Exhibit 4.7


 


	
   

  	
   

  	
  

  
	
  Industry

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Research and

  	
   

  	
   

  
	
   

  	
   

  	
  R & D Start Program

  
	
   

  	
   

  	
  Grant Agreement

  
	
  Development

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Board

  	
   

  	
   

  



General Conditions


 


Table of contents


 


	
  Clause

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  1

  	
  Interpretation

  	
   

  
	
   

  	
   

  	
   

  
	
  2

  	
  Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  3

  	
  Payment
  of Grant

  	
   

  
	
   

  	
   

  	
   

  
	
  4

  	
  Conduct
  of Project

  	
   

  
	
   

  	
   

  	
   

  
	
  5

  	
  Evaluation

  	
   

  
	
   

  	
   

  	
   

  
	
  6

  	
  Commercialisation

  	
   

  
	
   

  	
   

  	
   

  
	
  7

  	
  Other
  Financial Assistance

  	
   

  
	
   

  	
   

  	
   

  
	
  8

  	
  Acquittal
  of Grant

  	
   

  
	
   

  	
   

  	
   

  
	
  9

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  10

  	
  No Dealing With Grantee’s rights

  	
   

  
	
   

  	
   

  	
   

  
	
  11

  	
  Start Premium : Repayable Contribution

  	
   

  
	
   

  	
   

  	
   

  
	
  12

  	
  Acknowledgement and Public Statements

  	
   

  
	
   

  	
   

  	
   

  
	
  13

  	
  Goods
  and Services Tax

  	
   

  
	
   

  	
   

  	
   

  
	
  14

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  
	
  15

  	
  General

  	
   

  



 


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Operative Provisions


 


1                                         Interpretation


 


1.1                                 Unless
the contrary intention appears:


 


Application means
the application submitted by the Grantee in respect of which the Grant has been
awarded.


 


Approved Financial Institution means
a deposit taking institution authorised under the Banking Act 1959 (Cth) to
carry on banking business in Australia.


 


Budget means the
budget of planned Eligible Expenditure (by Financial Year) for the Project (set
out in item 7 of the schedule].


 


Completion Date means
the agreed completion date for the Project set out in item 3(b) of the
schedule.


 


Control has the
meaning given by section 50AA of the Corporations Act 2001 (Cth)


 


Core Start has the
meaning given in the definition of “Start Grants” in clause 4(1) of the
Directions.


 


Deal With means:


 


(a)                                  sell,
transfer, novate, declare a trust over or otherwise dispose of or procure or effect
the disposal of, any interest or right; or


 


(b)                                 effect
a change in the beneficial interest or beneficial unit holding under a trust
which has an interest or right.


 


Directions means the
R&D Start Program Directions No. 3 of 2002.


 


Eligible Expenditure has
the meaning given in clause 4(1) of the Directions and the relevant Industry
Research and Development Board policies effective at the date of this deed.


 


Encumbrance means a
security interest or any other legal or equitable interest or right which is either
imposed by law or which is given to any person, over property or rights under a
contract.


 


Financial Year means
the 12 month period beginning 1 July of one year and ending 30 June of the
following year.


 


Floating Charge has
the meaning given by section 9 of the Corporations Act 2001 (Cth).


 


Grant means the
amount set out in item 4 of the schedule.


 


Grant Percentage means
the percentage of Eligible Expenditure to be paid to the Grantee as the Grant,
as set out in item 5 of the schedule.


 


GST has the same
meaning as in the A New Tax System (Goods and Services Tax) Act 1999.


 


Insolvent means
being an insolvent under administration or insolvent (each as defined in the
Corporations Act 2001) appointed, or being in receivership, in receivership and
management, in liquidation, in provisional liquidation, under administration,
wound up, subject to any arrangement, assignment, or


 


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composition, protected from creditors under any statute, dissolved
(other than to carry out a reconstruction while solvent) or being otherwise
unable to pay debts when they fall due or having something with the same or
similar effect happen under the laws of any jurisdiction.


 


Intellectual Property means
all statutory and other proprietary rights in respect of trade marks, patents,
circuit layouts, copyrights, designs, moral rights, confidential information,
expertise, knowledge, skills, techniques, methods, procedures, ideas and
concepts, plant varieties and all other rights with respect to intellectual
property as defined in Article 2 of the July 1967 Convention Establishing the
World Intellectual Property Organisation.


 


National Benefit Indicators for Commercialisation
Purposes means the desirable indicators agreed by the
Industry Research & Development Board, from time to time, by which the
national benefit contribution for commercialisation purposes of R&D Start
projects to Australia and the Australian economy is to be assessed.


 


Particular Conditions means
those conditions which are specific to the Grant and the Project.


 


Payment Schedule means
the schedule of annual payments of the Grant (by Financial Year) set out in
item 7 of the schedule.


 


Performance Milestone means
a performance milestone set out in item 10 of the schedule.


 


Program Funding means
the funding made available by the Parliament of the Commonwealth of Australia
for the R&D Start Program in any given Financial Year, being the funding
specified in the Portfolio Budget Statement (as varied by any Portfolio
Additional Estimates Statement) for that year.


 


Project means the
project described in item 9 of the schedule.


 


Project Intellectual Property means
Intellectual  Property created in the
course of the Project including improvements, inventions and discoveries
arising out of the conduct of the Project.


