Exhibit 4.8


 


PHARMACEUTICALS
PARTNERSHIPS PROGRAM


 


P3


 


FUNDING AGREEMENT


 


 


GENERAL CONDITIONS


 





















 


CONTENTS


 


	
  1

  	
  INTERPRETATION

  	
   

  
	
   

  	
  1.1

  	
  Definitions

  	
   

  
	
   

  	
  1.2

  	
  Construction

  	
   

  
	
   

  	
  1.3

  	
  Headings

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
  PERFORMANCE AND UNDERTAKING

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
  PAYMENT OF FUNDING

  	
   

  
	
   

  	
  3.1

  	
  Payment
  by Commonwealth

  	
   

  
	
   

  	
  3.2

  	
  Payment in respect of Actual
  Expenditure in a Payment Year

  	
   

  
	
   

  	
  3.3

  	
  Underperformance
  in a Payment Year may be offset by Overperformance in Previous Financial
  Years

  	
   

  
	
   

  	
  3.4

  	
  Overperformance
  in a Payment Year may offset Underperformance in the immediately preceding
  Financial Year

  	
   

  
	
   

  	
  3.5

  	
  Conditions
  precedent to payment

  	
   

  
	
   

  	
  3.6

  	
  Maximum payment

  	
   

  
	
   

  	
  3.7

  	
  Process and time for
  payment

  	
   

  
	
   

  	
  3.8

  	
  Taxable grant

  	
   

  
	
   

  	
  3.9

  	
  Set-off

  	
   

  
	
   

  	
  3.10

  	
  Recovery by Commonwealth

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  COMMONWEALTH’S
  DETERMINATION BINDING

  	
   

  
	
   

  	
  4.1

  	
  Matters for binding determination

  	
   

  
	
   

  	
  4.2

  	
  Procedure for binding determination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
  BASE EXPENDITURE

  	
   

  
	
   

  	
  5.1

  	
  Audit Statement

  	
   

  
	
   

  	
  5.2

  	
  Adjustment of Base Expenditure

  	
   

  
	
   

  	
  5.3

  	
  Adjustment
  of maximum payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
  MATTERS FOR REPORTING

  	
   

  
	
   

  	
  6.1

  	
  Cessation
  of activity and change in corporate group

  	
   

  
	
   

  	
  6.2

  	
  Government Grants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7

  	
  REPORTS

  	
   

  
	
   

  	
  7.1

  	
  Reporting
  and estimating expenditure

  	
   

  
	
   

  	
  7.2

  	
  Quarterly Reports

  	
   

  
	
   

  	
  7.3

  	
  Annual Report

  	
   

  
	
   

  	
  7.4

  	
  Requesting further
  information

  	
   

  
	
   

  	
  7.5

  	
  Extension
  of time for Reports

  	
   

  
	
   

  	
  7.6

  	
  Failure to submit Reports

  	
   

  
	
   

  	
  7.7

  	
  Evaluation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
  REVIEW

  	
   

  
	
   

  	
  8.1

  	
  Annual Assessment and Mid Term Review

  	
   

  
	
   

  	
  8.2

  	
  Ad Hoc Review trigger

  	
   

  
	
   

  	
  8.3

  	
  Ad Hoc Review process

  	
   

  
	
   

  	
  8.4

  	
  Effect of Ad Hoc Review

  	
   

  



 


ii





















 


	
  9

  	
  INTELLECTUAL PROPERTY

  	
   

  
	
   

  	
  9.1

  	
  Vesting
  of Intellectual Property

  	
   

  
	
   

  	
  9.2

  	
  Licence

  	
   

  
	
   

  	
  9.3

  	
  Documentation

  	
   

  
	
   

  	
  9.4

  	
  Warranty

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
  CONFIDENTIALITY

  	
   

  
	
   

  	
  10.1

  	
  Publicity

  	
   

  
	
   

  	
  10.2

  	
  Confidential Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
  RECORDS AND AUDIT

  	
   

  
	
   

  	
  11.1

  	
  Records

  	
   

  
	
   

  	
  11.2

  	
  Approvals and contract R&D

  	
   

  
	
   

  	
  11.3

  	
  Inspection and audit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
  WARRANTIES

  	
   

  
	
   

  	
  12.1

  	
  Corporate
  capacity

  	
   

  
	
   

  	
  12.2

  	
  Application and Portfolio

  	
   

  
	
   

  	
  12.3

  	
  Other warranties

  	
   

  
	
   

  	
  12.4

  	
  Notification
  of breach

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13

  	
  TERM
  AND TERMINATION

  	
   

  
	
   

  	
  13.1

  	
  Term

  	
   

  
	
   

  	
  13.2

  	
  Termination
  at any time

  	
   

  
	
   

  	
  13.3

  	
  Termination
  for default

  	
   

  
	
   

  	
  13.4

  	
  Force majeure

  	
   

  
	
   

  	
  13.5

  	
  Survival of obligations after termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14

  	
  COMMUNICATIONS

  	
   

  
	
   

  	
  14.1

  	
  General

  	
   

  
	
   

  	
  14.2

  	
  How to give a Communication

  	
   

  
	
   

  	
  14.3

  	
  Email
  communication

  	
   

  
	
   

  	
  14.4

  	
  Current address for delivery of
  Communications

  	
   

  
	
   

  	
  14.5

  	
  Communications by post

  	
   

  
	
   

  	
  14.6

  	
  Communications by facsimile

  	
   

  
	
   

  	
  14.7

  	
  After hours communications

  	
   

  
	
   

  	
  14.8

  	
  Process service

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  15

  	
  GST

  	
   

  
	
   

  	
  15.1

  	
  Construction

  	
   

  
	
   

  	
  15.2

  	
  Consideration GST exclusive

  	
   

  
	
   

  	
  15.3

  	
  Payment of GST

  	
   

  
	
   

  	
  15.4

  	
  Timing of GST payment

  	
   

  
	
   

  	
  15.5

  	
  Tax invoice

  	
   

  
	
   

  	
  15.6

  	
  Adjustment event

  	
   

  
	
   

  	
  15.7

  	
  Reimbursements

  	
   

  
	
   

  	
  15.8

  	
  Recipient created tax invoice

  	
   

  
	
   

  	
  15.9

  	
  Acknowledgment by Commonwealth

  	
   

  
	
   

  	
  15.10

  	
  Acknowledgment by Participant

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16

  	
  SUBSTITUTION,
  VARIATION, ASSIGNMENT AND WAVER

  	
   

  
	
   

  	
  16.1

  	
  Substitution and variation

  	
   

  
	
   

  	
  16.2

  	
  Assignment
  and dealing

  	
   

  



 


iii





















 


	
   

  	
  16.3

  	
  Waiver and exercise of
  rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  17

  	
  GENERAL

  	
   

  
	
   

  	
  17.1

  	
  Further steps

  	
   

  
	
   

  	
  17.2

  	
  Governing law and jurisdiction

  	
   

  
	
   

  	
  17.3

  	
  Liability

  	
   

  
	
   

  	
  17.4

  	
  Good faith and reasonableness

  	
   

  
	
   

  	
  17.5

  	
  Relationship of parties

  	
   

  



 


iv





















 


OPERATIVE PROVISIONS


 


1                                         INTERPRETATION


 


1.1                               Definitions


 


In this Funding Agreement:


 


“Accrued Overperformance” means any part of Overperformance in Previous
Financial Years which has not been used previously to offset Underperformance
under clause 3.3
or clause 3.4.


