|
BLAKE
DAWSON WALDRON
|
|
|
L
A
W Y E R S
|
|
|
Level
32, Exchange Plaza
2
The Esplanade
Perth
WA 6000
Telephone:
08 9366 8000
Fax:
08 9366 8111
|
17
August 2006
Ref:
DFP STJL 09 1395 3581
|
|
1.
|
INTERPRETATION
|
2
|
|
2.
|
TERMINATION
OF ARRANGEMENT AND RESIGNATION FROM OFFICES
|
3
|
|
3.
|
PROVISION
OF BENEFITS TO AYMON PACIFIC
|
4
|
|
4.
|
OPTIONS
|
4
|
|
5.
|
RELEASES
RELATING TO THE OFFICES
|
5
|
|
6.
|
RELEASES
RELATING TO ARRANGEMENT AND TERMINATION
|
5
|
|
7.
|
RETURNING
PROPERTY
|
6
|
|
8.
|
CONFIDENTIAL
INFORMATION AND CONTINUING OBLIGATIONS
|
6
|
|
9.
|
BAR
TO PROCEEDINGS
|
6
|
|
10.
|
ACKNOWLEDGEMENTS
BY AYMON PACIFIC AND REZOS
|
6
|
|
11.
|
KEEPING
THIS DOCUMENT CONFIDENTIAL
|
6
|
|
12.
|
BENEFIT
OF THIS DOCUMENT
|
7
|
|
13.
|
AMENDMENT
|
7
|
|
14.
|
GENERAL
|
7
|
|
A.
|
Rezos
was appointed to the position of managing director of pSivida Limited
based in Perth, Western Australia pursuant to an arrangement
whereby:
|
|
(a)
|
Rezos
is the nominated individual who provides management services to pSivida,
formerly on behalf of Aymon Pacfic, and subsequently on behalf of
Viaticus
Capital pursuant to a consultancy
agreement;
|
|
(b)
|
Rezos
is a director of pSivida for which he receives a fee (the Arrangement).
|
|
B.
|
Rezos
is a member of the boards of pSivida, pSivida Inc, pSiMedica Limited,
sPiOncology Limited and pSiNutria Limited (the Offices).
|
|
C.
|
Rezos
is a non-executive director of AION Diagnostics Inc and AION Diagnostics
Limited (collectively, AION).
|
|
D.
|
The
Arrangement will terminate on 31 July 2006 because Rezos can no longer
provide services in the position of managing director for personal
family
reasons
on
the basis that the role requires a majority of time to be spent outside
Australia at locations where pSivida’s facilities, majority of staff,
business partners and larger institutional shareholders are located
(the
Termination).
|
|
E.
|
pSivida
accepts the Termination.
|
|
F.
|
Rezos
will resign from the Offices on or before the
Termination.
|
|
G.
|
Rezos
will provide consultancy services to pSivida for a period of up to
6
months following the Termination.
|
|
H.
|
Rezos
will continue to serve as non-executive director of AION as pSivida's
nominee and at the pleasure of the Board of Directors of pSivida
(the
Board).
|
|
1.
|
INTERPRETATION
|
|
1.1
|
Definitions
|
|
(a)
|
pSivida
Inc;
|
|
(b)
|
pSiMedica
Limited;
|
|
(c)
|
sPiOncology
Limited;
|
|
(d)
|
pSiNutria
Limited;
|
|
(e)
|
AION
Diagnostics Limited;
and
|
|
(f)
|
AION
Diagnostics Inc;
|
|
1.2
|
Rules
for interpreting this
document
|
|
(a)
|
A
reference to:
|
|
(i)
|
a
document or agreement, or a provision of a document or agreement,
is to
that document, agreement or provision as amended, supplemented, replaced
or novated;
|
|
(ii)
|
a
party to this document or to any other document or agreement includes
a
permitted substitute or a permitted assign of that party;
|
|
(iii)
|
a
person includes any type of entity or body of persons, whether or
not it
is incorporated or has a separate legal identity, and any executor,
administrator or successor in law of the person;
and
|
|
(iv)
|
anything
(including a right, obligation or concept) includes each part of
it.
|
|
(b)
|
A
singular word includes the plural, and vice
versa.
|
|
(c)
|
A
word which suggests one gender includes the other
genders.
