EX-4.4.1



 Exhibit 4.4.1 

Deed of Novation 
 The
Macfarlane Burnet Institute 
 for Medical Research and Public Health Ltd 

ACN 007 349 984 
 and 

Cancer Vac Pty Ltd 
 ACN 096 859 513

 and 
 Prima Biomed Ltd 

ACN 009 237 889 
 Middletons

 Melbourne office 
 Ref:
AHUT:KMAR: 10046336 







 Table of Contents 
  

							
	1.	 	 Definitions and interpretation
	  	 	1	  
			
	1.1	 	 Definitions
	  	 	1	  
	1.2	 	 Interpretation
	  	 	2	  
			
	2.	 	 Novation
	  	 	2	  
			
	2.1	 	 Agreement to novate
	  	 	2	  
	2.2	 	 Release and liability
	  	 	2	  
			
	3.	 	 Indemnities
	  	 	3	  
			
	3.1	 	 Indemnity by Retiring Party for period before the Effective Date
	  	 	3	  
	3.2	 	 Indemnity by Prima for period after the Effective Date
	  	 	3	  
	3.3	 	 Continuing indemnities and their survival
	  	 	3	  
			
	4.	 	 Representations and warranties
	  	 	3	  
			
	4.1	 	 General representations and warranties
	  	 	3	  
	4.2	 	 Limit on reliance
	  	 	3	  
			
	5.	 	 General
	  	 	4	  
			
	5.1	 	 Nature of obligations
	  	 	4	  
	5.2	 	 Entire understanding
	  	 	4	  
	5.3	 	 No adverse construction
	  	 	4	  
	5.4	 	 Further assurances
	  	 	4	  
	5.5	 	 No waiver
	  	 	4	  
	5.6	 	 Severability
	  	 	4	  
	5.7	 	 Successors and assigns
	  	 	5	  
	5.8	 	 No assignment
	  	 	5	  
	5.9	 	 Consents and approvals
	  	 	5	  
	5.10	 	 No variation
	  	 	5	  
	5.11	 	 Costs
	  	 	5	  
	5.12	 	 Duty
	  	 	5	  
	5.13	 	 Governing law and jurisdiction
	  	 	5	  
	5.14	 	 Notices
	  	 	5	  
	5.15	 	 Counterparts
	  	 	6	  
	5.16	 	 Relationship of parties
	  	 	6	  








 Deed of Novation 

Date 18th April 2012 

Parties 
  

	1.	The Macfarlane Burnet Institute for Medical Research and Public Health Ltd ACN 007 349 984 of 85 Commercial Road, Melbourne, Victoria 3004 (Burnet) 


 

	2.	Prima Biomed Ltd ACN 009 237 889 of Level 7, 151 Macquarie Street, Sydney, New South Wales 2000 (Prima) 


(collectively the Continuing Parties) 
  

	3.	Cancer Vac Pty Ltd ACN 096 859 513 of Level 7, 151 Macquarie Street, Sydney, New South Wales 2000 (Retiring Party) 


Background 
  

	A.	ARI, llexus, the Retiring Party and Prima are parties to the Principal Agreement. 

  

	B.	Pursuant to the Deed of Accession by Burnet to Prima dated 22 December 2005, Burnet agreed to be bound by all terms and conditions of the Principal Agreement in place of ARI and llexus on and from 1 January
2006. 

  

	C.	The parties agree to novate the Principal Agreement as set out in this Deed. 

 Agreed terms 

1. Definitions and interpretation 
 1.1 Definitions

 In this Deed: 
 ARI
means the Austin Research Institute ACN 007 418 22; 
 Business Day means a day that is not a Saturday, Sunday, public holiday or
bank holiday in Melbourne; 
 Deed means this deed including the recitals; 

Effective Date means the date of this Deed; 

llexus means llexus Pty Ltd ACN 041 772 103; and 

Principal Agreement means the Technology Licence Agreement between ARI, llexus, the Retiring Party and Prima dated 31 May 2001, as
amended from time to time, including by the Deed of Variation dated 24 August 2005. 







 1.2 Interpretation 

In this Deed, unless the context requires otherwise: 
  

	 	(a)	the singular includes the plural and vice versa; 

  

	 	(a)	a gender includes the other genders; 

  

	 	(b)	the headings are used for convenience only and do not affect the interpretation of this Deed; 

  

	 	(c)	other grammatical forms of defined words or expressions have corresponding meanings; 

  

	 	(d)	a reference to a document includes the document as modified from time to time and any document replacing it; 

  

	 	(e)	the words “in writing” include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient; 


 

	 	(f)	a reference to a thing includes a part of that thing; 

  

	 	(g)	a reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re enacted or replaced from time to time; and 


 

	 	(h)	wherever “include” or any form of that word is used, it must be construed as if it were followed by “(without being limited to)”. 