 


“Accrued Underperformance”, in relation to a Payment Year, means any part
of Underperformance in the Financial Year immediately preceding the Payment
Year which has not been previously offset by Overperformance under clause 3.3.


 


“Actual Activity”, in relation to a Financial Year, means the
Eligible Pharmaceutical R&D Activity performed by the Participant and
Members, or performed for or on behalf of the Participant or a Member by any
person under a contract with the Participant or a Member, during that Financial
Year.


 


“Actual Expenditure”, in relation to a Financial Year, means the
Eligible Expenditure which the Participant and Members have spent on the Actual
Activity in that Financial Year.


 


“Ad Hoc Review” means an assessment under clause 8.3(a). 


 


“Annual Report” means a report in accordance with clause 7.3.


 


“Application” means the application to participate in the
Round of the Program submitted by the Participant.


 


“Approvals” means all legislative, ethical, government and regulatory approvals
required in relation to the Portfolio and includes Ethical and Regulatory
Approvals.


 


“Audit Statement” means a statement which:


 


(a)                                  is prepared and personally signed by a member
of the Institute of Chartered Accountants, a member of the Society of Certified
Practising Accountants or a Public Practice Certified Member of the National
Institute of Accountants not being an associate, employee, shareholder,
director or other officeholder of the Participant or a member of the Group;


 


(b)                                 contains a declaration that the Program
Guidelines have been complied with in the conduct of the audit; and


 


(c)                                  is prepared in accordance with auditing
standard AUS902 “Review of Financial Reports” issued by the Australian
Accounting Research Foundation.


 


“Audited Third Base Year Expenditure” means the Eligible Expenditure spent on the
Portfolio in the Third Base Year by the Participant and people who were members
of the Group at the closing date for submission of applications to participate
in the Round, as verified by the Audit Statement under clause 5.1.


 





















 


“Base Expenditure” means:


 


(a)                                  where the Commonwealth has not issued a
notice under clause 5.2, the
amount set out in Item 2(d) of the Schedule; or


 


(b)                                 where the Commonwealth has issued a notice
under clause 5.2,
the amount of Base Expenditure set out in the notice or, if no amount of Base
Expenditure is set out in the notice, the Base Expenditure calculated in
accordance with clause 5.2.


 


“Business Day” means a day which is not a Saturday, Sunday
or public holiday in Canberra.


 


“Commonwealth” means the Commonwealth of Australia and
includes the Minister (as defined in the Directions), the delegate of the
Minister (as defined in the Directions), the Industry Research and Development
Board and the Pharmaceuticals Committee of the Industry Research and
Development Board (as defined in the Program Guidelines).


 


“Communication” means a notice, demand, certification,
process, approval, consent, proposal or other communication from one party to
the other party relating to this Funding Agreement.


 


“Confidential Information” means all information belonging to the
Participant, a Member or any person who performs Eligible Pharmaceutical
R&D Activity under a contract with the Participant or a Member that is by
its nature confidential, and includes to the extent that it is confidential:


 


(a)                                  information forming part of or relating to
the Application;


 


(b)                                 subject to this Funding Agreement,
information relating to a specific Eligible Pharmaceutical R&D Activity;


 


(c)                                  Contract Material;


 


but does not include information that:


 


(d)                                 is in or becomes part of the public domain
other than through breach of this Funding Agreement or an obligation of
confidence owed to the owner of the information; or


 


(e)                                  the Commonwealth acquires from another source
entitled to disclose it.


 


“Contract Material” means all Material:


 


(a)                                    brought into existence by the Participant for
the purpose of reporting on the performance of its obligations under this
Funding Agreement;


 


(b)                                   incorporated in, supplied or required to be
supplied with the Material referred to in paragraph (a).


 


“Control”, in relation to an entity, means:


 


(a)                                    legally or beneficially owning more than 50%
of any distribution of capital or income from the entity; or


 


2





















 


(b)                                   having the right to exercise more than 50% of
the voting power in respect of the entity.


 


“Directions” means the Pharmaceuticals Partnerships Program Directions No. 1 of 2003
given under subsections 19(1) and 20(1) of the Industry
Research and Development Act 1986 (Cth).


 


“Eligibility Criteria” means the eligibility criteria for the
Program as set out in Section 3 of the Program Guidelines.


 


“Eligible Expenditure” has the meaning given in the Program
Guidelines.


 


“Eligible Pharmaceutical R&D Activity” means an eligible pharmaceutical research and
development (R&D) activity as defined in the Directions which is performed
by the Participant or a Member, or performed for or on behalf of the
Participant or a Member by any person under a contract with the Participant or
a Member, in connection with the Portfolio.


 


“Estimated Third Base Year Expenditure” means the estimated Eligible Expenditure
spent or to be spent on the Portfolio in the Third Base Year by the Participant
and people who were members of the Group at the closing date for submission of
applications to participate in the Round, as set out in the Application.


 


“Ethical and Regulatory Approval” means, in relation to an activity, prior
formal approval by a qualified regulatory body or committee that the activity
complies with all relevant ethics codes and guidelines adopted by the National
Health and Medical Research Council, the Office of the Gene Technology
Regulator, the Therapeutic Goods Administration and all other relevant regulatory
agencies operating in Australia.


 


“Exit Date” means the date set out in Item 1 (b) of the Schedule.


 


“Financial Year” means the 12 month period beginning on 1 July
in one calendar year and ending on 30 June in the following calendar year.


 


“First Base Year” means the Financial Year set out in Item 2(a)
of the Schedule.


 


“Forecast Activity”, in relation to a Financial Year, means the
Eligible Pharmaceutical R&D Activity which the Participant proposes that
the Participant and Members will perform, or will procure a person to perform
for or on behalf of the Participant or a Member under a contract with the
Participant or a Member, in that Financial Year, being the activity set out in
Item 5 of the Schedule.


 


“Forecast Expenditure”, in relation to a Financial Year, means the
Eligible Expenditure which the Participant proposes that the Participant and
Members will spend on the Portfolio in that Financial Year, being:


 


(a)                                  where the Commonwealth has not issued a
notice under clause 8.4, the
amount of Forecast Expenditure set out in Item 3 of the Schedule in respect of
that Financial Year; or


 


(b)                                 where the Commonwealth has issued one or more
notices under clause 8.4, the amount
set out in the most recent notice in respect of that Financial Year or, if no amount
is set out in the most recent notice, the amount calculated in accordance with clause 8.4 for that Financial Year as at
the date of the most recent notice.


 


3





















 


“Funding” means the funding provided to the Participant under this Funding
Agreement.


 


“Funding Agreement” means this deed.


 


“Government Grant” means any financial assistance, other than by
way of equity injection, received from a Commonwealth, State or Territory
government source in respect of the Portfolio during the term of this Funding
Agreement, excluding any amount received or to be received under this Funding
Agreement.


 


“Group” means all:


 


(a)                                  persons who Control the Participant;


 


(b)                                 persons who are Controlled by the
Participant; and


 


(c)                                  persons who are Controlled by a person
referred to in paragraph (a) or (b).


 


“GST Law” has the meaning given to that expression in the GST Act.


 


“GST Act”
means the A  New Tax System (Goods and Services Tax) Act 1999 (Cth).