 


R&D Start Program has
the meaning given to that term in clause 4(1) of the Directions.


 


Relevant Year for
the Grantee means:


 


(a)                                  if
the Grantee has been incorporated for each of 
the 3 years preceding the year of 
income in which the Application is made - each of those years; or


 


(b)                                 if
the Grantee has been incorporated for fewer than 3 years preceding the year of
income in which the Application is made - each of those years in which the
Grantee was incorporated.


 


Repayable Contribution means
that part of the Grant which is made under Start Premium that is:


 


(a)                                  that
percentage by which the Grant exceeds 50% of the Eligible Expenditure on the
Project, where provided in conjunction with Core Start; and


 


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(b)                                 that
percentage by which the Grant exceeds 20% of the Eligible Expenditure on the
Project, where provided in conjunction with Start Plus.


 


Retention Amount means
the amount specified in item 11 of the schedule.


 


Start Plus means the
program of financial assistance for research and development projects of non
tax-exempt companies with turnovers of $50 million or more in one, or more than
one, Relevant Year.


 


Start Premium means
the program of financial assistance:


 


(a)                                  for
high merit research and development projects of non tax-exempt companies; and


 


(b)                                 that
is repayable to the Commonwealth.


 


1.2                                 Including, includes and in particular do not limit the words
which precede them or to which they refer.


 


1.3                                 Unless
the contrary intention appears:


 


(a)                                  a
person includes a firm, a body corporate, an unincorporated association or an
authority;


 


(b)                                 an
agreement, representation or warranty in favour of two or more persons is for
the benefit of them jointly and severally;


 


(c)                                  an
agreement, representation or warranty on the part of two or more persons binds
them jointly and severally;


 


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


 


(e)                                  a
reference to a statute, ordinance, code or other law includes regulations and
other instruments made under it and consolidations, amendments, re-enactments
or replacements or any of them; and


 


(f)                                    where
any word or phrase is given a defined meaning, any other part of speech or
other grammatical form in respect of that word or phrase has a corresponding
meaning.


 


1.4                                 Headings
are inserted for convenience of reference only and are not to be used in the
interpretation of this deed.


 


1.5                                 A
reference to the schedule is a reference to the schedule to the Particular
Conditions.


 


1.6                                 A
reference to this deed includes the Particular Conditions.


 


2.                                      Warranties


 


2.1                                 The
Grantee warrants that as at the date of this deed and on each day during the
term of this deed:


 


(a)                                  all
information that the Grantee provides to the Commonwealth from time to time
(including information given in the Application (except as otherwise specified
in this deed), incorporated into the Particular Conditions, or given in any
report to the Commonwealth by the Grantee under this deed is true and correct;


 


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(b)                                 Without
limiting the generality of clause 2.1(a):


 


(1)                                  the
Grantee is:


 


(A)                              incorporated
under the Corporations Act 2001 (Cth); and


 


(B)                                not
exempt from income tax; and


 


(C)                                registered
for GST purposes pursuant to the A New Tax System (Goods and Services Tax) Act
1999 with the Australian Business Number as specified adjacent to the Grantee’s
name on the first page of the Particular Conditions;


 


(2)                                  the
Project involves research and development activities (as defined in the
Industry Research and Development Act 1986 (Cth));


 


(3)                                  the
Grantee does not have any interests or obligations that conflict with its
interests or obligations under this deed; and


 


(4)                                  if
the Grantee is a recipient of financial assistance under Core Start, the combined
turnover of the Grantee, and each body corporate (if any) related to the
Grantee, is less than $50 million in the Relevant Year;


 


(c)                                  the
Grantee, has and will have, at all times, all the necessary rights in respect
of all Intellectual Property and technical information, including but not
limited to, all designs, specifications, data, drawings, plans, reports,
models, prototypes and other things that will be required to conduct the
Project and to commercialise the Project’s outcome; and


 


(d)                                 the
Grantee is not aware of any circumstances which adversely affect or might
adversely affect the Grantee’s ability to fulfill its obligations under this
deed.


 


2.2                                 If
the Grantee becomes aware of a breach of warranty, the Grantee must immediately
notify the Commonwealth of that breach.


 


2.3                                 The
Commonwealth warrants that as at the date of this deed, and on each day during
the term of this deed, the Department of Industry, Tourism and Resources is
registered for GST purposes pursuant to the A New Tax System (Goods and
Services Tax) Act 1999 with the Australian Business Number as specified
adjacent to the Commonwealth’s name on the first page of the Particular
Conditions.


 


3                                         Payment of Grant


 


Payment of Grant


 


3.1                                 The
Commonwealth is obliged to pay the Grant to the Grantee in accordance with the
Payment Schedule only if:


 


(a)                                  The
commonwealth has sufficient Program Funding available at the time a payment is
due to the Grantee; and


 


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(b)                                 the
Grantee has demonstrated satisfactory progress and expenditure on the Project
in accordance with this deed.


 


3.2                                 The
Grantee will be entitled to be paid the Grant Percentage of Eligible
Expenditure incurred on the Project during the duration of the Project as
specified in item 3 of the schedule, up to but not exceeding the amount of the
Grant.


