Exhibit 10.30
DATED this 20th day of December 1996
BETWEEN
BIOTRANSPLANT INC.
("BTI")
-and-
CASTELLA RESEARCH PTY LTD
("Castella")
-and-
SECURE SCIENCES PTY LTD
("Secure")
-and-
STEM CELL SCIENCES PTY LTD
("the Company")
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AGREEMENT TO FURTHER VARY SHAREHOLDERS' AGREEMENT
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HOLDING XXXXXXX
LAWYERS AND CONSULTANTS
000 Xxxxxxxx Xxxxxx Xxxxx 00, Xxxxxxx Xxxxx
Xxxxxxxxx XXX 0000 0 Xxxxxxx Xxxxxx
Xxxxxx XXX 0000
Tel (00) 00000000 Tel (00) 000 0000
Fax (00) 00000000 Fax (00) 000 0000
Ref: CLSCS109.106
CONTENTS
1. DEFINITIONS AND INTERPRETATION...........................................................................5
1.1 Definitions.........................................................................................5
1.2 Interpretation......................................................................................5
1.3 Recitals............................................................................................5
2. ISSUE OF SHARES..........................................................................................5
2.1 Issue of Shares to BTI..............................................................................5
2.2 Issue of Shares to Castella.........................................................................5
2.3 Issue of Shares to Secure...........................................................................6
3. ISSUE OF OPTIONS.........................................................................................6
3.1 Issue of Options to BTI.............................................................................6
3.2 Issue of Option to Castella.........................................................................6
3.3 Issue of Option to Secure...........................................................................6
4. VARIATION OF SHAREHOLDERS' AGREEMENT.....................................................................6
4.1 Variation...........................................................................................6
4.2 Confirmation of Shareholders' Agreement.............................................................6
4.3 Acknowledgements....................................................................................7
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AGREEMENT TO FURTHER VARY SHAREHOLDERS' AGREEMENT dated the day
of , 1996
BETWEEN:
BIOTRANSPLANT INCORPORATED a corporation organised and existing under
the laws of the State of Delaware and having its principal office 13
Xxxx Street, Building 96, Navy Yard, Charlestown, MA, United States of
America
("BTI")
AND: CASTELLA RESEARCH PTY LTD (ACN 000 000 000) of 000 Xxxxxxxxxx Xxxx,
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx in its own capacity and as trustee of
the X.X. Xxxxxxx Family Trust
("CASTELLA")
AND: SECURE SCIENCES PTY LTD (ACN 064 139 948) of Xxxxx 00, 000 Xx. Xxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx in its own capacity and as
trustee of the Secure Sciences Unit Trust
("SECURE")
AND: STEM CELL SCIENCES PTY LTD (ACN 063 293 130) of Xxxxx 00, 000 Xx.
Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx
("THE COMPANY")
RECITALS
A. By a Shareholders' Agreement dated 5 April, 1994 between BTI, Castella,
Secure and the Company (THE "SHAREHOLDERS' AGREEMENT") the Shareholders
recorded their agreement as to how the Company would be owned,
controlled and funded by them.
B. Pursuant to Clause 2.5 of the Shareholders' Agreement the Company
issued to BTI the First BTI Option and the Second BTI Option.
C. The First BTI Option was to be exercised on or before the first
anniversary of the Effective Date.
D. Pursuant to Clause 2.5(b) of the Shareholders' Agreement if the First
BTI Option was not exercised on or before the first anniversary of the
Effective Date, the Second BTI Option would lapse.
E. BTI did not exercise the First BTI Option on or before the first
anniversary of the Effective Date (the anniversary occurring on 5
April, 1995) and accordingly, the Second BTI Option lapsed.
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F. Each of Castella and Secure exercised the options granted to them
pursuant to Clause 2.5(a)(iii) and (v), respectively, by the first
anniversary of the Effective Date.
G. Pursuant to a Variation of the Shareholders' Agreement dated 2
February, 1996 between BTI, Castella, Secure and the Company ("THE
FIRST VARIATION"):
(a) BTI subscribed for and the Company issued to BU a further 300
"A" Shares in the capital of the Company; and
(b) the Company issued to BTI an option to subscribe for a further
600 "A" Shares in the capital of the Company at a price of
$4,685.00 per share at any time on or before 1 July, 1996
("THE NEW OPTION").
H. Neither Castella or Secure exercised the options granted to them
pursuant to, respectively, Clause 2.5(a)(iv) and (vi) of the
Shareholders' Agreement (respectively, "the Second Castella Option" and
"the Second Secure Option") by the second anniversary of the
Commencement Date.
I. BTI did not exercise the New Option by 1 July, 1996.
J. As a result of the exercise of the option by Castella and Secure, the
failure by BTI to exercise the First BTI Option, the failure by
Castella to exercise the Second Castella Option, the failure by Secure
to exercise the Second Secure Option and the issue of shares to BTI
pursuant to the First Variation, the issued capital of the Company is
owned in the following proportions:
BTI: 30%
Castella: 15%
Secure: 55%
K. BTI has agreed to provide an amount of equity capital to the Company
and prior to the date of this Agreement, has subscribed that capital to
the Company.
L. In line with the intent of the Shareholders' Agreement that on the
provision by BTI of equity capital to the Company such shares in the
Company would be issued to maintain the shareholdings of BTI, Castella
and Secure in the Company in the ratios set out in Recital J, the
Shareholders have agreed to cause the Company to allot to BTI a certain
addition number of "A" shares in the capital of the Company at a
premium and to allot to Castella and Secure certain additional "B"
Shares in the capital of the Company at par.
M. The Shareholders and the Company have also agreed that the Company will
allot to BTI, Castella and Secure fresh options on the terms set out in
this Agreement.
