long service leave;
(b) annual leave;
(c) sick leave; and
(d) any entitlement to receive a redundancy or termination payment.
"Encumbrance" means any mortgage, charge (whether fixed or
floating), pledge, lien, hypothecation, option, voting arrangement,
easement, covenant, notation, restriction, interest under any
agreement or trust or other right, equity, entitlement or other
third party interest of any nature.
"Field" means
[ ]*
"Intellectual Property Rights" means the rights and interests of the
Vendor listed in schedule 2.
"Loss" means any loss (but not including any indirect or
consequential loss), claim, action, suit, proceeding, award,
judgment, demand, liability, obligation, damage, fine, penalty,
cost, charge, expense, Tax (as defined in the Share Sale Agreement),
outgoing,
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payment, diminution in value or deficiency of any kind or character
which the Vendor or Connetics pays, suffers, or incurs or is liable
for including, without limitation:
(a) all interest and other amounts payable to third parties; and
(b) all proper and reasonable legal and other expenses (on a full
indemnity or a solicitor and own client basis, whichever is the
greater) incurred in connection with investigating or defending
any claims or actions, whether or not resulting in any liability
and all amounts paid in settlement of any claim or action.
"Plant and Equipment" means the fixtures, fittings, furniture, plant
and equipment owned by the Vendor as specified in schedule 1.
"Premises" means the premises owned by the Vendor located at ▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
"Purchase Price" means the purchase price referred to in clause 3.
"Share Sale Agreement" means an agreement dated on or about 20 March
2001 between Faulding Healthcare Pty Ltd as vendor and Connetics
Australia Pty Ltd as purchaser and others.
"Specified Employees" means the persons specified in schedule 3.
1.1 CONSTRUCTION
In this Agreement, unless the subject or the context otherwise
requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing one gender include other genders;
(c) a reference to this or any other document includes a reference
to that document as amended, supplemented, novated or replaced
from time to time;
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5
(d) a reference to a recital, clause or schedule is a reference to a
recital, clause or schedule of this Agreement;
(e) a reference to writing includes all means of reproducing words
in a tangible and permanently visible form;
(f) a reference to a person includes a natural person, corporation,
partnership, trust, estate, joint venture, sole proprietorship,
government or governmental subdivision or agency, association,
co-operative and any other legal or commercial entity or
undertaking;
(g) the headings in this Agreement do not affect its interpretation;
(h) the recitals and the schedules form part of this Agreement.
2. AGREEMENT TO SELL AND BUY ASSETS AND ASSUME LIABILITIES
--------------------------------------------------------------------------------
2.1 SALE AND PURCHASE
The Vendor agrees to sell to the Purchaser and the Purchaser agrees
to purchase from the Vendor all the right, title and interest of the
Vendor in the Assets for the Purchase Price free from any
Encumbrance on the Completion Date on the terms set out in this
Agreement.
2.2 ASSUMPTION OF LIABILITIES
As from the close of business on the Completion Date, the Purchaser
will assume, pay, discharge and perform the following:
a) all obligations and liabilities of the Vendor in relation to
the Intellectual Property Rights and under the agreements and
other instruments comprising the Assets;
b) all Employee Liabilities; and
c) all obligations and liabilities of the Vendor related to
Vendor's ownership of the Assets and its conduct of the
Business, whether prior to or after Completion.
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6
3. PURCHASE PRICE
--------------------------------------------------------------------------------
3.1 TIME OF PAYMENT
The Purchase Price will be paid on the Completion Date.
3.2 CALCULATION OF PURCHASE PRICE
The Purchase Price is as follows:
[ ]*
3.3 VALUES FOR ACCOUNTS
The Plant and Equipment will be sold and purchased at cost less tax
depreciation as recorded in the books of the Vendor at 28 February
2001.
4. COMPLETION
--------------------------------------------------------------------------------
4.1 COMPLETION
Possession of the Assets is given and the property in the Assets
passes to the Purchaser on payment of the Purchase Price on the
Completion Date.
4.2 VENDOR'S OBLIGATIONS ON COMPLETION
Subject to the Purchaser satisfying its obligations under clause
4.3, the Vendor will on Completion deliver to the Purchaser:
(a) the Assets; and
(b) all documents evidencing the Intellectual Property Rights
comprising the provisional patent application documents, all
Confidential Information in documentary form, an authority
addressed to the Vendor's patent attorneys authorising the
transfer of the patent attorneys' file in respect of the
provisional
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7
patent application documents to the Purchaser and all
documents relating to the agreements or draft agreements
referred to in schedule 5 to this Agreement.
4.3 PURCHASER'S OBLIGATIONS ON COMPLETION
Subject to the Vendor satisfying its obligations under clause 4.2,
the Purchaser will on Completion pay the Purchase Price as directed
in writing by the Vendor.
4.4 RISK
Title to, and risk in, the Assets will pass to the Purchaser on
Completion.
5. EMPLOYEES
--------------------------------------------------------------------------------
5.1 NOTIFICATION TO EMPLOYEES
The Employees must be notified of the sale of the Assets as soon as
practicable. The method and means of notifying Employees of the sale
of the Assets is to be mutually agreed between the Vendor and the
Purchaser.
5.2 OFFERS OF EMPLOYMENT TO EMPLOYEES
[ ]*.
5.3 TRANSFER OF EMPLOYEES
[ ]*.
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5.4 ADJUSTMENT TO PURCHASE PRICE
The Purchase Price referred to in clause 3.2 of this Agreement will
be reduced by the net value after tax of the liabilities specified
in paragraphs (a), (b) and (c) of the definition of "Employee
Liabilities" as at the Completion Date.
6. EMPLOYEE LIABILITIES
--------------------------------------------------------------------------------
The Purchaser will pay the Employees all Employee Liabilities due to
them (whether arising before or after Completion) as and when they
fall due.