 


3.3                                 Expenditure
incurred on the Project which is not paid by the Grantee within 3 months of
completion of the Project will be deemed not to be Eligible Expenditure.


 


3.4                                 In
any given Financial Year of the Project, the Commonwealth is not obliged to pay
to the Grantee an amount in excess of the total amount shown as payable during
that year in the Payment Schedule.


 


3.5                                 On
or about 16 March of each Financial Year, the Commonwealth may;


 


(a)                                  where
a revised Budget has been approved under clause 4.4 for that year:


 


(1)                                  vary
the Grant to equal the Grant Percentage of revised Budgeted Eligible
Expenditure; or


 


(2)                                  vary
the Payment Schedule to reflect any change in the timing or amount of Budgeted
Eligible Expenditure; or


 


(b)                                 where
no revised Budget has been approved under clause 4.4 for that year - vary the
Grant or the Payment Schedule as the Commonwealth considers reasonably
necessary having regard to actual Eligible Expenditure incurred to date and progress
of the Project.


 


Progress Payments


 


3.6                                 The
Grant will be paid in instalments by direct credit to the bank account
established by the Grantee under clause 4.12.


 


3.7                                 An
initial payment, and subsequent progress payments, may be made in advance for the
next quarterly period, in the Commonwealth’s absolute discretion.


 


3.8                                 Subject
to the other terms of this deed, subsequent progress payments will be made if
the Commonwealth is satisfied the Grantee has incurred the relevant Eligible
Expenditure, achieved satisfactory progress on the Project having regard to
Performance Milestones, submitted all progress reports due, and met its other
obligations under this deed.


 


3.9                                 The
commonwealth may defer a progress payment otherwise due in a Financial Year to
the next Financial Year if, in the Commonwealth’s reasonable opinion,
insufficient Program Funding may be available to meet that commitment in the
first-mentioned Financial Year.


 


3.10                           Notwithstanding
any other clause of this deed, the Grantee is not entitled to a payment if that
payment would result in the Grantee having received in total more than the
Grant Percentage of Eligible Expenditure incurred by the Grantee up to the date
of the most recent progress report.


 


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3.11                           Subject
to clause 3.12, the final payment, including the Retention Amount, will be made
to the Grantee when the Project has been completed to the satisfaction of the
Commonwealth and the Grantee has provided all reports, and will be equal to the
Grant Percentage of the total Eligible Expenditure that the Grantee has made on
the Project, less all payments previously made.


 


3.12                           The
Grantee will not be entitled to receive any amount which, when added to all
payments previously made, would result in the Grantee receiving more than the
total amount of the Grant.


 


Commonwealth rights


 


3.13                           The
Commonwealth’s determination as to whether expenditure on the Project is
Eligible Expenditure is final and binding on the Grantee.


 


3.14                           The
Commonwealth is not obliged to make any payment of the Grant:


 


(c)                                  if,
in the Commonwealth’s reasonable opinion, the Grantee has not complied with all
its obligations under this deed;


 


(d)                                 if
the Grantee becomes Insolvent; or


 


(e)                                  after
the Commonwealth has become entitled to terminate the deed.


 


4                                         Conduct of Project


 


Conduct of Project


 


4.1                                 The
Grantee must use the Grant solely for the Project and in accordance with the
Budget and the terms of this deed.


 


Initial Project Budget


 


4.2                                 The
Grantee must, if it has not already done so, provide the Commonwealth with a
Budget within 7 days of the date of this deed, in the form approved by the
Commonwealth.


 


Annual Budget review


 


4.3                                 The
Grantee must give to the Commonwealth by 1 February of each Financial Year a
revised Budget in the form approved by the Commonwealth, including details of
any changes the Grantee reasonably considers necessary so as to ensure the
Budget continues to accurately reflect planned Eligible Expenditure for the
Project.


 


4.4                                 The
Commonwealth may approve or reject a revised Budget in its sole discretion
within 30 days of receipt.


 


4.5                                 If
the revised Budget is approved by the Commonwealth, the then current Budget is
replaced by the revised Budget approved under clause 4.4.


 


Project Performance


 


4.6                                 If
a Performance Milestone is not achieved or is unlikely to be achieved by the
date for achievement of that Performance Milestone as set out in item 10 of the
schedule the Grantee must notify the Commonwealth in its next report.


 


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4.7                                 When
notifying the Commonwealth pursuant to clause 4.6, the Grantee must specify:


 


(a)                                  the
Grantee’s proposal to ensure that the planned outcomes of the Project are
achieved;


 


(b)                                 the
planned date for achievement of the relevant Performance Milestone;


 


(c)                                  the
expected effect the delay will have on the Project; and


 


(d)                                 changes
to key personnel, if any, having an impact on the matters reported under
paragraphs (a) to (c).


 


4.8                                 Upon
receipt of notification pursuant to clause 4.6. if the Commonwealth considers
in the Commonwealth’s absolute discretion that the failure by the Grantee to
reach a Performance Milestone may compromise the capacity of the Grantee to
achieve the planned outcomes for the Project the Commonwealth may terminate the
deed pursuant to clause 9.


 


Variations


 


4.9                                 The
Grantee may reallocate Budgeted expenditure or vary its work methods and
schedules as it considers necessary to undertake and complete the Project,
provided it does not materially change the Project.