N. Clause 18.5 of the Shareholders' Agreement provides that the
Shareholders' Agreement may not be modified, amended, added to or
otherwise varied except by a document in
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writing signed by each of the parties or signed on behalf of each party
by a director under hand.
O. The parties wish by this Agreement to record the matters set out in
Recitals K to M and to vary the Shareholders' Agreement to the extent
necessary to take account of those matters.
IT IS AGREED
1. DEFINITIONS AND INTERPRETATION
------------------------------
1.1 DEFINITIONS
In this Agreement (including in the Recitals), unless the contrary
intention appears, each defined word and expression has the meaning
assigned to that word or expression in the Shareholders' Agreement.
1.2 INTERPRETATION
Clauses 1.3 and 1.4 of the Shareholders' Agreement are incorporated in
and form part of this Agreement as if each referenced to "THIS
AGREEMENT" in those clauses were a reference to this Agreement to vary
the Shareholders' Agreements.
1.3 RECITALS
The parties acknowledge and agree that the Recitals are true and
correct and accurately reflect the circumstances in which this
Agreement was entered into.
2. ISSUE OF SHARES
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2.1 ISSUE OF SHARES TO BTI
(a) On the date of this Agreement BTI must subscribe for, and be
issued with 300 "A" Shares in the capital of the Company
issued at a price of $1,791.67 per share (being $1.00 par and
$1,790.67 premium per share) for a total consideration of
$537,500.00.
(b) The Company acknowledges that prior to the date of this
Agreement BTI has tendered and the Company has received
payment for the "A" Shares to be issued to it pursuant to this
Clause 2.1.
2.2 ISSUE OF SHARES TO CASTELLA
On the date of this Agreement Castella must subscribe for and be issued
with 150 "B" Shares in the capital of the Company issued at the par
price of $1.00 per share for a total consideration of $550.00 payable
on the date of this Agreement.
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2.3 ISSUE OF SHARES TO SECURE
On the date of this Agreement Secure must subscribe for and be issued
with 550 "B" Shares in the capital of the Company issue at the par
price of $1.00 per share for a total consideration of.$550.00 payable
on the date of this Agreement.
3. ISSUE OF OPTIONS
----------------
3.1 ISSUE OF OPTIONS TO BTI
(a) On the date of this Agreement, the Company must issue to BTI
an option (the Option Terms attaching) to subscribe for, fully
pay up and be issued with a further 300 "A" Shares, in the
capital of the Company for a total consideration of
US$2,071,343.75 at any time on or before 31 December, 1996
("THE OPTION").
(b) If BTI exercises the option the Company will issue BTI 300 "A"
Shares in the capital of the Company at a price per share of
A$1.00 (being the par value) plus a premium per share
calculated in A$ as at the date of the exercise of the option.
3.2 ISSUE OF OPTION TO CASTELLA
On the date of this Agreement, the Company must issue to Castella an
option (with the Option Terms attaching) to subscribe for, fully pay up
and be issued with a further 150 "B" Shares in the capital of the
Company issued at a price of $1.00 per share for a total consideration
of $150.00 at any time on or before 31 December, 1996.
3.3 ISSUE OF OPTION TO SECURE
On the date of this Agreement, the Company must issue to Secure an
option (the Options Terms attaching) to subscribe for, fully pay up and
be issued with a further 550 "B" Shares in the capital of the Company
issued at a price of $1.00 per share for a total consideration of
$550.00 at any time on or before 31 December, 1996.
4. VARIATION OF SHAREHOLDERS' AGREEMENT
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4.1 VARIATION
In consideration of the mutual agreements made by each party under this
Agreement, the parties agree, pursuant to cause 18.5 of the
Shareholders' Agreement, to vary clause 2.5 of the Shareholders'
Agreement to the extent necessary to give effect to the provisions of
Clauses 2 and 3 of this Agreement.
4.2 CONFIRMATION OF SHAREHOLDERS' AGREEMENT
The parties confirm that the terms and conditions of the Shareholders'
Agreement (as varied by this Agreement) remain in full force and
effect.
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4.3 ACKNOWLEDGEMENTS
Without limiting Clause 4.2 but for the removal of doubt, the parties
acknowledge that:
(a) pursuant to clause 5.4(a)(i) of the Shareholders' Agreement,
all paragraphs of clause 5.3 of the Shareholders' Agreement
except paragraphs (e), (f), (p) and (v) ceased to operate on
the first anniversary of the Effective Date and nothing in
this Agreement will operate to or be construed as bring back
into effect those paragraphs of clause 5.3 of the
Shareholders' Agreement which have ceased to operate; and
(b) BTI did not exercise the second BTI Option and nothing in this
Agreement will be interpreted to mean that BTI did exercise
the Second BTI Option and the Shareholders' Agreement will be
construed and operate accordingly.
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SIGNED AS AN AGREEMENT on the date first appearing
SIGNED by BIOTRANSPLANT INC. )
by its director XXXXXX XXXXXXXX ) /s/ XXXXXX XXXXXXXX
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in the presence of: )
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(Witness)
SIGNED by CASTELLA RESEARCH )
PTY LTD by its director MAL BRANDON ) /s/ MAL BRANDON
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in the presence of: )
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(Witness)
SIGNED by SECURE SCIENCES PTY LTD )
by its director XXXXX XXXXXXXXX ) /s/ XXXXX XXXXXXXXX
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in the presence of: )
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(Witness)
SIGNED by STEM CELL SCIENCES )
PTY LTD by its director XXX XXXXXXX ) /s/ XXX XXXXXXX
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in the presence of: )
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(Witness)
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