2. Novation 
 2.1 Agreement to novate 

On and from the Effective Date, the parties novate the Principal Agreement so that: 

 

	 	(a)	Prima assumes all of the Retiring Party’s rights and obligations under the Principal Agreement (Novated Agreement) (in addition to its own rights and obligations under the Principal Agreement);


  

	 	(b)	the Retiring Party has no further rights or obligations under the Principal Agreement other than as set out in this Deed; and 

  

	 	(c)	a reference in the Principal Agreement to the Retiring Party is to be read and construed in the Novated Agreement as a reference to Prima. 


2.2 Release and liability 
  

	 	(a)	The Continuing Parties release the Retiring Party from: 

  

	 	(i)	all of the Retiring Party’s obligations or liabilities under the Principal Agreement; and 

  

	 	(ii)	all actions, claims or proceedings that it may have against the Retiring Party connected with the Principal Agreement, 


arising in respect of events occurring on or after the Effective Date. 

  
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	 	(b)	The Retiring Party releases the Continuing Parties from: 

  

	 	(i)	all of the Continuing Parties’ obligations or liabilities under the Principal Agreement; and 

  

	 	(ii)	all actions, claims or proceedings that it may have against the Continuing Parties connected with the Principal Agreement, arising in respect of events occurring on or after the Effective Date. 


 

	 	(c)	Prima is not liable for any of the Retiring Party’s obligations or liabilities that arose under the Principal Agreement except as expressly provided under this Deed. 


3. Indemnities 
 3.1 Indemnity by Retiring Party for
period before the Effective Date 
 The Retiring Party unconditionally and irrevocably indemnifies Prima on demand against any claim,
loss, liability or expense which Prima incurs, pays, or is liable for, arising directly or indirectly from an act or omission of the Retiring Party in respect of the Principal Agreement. 

3.2 Indemnity by Prima for period after the Effective Date 

Prima unconditionally and irrevocably indemnifies the Retiring Party on demand against any claim, loss, liability or expense which the Retiring
Party incurs, pays, or is liable for, arising directly or indirectly from an act or omission of Prima in respect of the Novated Agreement. 
 3.3
Continuing indemnities and their survival 
 Each indemnity contained in this Deed is: 

 

	 	(a)	a continuing obligation despite a settlement of account or the occurrence of any other thing, and remains fully effective until all money owing, contingently or otherwise, under an indemnity has been paid in full; and


  

	 	(b)	an additional, separate and independent obligation and no one indemnity limits the generality of another indemnity. 


4. Representations and warranties 
 4.1 General
representations and warranties 
 Each party represents and warrants to each of the other parties that: 

 

	 	(a)	it has full power and authority to enter into and perform its obligations under this Deed; 

  

	 	(b)	it has taken all necessary action to authorise the signing, delivery and performance of this Deed in accordance with its terms; and 

  


	 	(c)	this Deed constitutes its legal, valid and binding obligations and is enforceable in accordance with its terms. 


4.2 Limit on reliance 
 No party has
entered into this Deed relying on any representation, warranty, promise or statement made by another party, or any other person on behalf of a party, other than those set out in this Deed. 

  
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 5. General 

5.1 Nature of obligations 
  

	 	(a)	Any provision in this Deed which binds more than one person binds all of those persons jointly and each of them severally. 

  

	 	(b)	Each obligation imposed on a party by this Deed in favour of another is a separate obligation. 

 5.2 Entire
understanding 
  

	 	(a)	This Deed contains the entire understanding between the parties concerning the subject matter of the Deed and supersedes all prior communications between the parties. 


 

	 	(b)	Each party acknowledges that, except as expressly stated in this Deed, that party has not relied on any representation, warranty or undertaking of any kind made by or on behalf of another party in relation to the
subject matter of this Deed. 

 5.3 No adverse construction 

This Deed is not to be construed to the disadvantage of a party because that party was responsible for its preparation. 

5.4 Further assurances 
 A party, at its
own expense and within a reasonable time of being requested by another party to do so, must do all things and execute all documents that are reasonably necessary to give full effect to this Deed. 

5.5 No waiver 
  

	 	(a)	A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Deed does not operate as a waiver of the power or right, 


 

	 	(b)	A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Deed. 


 

	 	(c)	A waiver of a breach does not operate as a waiver of any other breach. 

 5.6 Severability 

Any provision of this Deed which is invalid in any jurisdiction must, in relation to that jurisdiction: 

 

	 	(a)	be read down to the minimum extent necessary to achieve its validity, if applicable; and 

  

	 	(b)	be severed from this Deed in any other case, 

 without invalidating or affecting the remaining
provisions of this Deed or the validity of that provision in any other jurisdiction. 

  
 4 








 5.7 Successors and assigns 

This Deed binds and benefits the parties and their respective successors and permitted assigns under clause 5.8. 