 


4.10                           If
the Grantee wishes to alter or modify a Performance Milestone or there is any
breach or likely breach of this deed the Grantee must notify the Commonwealth
in its next report.


 


4.11                           Upon
receipt of notification pursuant to clause 4.10, the Commonwealth may, in the
Commonwealth’s absolute discretion, by written response to the Grantee, approve
or not approve the Grantee’s proposal to ensure that the planned outcomes of
the Project are achieved.


 


Bank Account


 


4.12                           The
grantee must establish a separate account with an Approved Financial
Institution for the sole purpose of handling the Grant and interest on the
Grant, and provide the Commonwealth with sufficient details to identify the
account on request.


 


4.13                           The
Grantee must pay all installments of the Grant into the account and not use the
account for any purpose other than the deposit and withdrawal of the Grant and
any interest.


 


Reporting


 


4.14                           The
Grantee must give to the Commonwealth reports relating to the conduct and
management of the project and the commercialisation of its outcomes in the
form, containing the matters and at the times required by the Commonwealth from
time to time, which requirements as at the date of this deed are set out in
item 12 of the schedule.


 


4.15                           If
the Commonwealth requires a report to be audited, the report must be audited by
a member of the Institute of Chartered Accountants, a member of the Society of
Certified Practising Accountants or a Public Practice Certified


 


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Member of the National Institute of Accountants, not being an employee,
shareholder, director or other officeholder of the Grantee.


 


4.16                           If
in the Commonwealth’s opinion either the form or the content of a report is not
adequate for the Commonwealth’s purposes, and the Commonwealth gives notice to
the Grantee to that effect, the Grantee must submit a revised report
satisfactory to the Commonwealth within 30 days of receipt of notice by the
Grantee.


 


Records to be kept


 


4.17                           The
Grantee must keep to the Commonwealth’s satisfaction all records (including
original receipts and invoices) relating to the conduct and management of the
Project and commercialisation of its outcomes, necessary to provide a complete,
detailed record and explanation of:


 


(a)                                  expenditure
by the Grantee on the Project;


 


(b)                                 Project
activities and the progress of the Project and its commercialisation;


 


(c)                                  any
amounts of GST paid by the Grantee in respect of any supply made to the
Commonwealth under this deed; and


 


any other records relating to the Project
which are required by the Commonwealth.


 


4.18                           Those
records must be retained by the Grantee during the Project and for 5 years
after the Completion Date.


 


Inspection and audit


 


4.19                           The
Commonwealth or its auditor may at reasonable times and on reasonable notice
enter the Grantee’s premises and inspect the records kept by the Grantee, and
progress with the Project, to review the Grantee’s compliance with this deed.


 


4.20                           The
Grantee must give the Commonwealth and its auditor all necessary facilities and
assistance to enable them to conduct an audit.


 


4.21                           In
conducting a review under clause 4.19, the Commonwealth or its auditor may take
copies of any records (books, documents, invoices, receipts and any other
papers) that the Commonwealth or the auditor considers relevant to the Project.


 


Confidentiality


 


4.22                           The
Commonwealth must ensure that it and anyone authorised by it use confidential
information to which they are given access, only for the purposes of this deed
and do not disclose or use it for any other purpose unless required by law.


 


Affirmative Action


 


4.23                           The
Grantee must in undertaking the Project and commercialising its outcomes comply
with its obligations, if any, under the Equal Opportunity for
Women in the Workplace Act 1999.


 


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5                                         Evaluation


 


5.1                                 The
Grantee must cooperate in the evaluation of the R&D Start Program by the
Commonwealth.


 


5.2                                 The
Grantee must, if requested by the Commonwealth, provide information and
completed survey forms relating to the Project and the R&D Start Program
during the Project and for 5 years after the Completion Date.


 


5.3                                 The
Grantee must comply with a request under clause 5.2 within 28 days of receiving
the request.


 


6                                         Commercialisation


 


6.1                                 The
Grantee must use its best endeavours to commercialise the Project on normal
commercial terms within a reasonable time of completion of the Project.


 


6.2                                 The
parties acknowledge that the giving of the Grant for the purposes of the
Grantee undertaking the Project is intended to deliver substantial national
benefit to Australia, and that substantial national benefit will be deemed to
have been satisfactorily delivered either where the Project is undertaken and
commercialised as represented by the Grantee in the Application, or where
although the Project is commercialised in a country other than Australia it is
undertaken and commercialised in line with the National Benefit Indicators for
Commercialisation Purposes.


 


6.3                                 The
Grantee must notify the Commonwealth immediately if, at any time, the Grantee
decides that it wishes to commercialise the Project other than as represented
in the Application and as a result of the proposed change:


 


(a)                                  the
Project would no longer be commercialised on normal commercial terms;


 


(b)                                 significantly
additional aspects of the Project would be commercialised in a country other
than Australia; or


 


(c)                                  any
overseas commercialisation would deliver significantly reduced national benefit
when compared to the proposed commercialisation arrangements set out in the
Application.


 


The Grantee must when notifying the
Commonwealth give details of its reasons for making its decision.


 


6.4                                 If
the Commonwealth (whether or not it has received a notice from the Grantee
under clause 6.3) is of the opinion that the Grantee is not commercialising the
Project on normal commercial terms, or that the Grantee’s commercialisation is
not delivering substantial national benefit as contemplated by clause 6.2, the
Commonwealth may by notice to the Grantee require the Grantee to repay some or
all of the Grant, together with interest at the rate specified in item 6 of the
schedule.