7. INTELLECTUAL PROPERTY
--------------------------------------------------------------------------------
7.1 WAIVER
Subject to Completion and to the terms of this Agreement and with
effect immediately upon Completion, the Vendor waives its right to
and interest in the benefit of the Intellectual Property Rights.
7.2 ACKNOWLEDGEMENT
Subject to clause 7.1 of this Agreement, the Vendor acknowledges
that it will not use or rely upon any of the Intellectual Property
Rights without the prior written consent of the Purchaser.
8. CONFIDENTIALITY
--------------------------------------------------------------------------------
8.1 PERMITTED DISCLOSURE
The Vendor covenants that it will not, and will procure that each of
its Affiliates will not, after the Completion Date, without the
prior written consent of the Purchaser, disclose the Confidential
Information (if any) in its possession and that it will, and will
procure that its Affiliates will, enforce all confidentiality
undertakings from third parties in relation to the Confidential
Information.
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9
8.2 EXCEPTIONS
The confidentiality obligations in clause 8.1 do not apply to any
information which comes into the public domain or into the
possession of a party other than by a breach by a party of its
obligations under this Agreement.
9. RESTRAINT OF TRADE
--------------------------------------------------------------------------------
9.1 VENDOR AND CONNETICS NOT TO COMPETE
For the sole purpose of protecting the Purchaser in respect of the
goodwill of the Business, each of the Vendor and Connetics
undertakes to the Purchaser that it will not, and that it will
procure that each of its Affiliates will not, within:
[ ]*
be directly or indirectly engaged, concerned or interested whether
on its own account or as a member, shareholder, consultant, agent,
beneficiary, trustee or otherwise in any enterprise, corporation,
firm, trust, joint venture, or syndicate which is:
[ ]*
except that the foregoing does not restrict the Vendor, Connetics
and any of their respective Affiliates from:
[ ]*
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10
9.2 NON-SOLICITATION
The Vendor will not for a period of [ ]* from the Completion Date as
a principal or for any person, induce, solicit or entice or attempt
to induce, solicit or entice from the Purchaser any Employee of the
Purchaser (whether or not that person would commit a breach of
contract by reason of ceasing to serve or act for the Purchaser).
9.3 NON-SOLICITATION AND NON-COMPETITION RESTRAINTS INDEPENDENT AND
REASONABLE
Each of the Vendor and Connetics acknowledges that each of the
prohibitions and restrictions contained in the provisions of clause
9.1 and 9.2:
(a) must be read and construed and will have effect as a separate,
severable and independent prohibition or restriction and will
be enforceable accordingly;
(b) is reasonable as to period, territorial limitation and subject
matter; and
(c) confers a benefit on the Purchaser which is no more than that
which is reasonably and necessarily required by the Purchaser
for the maintenance and protection of the goodwill of the
Business.
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It is the intention of the parties that all combinations of such
prohibitions and restrictions will apply and be enforceable and that
only those which a court, in exercising its discretion, may hold to
be an unreasonable restraint of trade will be severed.
9.4 INJUNCTIVE RELIEF
The parties acknowledges that monetary damages alone may not be
adequate compensation for a breach of this Agreement, including,
without limitation, a breach of clauses 7, 8 or 9 by another party
and each party not in default hereunder is entitled to seek specific
performance or injunctive relief from a court of competent
jurisdiction as a remedy for any breach or threatened breach of this
Agreement, in addition to any other remedies available at law or in
equity under or independently of this Agreement.
9.5 TERMINATION OF OBLIGATIONS
The obligations of the Vendor and Connetics pursuant to clauses 9.1
and 9.2 of this Agreement cease immediately if the Share Sale
Agreement terminates or is terminated for any reason.
10. PURCHASER'S GUARANTEE
--------------------------------------------------------------------------------
10.1 GUARANTEE
(a) In consideration of the Vendor entering into this Agreement,
the Purchaser's Guarantor guarantees (unconditionally and
irrevocably) to the Vendor the performance of the Purchaser's
obligations under this Agreement.
(b) If the Purchaser fails to perform its obligations under this
Agreement when they are due, the Purchaser's Guarantor must
immediately on demand from the Vendor cause the Purchaser to
duly and punctually perform its obligations under this
Agreement or perform those obligations itself.
(c) The Purchaser's Guarantor indemnifies the Vendor against any
claim, action, damage, loss, liability, cost, expense or
payment suffered, paid or incurred by the Vendor in relation
to:
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(i) any failure or delay by the Purchaser in the
performance of any of its obligations under this
Agreement; or
(ii) any failure by the Purchaser's Guarantor to cause the
Purchaser to perform its obligations under this
Agreement.
10.2 LIABILITY UNAFFECTED BY OTHER EVENTS
The liability of the Purchaser's Guarantor under clause 10.1 is not
affected by any act, omission or thing which, but for this
provision, might in any way operate to release or otherwise
exonerate or discharge the Purchaser's Guarantor from any of its
obligations including (without limitation) the grant to the
Purchaser or any other person of any time, waiver or other
indulgence, or the discharge or release of the Purchaser or any
other person from any obligation.
10.3 GUARANTEE AND INDEMNITY
This clause:
(a) extends to cover this Agreement as amended, varied or replaced,
with the consent of the Purchaser's Guarantor; and
(b) is a continuing guarantee and indemnity and remains in full
force and effect for so long as the Purchaser has any liability
or obligation to the Vendor under this Agreement and until all
of those liabilities or obligations have been fully discharged.
11. INDEMNITY & RELEASE
--------------------------------------------------------------------------------
11.1 INDEMNITY
The Purchaser and the Purchaser's Guarantor unconditionally agree
with the Vendor and Connetics to indemnify and keep indemnified,
defend and hold harmless the Vendor and Connetics from and against:
144
13
(a) any and all Losses incurred or suffered by or brought or made
against either the Vendor or Connetics to the extent that such
losses are caused by, arise out of or relate to the transfer of
the Assets pursuant to the terms of this Agreement, the conduct
of the Business prior to Completion or any termination by the
Vendor of the employment of any of the Specified Employees. For
the purposes of this clause any diminution in the revenue or
assets (tangible or intangible) of the Vendor or diminution of
any future profitability of the Vendor arising (whether
directly or indirectly) out of the transfer of the Assets
pursuant to the terms of this Agreement does not constitute
Losses; and
(b) all Assumed Liabilities.