 


“Insolvency Event” means, in relation to a person, any of the
following:


 


(a)                                  a person is or states that the person is
unable to pay from the person’s own money all the person’s debts as and when
they become due and payable;


 


(b)                                 a person is taken or must be presumed to be
insolvent or unable to pay its debts under any applicable legislation;


 


(c)                                  an application or order is made for the
winding up or dissolution or a resolution is passed or any steps are taken to
pass a resolution for the winding up or dissolution of a person;


 


(d)                                 an administrator, provisional liquidator,
liquidator or person having a similar or analogous function under the laws of
any relevant jurisdiction is appointed in respect of the corporation or any
action is taken to appoint any such person;


 


(e)                                  a receiver or receiver and manager is
appointed in respect of any property of a person;


 


(f)                                    a corporation is deregistered under the Corporations Act 2001 (Cth) or notice of its
proposed deregistration is given to the corporation;


 


(g)                                 a distress, attachment or execution is levied
or becomes enforceable against any property of a person;


 


(h)                                 a person enters into or takes any action to
enter into an arrangement (including a scheme of arrangement or a deed of
company arrangement), composition or compromise with, or assignment for the
benefit of, all or any class of the person’s creditors or members or a
moratorium involving any of them; or


 


(i)                                     anything analogous to or of a similar effect
to anything described above under the law of any relevant jurisdiction occurs
in respect of a person.


 


4





















 


“Intellectual Property” includes all copyright and neighbouring rights, all rights in relation
to inventions (including patent rights), plant breeder’s rights, registered and
unregistered trade marks (including service marks), registered designs,
confidential information (including trade secrets and know how) and circuit
layouts and all other rights resulting from intellectual activity in the
industrial, scientific, literary or artistic fields.


 


“Interest”
means an amount of interest calculated:


 


(a)                                  at the rate set out in Item 7 of the
Schedule;


 


(b)                                 on a daily basis upon the amount that was and
is outstanding (as the case may be) in respect of each amount required to be
repaid;


 


(c)                                  from and including the day when any part of
the moneys upon which interest is payable was first paid to the Participant by
the Commonwealth under this Funding Agreement until but excluding the day of
payment of those moneys; and


 


(d)                                 on the actual number of days elapsed on the
basis of a 365 day year.


 


“Material”
includes documents, equipment, software, information and data stored by any
means.


 


“Maximum Annual Payment”, in respect of a Financial Year, means:


 


(a)                                  where the Commonwealth has not issued a
notice under clause 5.3(d) or clause 8.4, the Maximum Annual Payment set out in respect of
that Financial Year in Item 3 of the Schedule; or


 


(b)                                 where the Commonwealth has issued one or more
notices under clause 5.3(d) or clause 8.4, the Maximum Annual Payment in respect of that
Financial Year set out in the most recent notice or, if no Maximum Annual
Payment is set out in the most recent notice, the amount calculated in
accordance with clause 5.3(d) or clause 8.4 (as appropriate) as at the date of the notice.


 


“Maximum Payment” means:


 


(a)                                  where the Commonwealth has not issued a
notice under clause 5.3(d) or clause 8.4, the Maximum Payment set out in Item 3 of the
Schedule; or


 


(b)                                 where the Commonwealth has issued one or more
notices under clause 5.3(d) or clause 8.4, the Maximum Payment set out in the most recent
notice or, if no Maximum Payment is set out in the most recent notice, the
Maximum Payment calculated in accordance with clause
5.3(d) or clause 8.4 (as
appropriate) as at the date of the notice.


 


“Member” means
a person set out in Item 6 of the Schedule, being a person who is a member of
the Group and who either performs Eligible Pharmaceutical R&D Activity, or
procures any person to perform Eligible Pharmaceutical R&D Activity for or
on behalf of the Member under a contract with the Member, or both.


 


“Overperformance” means, in relation to a Financial Year, the amount by which the Actual
Expenditure in respect of that Financial Year exceeds Forecast Expenditure in respect
of that Financial Year.


 


5





















 


“Participant” means the company identified as the
Participant in the Particular Conditions.


 


“Particular Conditions” means the Particular Conditions entered into
by the Participant and the Commonwealth which refer to these General
Conditions.


 


“Payment Year” means a Financial Year during the term of
this Funding Agreement.


 


“Performance Milestones” means the performance milestones set out in
Item 5 of the Schedule.


 


“Preceding Year” means the Financial Year immediately
preceding the relevant Payment Year.


 


“Portfolio” means the agreed portfolio of R&D activities set out in Item 4 of
the Schedule.


 


“Previous Financial Years”, in relation to a Financial Year, means the
Financial Years occurring in the period from the Start Date to the beginning of
that Financial Year.


 


“Program” means the Pharmaceuticals Partnerships Program, known as P3,
administered by the Department of Industry, Tourism and Resources.


 


“Program Funding” means the funding made available by the
Parliament of the Commonwealth of Australia for the Program in any given
Financial Year, being the funding specified in the Portfolio Budget Statement
(as varied by any Portfolio Additional Estimates Statement).


 


“Program Guidelines” means the Pharmaceuticals Partnerships
Program Guidelines published by the Department of Industry, Tourism and
Resources, dated September 2003.


 


“Quarter” means a period of 3 months beginning on 1 July 1 October, 1 January or
1 April of any Financial Year.


 


“Quarterly Report” means a report in accordance with clause 7.2.


 


“Report” means any report required to be submitted to the Commonwealth by the
Participant under this Funding Agreement and includes the Audit Statement under
clause 5.1, Quarterly Reports and
the Annual Report.


 


“Round” means the funding round for the Program which starts on the Start Date.



 


“Second Base Year” means the Financial Year set out in Item 2(b)
of the Schedule. 


 


“Selection Criteria” means the merit criteria set out in Part 3 of
the Directions. 


 


“Start Date” means the date set out in Item 1(a) of the Schedule. 


 


“Third Base Year” means the Financial Year set out in Item 2(c)
of the Schedule.


 


“Underperformance” means, in relation to a Financial Year, the
amount by which Forecast Expenditure in respect of that Financial Year exceeds
Actual Expenditure in respect of that Financial Year.


 


6





















 


1.2                               Construction


 


Unless expressed to the contrary, in this Funding Agreement:


 


(a)                                  words in the singular include the plural and
vice versa;


 


(b)                                 any gender includes the other genders:


 


(c)                                  if a word or phrase is defined its other
grammatical forms have corresponding meanings;


 


(d)                                 “includes” means includes without limitation;


 


(e)                                  no rule of construction will apply to a
clause to the disadvantage of a party merely because that party put forward the
clause or would otherwise benefit from it;


 


(f)                                    a reference to:


 


(i)                   a person includes a partnership, joint
venture, unincorporated association, corporation and a government or statutory
body or authority;


 


(ii)                 a person includes the person’s legal personal
representatives, successors and permitted assigns and persons substituted by
novation, if permitted;


 


(iii)                an organisation includes a body which
replaces or substitutes for that organisation, having substantially the same
functions as that organisation;


 


(iv)               any legislation includes subordinate
legislation under it and includes that legislation and subordinate legislation
as modified or replaced;


 


(v)                 an obligation includes a warranty or
representation and a reference to failure to comply with an obligation includes
a breach of warranty or representation;


 


(vi)               a right includes a benefit, remedy,
discretion or power;


 


(vii)              time is to local time in Canberra;


 


(viii)            “$” or “dollars” is a reference to Australian
currency;


 


(ix)                this or any other document includes the
document as novated, varied or replaced and despite any change in the identity
of the parties; and


 


(x)                  a clause, schedule or annexure is a reference
to a clause, schedule or annexure, as the case may be, of this Funding
Agreement;


 


(g)                                 if the date on or by which any act must be
done under this Funding Agreement is not a Business Day, the act must be done
on or by the next Business Day; and


 


(h)                                 where time is to be calculated by reference
to a day or event, that day or the day of that event is excluded.


