exv10w16





Exhibit 10.16




	 	 	 
	

	 	201 Elizabeth Street

Sydney NSW 2000

Australia

DX 107 Sydney

Tel +61 2 9286 8000

Fax +61 2 9283 4144

www.dlaphillipsfox.com






12 January 2009




	 	 	 
	Deed of Mutual Release

	 	 
	 
	 	 
	Unilife Medical Solutions Limited
	 	 
	(ACN 008 071 403)
	 	 
	Jeff Carter
	 	 






 



	 	 	 
	 

	 	DLA Phillips Fox is a member of
	 

	 	DLA Piper Group, an alliance of
	 

	 	independent legal practices. It is a
	 

	 	separate and distinct legal entity.
	 
	 	 
	 

	 	DLA Phillips Fox offices are located
	 

	 	in Adelaide Auckland Brisbane
	 

	 	Canberra Melbourne Perth Sydney
	 

	 	and Wellington.





 


 









 










Table of Contents




	 	 	 	 	 
	Parties
	 	 	1	 
	Background
	 	 	1	 
	Operative provisions
	 	 	1	 
	1 Interpretation
	 	 	1	 
	Definitions
	 	 	1	 
	Construction
	 	 	2	 
	 
	 	 	 	 
	2 Payments
	 	 	2	 
	3 Board Position
	 	 	3	 
	4 Options
	 	 	3	 
	5 Release
	 	 	3	 
	6 Bar to proceedings
	 	 	4	 
	7 Confidential information and non-disclosure of document
	 	 	4	 
	8 Non disparagement
	 	 	5	 
	9 Warranty
	 	 	5	 
	10 Miscellaneous
	 	 	5	 
	Legal costs
	 	 	5	 
	Governing law and jurisdiction
	 	 	5	 
	Severability
	 	 	6	 
	Amendment
	 	 	6	 
	Waiver and exercise of rights
	 	 	6	 
	Further assurance
	 	 	6	 
	Counterparts
	 	 	6	 
	Entire deed
	 	 	6	 
	 
	 	 	 	 
	Execution and date
	 	 	7	 





 


 









 





			
	
	 	Deed of Mutual Release






Parties




Unilife Medical Solutions Limited ACN 008 071 403 of Level 5, 35 Clarence Street, Sydney, New South
Wales 2000 (Company)



Jeff Carter of [residential address omitted] (Executive)



Background




			
	A	 	The Executive has been employed by the Company as its Chief Financial Officer since on or about 23
February 2005 (Employment).






			
	B	 	The Company has determined to terminate the Employment due to redundancy effective on 31 January
2009 (Termination).






			
	C	 	The parties have agreed that the Termination occur on the terms set out in this Deed.





Operative provisions



1 Interpretation



Definitions




	1.1	 	In this Deed:
	 
	 	 	Claims means ail claims, demands, suits, causes of action, damages, debts, costs, verdicts
and judgments whatsoever whether at law or in equity or under any statute.
	 
	 	 	Confidential Information means all documents, submissions, data and material stored by
electronic or other means on which is recorded information which is confidential, secret or
unavailable to the general public in relation to any matter pertaining to the business,
affairs or intellectual property rights of the Group, including all diaries, planning
information, programming information, marketing information, statistics, financial accounts,
documents, papers, information relating to subcontractors, board minutes, management
records, client lists and minutes of meeting (and including copies of all of the above).
	 
	 	 	Group means the Company, each Related Company of the Company and any director, officer,
employee or agent of the Company or of any Related Company of the Company.
	 
	 	 	Letter of Employment means the letter of employment from the Company to the Executive dated
15 February 2005 as varied by a document dated 21 December 2006 and titled “Variation of
Employment Contract Dated 15 February 2005” between the Company and the Executive.
	 
	 	 	Option has the same meaning as ascribed to that term in the rules of the Plan.
	 
	 	 	Plan means the Unitract Limited Employee Share Option Plan.




 


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	 	Deed of Mutual Release







Related Company means a related body corporate as defined in section 50 of the Corporations
Act 2001.




Share means a share in the capital of the Company.



Construction




	1.2	 	Unless expressed to the contrary, in this Deed:






	 	1.2.1	 	words importing the singular include the plural and vice versa;
	 
	 	1.2.2	 	headings are inserted for convenience only and do not affect the
interpretation of this Deed;
	 
	 	1.2.3	 	where a word or phrase is given a defined meaning, another part of speech or
other grammatical form in respect of that word or phrase has a corresponding meaning;
	 
	 	1.2.4	 	a reference to:






	 	(a)	 	any person includes a reference to any individual,
company, body corporate, association, partnership, joint venture, trust or
government agency;
	 
	 	(b)	 	the word ‘include’ or ‘including’ is to be construed
without limitation;
	 
	 	(c)	 	a statute, ordinance, code or other law includes
regulations and other statutory instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;
	 
	 	(d)	 	a right includes a benefit, remedy, discretion, authority
or power;
	 