11.2 RELEASE
The Purchaser and the Purchaser's Guarantor unconditionally release
the Vendor and Connetics from any claims arising out of the conduct
of the Business prior to Completion.
11.3 TERMINATION OF OBLIGATIONS
The obligations of the Purchaser and the Purchaser's Guarantor to
indemnify Connetics pursuant to clause 11.1 cease immediately if the
Share Sale Agreement terminates or is terminated for any reason.
12. GOODS & SERVICES TAX
--------------------------------------------------------------------------------
12.1 DEFINITIONS
For the purposes of this clause:
"Act" means A New Tax System (Goods and Services Tax) ▇▇▇ ▇▇▇▇
(as amended) and A New Tax System (Goods and Services Tax
Transition) Act 1999 (as amended) and any related tax impositions
Act;
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14
"GST" means any tax imposed by or through the Act on a taxable
supply (without regard to any input tax credit);
"Regulations" means Regulations made under the Act;
"Taxable supply" means a taxable supply under the Act; and
except where the contrary intention appears, expressions used in
this GST clause have the meanings given to them in the Act.
12.2 AMOUNTS EXCLUSIVE OF GST
Subject to clause 12.3, unless expressly indicated otherwise all
amounts referred to in this Agreement are exclusive of GST.
12.3 CONSIDERATION INCREASED BY AMOUNT OF GST
If GST is imposed on a taxable supply under this Agreement then the
consideration payable for that taxable supply is increased by an
amount equal to the GST imposed on that taxable supply.
12.4 VENDOR'S COVENANTS
The Vendor covenants that:
(a) the annexure attached to this Agreement as annexure A will, at
the time of its completion and annexure to this Agreement, be a
tax invoice for the purposes of the Act and Regulations;
(b) it will provide a tax invoice in the form of annexure A upon
execution of this Agreement;
(c) it is, at the date of execution of this Agreement, registered
under the Act;
(d) in making taxable supplies under this Agreement, it is making
those taxable supplies in the course or furtherance of its
carrying on an enterprise; and
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15
(e) it will maintain its registration under the Act or maintain an
annual turnover to meet the registration turnover threshold
specified in the Act until a date which is 6 months after
Completion pursuant to the terms of this Agreement.
12.5 REIMBURSEMENTS
Subject to clause 12.3, if this Agreement requires the Vendor to
reimburse, indemnify or otherwise pay the Purchaser for any expense,
loss or outgoing ("reimbursable expense"), the amount required to be
paid by the Vendor will be the amount of the reimbursable expense
inclusive of any GST paid when that expense, loss or outgoing was
incurred less the amount of input tax credits (if any) to which the
Purchaser is entitled in respect of the reimbursable expense.
12.6 ADJUSTMENTS
The Vendor agrees to provide the Purchaser with an adjustment note
for any adjustment that arises from an adjustment event relating to
a taxable supply that it makes to the Purchaser within 7 days of
becoming aware of that adjustment.
13. GENERAL
--------------------------------------------------------------------------------
13.1 MUTUAL ASSISTANCE
Each party agrees to do all things as may be reasonably necessary or
desirable to give full effect to every part of this Agreement if
asked in writing by the other party to do so.
13.2 NON-ASSIGNABLE
Neither the rights nor the obligations of either party under this
Agreement may be assigned, transferred, subcontracted or otherwise
disposed of, in whole or in part, without the prior written consent
of the other party.
13.3 WAIVER
No waiver by a party of any default in the strict and literal
performance of or compliance with any provision, condition or
requirement of this Agreement is to be deemed to be a
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16
waiver of strict and literal performance of and compliance with any
other provision, condition or requirement in this Agreement nor to
be a waiver of or in any manner release a party from strict and
literal performance of and compliance with any provision, condition
or requirement in the future nor will any delay or omission of any
party to exercise any right under this Agreement in any manner
impair the exercise of any such right accruing to such party.
13.4 NOTICE
Any notice, demand or other communication ("Notice") to be given or
required to be made pursuant to this Agreement is to be in writing
and is to be given by post, facsimile or hand to a party at the
party's address following:
Soltec Research Pty Ltd
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
with copies to:
Connetics Corporation
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: General Counsel
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17
Connetics Corporation
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
Attention: General Counsel
DBL Australia Pty Ltd or ▇.▇. ▇▇▇▇▇▇▇▇ & Co. Limited
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Attention: Company Secretary
or at such other address or facsimile number as is notified by one
party to the other party.
A Notice is deemed to be given or served:
(a) where sent by prepaid post on the second Business Day following
the day on which it was posted;
(b) where transmitted by facsimile during normal business hours on
a Business Day on that day, or in any other case of
transmission by facsimile on the Business Day following the day
of transmission;
(c) where delivered by hand during normal business hours on a
Business Day on that day, or in any other case of hand delivery
on the Business Day following the day of delivery.
13.5 COSTS AND EXPENSES
[ ]*
13.6 SEVERANCE
If any provision of this Agreement is invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions will not be affected and
such invalid, illegal or unenforceable provision is to be severed
from this Agreement.
----------
* Confidential Treatment Requested
149
18
13.7 COUNTERPARTS
This Agreement may be executed in more than one counterpart, each of
which when executed by all the parties and delivered is deemed to be
an original.
13.8 AMENDMENT
No part of this Agreement may be amended or modified unless reduced
to writing making specific reference to this Agreement and signed by
the parties or their authorised representatives.