 


1.3                               Headings


 


Headings do not affect the interpretation of this Funding Agreement.


 


7





















 


2                                         PERFORMANCE
AND UNDERTAKING


 


(a)                                  Subject to this Funding Agreement, the Participant
must, or must procure Members (either personally or through other persons) to
perform the Forecast Activity and undertake the Forecast Expenditure.


 


(b)                                 In performing, undertaking and procuring the
performance and undertaking of the Forecast Activity and the Forecast
Expenditure, the Participant must make every effort to ensure that the
Performance Milestones are met.


 


(c)                                  The Participant must procure that all
Eligible Pharmaceutical R&D Activity performed by a person other than the
Participant or a Member is the subject of a prior written contract between that
person and the Participant or the Member (as the case may be) which specifies
the nature of the work to be performed.


 


(d)                                 The Participant acknowledges and agrees that
although all or any part of the Forecast Activity or the Forecast Expenditure
may be performed or undertaken by a person other than the Participant, the
Participant remains responsible for ensuring that all obligations of the
Participant under this Funding Agreement are met.


 


(e)                                  In performing, undertaking and procuring the
performance and undertaking of the Forecast Activity and the Forecast
Expenditure, the Participant must, and must procure all persons performing or
undertaking the Forecast Activity and the Forecast Expenditure to:


 


(i)                   obtain and comply with all Approvals;


 


(ii)                 comply with all applicable laws, legislation
and regulations of the Commonwealth or of any State, Territory or local
authority, including the Crimes Act 1914 (Cth),
Privacy Act 1998 (Cth), Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth) and Disability Discrimination Act 1992 (Cth);
and


 


(iii)                comply with all relevant obligations under
the Equal Opportunity for Women in the
Workplace Act 1999 (Cth).


 


3                                         PAYMENT
OF FUNDING


 


3.1                               Payment
by Commonwealth


 


Subject to this Funding Agreement, for each Payment Year, the
Commonwealth must pay to the Participant the aggregate of:


 


(a)                                  if clause 3.2
applies, the amount calculated in accordance with clause 3.2
in respect of the Payment Year;


 


(b)                                 if clause 3.3
applies, the amount calculated in accordance with clause 3.3
in respect of the Payment Year; and


 


(c)                                  if clause 3.4
applies, the amount calculated in accordance with clause 3.4
in respect of the Payment Year. 


 


less the value of any Government Grant received in respect of the
Payment Year.


 


8





















 


3.2                               Payment in respect of Actual Expenditure in a Payment Year


 


Where the Actual Expenditure in the Payment Year exceeds Base
Expenditure, the amount to be paid under clause
3.1(a) in respect of the Payment
Year is the lower of:


 


(a)                                  the Maximum Annual Payment for the Payment
Year; and


 


(b)                                 an amount calculated in accordance with the
formula: 


 


(AE
– BE) x 30%


 


where:


 


(i)                                     AE
means Actual Expenditure for the Payment Year; and


 


(ii)                                  BE means Base Expenditure.


 


3.3                               Underperformance in a Payment Year may be offset by Over performance in Previous
Financial Years


 


Subject
to this Funding Agreement, where:


 


(a)                                  there is Underperformance in the Payment
Year;


 


(b)                                 an amount of Accrued Overperformance remains
at the end of the Payment Year;


 


(c)                                  [the
Participant meets the 75% test] the aggregate of:


 


(i)            the Actual Expenditure incurred in the
Payment Year; and


 


(ii)           any Accrued Overperformance that will be used to offset
Underperformance in the Payment Year under this clause 3.3,


 


is not less than 75% of the
Forecast Expenditure for the Payment Year; and


 


(d)                                 [the Participant
meets the 50% test] the amount calculated
in accordance with clause 3.2(b) in respect
of the Payment Year is not less than 50% of the Maximum Annual Payment for the
Payment Year,


 


then the amount to be paid under clause 3.1(b) in respect of the Payment
Year is the lower of:


 


(e)                                  30% of the Underperformance in the Payment
Year; and


 


(f)                                    30% of the Accrued Overperformance.


 


9





















 


3.4                               Overperformance in a Payment Year may
offset Underperformance in the immediately preceding Financial Year


 


Subject to this Funding Agreement,
where:


 


(a)                                  there is Overperformance in the Payment Year;


 


(b)                                 an amount of Accrued Underperformance remains
at the end of the Payment Year:


 


(c)                                  [the Participant
meets the 75% test] the
aggregate of:


 


(i)            the Actual Expenditure incurred in the Preceding
Year; and


 


(ii)           any Overperformance in Previous Financial Years to the Preceding Year
that has been used to offset Underperformance in the Preceding Year, 


 


was not less than 75% of the
Forecast Expenditure for the Preceding Year; and


 


(d)                                 [the Participant
meets the 50% test] the
amount calculated in accordance with clause 3.2(b)
in respect of the Preceding Year was not less than 50% of the Maximum Annual
Payment for the Preceding Year,


 


then the amount to be paid under clause 3.1(c) in respect of the Payment Year is the lower
of:


 


(e)                                  30% of the Accrued Underperformance; and


 


(f)                                    30% of the Overperformance for the Payment
Year.


 


3.5                              Conditions precedent to payment


 


(a)                                  Notwithstanding any other clause of this
Funding Agreement, the Participant is not entitled to receive, and the
Commonwealth is not obliged to pay to the Participant, an amount under this clause 3 if:


 


(i)            the Commonwealth has insufficient Program
Funding available at the  time a payment
is due to the Participant;


 


(ii)           the Participant has not submitted all Reports due for submission at the
time a payment is otherwise due to the Participant;


 


(iii)          the Participant has not complied with any other of its obligations
under this Funding Agreement; or


 


(iv)          the Commonwealth has become entitled to terminate this Funding
Agreement under clause 13.3.


 


(b)                                 The Commonwealth may withhold any payment
where it has reasonable grounds to suspect that the Participant may not be
entitled to payment, for such time as the Commonwealth reasonably requires to
make such further inquiries as are needed to determine the Participant’s
entitlement to payment.


 


10





















 


3.6                               Maximum payment


 


Notwithstanding any other clause of this Funding Agreement, if the
Commonwealth is required under this Funding Agreement to pay to the Participant
an amount (“Amount”), the Amount which the Commonwealth is
required to pay will be reduced so that:


 


(a)                                  [Program
cap] the aggregate of
the Amount and all previous payments to the Participant under the Program does
not exceed $10 million;


 


(b)                                 [Maximum
Payment] the aggregate of the Amount and all previous
payments to the Participant under this Funding Agreement does not exceed the
Maximum Payment;


 


(c)                                  [first Quarterly cap] where the Amount is payable under clause
3.1 in connection with clause 3.1(a) in respect of the first Quarter of a Payment Year,
the aggregate of:


 


(i)                                     the Amount; and


 


(ii)                                  the value of any Government Grant received or
to be received in respect of the first Quarter of the Payment Year,


 


does not exceed 25% of the
Maximum Annual Payment for that Payment Year;


 


(d)                                 [second
Quarterly cap] where the
Amount is payable under clause 3.1 in
connection with clause 3.1(a) in
respect of the second Quarter of a Payment Year, the aggregate of:


 


(i)            the Amount;


 


(ii)           all payments previously made to the Participant under this Funding
Agreement in respect of that Payment Year; and


 


(iii)          the value of any Government Grant received or to be received in respect
of the first two Quarters of the Payment Year, 


 


does not exceed 50% of the
Maximum Annual Payment for that Payment Year; and


 


(e)                                  [third
Quarterly cap] where the
Amount is payable under clause 3.1 in
connection with clause 3.1(a) in
respect of the third Quarter of a Payment Year, the aggregate of:


 


(i)            the Amount;


 


(ii)           all payments previously made to the Participant under this Funding
Agreement in respect of that Payment Year; and


 


(iii)          the value of any Government Grant received or to be received in respect
of the first three Quarters of the Payment Year, 


 


does not exceed 75% of the
Maximum Annual Payment for that Payment Year.