	 	(e)	 	any thing (including any amount) is a reference to the
whole or any part of it and a reference to a group of things or persons is a
reference to any one or more of them;
	 
	 	(f)	 	any agreement or document is to that agreement or
document as amended, novated, supplemented or replaced from time to time;
	 
	 	(g)	 	dollars or $ means Australian dollars; and
	 
	 	(h)	 	this Deed means the agreement recorded in this document





2 Payments





	2.1	 	The Company will, within seven days of the Termination and subject to the receipt of this
Deed duly executed by the Executive, pay to the Executive, after making ail and any
appropriate tax deductions:






	 	2.1.1	 	the sum of $68,700.00 (gross) being a payment in lieu of notice;
	 
	 	2.1.2	 	the sum of $206,100.00 (gross) being a redundancy payment; and




 


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	 	Deed of Mutual Release







	 	2.1.3	 	the sum of $29,206.75 (gross) being in respect of accrued annual leave.





3 Board Position




	3.1	 	The parties agree that the Termination does not affect the Executive’s position as a director
and secretary of the Company and the parties acknowledge that the Executive will continue to
be a director and secretary of the Company following the Termination.





4 Options





	4.1	 	The Company acknowledges for the benefit of the Executive that the plan committee that
administers the Plan has determined that since the Executive will remain a director and
secretary of the Company following the Termination, the Executive will continue to be an
“Employee” for the purposes of the Plan and as such the Executive’s rights under the Plan will
be unaffected by the Termination and none of the 2.5 million Options registered in the name of
the Executive (or his nominee) will lapse as a result of the Termination or the execution of
this Deed.





5 Release





	5.1	 	Subject to the terms of this Deed, the Executive hereby releases and discharges each and all
members of the Group from all Claims (with the exception of workers compensation Claims) which
the Executive has or which but for this Deed could, would or might at any time hereafter have
or have had against any member of the Group in respect of or arising out of, either directly
or indirectly, the Employment or the Termination including any Claims in respect of:






	 	5.1.1	 	annual leave entitlements;
	 
	 	5.1.2	 	long service leave entitlements;
	 
	 	5.1.3	 	notice of termination of the Employment or payment in lieu of notice;
	 
	 	5.1.4	 	redundancy or severance pay;
	 
	 	5.1.5	 	salary;
	 
	 	5.1.6	 	any entitlement under the Letter of Employment or an award, enterprise
agreement or other registered or unregistered industrial agreement including in respect
of wages, allowances, penalties, notice, redundancy payments, severance payments and
loadings;
	 
	 	5.1.7	 	superannuation;
	 
	 	5.1.8	 	any securities of the Company, including Options under the Plan and Shares
(except as outlined in clause 4.1 above);
	 
	 	5.1.9	 	director’s fees in relation to service as an executive director of the Group
prior to the date of Termination;




 


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	 	Deed of Mutual Release







	 	5.1.10	 	performance or incentive payments of any description, commissions, bonus payments or
drawings;
	 
	 	5.1.11	 	any other remuneration or employment benefits;
	 
	 	5.1.12	 	loss of reputation, stress, humiliation or embarrassment; or
	 
	 	5.1.13	 	discrimination, harassment, sexual harassment, victimization or vilification.






	5.2	 	To the extent permitted by law (including Part 2D.2 of the Corporations Act 2001 (Cth)) and
subject to clauses 5.3 and 7 of this Deed, the Company hereby releases and discharges the
Executive from ail Claims (with the exception of Claims relating to fraud or misconduct or a
breach of the restraint of trade provisions in the Letter of Employment) which the Company has
or which but for this Deed could, would or might at any time hereafter have or have had
against the Executive in respect of or arising out of, either directly or indirectly, the
Employment.






	5.3	 	The release and discharge in clause 5.2 does not in any way extend to any Claims which the
Group has or could, would or might at any time hereafter have against the Executive in respect
of or arising out of, either directly or indirectly, his position and actions as a director or
secretary of the Company or of any other company in the Group.






	5.4	 	The release and discharge in clause 5.1 will not operate to limit any rights of indemnity
which the Executive may have as a statutory officeholder of the Company or any other member of
the Group under the Constitution of such company, the Corporations Act 2001 (Cth) or, to the
extent permitted by law and the terms of the relevant insurance policy, any rights of
indemnity under any insurance policy maintained by the Company or any other member of the
Group in favor of its statutory officeholders.





6 Bar to proceedings





	6.1	 	The parties agree that this Deed may be pleaded by the parties or any member of the Group as
an absolute bar in any court of law, arbitral tribunal or otherwise in response to any
proceedings or Claim whatsoever brought by or on behalf of either party arising out of or
touching on or concerning the matters referred to or contained in this Deed.