13.9 ENTIRE AGREEMENT
This Agreement sets forth the entire agreement and understanding
between the parties with respect to the subject matter of this
Agreement and supercedes all prior agreements, understandings and
representations.
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19
EXECUTION
EXECUTED by SOLTEC RESEARCH
PTY LTD (ACN 006 363 891) by being signed by:
----------------------------------------- ----------------------------------
Signature of director/secretary Signature of director
----------------------------------------- ----------------------------------
Name of director/secretary (please print) Name of director (please print)
EXECUTED by DBL AUSTRALIA PTY LTD
(ACN 004 327 440) by being signed by:
----------------------------------------- ----------------------------------
Signature of director/secretary Signature of director
----------------------------------------- ----------------------------------
Name of director/secretary (please print) Name of director (please print)
THE COMMON SEAL of F. H. )
FAULDING & CO. LIMITED )
(ACN 007 870 984) was hereby )
affixed in the presence of: )
----------------------------------------- ----------------------------------
Signature of director/secretary Signature of director
----------------------------------------- ----------------------------------
Name of director/secretary (please print) Name of director (please print)
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20
EXECUTED by CONNETICS CORPORATION
by being signed by:
----------------------------------------- ------------------------------------
Signature of Chief Executive Officer Signature of Chief Financial Officer
----------------------------------------- ------------------------------------
Name of Chief Executive Officer Name of Chief Financial Officer
(please print) (please print)
152
1
SCHEDULE 1
PLANT AND EQUIPMENT
(CLAUSE 2.1)
[ ]*
----------
* Confidential Treatment Requested
153
2
SCHEDULE 2
INTELLECTUAL PROPERTY RIGHTS
(CLAUSE 7)
BUSINESS NAMES
Nil
REGISTERED TRADE MARKS
Nil
UNREGISTERED TRADE MARKS
[ ]*
PATENTS AND PATENT APPLICATIONS
[ ]*
INTELLECTUAL PROPERTY LICENSES
Nil
CONFIDENTIAL INFORMATION RELATING TO THE BUSINESS.
----------
* Confidential Treatment Requested
154
3
SCHEDULE 3
EMPLOYEES
(CLAUSE 5.1)
[ ]*
----------
* Confidential Treatment Requested
155
4
SCHEDULE 4
EMPLOYEE LIABILITIES
(CLAUSE 5.4)
ACCRUED ACCRUED LONG
ANNUAL SICK SERVICE
SALARY LEAVE LEAVE LEAVE
NAME POSITION PACKAGE (DAYS) (DAYS) (DAYS)
---- -------- ------- ------- ------- -------
[ ]*
----------
* Confidential Treatment Requested
156
5
SCHEDULE 5
AGREEMENTS AND DRAFT AGREEMENTS
(CLAUSE 4.2)
[ ]*
----------
* Confidential Treatment Requested
157
6
ANNEXURE A
--------------------------------------------------------------------------------
TAX INVOICE
--------------------------------------------------------------------------------
Vendor [Name]
Vendor's ABN [insert]
Date of Issue [insert]
To: Purchaser [Name]
Purchaser's ABN [insert]
Purchaser's address [insert]
Quantity Description of Supply Price Total
-------- --------------------- ----- -----
$(a) $(a)
GST payable $(b) $(b)
TOTAL AMOUNT PAYABLE $(a)+(b)
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2
ANNEXURE E
REAL PROPERTY LICENCE DEED
159
DATE: 2001
-----------------------------------------
SOLTEC RESEARCH PTY LTD
- and -
DBL AUSTRALIA PTY LTD
- and -
▇.▇. ▇▇▇▇▇▇▇▇ & CO. LIMITED
---------------------------------------
REAL PROPERTY LICENCE DEED
---------------------------------------
▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇
Lawyers
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
Tel: (▇▇) ▇▇▇▇ ▇▇▇▇
Fax: (▇▇) ▇▇▇▇ ▇▇▇▇
e-mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇.▇▇
Our ref: MKC:67174.086
160
THIS LICENCE is made day of 2001
BETWEEN
The party named and described in schedule item 1 ("LICENSOR")
-and-
The party named and described in schedule item 2 ("LICENSEE")
-and-
The party named and described in schedule item 8 ("LICENSEE'S GUARANTOR")
RECITALS
A. The Licensor is the registered proprietor of the property described in
schedule item 3 ("PROPERTY").
B. Pursuant to a Sale of Assets Agreement dated on or about the date of this
Licence among the Licensor, the Licensee and the Licensee's Guarantor, the
Licensor has sold to the Licensee the assets specified therein relating to
an injectables business, which are located on the Property.
C. In order to enable the Licensee to continue to conduct the injectables
business on a portion of the Property for a limited period of time, the
parties have agreed that the Licensee will be entitled to have access to,
and use, the Specified Property as licensee of the Licensor from the
commencement date specified in schedule item 5 ("COMMENCEMENT DATE") until
the termination date specified in schedule item 6 ("TERMINATION DATE") on
the terms and conditions contained in this Licence.
THE PARTIES AGREE as follows.
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2
1. DEFINITIONS AND INTERPRETATION
--------------------------------------------------------------------------------
1.1 DEFINITIONS
In this Licence, unless the contrary intention appears:
"Communication Device" means telephone, facsimile, internet and
computer devices.
"Confidential Information" means all knowledge of secret processes,
know-how, techniques, discoveries, inventions, ideas, research,
practices, systems, formulae, formulations, manuals, customer
databases, drawings, designs, plans, business processes,
specifications, trade secrets and special purpose computer programs,
information relating to finances, marketing and contractual
arrangements with customers (including, without limitation,
licensees), licensors, suppliers or consultants and other
confidential information and data which by its nature, or by the
circumstances of its disclosure to the holder of information, is or
could reasonably be expected to be regarded as confidential
including, without limitation, both written and oral information.