 


11





















 


3.8                               Taxable
grant


 


The Participant acknowledges that payments made under this Funding
Agreement are made as a taxable grant.


 


3.9                               Set-off


 


The Commonwealth may set-off any money due for payment by the
Commonwealth to the Participant under this Funding Agreement against any money
due for payment by the Participant to the Commonwealth under this Funding
Agreement.


 


3.10                        Recovery
by Commonwealth


 


(a)                                  If at any time, for any reason, the
Commonwealth has paid the Participant more than the Participant is entitled to
under clauses 3.1 to 3.9 inclusive, the Commonwealth may by
notice in writing to the Participant require the Participant to repay to the
Commonwealth the amount of the excess.


 


(b)                                 In addition to the amount of the excess
required to be repaid under clause 3.10(a), the
Commonwealth may, in its discretion, require the Participant to pay Interest on
the amount of the excess.


 


(c)                                  If the Commonwealth gives a notice to the
Participant under this clause 3.10, the
Participant must repay the amount in full within 30 days of the date of the
notice.


 


(d)                                 If the Participant is required to pay an
amount to the Commonwealth under this Funding Agreement, the Commonwealth may
recover the amount as a debt due and payable to the Commonwealth.


 


4                                         COMMONWEALTH’S DETERMINATION BINDING


 


4.1                               Matters for binding determination


 


The Commonwealth’s determination as to all or any of the following
matters is final and binding on the Participant:


 


(a)                                  whether activity is Eligible Pharmaceutical
R&D Activity;


 


(b)                                 whether expenditure is Eligible Expenditure;


 


(c)                                  whether expenditure has been incurred in
respect of the Portfolio; and


 


(d)                                 whether a Performance Milestone has been met.


 


4.2                               Procedure for binding determination


 


(a)                                  In making a determination under clause 4.1, the Commonwealth must take into
account all relevant documentation and submissions made by the Participant in relation
to the determination.


 


(b)                                 After making a determination under clause 4.1, the Commonwealth must provide to
the Participant written reasons for the determination.


 


13





















 


5                                         BASE EXPENDITURE


 


5.1                               Audit Statement


 


Within 60 days after the end of the Third Base Year, the Participant
must provide to the Commonwealth an Audit Statement verifying:


 


(a)                                  the Actual Expenditure in respect of the
Third Base Year; and


 


(b)                                 that the expenditure reported as Actual
Expenditure in respect of the Third Base Year is Eligible Expenditure and has
been spent on the Portfolio.


 


5.2                              Adjustment
of Base
Expenditure


 


Where Audited Third Base Year Expenditure is higher than Estimated
Third Base Year Expenditure, the Commonwealth may by notice in writing to the
Participant, increase Base Expenditure to an amount equal to the average of the
following amounts:


 


(a)                                  the amount of Expenditure set out in Item
2(a) of the Schedule in respect of the First Base Year;


 


(b)                                 the amount of Expenditure set out in Item
2(b) of the Schedule in respect of the Second Base Year; and


 


(c)                                  the Audited Third Base Year Expenditure.


 


5.3                              Adjustment of maximum payments


 


If the Commonwealth increases Base Expenditure under clause 5.2:


 


(a)                                  [Participant
 may  submit proposals]  the Commonwealth
must allow the Participant 30 days from the date of the notice referred to in clause 5.2 to submit one
or more proposals to vary any or all of the Forecast Activity, Forecast Expenditure
and the Portfolio, so that the Participant can retain the benefit of the original
Maximum Annual Payments and original Maximum Payment;


 


(b)                                 [Commonwealth
may accept or reject proposals]  subject
to clause 16.1(c), the Commonwealth
may, in its discretion, accept or reject a proposal referred to in clause 5.3(a), with or without conditions;


 


(c)                                  [variation
of Funding Agreement]  if the Commonwealth accepts a proposal referred
to in clause 5.3(a), this Funding
Agreement will be varied when the parties enter into a valid variation in
accordance with clause 16.1(c)(ii); and


 


(d)                                 if the Participant does not submit any
proposals under clause 5.3(a) or the Commonwealth rejects all proposals made by the
Participant pursuant to clause 5.3(a), the Commonwealth may by notice in writing to the
Participant:


 


14





















 


(i)                                     [reduce Maximum Annual Payments]  reduce the Maximum Annual Payment for each of the Payment Years in the
period from the Start Date to the Exit Date to an amount calculated in
accordance with the formula


 


(FE – BE) x 30% 


 


where:


 


(A)                              FE means Forecast Expenditure for that
Payment Year; and


 


(B)                                BE means Base Expenditure calculated in
accordance with clause 5.2; and


 


(ii)                                  [reduce
Maximum Payment]  reduce the Maximum Payment so that it is
equal to the aggregate of the Maximum Annual Payments for each of the Payment
Years in the period from the Start Date to the Exit Date, as reduced under clause 5.3(d)(i).


 


6                                         MATTERS FOR REPORTING


 


6.1                               Cessation of activity and change in corporate
group


 


(a)                                  The Participant must notify the Commonwealth
in its next Quarterly Report if an Eligible Pharmaceutical R&D Activity
ceases to be performed.


 


(b)                                 The Participant must notify the Commonwealth
immediately in writing:


 


(i)                                     if an activity in the Portfolio ceases to be
performed by the Participant and Members or under contract with the Participant
or a Member, and commences to be performed by a person who is not the
Participant or a Member and who is not performing the activity under a contract
with the Participant or a Member;


 


(ii)                                  where there is a change in the identity of
the person who Controls the Participant or a Member;


 


(iii)                               where a Member ceases to be a member of the
Group; and 


 


(iv)                              where a person who is not a Member;


 


(A)                              is or becomes a member of the Group; and


 


(B)                                commences either:


 


(v)                                 performing eligible pharmaceutical research
and development (R&D) activity as defined in the Directions; or


 


(vi)                              procuring someone else to perform eligible
pharmaceutical research and development (R&D) activity as defined in the Directions
for or on behalf of that person under a contract with that person, or both.


 


15





















 


(c)                                  The Participant must provide to the
Commonwealth the information required by Attachment C of the Program Guidelines
within 90 days of the event referred to in clause 6.1(b)
occurring.


 


(d)                                 Where an event referred to in clause 6.1(b) occurs:


 


(i)            subject to clause
6.1(d)(iii), the Commonwealth and the Participant must negotiate in
good faith in relation to varying this Funding Agreement to take into account
the event;


 


(ii)           if the Commonwealth and the Participant agree to a variation of this
Funding Agreement, this Funding Agreement will be varied when the parties enter
into a valid variation in accordance with clause 16.1(c)(ii);
and


 


(iii)          if the Commonwealth and the Participant do not reach agreement within
60 days of the date of the notification referred to in clause 6.1
(b), the Commonwealth may by notice in writing terminate this
Funding Agreement with effect from the date on which the event referred to in clause 6.1(b) occurred.


