1
Confidential materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote such omissions.
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")
AGREEMENT TO FURTHER VARY SHAREHOLDERS' AGREEMENT
HOLDING XXXXXXX
2
LAWYERS AND CONSULTANTS
000 Xxxxxxxx Xxxxxx Xxxxx 00, Xxxxxxx Xxxxx
Xxxxxxxxx XXX 0000 0 Xxxxxxx Xxxxx
Xxxxxx XXX 0000
Tel (00) 0000 0000 Tel (00) 000 0000
Fax (00) 0000 0000 Fax (00) 000 0000
Ref: CLSCS109.106
3
CONTENTS
1. DEFINITIONS AND INTERPRETATION 5
1.1 Definitions 5
1.2 Interpretation 5
1.3 Recitals 5
2. ISSUE OF SHARES 6
2.1 Issue of Shares to BTI 6
2.2 Issue of Shares to Castella 6
2.3 Issue of Shares to Secure 6
3. ISSUE OF OPTIONS 6
3.1 Issue of Option to BTI 6
3.2 Issue of Option to Castella 7
3.3 Issue of Option to Secure 7
4. VARIATION OF SHAREHOLDERS' AGREEMENT 7
4.1 Variation 7
4.2 Confirmation of Shareholders' Agreement 7
4.3 Acknowledgement 7
4
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.
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Confidential materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote such omissions.
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.
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 BTI a further
******* ****** in the capital of the Company; and
(b) the Company issued to BTI an option to subscribe for a
further ****** Shares in the capital of the Company at a
price of ****** 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: ******
Secure: ******
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.
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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 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.
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Confidential materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote such omissions.
2. ISSUE OF SHARES
2.1 Issue of Shares to BTI
(a) On the date of this Agreement BTI must subscribe for, and be
issued with ****** in the capital of the Company issued at a
price of ****** per share (being $1.00 par and ****** premium
per share) for a total consideration of ******.
(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 ****** in the capital of the Company issued at the par
price of $1.00 per share for a total consideration of ******
payable on the date of this Agreement.
2.3 Issue of Shares to Secure
On the date of this Agreement Secure must subscribe for and be
issued with ****** in the capital of the Company issue at the par
price of $1.00 per share for a total consideration of ******
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 ****** in the
capital of the Company for a total consideration of US******
at any time on or before 31 December, 1996 ("the option").
(b) If BTI exercises the option the Company will issue BTI ******
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.
8
Confidential materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote such omissions.
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 ****** in the capital of
the Company issued at a price of $1.00 per share for a total
consideration of ****** 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 ****** in the capital of the
Company issued at a price of $1.00 per share for a total
consideration of ****** at any time on or before 31 December,
1996.
4. VARIATION OF SHAREHOLDERS' AGREEMENT
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.
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
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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.
SIGNED AS AN AGREEMENT on the date first appearing
SIGNED by BIOTRANSPLANT INC. )
by its director XXXXXX XXXXXXXX ) /s/ Xxxxxx Xxxxxxxx
in the presence of: )
(Witness)
SIGNED by CASTELLA RESEARCH )
PTY LTD by its director MAL BRANDON) /s/ Mal Brandon
in the presence of: )
(Witness)
SIGNED by SECURE SCIENCES PTY LTD )
by its director XXXXX XXXXXXXXX ) /s/ Xxxxx Xxxxxxxxx
in the presence of: )
(Witness)
SIGNED by STEM CELL SCIENCES )
PTY LTD by its director MAL BRANDON) /s/ Mal Brandon
in the presence of: )
(Witness)