"Licensee" means the Licensee and its agents, contractors, employees
and invitees;
"Loss" means any loss (but not including any indirect or
consequential loss), claim, action, suit, proceeding, award,
judgment, demand, liability, obligation, damage, fine, penalty,
cost, charge, expense, tax, outgoing, payment, diminution in value
or deficiency of any kind or character which the Licensor or the
Licensee pays, suffers, or incurs or is liable for including,
without limitation:
(a) all interest and other amounts payable to third parties; and
(b) all proper and reasonable legal and other expenses (on a full
indemnity or a solicitor and own client basis, whichever is
the greater) incurred in connection with investigating or
defending any claims or actions, whether or not resulting in
any liability and all amounts paid in settlement of any claim
or action.
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3
"Officer" means, in relation to a corporation, an officer within the
meaning of section 9 of the Corporations Law.
"Related Body Corporate" has the meaning ascribed by the
Corporations Law.
"Specified Property" means the property described in schedule item
4.
1.2 INTERPRETATION
In this Licence, unless the contrary intention appears:
(a) words importing persons include corporations and vice versa;
(b) words importing the singular number or plural number include
the plural number or singular number respectively;
(c) words importing any gender include all other genders as the
case may be;
(d) a reference to statutes, ordinances or regulations includes
any statutes, ordinances or regulations amending,
consolidating or replacing the same and all subordinate or
other legislation from time to time relating to them or in
connection with them;
(e) any covenant, term, condition or provision of this agreement
to be performed or warranty, guarantee or indemnity given by
two or more persons binds those persons jointly and each of
them severally;
(f) the headings contained in this agreement are inserted only as
a matter of convenience and do not affect the interpretation
of this agreement; and
(g) a reference to a person (including the Licensee) includes a
reference to the person's successors and permitted assigns.
163
4
2. LICENCE
--------------------------------------------------------------------------------
Subject to the provisions of this Licence, the Licensor grants to
the Licensee and the Licensee accepts the right and privilege to use
and occupy the Specified Property for the period commencing on the
Commencement Date and ending on the Termination Date.
3. LICENCE CONDITIONS
--------------------------------------------------------------------------------
This Licence is granted on and subject to the following terms and
conditions:
(a) the rights conferred on the Licensee by this Licence rest in
contract only and do not create in or confer on the Licensee
any tenancy or any estate or interest whatever in or over the
Specified Property, and the rights of the Licensee are those
of a licensee only and do not comprise or include any further
or other rights;
(b) this Licence does not confer on the Licensee any right of
exclusive occupation of the Specified Property, and the
Licensor may at any time and from time to time exercise all
its rights including, but without limitation, its right to
possess and enjoy the whole or any part of the Specified
Property save only insofar as the exercise of those rights
prevents the operation of this Licence;
(c) the Licensee does not by entering into occupation of the
Specified Property pursuant to this Licence have, nor is it
deemed to have, possession of the Specified Property;
(d) this Licence is personal to the Licensee and the rights
granted are not transferable or assignable by the Licensee to
any person or in any way whatever; and
(e) no employees, agents or representatives of the Licensee may
have access to the Specified Property unless and until such
persons execute a confidentiality undertaking in favor of, and
in a form reasonably acceptable to, the Licensor in
164
5
relation to the confidential information of the Licensor and
its Related Bodies Corporate.
4. PERMITTED USE
--------------------------------------------------------------------------------
The Specified Property may be used by the Licensee solely for the
purpose specified in schedule item 7 and for no other purpose.
5. LICENSEE'S OBLIGATIONS
--------------------------------------------------------------------------------
The Licensee must:
(a) not bring onto the Specified Property at any time any
inflammable, volatile or explosive oil or dangerous substance
other than those required for the use specified in schedule
item 7;
(b) not cause any nuisance, damage, obstruction, annoyance,
inconvenience or interference to the Licensor or occupiers of
any adjoining property;
(c) keep the Specified Property free from contamination and fire
hazards;
(d) comply with any reasonable requirements that the Licensor may
have with respect to the Specified Property including, without
limitation, its use and/or occupation;
(e) repair all damage to the Specified Property caused or
contributed to by the Licensee excluding fair wear and tear;
(f) not carry out any works to the Specified Property without the
Licensor's prior written approval, which approval may be
withheld by the Licensor in its discretion; and
(g) comply, on time, with all requirements and orders of all laws
concerning the use and occupation of the Specified Property
and the Licensee's own property.
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6. INDEMNITY
--------------------------------------------------------------------------------
6.1 INDEMNITY
The Licensee will indemnify and keep indemnified, defend and hold
harmless the Licensor from and against all Losses incurred or
suffered directly or indirectly by the Licensor, including to its
employees and agents and to the Property, concerning or arising out
of the Licensee's use of the Specified Property, the Licensee's
property, access to the Property and this Licence and the Licensee's
breach of this Licence.
6.2 GUARANTEE
(a) In consideration of the Licensor entering into this Licence,
the Licensee's Guarantor guarantees (unconditionally and
irrevocably) to the Licensor the performance of the Licensee's
obligations under this Licence.
(b) If the Licensee fails to perform its obligations under this
Licence when they are due, the Licensee's Guarantor must
immediately on demand from the Licensor cause the Licensee to
duly and punctually perform its obligations under this Licence
or perform those obligations itself.
(c) The Licensee's Guarantor indemnifies the Licensor against any
Loss suffered, paid or incurred by the Licensor in relation
to:
(i) any failure or delay by the Licensee in the performance
of any of its obligations under this Licence; or
(ii) any failure by the Licensee's Guarantor to cause the
Licensee to perform its obligations under this Licence.
6.3 LIABILITY UNAFFECTED BY OTHER EVENTS
The liability of the Licensee's Guarantor under clause 6.2 is not
affected by any act omission or thing which, but for this provision,
might in any way operate to release or otherwise exonerate or
discharge the Licensee's Guarantor from any of its obligations
166
7
including (without limitation) the grant to the Licensee or any
other person of any time, waiver or other indulgence, or the
discharge or release of the Licensee or any other person from any
obligation.