 


6.2                               Government Grants


 


If, during the term of this Funding Agreement, the
Participant receives a Government Grant, it must immediately:


 


(a)                                  notify the Commonwealth; and


 


(b)                                 provide to the Commonwealth sufficient
information to allow the Commonwealth to determine the effect of the receipt of
the Government Grant on payments under this Funding Agreement.


 


7                                         REPORTS


 


7.1                               Reporting
and estimating expenditure


 


In reporting and estimating expenditure, the Participant must, and must
procure its auditor to, comply with the requirements of the Program Guidelines.


 


7.2                               Quarterly
Reports


 


Within 30 days of the end of each of the first three Quarters of each
Payment Year, the Participant must submit a report which:


 


(a)                                  sets out the Actual Expenditure incurred in
that Quarter;


 


(b)                                 indicates where Actual Activity and Actual
Expenditure are not proceeding in accordance with the Performance Milestones;


 


(c)                                  provides details of any breach or likely breach
of this Funding Agreement;


 


(d)                                 complies with requirements of the Program
Guidelines; and


 


16





















 


(e)                                  contains the information and is in the form
required by the Commonwealth from time to time, provided that the Commonwealth
has notified the Participant in writing of any changes to the required format
before the end of the relevant Quarter.


 


7.3                              Annual
Report


 


Within 60 days of the end of each Payment Year and within 60 days of
the termination of this Funding Agreement, the Participant must submit a report
which:


 


(a)                                  sets out the Actual Expenditure incurred in
the fourth Quarter;


 


(b)                                 indicates where Actual Activity and Actual
Expenditure are not proceeding in accordance with the Performance Milestones;


 


(c)                                  sets out the Actual Expenditure incurred in
the Payment Year;


 


(d)                                 sets out the Actual Activity performed in the
Payment Year;


 


(e)                                  includes an Audit Statement which verifies
the Actual Expenditure incurred in the Payment Year;


 


(f)                                    sets out and provides reasons for any
Underperformance or Overperformance in respect of the Payment Year;


 


(g)                                 details and provides reasons for any
potential future Underperformance or Overperformance;


 


(h)                                 provides detailed information in respect of
the Participant’s progress against the Performance Milestones;


 


(i)                                     details any expected changes to Forecast
Activity, Forecast Expenditure and the Participant’s progress against the
Performance Milestones, and in particular, whether the Participant knows that
it or Members will not or may not meet the Performance Milestones, Forecast
Activity or Forecast Expenditure;


 


(j)                                     provides details of any breach or likely
breach of this Funding Agreement;


 


(k)                                  complies with requirements of the Program
Guidelines; and


 


(1)                                  contains the information and is in the form
required by the Commonwealth from time to time, provided that the Commonwealth
has notified the Participant in writing of any changes to the required format
before the end of the relevant Payment Year.


 


7.4                              Requesting further information


 


(a)                                  The Commonwealth may request from the
Participant additional information which relates to this Funding Agreement or
the Participant’s participation in the Program.


 


(b)                                 If the Commonwealth requests information
under clause 7.3(?)(a),
the Participant must provide the information to the Commonwealth within 30 days
of the request or such other time as is agreed between the parties.


 


17





















 


7.5                               Extension of time for Reports


 


(a)                                  Before the due date for submission of a
Report, the Participant may, in writing setting out the reason for the
application, apply for an extension of time for submission of the Report.


 


(b)                                 The Commonwealth may, in its absolute
discretion, grant to the Participant an extension of time ending on a specific
date for submission of a Report.


 


7.6                               Failure to submit Reports


 


If the Participant fails to submit two or more Reports consecutively by
the due dates for submission (or, where the Commonwealth has granted the
Participant an extension under clause 7.5(b),
the due date for submission as extended under clause 7.5(b)), the Commonwealth may by notice
in writing terminate this Funding Agreement.


 


7.7                               Evaluation


 


(a)                                  The Participant must, and must procure that
Members, cooperate in the evaluation of the Program by the Commonwealth.


 


(b)                                 During the term of this Funding Agreement and
for 5 years after the Exit Date, the Participant must, within 30 days of a
request by the Commonwealth to do so, provide information and completed survey
forms relating to the Program and this Funding Agreement.


 


8                                         REVIEW


 


8.1                               Annual Assessment and Mid Term
Review


 


(a)                                  Without limiting its right to do so at any
other time, the Commonwealth may undertake an assessment of the Participant’s
performance of its obligations under this Funding Agreement:


 


(i)                                     after it has received the Annual Report; and 


 


(ii)                                  at the end of the 2005/2006 Financial Year.


 


(b)                                 Without limiting clause 8.2, the Commonwealth may use the assessment process referred
to in clause 8.1(a) to determine
whether the Commonwealth is entitled to undertake an Ad Hoc Review under clause 8.2.


 


8.2                               Ad
Hoc Review trigger


 


Clauses 8.3 and 8.4 apply where, in a
Payment Year: 


 


(a)                                  the aggregate of:


 


(i)                                     the Actual Expenditure incurred in that
Payment Year; and


 


(ii)                                  any Overperformance in Previous Financial
Years to that Payment Year that has been used to offset Underperformance in
that Payment Year, 


 


was less than Base
Expenditure;


 


18





















 


(b)                                 the aggregate of:


 


(i)                                     the Actual Expenditure incurred in that
Payment Year; and


 


(ii)                                  any Overperformance in Previous Financial
Years to that Payment Year that has been used to offset Underperformance in
that Payment Year, 


 


was less than 75% of the
Forecast Expenditure for that Payment Year; or


 


(c)                                  in the opinion of the Commonwealth, the
Participant has not met one or more of the Performance Milestones to a
sufficient degree.


 


8.3                               Ad Hoc Review process


 


(a)                                  Subject to clause 8.2,
the Commonwealth may undertake an assessment of the Participant’s performance
of its obligations under this Funding Agreement and consider the Participant’s
continued participation in the Program.


 


(b)                                 The Commonwealth must notify the Participant
in writing of a decision to undertake an assessment under

clause 8.3(a).


 


8.4                               Effect of Ad Hoc Review


 


(a)                                  Subject to clause 8.2,
the Commonwealth may, by notice in writing to the Participant, reduce Forecast
Expenditure for each of the Payment Years in the period from the end of the
Payment Year referred to in clause 8.2 to
the Exit Date so that it is equal to an amount calculated in accordance with
the formula:


 


FE x (TAE/TFE) 


 


where:


 


(i)                                     FE means Forecast Expenditure for the
relevant Payment Year before the reduction in accordance with this clause 8.4(a);


 


(ii)                                  TAE means the aggregate of the Actual
Expenditure incurred in each of the Payment Years in the period from the Start
Date to the end of the Payment Year referred to in clause 8.2;
and


 


(iii)                               TFE means the aggregate of Forecast
Expenditure for each of the Payment Years in the period from the Start Date to
the end of the Payment Year referred to in clause 8.2.