7 Confidential information and non-disclosure of document





	7.1	 	Without in anyway limiting the continuing obligations of the Executive arising from the
Employment with respect to the Company’s confidential information or restraints on post
employment activity, including as referred to in the provisions of the Letter of Employment
titled ‘Business Dealings and Confidentiality’ and ‘Restraints of Trade’, the Executive hereby
covenants with the Company that following Termination the Executive will not use any
Confidential Information whatsoever or disclose any Confidential Information whatsoever to any
person except as required by law.






	7.2	 	The Executive further covenants that the Executive will take all action reasonably necessary
to maintain the confidentiality of any such Confidential Information which is known to the
Executive or of which the Executive becomes aware after the date hereof. This clause will not
apply to any information that becomes generally available to the public (other than as a result of a
breach of this clause by the Executive).




 


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	 	Deed of Mutual Release







	7.3	 	Subject to clause 7.4, the parties agree that they will not disclose the terms of this Deed
to any person other than their legal or financial advisers, or immediate family members on the
condition that they are required to keep the terms of this Deed confidential, or as may be
required by law.
	 
	7.4	 	The parties agree that the Company will be entitled to:






	 	7.4.1	 	lodge an announcement setting out the terms of this Deed with the Australian
Securities Exchange at any time and in such form as the Company determines; and
	 
	 	7.4.2	 	disclose the terms of this Deed in any documents of the Company that it is
required to disclose the information in and the Company will be entitled to disclose
the terms of this Deed in such documents in such form as the Company determines.





8 Non disparagement





	8.1	 	The Executive will not disparage the Company or any member of the Group or make any statement
or publication, whether oral or in writing which does, or is likely to, bring the Group or any
of its members into disrepute or ridicule or otherwise adversely affect their reputations.





9 Warranty




	9.1	 	The Executive warrants that:






	 	9.1.1	 	the Executive has voluntarily entered into this Deed;
	 
	 	9.1.2	 	other than as set out in this Deed, the Company has not made any promises,
representations or inducements to the Executive to enter into this Deed;
	 
	 	9.1.3	 	the Executive has had full opportunity to consult the Executive’s legal
advisers concerning the nature, effect and extent of this Deed; and
	 
	 	9.1.4	 	the Executive is aware that the Company is relying on this warranty in
executing this Deed.





10 Miscellaneous




Legal costs





	10.1	 	The parties will bear their own costs, including legal costs, in connection with the
preparation and execution of this Deed.





Governing law and jurisdiction





	10.2	 	This Deed is governed by and is to be construed in accordance with the laws in force in New
South Wales.




 


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	 	Deed of Mutual Release







	10.3	 	Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the
courts of New South Wales and any courts which have jurisdiction to hear appeals from any of
those courts and waives any right to object to any proceedings being brought in those courts.





Severability





	10.4	 	Any provision of this Deed which is or becomes illegal, void or unenforceable is severable,
and such provision will be ineffective to the extent only of such illegality, voidness or
enforceability and will not invalidate the remaining provisions.





Amendment




	10.5	 	This Deed may only be varied or replaced by a deed duly executed by both parties.





Waiver and exercise of rights





	10.6	 	A single or partial exercise or waiver of a right relating to this Deed will not prevent any
other exercise of that right or the exercise of any other right.






	10.7	 	A party will not be liable for any loss, cost or expense of the other party caused or
contributed to by the waiver, exercise, attempted exercise, failure to exercise or delay in
the exercise of a right.





Further assurance





	10.8	 	Each party must promptly execute all deeds and do all things that the other party from time
to time reasonably requires of it to effect, perfect or complete the provisions of this Deed
and any transaction contemplated by it.





Counterparts





	10.9	 	This Deed may consist of a number of counterparts and if so the counterparts taken together
will constitute one and the same document.





Entire deed





	10.10	 	This Deed embodies the entire understanding and agreement between the parties as to the
subject matter of this Deed.






	10.11	 	All previous negotiations, understandings, representations, warranties, memoranda or
commitments in relation to, or in anyway affecting, the subject matter of this Deed are merged
in and superseded by this Deed and are of no force or effect whatsoever and neither party will
be liable to the other party in respect of those matters.




 


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	 	Deed of Mutual Release







	10.12	 	No oral explanation or information provided by either party to the other:






	 	10.12.1	 	affects the meaning or interpretation of this Deed; or
	 
	 	10.12.2	 	constitutes any collateral agreement, warranty or understanding between the parties.





Execution and date




Executed as a deed.



Date: 12 January 2009




Executed as a deed by Unilife Medical

Solutions Limited by:



	 	 	 
	/s/ Jim Bosnjak

	 	/s/ Alan Shortall
	Signature of director

	 	Signature of director
	Name of director: Jim Bosnjak

	 	Name of director: Alan Shortall






Executed as a deed by Jeff Carter in the

presence of:




	 	 	 
	/s/ Robert Snoch

	 	/s/ Jeff Carter
	Signature of witness

	 	Signature of Jeff Carter
	 
	 	 
	Robert Snoch
	 	 
	Name of witness (print)
	 	 







 


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