6.4 GUARANTEE AND INDEMNITY
This clause:
(a) extends to cover this Licence as amended, varied or replaced,
with the consent of the Licensee's Guarantor; and
(b) is a continuing guarantee and indemnity and remains in full
force and effect for so long as the Licensee has any liability
or obligation to the Licensor under this Licence and until all
of those liabilities or obligations have been fully
discharged.
6.5 LICENSOR'S INDEMNITY
The Licensor will indemnify and keep indemnified, defend and hold
harmless the Licensee from and against all Losses incurred or
suffered directly or indirectly by the Licensee, including to its
employees and agents and to the Licensee's property, which arises as
a result from the Licensor's wilful act or omission or gross
negligence.
7. INSURANCE
--------------------------------------------------------------------------------
7.1 OBLIGATION TO INSURE
The Licensee must effect and keep current during the term of this
Licence a public risk policy for an amount in respect of any single
accident or event acceptable to the Licensor (acting reasonably) and
which the Licensor may from time to time nominate, under which
policy the Licensor is indemnified against actions, suits, claims
and demands of any kind arising from any act, omission, neglect,
breach or default of or by the Licensee.
167
8
7.2 NOT TO VITIATE
The Licensee must not at any time during the term of this Licence
do, permit or suffer to be done any act, matter or thing whereby any
insurances in respect of the Property may be vitiated or rendered
void or voidable or whereby the rate of premium on any such
insurance is liable to be increased.
7.3 APPROVAL OF POLICY
The policy of insurance effected or required to be effected by the
Licensee under this Licence must be taken out with an insurance
office or company and pursuant to policies the terms of which have
been approved by the Licensor (acting reasonably).
7.4 CERTIFICATE OF CURRENCY
On the Commencement Date, the Licensee must produce to the Licensor
a copy of each policy of insurance effected by the Licensee under
this Licence and a certificate of currency in respect of each
policy.
7.5 LICENSEE'S PROPERTY
The Licensee is responsible for insuring the Licensee's property on
the Property.
8. TERMINATION
--------------------------------------------------------------------------------
This Licence may be terminated upon written notice from the Licensor
to the Licensee if:
(a) the Licensee breaches any of the terms or conditions of this
Licence and that breach continues for a period of 21 days
after service on the Licensee of a written notice requiring it
to remedy the breach;
(b) the Licensee being a corporation:
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9
(i) an official manager, receiver, receiver and manager,
administrator, liquidator, provisional liquidator or
agent for a mortgagee is appointed to the Licensee or to
any or all of its assets or undertaking;
(ii) enters into or resolves to enter into a scheme of
arrangement or composition with, or assignment for the
benefit of, all or any class of its creditors, or it
proposes a reorganisation, moratorium or other
administration involving any of them;
(iii) resolves to wind itself up, or otherwise dissolve
itself, or gives notice of intention to do so, except to
reconstruct or amalgamate in such a way that will not
materially affect the Licensor, or if otherwise wound up
or dissolved;
(iv) is, or makes a statement from which it may be reasonably
deduced by the Licensor that the Licensee is, the
subject of an event described in section 585 of the
Corporations Law;
(v) a court has ordered the winding up of the Licensee under
section 461 of the Corporations Law;
(c) execution is levied against the Licensee and is not satisfied
within seven (7) days.
9. MAKE GOOD
--------------------------------------------------------------------------------
9.1 VACATE PROPERTY
In the event of the termination of this Licence, the Licensee must
promptly vacate and leave the Specified Property and any
improvements on the Specified Property (but excluding, for the
avoidance of doubt, any chattels of the Licensee and any assets
described in schedule 1 of the agreement referred to in Recital B of
this Licence) whether or not made or erected by the Licensee.
169
10
9.2 BREACH BY LICENSEE OR PURCHASER
In the event of the termination of this Licence as a result of a
breach of this Licence by the Licensee, if requested in writing by
the Licensor the Licensee must within 30 days of the date of
receiving the Licensor's notice, remove everything brought onto the
Specified Property by the Licensee including, without limitation,
any improvements made by the Licensee to the Specified Property, and
reinstate the Specified Property to its condition as at the
Commencement Date excluding fair wear and tear. If any damage
whatever is caused to the Specified Property during the period of
occupation and use by the Licensee and is not rectified and made
good by the Licensee within that 30 day period, then all costs and
expenses incurred by the Licensor in repairing such damage and/or
reinstating the Specified Property to the same order, state and
condition as at the Commencement Date must be borne by the Licensee,
who is liable in damages to the Licensor accordingly, and the
Licensor is entitled to recover the same from the Licensee
immediately and/or to deduct the same from any moneys paid to or
held by the Licensor, which may otherwise for any reason be
refundable to the Licensee by the Licensor.
9.3 IMPROVEMENTS BECOME PROPERTY OF LICENSOR
If the Licensor does not give notice pursuant to clause 9.2 (if
applicable), or if clause 9.2 does not apply, then every improvement
of the Licensee on the Specified Property made by the Licensee (but
excluding, for the avoidance of doubt, any chattels of the Licensee
and any assets described in schedule 1 of the agreement referred to
in Recital B of this Licence) immediately becomes the property of
the Licensor, and the Licensee is not entitled to claim from the
Licensor any monies expended on the Specified Property or in respect
to any improvements made by the Licensee.
10. ACKNOWLEDGEMENT
--------------------------------------------------------------------------------
The Licensee acknowledges and agrees that the Specified Property is
in a good and substantial state of repair and condition and the
Licensee will not on or after the Commencement Date make any
objection, claim any compensation or require the
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Licensor to carry out any works or repairs to or in respect of any
existing or future defect in or want of repair to the Specified
Property.