 


(b)                                 Subject to clause 8.2,
where the Commonwealth is of the opinion that an activity performed by or on
behalf of the Participant or a Member is not Eligible Pharmaceutical R&D
Activity, the Commonwealth may by notice in writing to the Participant do one
or more of the following:


 


(i)            reduce Forecast Expenditure for each of the
Payment Years in the period from the end of the Payment Year referred to in clause 8.2 to the Exit Date so that it does not include any
amounts for activities which are not Eligible Pharmaceutical R&D Activity;


 


19





















 


(ii)           remove any activity which is not Eligible Pharmaceutical R&D
Activity from the Portfolio; and


 


(iii)          require the Participant to repay any amount which has been paid by the
Commonwealth to the Participant in connection with activity which is not
Eligible Pharmaceutical R&D Activity and, in its discretion, require the
Participant to pay Interest on the amount, whereupon the Participant must repay
the amount and Interest (if required) within 30 days of the date of the notice.


 


(c)                                  Where the Commonwealth reduces Forecast
Expenditure under clause 8.4(a)
or clause 8.4(b)(i), the Commonwealth may
also, in the same or a separate written notice to the Participant, reduce the
Maximum Annual Payment for each of the Payment Years in the period from the end
of the Payment Year referred to in clause 8.2 to
the Exit Date to an amount calculated in accordance with the formula:


 


(FE – BE) x 30% 


 


where:


 


(i)                                     FE means Forecast Expenditure for that
Payment Year as reduced under clause 8.4(a)
or clause 8.4(b)(i) as appropriate; and


 


(ii)                                  BE means Base Expenditure.


 


(d)                                 Where the Commonwealth reduces Forecast
Expenditure under clause 8.4(a)
or clause 8.4(b)(i), the Commonwealth may
also, in the same or a separate written notice to the Participant, reduce the
Maximum Payment to an amount equal to the aggregate of the Maximum Annual
Payments for each of the Payment Years in the period from the Start Date to the
Exit Date, as reduced under clause 8.4(c).


 


(e)                                  Subject to clauses 8.2
and 8.4(f), where, in the Commonwealth’s reasonable opinion:


 


(i)                                     the Actual Activity does not meet the
Selection Criteria to the same extent as the Portfolio; and


 


(ii)                                  the quality of the Actual Activity is lower
than that which was required for entry into the Program in the Round.


 


the Commonwealth may by notice in writing terminate
this Funding Agreement.


 


(f)                                    Before the Commonwealth terminates this
Funding Agreement in accordance with clause 8.4(e),
the Commonwealth must:


 


(i)                                     notify the Participant that the Commonwealth
intends to terminate the Funding Agreement in accordance with clause 8.4(e);


 


(ii)                                  allow the Participant 14 days from the date
on which the Commonwealth notifies the Participant in accordance with clause 8.4(f)(i) to provide written submissions in relation
to the matters referred to in clause 8.4(e);
and


 


20





















 


(iii)                               take into account any submissions provided by
the Participant pursuant to clause 8.4(f)(ii)
in deciding whether or not to terminate this Funding Agreement in accordance
with clause 8.4(e).


 


9                                         INTELLECTUAL PROPERTY


 


9.1                               Vesting
of Intellectual Property


 


Subject to clause 9.2, the Commonwealth does not assert ownership of.
or any right to, any Intellectual Property created under this Funding
Agreement.


 


9.2                               Licence


 


The Participant grants to the Commonwealth a permanent, irrevocable,
royalty-free, world­wide, non-exclusive licence to use, reproduce, publish,
electronically transmit, electronically distribute, adapt and modify any
Contract Material, including any existing Material which is used for the
purposes of the Program, for the purposes of the Commonwealth’s dissemination,
reporting and accountability requirements, but not to commercially exploit such
Contract Material.


 


9.3                               Documentation


 


If requested by the Commonwealth, the Participant agrees to bring into
existence, sign, execute or otherwise deal with any document which may be
necessary or desirable to give effect to this clause 9.


 


9.4                               Warranty


 


The Participant warrants that:


 


(a)                                  it is entitled, or will be entitled at the
relevant time, to deal with the Intellectual Property in the Contract Material
in the manner provided for in this clause 9; and


 


(b)                                 it will use all reasonable endeavours to
exploit the Intellectual Property created under this Agreement in order to meet
the objectives of the Program as described in the Program Guidelines.


 


10                                  CONFIDENTIALITY 


 


10.1                        Publicity


 


(a)                                  The Participant must acknowledge the
financial assistance received from the Commonwealth under this Funding
Agreement in any public statements about the Portfolio or its Eligible
Pharmaceutical R&D Activities as a whole.


 


(b)                                 The Commonwealth may publicise the
involvement of the Participant in the Program, by including in press releases,
general announcements, publications, presentations and annual reports, and may
disclose in order to satisfy any other accountability requirement or reporting
obligation, the following information:


 


(i)                                     the name of the Participant;


 


(ii)                                  a description of this Funding Agreement;


 


21





















 


(iii)                               a brief description of the Portfolio and any
activity in the Portfolio, as agreed with the Participant in writing from time
to time;


 


(iv)                              the Maximum Payment and Maximum Annual
Payments;


 


(v)                                 Actual Expenditure; and


 


(vi)                              the amount of payments made by the
Commonwealth under this Funding Agreement.


 


10.2                        Confidential Information


 


The Commonwealth must not disclose any Confidential Information except:


 


(a)                                  with the prior consent of the Participant;


 


(b)                                 where required or permitted under law;


 


(c)                                  to the Minister (as defined in the
Directions) or the Auditor-General or his or her delegate;


 


(d)                                 to the extent that they require the
information for the purposes of this Funding Agreement or the Program, to
officers, consultants, employees and advisers of the Commonwealth, provided
that the Commonwealth ensures that the recipient of the information is aware of
the confidentiality obligations under this clause
10.2 and takes steps to ensure the recipient of the information
complies with those confidentiality obligations; or


 


(e)                                  where permitted by clause 10.1.


 


11                                  RECORDS AND AUDIT


 


11.1                        Records


 


(a)                                  The Participant must, and must procure that
Members, keep to the Commonwealth’s satisfaction;


 


(i)                                     all records (including original receipts and
invoices) in accordance with accounting principles generally applied in
commercial practice and as required by law which are necessary to provide a
complete, detailed record and explanation of Actual Expenditure and the
Participant’s performance of its obligations under this Funding Agreement; and


 


(ii)                                  any other records relating to this Funding
Agreement which are required by the Commonwealth.


 


(b)                                 The Participant must, and must procure
Members to, retain the records referred to in clause
11.1(a), during the term of the Program and for at least 7 years
from the date of their creation.


 


22





















 


11.2                        Approvals and contract R&D


 


The Participant must, within 14 days of a request by the Commonwealth
to do so, provide to the Commonwealth copies of:


 


(a)                                  any Approval; and


 


(b)                                 contracts under which Actual Activity has
been performed by another person on behalf of the Participant or a Member.


 


11.3                      Inspection and audit


 


(a)                                  The Participant must, and must procure
Members to, allow the Commonwealth and its auditor, including the Australian National
Audit Office, at reasonable times and on reasonable notice, to:


 


(i)                                     enter the Participant’s or Member’s premises;


 


(ii)                                  audit the Participant’s compliance with this
Funding Agreement; and


 


(iii)                               inspect records held by the Participant or
the Member which are relevant to this Funding Agreement.


 


(b)                                 The Participant must, and must procure
Members to, provide the Commonwealth and its auditor with all necessary
facilities and assistance to enable them to conduct the audit.


 


(c)                                  The Participant must, and must procure
Members to, allow the Commonwealth and its auditor to make copies of any
records that the Commonwealth or its auditor considers relevant to the
Participant’s obligations under this Funding Agreement.