5.8 No assignment 
 A party cannot assign
or otherwise transfer the benefit of this Deed without the prior written consent of each other party. 
 5.9 Consents and approvals 

Where anything depends on the consent or approval of a party then, unless this Deed provides otherwise, that consent or approval may be given
conditionally or unconditionally or withheld, in the absolute discretion of that party. 
 5.10 No variation 

This Deed cannot be amended or varied except in writing signed by the parties. 

5.11 Costs 
 Each party must pay its own
legal costs of and incidental to the preparation and completion of this Deed. 
 5.12 Duty 

 

	 	(a)	Any duty (including related interest or penalties) payable in respect of this Deed or any instrument created in connection with it must be paid by Prima. 


 

	 	(b)	Prima undertakes to keep the Retiring Party indemnified against all liability relating to the duty, fines and penalties. 


5.13 Governing law and jurisdiction 
  

	 	(a)	This Deed is governed by and must be construed in accordance with the laws in force in Victoria, Australia. 

  

	 	(b)	The parties submit to the exclusive jurisdiction of the courts of that State and the Commonwealth of Australia in respect of all matters arising out of or relating to this Deed, its performance or subject matter.


 5.14 Notices 
 Any
notice or other communication to or by a party under this Deed: 
  

	 	(a)	may be given by personal service, post or facsimile; 

  

	 	(b)	must be in writing, legible and in English addressed (depending on the manner in which it is given) as shown below: 

  

	 	(i)	If to Burnet: 

 Address: 85 Commercial Road, Melbourne, Victoria 3004 

Attention: Associate Professor David Anderson 

Facsimile: (03)92822100 
  

	 	(ii)	If to Prima: 

 Address: Level 7,151 Macquarie Street 

Sydney, New South Wales, 2000 

Attention: Martin Rogers 

Facsimile: (02) 9276 1284 

Attention: Martin Rogers 

Facsimile: (02) 9276 1284 

  
 5 








 (iii) If to the Retiring Party: 

Address:  Level 7,151 Macquarie Street 

Sydney, New South Wales, 2000 

Attention: Martin Rogers 

Facsimile: (02) 9276 1284 

or to any other address last notified by the party to the sender by notice given in accordance with this clause; 

 

	 	(c)	in the case of a corporation, must be signed by an officer or authorised representative of the sender or in accordance with section 127 of the Corporations Act 2001 (Cth) and 


 

	 	(d)	is deemed to be given by the sender and received by the addressee: 

  

	 	(i)	if delivered in person, when delivered to the addressee; 

  

	 	(ii)	if posted, 2 Business Days (or 6, if addressed outside Australia) after the date of posting to the addressee whether delivered or not; or 


 

	 	(iii)	if sent by facsimile transmission, on the date and time shown on the transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety and in legible form
to the facsimile number of the addressee notified for the purposes of this clause, 

 but if the delivery or receipt is on a
day which is not a Business Day or is after 4.00 pm (addressee’s time), it is deemed to have been received at 9.00 am on the next Business Day. 

5.15 Counterparts 
 If this Deed consists
of a number of signed counterparts, each is an original and all of the counterparts together constitute the same document. 
 5.16 Relationship of
parties 
 Unless this Deed expressly provides otherwise, nothing in this Deed may be construed as creating a relationship of
partnership, of principal and agent or of trustee and beneficiary. 

  
 6 








 Executed as a deed 

 

					
	Executed by The Macfarlane Burnet Institute for Medical Research and Public Health Ltd ACN 007 349 984 in accordance with section 127(1) of the Corporations Act 2001 (Cth):	 		 	
			
	 /s/ Brendan Crabb
	 		 	/s/ Pete Spiller
	 Signature of director
	 		 	 Signature of company secretary*

*delete whichever does not apply

			
	 BRENDAN CRABB
	 		 	PETE SPILLER
	 Name (please print)
	 		 	Name (please print)
			
	Executed by Cancer Vac Pty Ltd ACN 096 859 513 in accordance with section 127(1) of the Corporations Act 2001 (Cth): 	 		 	
			
	 /s/ Martin Rogers
	 		 	/s/ Ian Bangs
	 Signature of director
	 		 	 Signature of company secretary*

*delete whichever does not apply

			
	 MARTIN ROGERS
	 		 	IAN BANGS
	 Name (please print)
	 		 	Name (please print)
			
	Executed by Prima Biomed Ltd ACN 009 237 889 in accordance with section 127(1) of the Corporations Act 2001 (Cth): 	 		 	
			
	 /s/ Martin Rogers
	 		 	/s/ Ian Bangs
	 Signature of director
	 		 	 Signature of company secretary*

*delete whichever does not apply

			
	 MARTIN ROGERS
	 		 	IAN BANGS
	 Name (please print)
	 		 	Name (please print)


  
 7 








 middletons 

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www.middletons.com 
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telephone: +61 7 3233 1233 

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