 


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7                                         Other Financial Assistance


 


7.1                                 The
Grantee must give the Commonwealth details of any financial assistance the
Project receives from another Commonwealth, State or Territory government
source.


 


7.2                                 The
Commonwealth may reduce the size of the Grant after taking into account that
other financial assistance.


 


8                                         Acquittal of Grant


 


8.1                                 If
at any time the total amount paid to the Grantee under this deed exceeds:


 


(a)                                  the
Grant; or


 


(b)                                 the
total of the Grant Percentage of the Eligible Expenditure incurred to date,


 


the Commonwealth may by notice to the Grantee require the Grantee to
repay the amount of the excess to the Commonwealth.


 


8.2                                 If
the Grantee expends the Grant other than in accordance with this deed the
Commonwealth may by notice require the Grantee to repay all or some of the
Grant paid to the Grantee, plus interest at the rate set out in item 6 of the
schedule.


 


8.3                                 If
the Commonwealth gives the Grantee a notice under clause 8.1 or 8.2, the
Grantee must repay to the Commonwealth the amount notified within 28 days of
receipt of the notice.


 


9                                         Termination


 


9.1                                 Subject
to clause 9.4 the Commonwealth may terminate this deed by notice to the Grantee
if:


 


(a)                                  the
Grantee is in breach of this deed, that breach is capable of being remedied and
the Grantee fails to remedy that breach within 21 days of receipt of a notice
from the Commonwealth requiring it to do so (or within any longer period
specified in the notice);


 


(b)                                 the
Grantee is in breach of a warranty set out in this deed;


 


(c)                                  the
Grantee is otherwise in breach of this deed; or


 


(d)                                 the
Grantee is unable, or threatens to become unable, to pay all of its debts as
and when they become due, or goes into administration or receivership.


 


9.2                                 On
termination of this deed:


 


(a)                                  the
Commonwealth’s obligation to pay any amount of the Grant that is unpaid as at
the date of termination ceases;


 


(b)                                 the
Grantee must give the Commonwealth reports as required by the Commonwealth as
at the date of termination; and


 


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(c)                                  the
Commonwealth may by notice to the Grantee require the Grantee to repay some or
all of the Grant paid to the Grantee, plus interest at the rate set out in item
6 of the schedule.


 


9.3                                 Interest
payable under clauses 6.4, 8.2 and 9.2(c) is calculated on daily rests from the
date of payment by the Commonwealth of an amount under clause 3 to the date of
repayment by the Grantee.


 


9.4                                 The
Commonwealth may not take action under clause 9 for a breach of this deed due
to a cause or causes beyond the Grantee’s reasonable control which does not
continue for more than 12 weeks in the aggregate.


 


9.5                                 This
deed may be terminated at any time by the mutual written agreement of the
parties.


 


10.                               No Dealing With Grantee’s rights


 


10.1         Unless
expressly authorised to do so under this deed, the Grantee must not Deal With
or grant or create any Encumbrance over its rights under this deed or its
interest in the Project Intellectual Property without the prior written consent
of the Commonwealth.


 


10.2         A
change in Control of the Grantee is taken to be Dealing With the Grantee’s
rights under this deed.


 


10.3         If
the Grantee Deals With, or grants or creates any Encumbrance over its rights
under this deed or its interest in the Project Intellectual Property without
the prior written consent of the Commonwealth and the Commonwealth reasonably
considers that this event adversely affects or may adversely affect the
objectives from time to time of the R&D Start Program, the Commonwealth may
terminate this deed pursuant to clause 9.


 


10.4         The
Commonwealth may impose conditions (a breach of which is a breach of this deed)
in giving its consent under clause 10.1, including, but not limited to,
requiring the Grantee and any other person concerned in a transaction referred
to in clause 10.1 to execute all documentation as required by the Commonwealth.


 


10.5         The
giving of a Floating Charge over the assets and undertaking of the Grantee is
not to be taken to be a breach of clause 10.1.


 


11                                  Start Premium: Repayable Contribution


 


11.1                           If
the Grantee is a recipient of financial assistance under Start Premium, the
Grantee must repay to the Commonwealth the Repayable Contribution plus interest
at the rate set out in item 15.3 of the schedule in accordance with the
requirement set out in item 15 of the schedule.


 


12.                               Acknowledgement and Public Statements


 


12.1                           The
Grantee must acknowledge the financial assistance received from the
Commonwealth under the R&D Start Program in any public statements about the
Project until the Completion Date.


 


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12.2         The
Commonwealth may publicise the awarding of the Grant at any time after it is
awarded.


 


12.3         The
Commonwealth may include in press releases and general announcements about the
Grant and in its annual report, the following information.


 


(a)                                  the
name of the Grantee;


 


(b)                                 the
amount of the Grant; and


 


(c)                                  the
title and a brief description of the Project.


 


13                                  Goods and Services Tax


 


13.1         Unless
otherwise indicated, all consideration for any supply under this deed is
exclusive of any GST imposed in relation to the supply.


