1
Confidential materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote such omissions.
DATED this 16th day of March 1997
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
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: CLSCS113.27
2
AGREEMENT TO FURTHER VARY SHAREHOLDERS' AGREEMENT dated the
day of , 1997
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. The Shareholders' Agreement was varied by Variations of the
Shareholders' Agreement made on 2 February 1996 and 20 December
1996 (the "Second Variation Agreement").
2
3
Confidential materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote such omissions.
C. Pursuant to the Second Variation Agreement:
(a) BIT was issued with an option to subscribe for
****** in the capital of the Company for a total
consideration of US ****** at any time on or before
31 December, 1996;
(b) Castella was issued with an option to subscribe for
****** in the capital of the Company for a total
consideration of ******at any time on or before 31
December, 1996; and
(c) Secure was issued with an opton to subscribe for
******in the capital of the Compay for a total
consideration of ****** at any time on or before 31
December, 1996
D. None of BTI, Castella and Secure have exercised the options issued
to them pursuant to the Second Variation Agreement.
E. BTI has agreed to provide an amount of equity capital to the
Company.
F. 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.
G. 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.
H. 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.
I. The parties wish by this Agreement to record the matters set out
in Recitals E to G and to vary the Shareholders' Agreement to the
extent necessary to take account of those matters.
3
4
Confidential materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote such omissions.
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
2.1 Issue of Shares to BTI
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 ******
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.
4
5
Confidential materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote such omissions.
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, 1997 ("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.
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,
1997.
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,
1997.
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.
5
6
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.
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)
6
7
/netuser5/xxxxxx/op/101300.104/10Q.3.31/97amdt_s.wpf