11. GST
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11.1 DEFINITIONS
For the purposes of this clause:
"Act" means A New Tax System (Goods and Services Tax) ▇▇▇ ▇▇▇▇
(as amended) and A New Tax System (Goods and Services Tax
Transition) Act 1999 (as amended) and any related tax impositions
Act;
"GST" means any tax imposed by or through the Act on a taxable
supply (without regard to any input tax credit);
"Regulations" means Regulations made under the Act;
"Taxable supply" means a taxable supply under the Act and
includes a taxable supply of premises;
"Taxable supply of premises" means the licence of the Specified
Property under this Licence together with the supply by the
Licensor of services, goods and other things to the Licensee; and
except where the contrary intention appears, expressions used in
this GST clause have the meanings given to them in the Act.
11.2 AMOUNTS EXCLUSIVE OF GST
Subject to clause 11.3, unless expressly indicated otherwise all
amounts referred to in this Licence are exclusive of GST.
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11.3 CONSIDERATION INCREASED BY AMOUNT OF GST
If GST is imposed on a taxable supply under this Licence then the
consideration payable for that taxable supply is increased by an
amount equal to the GST imposed on that taxable supply.
11.4 LICENSOR'S COVENANTS
The Licensor covenants that:
(a) the annexure attached to this Licence as annexure B will, at
the time of its completion and annexure to this Licence, be a
tax invoice for the purposes of the Act and Regulations;
(b) it will provide a tax invoice in the form of annexure B upon
execution of this Licence;
(c) in the event that either annexure B is determined to not
comply with the requirements under the Act and Regulations for
a tax invoice or that a tax invoice in the form of annexure B
is not provided to the Licensee upon the execution of this
Licence, it will provide a monthly tax invoice in relation to
the taxable supply of the Specified Property deemed to occur
monthly by virtue of the operation of Division 156 of the Act
on each date that it is due to receive a monthly payment of
the licence fee;
(d) it is, at the date of execution of this Licence, registered
under the Act;
(e) in making taxable supplies under this Licence, it is making
those taxable supplies in the course or furtherance of its
carrying on an enterprise;
(f) it will maintain its registration under the Act or maintain an
annual turnover to meet the registration turnover threshold
specified in the Act until a date which is 6 months after the
date on which the term of the Licence expires.
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11.5 REIMBURSEMENTS
Subject to clause 11.3, if this Licence requires the Licensee to
reimburse, indemnify or otherwise pay the Licensor for any expense,
loss or outgoing ("reimbursable expense"), the amount required to be
paid by the Licensee will be the amount of the reimbursable expense
inclusive of any GST paid when that expense, loss or outgoing was
incurred less the amount of input tax credits (if any) to which the
Licensor is entitled in respect of the reimbursable expense.
11.6 ADJUSTMENTS
The Licensor agrees to provide the Licensee with an adjustment note
for any adjustment that arises from an adjustment event relating to
a taxable supply that it makes to the Licensee within 7 days of
becoming aware of that adjustment.
12. CONFIDENTIALITY
--------------------------------------------------------------------------------
12.1 CONFIDENTIALITY
(a) The Licensor and the Licensee acknowledge to each other that
in the course of the Licensee accessing and using the
Specified Property, each of the Licensor and the Licensee may
acquire Confidential Information from the other.
(b) The Licensor and the Licensee acknowledge to each other that
Confidential Information of the Licensor and the Licensee
comprises information which is valuable and may cause serious
damage and loss (including to third parties) if it is
improperly used or disclosed.
12.2 LICENSOR'S CONFIDENTIAL INFORMATION
The Licensee covenants that it will hold all Confidential
Information of the Licensor in confidence and not directly or
indirectly, use, copy, reproduce or disclose to any person or
entity, the Confidential Information of the Licensor or permit or
cause those acts to be done by another with respect to the
Confidential Information of the Licensor.
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12.3 LICENSEE'S CONFIDENTIAL INFORMATION
The Licensor covenants that it will hold all Confidential
Information of the Licensee in confidence and not directly or
indirectly use, copy, reproduce or disclose to any person or entity,
the Confidential Information of the Licensee or permit or cause
those acts to be done by another with respect to the Confidential
Information of the Licensee.
12.4 ADDITIONAL OBLIGATIONS
(a) The Licensor is liable to the Licensee for any misuse of the
Licensee's Confidential Information by the employees, agents
or contractors of the Licensor.
(b) The Licensor and the Licensee acknowledge to each other that,
notwithstanding anything else in this clause 12, the use,
disclosure, retention or failure to hold in confidence, by a
party (the Recipient) of any Confidential Information of the
other party (the Disclosing Party), will not constitute a
breach of any obligations of confidentiality arising under
this Licence if the Recipient can show:
(i) that at the time of that use, disclosure or failure, the
Confidential Information was already in the public
domain (otherwise than by disclosure in breach of any
obligations of confidence owed by the Recipient or any
of its employees, agents or contractors);
(ii) that at the time of that use, disclosure or failure, the
Confidential Information had already been received by
the Recipient from a third party (other than an
employee, agent or contractor of the Recipient) who had
the right to so provide that information, and such use,
disclosure or failure constituted a use or disclosure
which had been authorised by that third party when
providing that information to the recipient and remained
so authorised; or
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(iii) that such use, disclosure or failure was with the
written consent of the Disclosing Party.
(iv) that the information was developed by the Recipient
(other than pursuant to this Licence and other than to
the extent it has been sold to the Disclosing Party
pursuant to the sale of assets agreement referred to in
recital B of this Licence) independent of any
information or material to which the Recipient, its
employees, agents or sub-contractors had access pursuant
to this Licence.
(c) The Recipient must, immediately on demand by the Disclosing
Party and at the Recipient's expense:
(i) return to the Disclosing Party all Material obtained
directly or indirectly from the Disclosing Party by the
Recipient; and
(ii) provide to the Disclosing Party all Material made,
developed or acquired by or for the Recipient.
For the purposes of this clause 12.4(c), "Material"
means, in relation to the Recipient, any material
containing or relating in any way to any
Confidential Information of the Disclosing Party
and includes all documents, notes, memoranda,
reports, models and computer media.