 


13.2         If
GST is imposed on any supply made by the Grantee to the Commonwealth under this
deed, the Commonwealth will pay the amount imposed to the Grantee in addition
to the consideration required under this deed.


 


13.3         If
for any reason the Commonwealth pays to the Grantee an amount under clause 13.2
which is more than the GST imposed on the supply, the Grantee must repay the
excess to the Commonwealth on demand, or the Commonwealth may set-off the
excess against any other amounts due to the Grantee.


 


13.4         The
Grantee must comply with Part VB of the Trade Practices Act 1974 in relation to
any supply made to the Commonwealth under this deed.


 


13.5         The
Commonwealth is not liable to reimburse the Grantee for any amount in relation
to which the Grantee may claim an input tax credit (whether or not claimed).


 


13.6         If
GST is imposed on any supply made by the Grantee to the Commonwealth under this
deed in return for all or any part of the Grant, the Department of Industry,
Tourism and Resources may issue a ‘recipient created tax invoice’ to the Grantee
for the supply in question and the Grantee must not issue a tax invoice for
that supply.


 


13.7         If
for any reason the Grantee or the Department of Industry, Tourism and Resources
ceases to be registered for GST purposes, becomes aware of any reason why its
registration may be cancelled, or ceases to satisfy any of the requirements of
public ruling GSTR 2000/10, it must immediately notify the other party.


 


13.8         If
the Grantee is of the opinion that it is a ‘government related entity’ and that
the Grant is ‘specifically covered by any appropriation under an Australian law’
for the purposes of section 9-15(3)(c) of
the A New Tax System (Goods and Services Tax) Act 1999, the Grantee must
immediately notify the Department of Industry, Tourism and Resources and
provide materials supporting that opinion.


 


12





















 


14                                  Notices


 


14.1                           Any
notice, request, approval, consent or other communication to be given or served
pursuant to this deed must be in writing and addressed and signed as the case
may be, as specified in item 13 of the schedule.


 


14.2                           A
notice, request, approval, consent or other communication must be delivered by
hand, sent by prepaid post, transmitted electronically or transmitted by
facsimile.


 


14.3                           A
notice, request approval, consent or other communication will be deemed to be
received:


 


(a)                                  if
delivered by hand, upon delivery;


 


(b)                                 if
sent by pre-paid ordinary post within Australia, upon the expiration of 2
business days after the date on which it was sent; and


 


(c)                                  if
transmitted electronically or by facsimile, upon receipt by the sender of an
electronic or facsimile acknowledgment that the communication has been properly
transmitted to the recipient.


 


15.                               General


 


15.1                           A
provision of, or a right created under, this deed may not be:


 


(a)                                  waived
except in writing signed by the party granting the waiver; or


 


(b)                                 varied
except in writing signed by the parties.


 


15.2                           This
deed and the transactions contemplated by this deed are governed by the Industry
Research and Development Act 1986 and the laws in force in the Australian
Capital Territory.


 


15.3                           Each
party irrevocably and unconditionally submits to the non-exclusive jurisdiction
of the courts of the Australian Capital Territory and courts of appeal from
them for determining any dispute concerning this deed or the transactions
contemplated by this deed.


 


15.4                           Each
party waives any right it has to object to an action being brought in those
courts, including claiming that the
action has been brought in an inconvenient forum or that those courts do not
have jurisdiction.


 


15.5                           Obligations
under this deed, unless otherwise stated, terminate 5
years after the Completion Date.


 


13





















 


Project No: GRA02819


 





 


R&D Start Program


Grant Agreement


 


Particular Conditions


 


Parties


 


Commonwealth of Australia acting


through the Industry Research and


Development Board


 


ABN 51 835 430 479 001


(Department of Industry, Tourism and


Resources)


 


	
  Postal Address

  	
  NSW State Manager

  
	
   

  	
  Department of Industry, Tourism and Resources

  
	
   

  	
  GPO Box 9839

  
	
   

  	
  SYDNEY NSW 2001

  
	
   

  	
   

  
	
  The Grantee

  	
   

  
	
   

  	
   

  
	
   

  	
  Pharm Axis Pty Ltd

  
	
   

  	
   

  
	
  • ABN

  	
  75082811630

  
	
   

  	
   

  
	
  • ACN

  	
  082 811 630

  
	
   

  	
   

  
	
  • postal address

  	
  2/10 Rodborough Road

  
	
   

  	
  FRENCHS FOREST NSW 2086

  
	
   

  	
   

  
	
  • business address

  	
  2/10 Rodborough Road

  
	
   

  	
  FRENCHS FOREST NSW 2086

  



 


1





















 


Operative Provisions


 


1.                    This
Grant is made to the Grantee in respect of the Project by the Industry Research
and Development Board on behalf of the
Commonwealth to the Grantee under the R&D Start Program.


 


2.                    The
Grant is made pursuant to the Industry Research and Development Act 1986 and
the relevant Ministerial Directions issued under sections 19 and 20 of that
Act.


 


3.                    The
Grant is made on the terms and conditions of the Grant Agreement, which comprises
the General Conditions (version 7.2) and the Particular Conditions (including
the schedule).


 


4.                    The
Grantee acknowledges that it has received and read a copy of the General
Conditions (version 7.2), and agrees that the terms and conditions of the
General Conditions form part of the Grant Agreement.