|
|
(d)
|
If
a word is defined, another part of speech has a corresponding
meaning.
|
|
(e)
|
If
an example is given of anything (including a right, obligation or
concept), such as by saying it includes something else, the example
does
not limit the scope of that thing.
|
|
(f)
|
A
reference to Group
includes any member of the Group.
|
|
1.3
|
Multiple
parties
|
|
(a)
|
an
obligation of those persons is joint and
several;
|
|
(b)
|
a
right of those persons is held by each of them severally;
and
|
|
(c)
|
any
other reference to that party or term is a reference to each of those
persons separately, so that (for example) a representation, warranty
or
undertaking is given by each of them
separately.
|
|
2.
|
Termination
of ARRANGEMENT and RESIGNATION FROM
OFFICES
|
|
2.1
|
Aymon
Pacific, Rezos and pSivida agree to terminate the Arrangement, with
effect
31 July 2006.
|
|
2.2
|
Rezos
will provide services to pSivida in accordance with a new consultancy
agreement commencing 1 August 2006, the essential terms of which
will include:
|
|
(a)
|
a
six month fixed term;
|
|
(b)
|
a
contract fee, the total cost of which to pSivida will not exceed
A$329,000
(exclusive of GST); and
|
|
(c)
|
for
so long as pSivida maintains a Perth office, whether during the term
of
the consultancy agreement or thereafter, pSivida will provide Rezos
with
use of a laptop computer, desktop computer, office, car space and
secretarial services (subject to pSivida executives being given preference
over Rezos in relation to the provision of secretarial
services).
|
|
2.3
|
Prior
to, or immediately upon execution of this document, Rezos will resign
from
all directorships, offices and positions that Rezos holds in
the Group
(with the sole exception of his positions as non-executive director
of
AION Diagnostics Inc and AION Diagnostics Limited) or in any external
organisation in connection with the Arrangement and
the
|
|
2.4
|
If
Rezos does not immediately resign from all directorships, offices
and
positions, Rezos authorises pSivida (or any persons authorised by
pSivida)
to do all things and execute all documents necessary on behalf of
Rezos to
effect these resignations.
|
|
2.5
|
Rezos
agrees to execute all documents and do all things necessary to resign
from
his position as non-executive director of AION Diagnostics Inc and
AION
Diagnostics Limited immediately upon receipt of a direction to do
so from
the Board.
|
|
3.
|
PROVISION
OF BENEFITS TO AYMON
PACIFIC
|
|
3.1
|
pSivida
will
pay to Aymon Pacific the amount of A$39,000 (gross) being the balance
of
all outstanding monies (fees and agreed nominal annual leave) payable
up
to 1 August 2006 in relation to the Arrangement (Payment).
|
|
3.2
|
pSivida
will withhold
from the Payment all amounts necessary for pSivida to comply with
pSivida's taxation obligations under Australian taxation
legislation.
|
|
3.3
|
Aymon
Pacific will provide pSivida a copy of this document properly executed
by
Aymon Pacific and Rezos in exchange for the Payment.
|
|
3.4
|
Aymon
Pacific and Rezos agree that the Payment and the consultancy agreement
referred to in clause 2.2 of this
document:
|
|
(a)
|
include
full compensation in lieu of any amount that pSivida or the Group
owes
Aymon Pacific or Rezos under any contract or arrangement, including
any
contract of employment or otherwise, whether for fees, salary, wages,
bonus payments, options or
other remuneration, leave entitlements, payment in lieu of notice,
severance pay, or anything else connected with the Arrangement, the
Offices and the Termination;
|
|
(b)
|
but
does not include any payment with respect to the options referred
to under
clause 4.
|
|
4.
|
Options
|
|
(a)
|
all
options in pSivida held by or on behalf of Rezos at the date of the
Termination will continue to vest until 31 January 2007 in accordance
with
any relevant rules or plan that applied in relation to the issue
of such
options;
|
|
(b)
|
Rezos
will automatically forfeit all unvested options in pSivida on 1 February
2007;
|
|
(c)
|
each
option in pSivida held by or on behalf of Rezos that has vested before
1 February 2007 will remain exercisable for the duration of the
option subject to its terms of grant and in accordance with the terms
of
any relevant rules or plan that apply in relation to the issue and/or
exercise of such options notwithstanding Rezos is no longer a director
of
pSivida or contractor to pSivida;
and
|
|
(d)
|
pSivida
will procure the same treatment as set out above for the options
in AION
Diagnostics Inc and AION Diagnostics Limited held by or on behalf
of
Rezos.