(d) The Recipient must:
(i) notify the Disclosing Party immediately of any suspected
or actual breach of this Deed; and
(ii) promptly provide such assistance as the Disclosing Party
may reasonably require in relation to the Disclosing
Party conducting any legal proceedings or making any
claim against any person alleging breach of confidence,
including without limitation, using their best
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endeavours to take those steps which would prevent any
further breach of confidence.
12.5 DISCLOSURE TO OFFICERS
A party may disclose anything in respect of this Licence to the
officers, employees and professional advisers of that party and its
Related Bodies Corporate.
12.6 CONTINUITY OF CONFIDENTIALITY OBLIGATIONS
The confidentiality obligations in clauses 12.1, 12.2, 12.3,
12.4(a), 12.4(c) and 12.4(d) apply without limitation in time and
continue after termination or expiry of this Licence.
13. NOTICES
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13.1 SERVICE OF NOTICES
A notice, approval, certificate, consent or other communication in
connection with this Licence must be:
(a) in writing; and
(b) left at the address of the addressee, or sent by prepaid
ordinary post to the addressee's address or sent by facsimile
to the addressee's facsimile number specified in the schedule
or, if the addressee notifies another address or facsimile
number in writing, to that address or facsimile number.
13.2 TIME OF SERVICE
Unless a later time is specified in it a communication takes effect
from the time it is received.
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EXECUTED as a DEED
EXECUTED by SOLTEC RESEARCH PTY LTD
(ACN 006 363 891) by being signed by:
------------------------------------------ ---------------------------------
Signature of director/secretary Signature of director
------------------------------------------ ---------------------------------
Name of director/secretary (please print) Name of director (please print)
EXECUTED by DBL AUSTRALIA PTY LTD
(ACN 004 327 440) by being signed by:
------------------------------------------ ---------------------------------
Signature of director/secretary Signature of director
------------------------------------------ ---------------------------------
Name of director/secretary (please print) Name of director (please print)
THE COMMON SEAL of F. H. )
FAULDING & CO. LIMITED )
(ACN 007 870 984) was hereby )
affixed in the presence of: )
------------------------------------------ ---------------------------------
Signature of director/secretary Signature of director
------------------------------------------ ---------------------------------
Name of director/secretary (please print) Name of director (please print)
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SCHEDULE
ITEM
1. LICENSOR: SOLTEC RESEARCH PTY LTD
ACN 006 363 891
▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: 03 9763 0354
2. LICENSEE: DBL AUSTRALIA PTY LTD
ACN 004 327 440
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
Facsimile: 08 8281 6878
3. PROPERTY: The land, improvements, fixtures and
inclusions situated at ▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
4. SPECIFIED PROPERTY: The parts of the Property shaded and
marked with a percentage figure and marked
on annexure A to this Licence. The
percentages marked on annexure A refer to
the percentage of floor and work space
which the Licensee is entitled to use and
occupy in accordance with the terms of
this Licence.
Areas of common access, including
amenities, kitchen, on-site parking, staff
room, first aid room and Communication
Devices.
The right to access unlicensed areas of
the Property for the purpose of gaining
access to the Specified Property.
5. COMMENCEMENT DATE: The day which is the date of completion of
a sale of assets agreement dated on or
about the date of this Licence between
Soltec Research Pty Ltd as vendor to DBL
Australia Pty Ltd as purchaser and others.
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6. TERMINATION DATE: The date being six months after the date
of completion of the share sale agreement
dated on or about 19 March 2001 between
Faulding Healthcare Pty Ltd as vendor and
Connetics Australia Pty Ltd as purchaser
and others.
7. USE OF SPECIFIED PROPERTY: To carry on an [ ]*.
8. LICENSEE'S GUARANTOR: ▇.▇. ▇▇▇▇▇▇▇▇ & CO LIMITED
ACN 007 870 984
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇) ▇▇▇▇ ▇▇▇▇
----------
* Confidential Treatment Requested
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ANNEXURE A
PLAN OF PREMISES
[ ]*
----------
* Confidential Treatment Requested
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4
ANNEXURE B
--------------------------------------------------------------------------------
TAX INVOICE
--------------------------------------------------------------------------------
Licensor [Name]
Licensor's ABN [insert]
Date of Issue [insert]
To: Licensee [Name]
Licensee's ABN [insert]
Licensee's address [insert]
Quantity Description of Supply Price Total
-------- --------------------- ----- -----
1 License of premises at [address of premises] for
a period of [insert period] at a monthly fee of
[insert amount] inclusive of amounts owing under $(a) $(a)
the licence in respect of services, goods and
other things supplied by the licensor to the
licensee
GST payable $(b) $(b)
TOTAL AMOUNT PAYABLE $(a)+(b)
--------
* Confidential Treatment Requested
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ANNEXURE F
PART 1: DUE DILIGENCE STATUS SUMMARY INDEX
DOCUMENT PROVIDED TO
-------- -----------
[ ]*
----------
* Confidential Treatment Requested
182
PART 2: AGREEMENTS PROVIDED
REF. DATE PARTY AGREEMENT
[ ]*
----------
* Confidential Treatment Requested
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2
PART 3: COMPANY REGISTER DOCUMENTS PROVIDED
[ ]*
----------
* Confidential Treatment Requested
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PART 4: INFORMATION PROVIDED BY E-MAIL
SENT SENDER RECIPIENT SUBJECT
[ ]*
PART 5: INFORMATION PROVIDED BY FACSIMILE/COURIER
SENT SENDER RECIPIENT SUBJECT
[ ]*
----------
* Confidential Treatment Requested
185
PART 6: INDEX OF FINANCIAL INFORMATION PROVIDED
DATE DOCUMENTS REQUESTED STATUS DATE SUPPLIED SUPPLIED BY RECIPIENT
[ ]*
----------
* Confidential Treatment Requested