 


5.                    Terms
defined in the General Conditions (version 7.2) have the same meaning in the
Particular Conditions.


 


6.                    If
there is an inconsistency between the Particular Conditions and the General
Conditions (version 7.2), the Particular Conditions prevail to the extent of
the inconsistency.


 


2





















 


Acceptance of terms


 


EXECUTED as a deed


 


	
  Date of deed:

  	
  )

  	
   

  
	
  Commonwealth of Australia

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  SIGNED for and on behalf of the

  	
  )

  	
   

  
	
  COMMONWEALTH OF AUSTRALIA by

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  /s/ Russell Edwards

  	
   

  	
  )

  	
   

  
	
  a delegate of the INDUSTRY RESEARCH

  	
  )

  	
   

  
	
  AND DEVELOPMENT BOARD in the 

  	
  )

  	
   

  
	
  presence of:

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  /s/ Sandra Murray

  	
   

  	
  )

  	
   

  
	
  Signature of witness

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  SANDRA MURRAY

  	
   

  	
  )

  	
  [ILLEGIBLE]

  	
   

  
	
  Name of witness (block letters)

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  



 


Grantee


The terms and conditions pursuant to which the Grant is made are hereby
accepted by the Grantee.


 


 


	
   

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  Signed by

  	
  )

  	
   

  
	
  PharmAxis Pty Ltd

  	
  )

  	
   

  
	
  by:

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  
	
  /s/ David McGarvey

  	
   

  	
  )

  	
  /s/ Alan D. Robertson

  	
   

  
	
  Secretary Director

  	
  )

  	
  Director

  
	
   

  	
  )

  	
   

  
	
  David McGarvey

  	
   

  	
  )

  	
  A.D. Robertson

  	
   

  
	
  Name (please print)

  	
  )

  	
  Name (please print)

  
	
   

  	
  )

  	
   

  
	
   

  	
  )

  	
   

  



 


3





















 


The
Schedule


 


	
  1

  	
  Project Title

  	
  The Development of New Treatments for Cystic Fibrosis

  
	
   

  	
   

  	
   

  
	
  2

  	
  Project Reference Number

  	
  GRA02819

  
	
   

  	
   

  	
   

  
	
  3

  	
  Project Duration

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)  Commencement Date:

  	
  6 March 2003

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)  Completion Date:

  	
  31 December 2005

  
	
   

  	
   

  	
   

  
	
  4

  	
  Grant

  	
  A maximum amount of $3,013,658

  
	
   

  	
   

  	
   

  
	
  5

  	
  Grant Percentage of Eligible Expenditure

  	
  50%

  
	
   

  	
   

  	
   

  
	
  6

  	
  Interest Rates

  	
  4.75% per annum

  
	
   

  	
   

  	
   

  
	
  7

  	
  Project Planned Eligible Expenditure by Financial Year

  	
   

  



 


	
   

  	
   

  	
  Estimated Expenditure $

  	
   

  	
   

  	
   

  
	
  Head of Expenditure

  	
   

  	
  2002/03

  	
   

  	
  2003/04

  	
   

  	
  2004/05

  	
   

  	
  2005/2006

  	
   

  	
  Total $

  	
   

  
	
  R&D Salary Expenditure

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Contract Expenditure

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Plant Expenditure

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Prototype Expenditure

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other Expenditure

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Project Eligible Expenditure

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Annual Cap Amount

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  3,013,658

  	
   

  



 


	
  8

  	
  Initial Payment

  	
  $700,000

  
	
   

  	
   

  	
   

  
	
  9

  	
  Project Description and Planned Outcomes

  	
   

  



 


The product will be a new treatment option for patients suffering from
cystic fibrosis.  It will be administered
as a dry powder for inhalation to improve lung functions and reduce infection
rate.


 










*  Confidential portion omitted and filed
separately with the Commission


 


4





















 


10                                  Performance
Milestones and Planned Achievement Dates


 


 


	
  Major Milestone

  	
   

  	
  Expected

  Achievement Date

  
	
  1

  	
  *

  	
   

  	
  *

  
	
  2

  	
  *

  	
   

  	
  *

  
	
  3

  	
  *

  	
   

  	
  *

  
	
  4

  	
  *

  	
   

  	
  *

  
	
  5

  	
  *

  	
   

  	
  *

  
	
  6

  	
  *

  	
   

  	
  *

  
	
  7

  	
  *

  	
   

  	
  *

  
	
  8

  	
  *

  	
   

  	
  *

  
	
  9

  	
  *

  	
   

  	
  *

  
	
  10

  	
  *

  	
   

  	
  *

  
	
  11

  	
  *

  	
   

  	
  *

  
	
  12

  	
  *

  	
   

  	
  *

  



 


11                                 Retention Amount                                                                                                                                                                                                                            $150,683


 


12                                  Reports


 


 


	
  Review Type

  	
   

  	
  Due Date

  	
   

  	
  Report Period

  	
   

  	
  Audit

  Report

  Y/N

  
	
  Progress

  	
   

  	
  28 July 2003

  	
   

  	
  7 March 2003 in 30 June 2003

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress

  	
   

  	
  28 October 2003

  	
   

  	
  1 July 2003 to 30 September 2003

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress

  	
   

  	
  28 January 2004

  	
   

  	
  1 October 2003 to 31 December 2003

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress

  	
   