|
|
5.
|
RELEASES
RELATING TO THE OFFICES
|
|
5.1
|
Rezos
releases each member of the Group from all claims and liability arising,
directly or indirectly, out of the Offices and Rezos' resignation
from the
Offices. This release covers
all claims and liability, however described and however arising,
including
all claims and liability under legislation. It covers claims by,
and
liability to, anyone who claims through any party. It covers claims
and
liability that arise in the future. It covers all claims whether
or not
such claims are presently within the contemplation of any party and
whether or not the facts or law giving rise to any such claim are
presently within the belief or knowledge of any
party.
|
|
5.2
|
The
Group releases Rezos from all claims and liability arising directly
or
indirectly out of the Offices and Rezos' resignation from the Offices.
This release covers
all claims and liability, however described and however arising,
including
all claims and liability under legislation. It covers claims by,
and
liability to, anyone who claims through any party. It covers claims
and
liability that arise in the future. However, it does not cover any
claims
where the facts are not within the knowledge of the Board as at the
date
of this document.
|
|
6.
|
RELEASES
RELATING TO ARRANGEMENT and
Termination
|
|
6.1
|
This
document and the consultancy agreement referred to in clause 2.2
of this
document fully satisfy the rights that Aymon Pacific and Rezos, and
anyone
who claims through Aymon Pacific, Rezos or both of them, has or may
have
against the Group arising directly or indirectly out of the Arrangement
and the Termination.
|
|
6.2
|
Aymon
Pacific and Rezos release each member of the Group from all claims
and
liability arising directly or indirectly out of the Arrangement and
the
Termination
save for claims for the contract fee and pre approved documented
and
accepted expenses under the consultancy agreement referred to in
clause
2.2 of this document.
|
|
6.3
|
This
release covers
all claims and liability, however described and however arising,
including
all claims and liability under legislation. It covers claims by,
and
liability to, anyone who claims through Aymon Pacific, Rezos or both
of
them. It covers claims and liability that arise in the future. It
covers
all claims whether or not such claims are presently within the
contemplation of any party and whether or not the facts or law giving
rise
to any such claim are presently within the belief or knowledge of
any
party.
|
|
6.4
|
This
release:
|
|
(a)
|
includes
(but is not limited to) all claims and liability under the Workplace
Relations Act 1996
(Cth), Industrial
Relations Act 1979 (WA),
Minimum
Conditions of Employment Act 1993
(WA), Trade
Practices Act 1974 (Cth),
Fair
Trading Act 1987
(WA), anti-discrimination legislation, or for breach of contract
or any
common law or equitable claim; but
|
|
(b)
|
does
not apply to any claim or liability in respect of workers' compensation
under applicable legislation.
|
|
6.5
|
Notwithstanding
the provisions of this clause 6, nothing in this clause 6 shall operate
to
negate any existing obligations of any member of the Group to indemnify
and to keep indemnified Rezos or Aymon Pacific in relation to any
claim
made against Rezos or Aymon Pacific arising out of the lawful and
reasonable discharge by Rezos of his duties in connection with the
Offices
and the Arrangement.
|
|
7.
|
RETURNING
PROPERTY
|
|
7.1
|
Prior
to, or immediately upon execution of this document, and except as
the
continued possession of such property is directly relevant to the
performance of work by Rezos for pSivida under the new consultancy
agreement, Aymon Pacific and Rezos must return to
pSivida:
|
|
(a)
|
all
property belonging to the Group or its customers or clients (for
example,
cards, keys, equipment and materials) that Aymon Pacific or Rezos
has, or
should have and can reasonably obtain;
and
|
|
(b)
|
all
material that Aymon Pacific or Rezos has, or should have and can
reasonably obtain, that contains confidential information relating
to the
Group's business, organisation or
affairs.
|
|
7.2
|
In
this clause, material includes anything on which information is recorded,
for example, documents, computer disks and computer
records.
|
|
8.
|
CONFIDENTIAL
INFORMATION
AND CONTINUING OBLIGATIONS
|
|
9.