  	
  28 April 2004

  	
   

  	
  1 January 2004 to 31 March 2004

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress

  	
   

  	
  28 July 2004

  	
   

  	
  1 April 2004 to 30 June 2004

  	
   

  	
  Y

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress

  	
   

  	
  28 October 2004

  	
   

  	
  1 July 2004 to 30 September 2004

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress

  	
   

  	
  28 January 2005

  	
   

  	
  1 October 2004 to 31 December 2004

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress

  	
   

  	
  28 April 2005

  	
   

  	
  1 January 2005 to 31 March 2005

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress

  	
   

  	
  28 July 2005

  	
   

  	
  1 April 2005 to 30 June 2005

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Progress

  	
   

  	
  28 October 2005

  	
   

  	
  1 July 2005 to 30 September 2005

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Final

  	
   

  	
  14 February

  	
   

  	
  1 October 2005 to 31 December 2005

  	
   

  	
  Y

  



 


Reports must conform with the requirements in the Project Reporting
Guide supplied to the Grantee by the Commonwealth, as varied from time to time
by the Commonwealth and notified to the Grantee.


 


Unless the Grantee is otherwise notified by the Commonwealth,
commercialisation reports will be required 1, 3 and 5 years after completion of
the Project, in the format supplied by the Commonwealth at those times.


 










*  Confidential portion omitted and filed
separately with the Commission


 


5





















 


13                                  Notices


 


Notices must be addressed as follows:


 


a)              if
given to the Commonwealth, addressed and forwarded to the Director, AusIndustry
State Office, Department of Industry, Tourism and Resources for the attention
of an AusIndustry Customer Service Manager at the following address:


 


	
  Address:

  	
  GPO Box 9839, Sydney NSW 2001

  
	
  Facsimile No:

  	
  61 2 9226 6001

  
	
  Email address:

  	
  ainsw@industry.gov.au

  



 


or as otherwise notified in writing by an AusIndustry Customer Service
Manager; and


 


b)             if
given by the Commonwealth, signed by an authorised delegate of the Industry
Research and Development Board and forwarded to the Grantee at the following
address:


 


	
  PharmAxis Ltd

  Dr A Robertson

  Chief Executive Officer

  2/10 Rodborough Road

  FRENCHS FOREST NSW 2086

  



 


or as otherwise notified in writing by the Grantee.


 


14                                  Special
Conditions


 


The IR&D Board approved overseas expenditure of up to 31% of
eligible project costs.


 


15                                  Repayment
of Repayable Contribution Under Start Premium


 


Not applicable


 


6





















 


NATIONAL BENEFIT INDICATORS -
COMMERCIALISATION


 


The Industry Research and Development (IR&D) Board understands the
increasing global nature of business and the need for innovative companies to
respond flexibly to market needs.  For
example, while the IR&D Board is keen to support projects which involve
manufacturing or production in Australia, it accepts that there will be
instances where Australian manufacture could limit the commercialisation
prospects of intellectual property developed with its grant funding.  This does not remove the necessity for the
commercialisation of project outcomes to provide national benefits.


 


Set out below are the indicators by which the IR&D Board will
assess the level of national benefit contribution to Australia and the
Australian economy from the commercialisation of R&D Start projects where
commercialisation will not take place in Australia:


 


•                     the
commercialisation plan includes Australia being maintained as the home base for
future R&D, manufacture or product development;


 


•                     the
ongoing development of the commercial outcomes, (product, process or service),
arising from R&D activities involves interactions with other firms and
research institutions (both domestic and international);


 


•                     the
commercialisation of the products, processes or services arising from R&D
activities result in an increase in the number of employees in the company’s
operations based in Australia;


 


•                     as
a result of the commercialisation, Australian residents receive commercial
compensation through royalties, licence fees, equity, dividends or outright
sale; and


 


•                     production
overseas could be considered reasonable as:


 


•                                          local
production is demonstrated to be uneconomic in terms of cost structure; and/or


 


•                                          the
production or commercialisation requires close physical interaction with
overseas companies, customers, suppliers and competitors.


 


Where a company is proposing to conduct exploitation overseas due to
economic viability in terms of cost structure, the Board will consider:


 


•                                          the
level of commitment to retaining or enhancing the companies R&D facilities
in Australia;


 


•                                          the
degree of globalisation of the relevant industry sector;


 


•                                          the
relative input costs to production as identified by the company;


 


•                                          the
relative transport costs as identified by the company;


 


•                                          the
relative costs of skilled labour as identified by the company; and


 


•                                          legal
barriers to entry; or


 


•                                          any
other factors the Board considers relevant.


 


7


 



















Where the company is proposing to conduct exploitation overseas due to
close proximity to customers, suppliers and competitors, the Board will
consider:


 


•                                            the
level of commitment to retaining or enhancing the companies R&D facilities
in Australia;


 


•                                            the
mechanisms established to disseminate knowledge and market intelligence from
overseas to the companies operations based in Australia;


 


•                                            the
industry norms in terms of proximity;


 


•                                            the
level of competition in the industry sector and the need to innovate quickly;


 


•                                            the
nature of the products’ inputs which require close contact eg perishables, knowledge,
etc; and


 


•                                            any
other factors the Board considers relevant.


 


8