|
BAR
TO PROCEEDINGS
|
|
9.1
|
Each
member of the Group may use this document, including as a bar, against
Aymon Pacific, Rezos or both of them in any court or other proceedings
brought by Aymon Pacific, Rezos or both of them (or anyone who claims
through Aymon Pacific or Rezos).
|
|
9.2
|
Aymon
Pacific, Rezos or both of them may use this document, including,
to the
extent provided by this document, as a bar, against each member of
the
Group in any court or other proceedings brought by any member of
the
Group.
|
|
10.
|
ACKNOWLEDGEMENTS
BY Aymon
Pacific and Rezos
|
|
(a)
|
Aymon
Pacific and Rezos have had a reasonable opportunity to obtain legal
advice
about this document; and
|
|
(b)
|
the
terms of this document are fair and reasonable.
|
|
11.
|
KEEPING
THIS DOCUMENT CONFIDENTIAL
|
|
11.1
|
The
wording of an appropriate announcement regarding the Termination
has been
agreed between pSivida and Rezos.
|
|
11.2
|
Other
than in accordance with the announcement referred to in clause 11.1,
Aymon
Pacific and Rezos must not disclose the content of this document
or any
discussions and correspondence relating to the negotiation of this
document, unless pSivida first agrees in
writing.
|
|
11.3
|
Clause 11.2
does not prevent Aymon Pacific or Rezos disclosing information to
Aymon
Pacific's or Rezos' lawyer or accountant, respectively, on a confidential
basis or where the law says information must be disclosed (for example,
in
a tax return).
|
|
12.
|
BENEFIT
OF THIS DOCUMENT
|
|
13.
|
AMENDMENT
|
|
14.
|
GENERAL
|
|
14.1
|
Governing
law
|
|
(a)
|
This
document is governed by the law in force in Western
Australia.
|
|
(b)
|
Each
party submits to the non-exclusive jurisdiction of the courts exercising
jurisdiction in Western Australia, and any court that may hear appeals
from any of those courts, for any proceedings in connection with
this
document, and waives any right it might have to claim that those
courts
are an inconvenient forum.
|
|
14.2
|
Costs
|
|
14.3
|
Giving
effect to this document
|
|
14.4
|
Waiver
of rights
|
| (a) |
no
other conduct of a party (including a failure to exercise, or delay
in
exercising the right) operates as a waiver of the right or otherwise
prevents the exercise of the right;
and
|
|
(b)
|
a
waiver of a right on one or more occasions does not operate as a
waiver of
that right if it arises again; and
|
|
(c)
|
the
exercise of a right does not prevent any further exercise of that
right or
of any other right.
|
|
14.5
|
Operation
of this document
|
|
(a)
|
This
document and the consultancy agreement referred to in clause 2.2
of this
document contain the entire agreement between the parties about its
subject matter. Any previous understanding, agreement, representation
or
warranty relating to that subject matter is replaced by this document
and
has no further effect.
|
|
(b)
|
Any
provision of this document which is unenforceable or partly unenforceable
is, where possible, to be severed to the extent necessary to make
this
document enforceable, unless this would materially change the intended
effect of this document.
|
|
14.6
|
Counterparts
|
|
EXECUTED
by
pSivida Limited
ACN
009 232 026:
|
||
| /s/ Roger Brimblecombe | /s/ Aaron Finlay | |
|
Signature
of director
|
Signature
of director/secretary
|
|
| Roger Brimblecombe | Aaron Finlay | |
|
Name
|
Name
|
|
|
EXECUTED
by
Aymon
Pacific Pty Ltd, by
its sole director and sole company secretary:
|
/s/
Gavin Rezos
|
|
|
Signature
of sole director and sole company secretary
|
||
|
Mr.
Gavin Rezos
|
||
|
Name
|
||
|
EXECUTED
by
Viaticus
Capital Pty Ltd, by
its sole director and sole company secretary:
|
/s/
Gavin Rezos
|
|
|
Signature
of sole director and sole company secretary
|
||
|
Mr.
Gavin Rezos
|
||
|
Name
|
||
|
SIGNED,
SEALED
and DELIVERED
by
Gavin Rezos in
the presence of:
|
/s/
Gavin Rezos
|
|
|
Gavin
Rezos
|
||
| /s/ Tara Benthien | ||
|
Signature
of witness
|
||
| Tara Benthien | ||
|
Name
|