 


(d)                                 The Commonwealth and its auditor may only use
the copies referred to in clause 11.3(c) for
the purposes of:


 


(i)                                     an audit;


 


(ii)                                  verifying the Participant’s performance of
its obligations under this Funding Agreement; and


 


(iii)                               the Commonwealth’s and the auditor’s
accountability and reporting obligations.


 


12                                WARRANTIES


 


12.1                      Corporate capacity


 


The Participant warrants that as at the date of this Funding Agreement
and on each day during the term of this Funding Agreement:


 


(a)                                  [incorporation]
the Participant is:


 


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


 


23





















 


(ii)           registered for GST purposes pursuant to the GST Act having the
Australian Business Number as specified adjacent to the Participant’s name in
the Particular Conditions;


 


(b)                                 [legal
right and power] it has
the legal right and power to enter into this Funding Agreement and to perform
its obligations under the terms of this Funding Agreement;


 


(c)                                  [corporate
action] the execution,
delivery and performance of this Funding Agreement by it has been duly and
validly authorised by all necessary corporate action on its part;


 


(d)                                 [binding
agreement] this Funding
Agreement is a valid and binding agreement of it, enforceable in accordance
with its terms; and


 


(e)                                  [constitution]
the execution and performance of this
Funding Agreement by it does not and the other transactions contemplated by
this Funding Agreement do not, violate or conflict with or result in a breach
of or constitute a default under its constitution.


 


12.2                       Application
and Portfolio


 


The Participant warrants that as at the date of this Funding Agreement:


 


(a)                                  [Application]
the Application has been made in
accordance and compliance with the  Program  Guidelines  and, in particular, has specified all Eligible
Pharmaceutical R&D Activity performed in the First Base Year and the Second
Base Year by or on behalf of the Participant and people who were members of the
Group at the closing date for submission of applications to participate in the Round
and all Eligible Pharmaceutical R&D Activity proposed to be performed in
the Third Base Year and during the term of this Funding Agreement by or on behalf
of the Participant and people who were members of the Group at the closing date
for submission of applications to participate in the Round ; and


 


(b)                                 [Portfolio]
the Portfolio consists of all Eligible
Pharmaceutical R&D Activity that has been, and is proposed to be, performed
by or on behalf of the Participant and Members.


 


12.3                       Other warranties


 


The Participant warrants that as at the date of this Funding Agreement
and on each day during the term until this Funding Agreement terminates:


 


(a)                                  [eligibility]
 the
Participant satisfies the Eligibility Criteria;


 


(b)                                 [financial
capacity]  the Participant and the Members have the
financial capacity to perform or procure performance of the Forecast Activity
and undertake the Forecast Expenditure;


 


(c)                                  [intellectual
property]  the Participant, the Members and any person
who is not a Member and who performs Eligible Pharmaceutical R&D Activity
under a contract with the Participant or a Member will, at the relevant time,
have access to all intellectual property rights necessary for them to perform or
procure performance of the Forecast Activity and undertake the Forecast
Expenditure;


 


24





















 


(d)                                 [accuracy of
information]  all information provided by the Participant
to the Commonwealth from time to time, including information:


 


(i)                                     given in the Application;


 


(ii)                                  incorporated into the Particular Conditions;
or


 


(iii)                               given in any Report to the Commonwealth by
the Participant under this Funding Agreement, 


 


is true and correct;


 


(e)                                  [conflict of
interest]  the Participant, Members and any other person
who performs Eligible Pharmaceutical  R&D Activity under a contract with the Participant
or a Member do not have any interests or obligations that conflict or may
conflict with its interests or obligations under this Funding Agreement;


 


(f)                                    [adverse
circumstances]  the Participant is not aware of any circumstances
which adversely affect or might adversely affect the Participant’s ability to
fulfil its obligations under this Funding Agreement;


 


(g)                                 [activity]
 the
Forecast Activity does not include any activity which is not Eligible Pharmaceutical
R&D Activity;


 


(h)                                 [expenditure]
 Actual
Activity, Actual Expenditure, Base Expenditure, Forecast Activity and Forecast
Expenditure have been reported in accordance with the requirements of the
Program Guidelines;


 


(i)                                     [Group]:


 


(i)            it is the only member of the Group which
applied for funding in the Round;


 


(ii)           each Member is a member of the Group; and


 


(iii)          all members of the Group which perform Eligible Pharmaceutical R&D
Activity or procure other people to perform Eligible Pharmaceutical R&D
Activity for or on behalf of the member under a contract with the member are
included in the list of Members in Item 6 of the Schedule;


 


(j)                                     [forecasts]  the
Forecast Activity and Forecast Expenditure are realistic and achievable;


 


(k)                                  [Ethical and
regulatory approval] in
respect of any activity in the Portfolio involving research using genetic
material from humans (including human embryos, stem cells and all other human
organs, tissues and cells), animals or plants, or experimentation in animals or
humans:


 


(i)            the Participant, Members and any other person
who performs Eligible Pharmaceutical R&D Activity under a contract with the
Participant or a Member will, at the relevant time, have received Ethical and
Regulatory Approval for that activity; and


 


25





















 


(ii)           the Participant, Members and any other person who performs Eligible
Pharmaceutical R&D Activity under a contract with the Participant or a
Member have, in performing or procuring performance of that activity, complied
with all applicable and relevant law; and


 


(l)                                     [contract
R&D] where Actual
Activity, Actual Expenditure, Forecast Activity or Forecast Expenditure
includes Eligible Pharmaceutical R&D Activity or Eligible Expenditure
financed by a person who is not the Participant or a Member, it has been
included by the Participant with the consent of that person.


 


12.4                        Notification
of breach


 


(a)                                  If the Participant becomes aware of a breach
or potential breach of warranty, the Participant must immediately notify the
Commonwealth in writing of that breach or potential breach.


 


(b)                                 The Participant acknowledges that, without
limiting clause 13.3, breach of a warranty set
out in this Funding Agreement justifies termination of this Funding Agreement
by the Commonwealth.


 


13                                  TERM
AND TERMINATION 


 


13.1                        Term


 


(a)                                  This Funding Agreement will start on the
Start Date.


 


(b)                                 This Funding Agreement will terminate on the
earliest occurring of the following events:


 


(i)            the Exit Date;


 


(ii)           the Commonwealth and the Participant enter into a new Funding Agreement
following the selection of the Participant or a Member in a later funding round
for the Program;


 


(iii)          the Commonwealth and the Participant agree in writing to terminate this
Funding Agreement;


 


(iv)          the aggregate of all payments made to the Participant under this
Funding Agreement equals the Maximum Payment; and


 


(v)           the Commonwealth terminates this Funding Agreement under clause 13.2 or clause 13.3. 


 


but without prejudice  to the following obligations, which survive
such termination:


 


(vi)          any obligation of the Commonwealth to pay an amount to the Participant
under clause 3 in respect of any part of the
Payment Year immediately preceding termination; and


 


(vii)         the obligation of the Participant to submit Reports under clause 7 in respect of any part of the Payment Year
immediately preceding termination.


 


26





















 


13.2                        Termination at any time


 


(a)           The Commonwealth may terminate this Funding
Agreement at any time by giving not less than 30 days notice in writing to the
Participant, specifying the effective date of termination.


 


(b)           If this Funding Agreement is terminated under
clause 13.2(a),
the Commonwealth is liable only for:


 


(i)             all payments due and not yet made to the
Participant at the effective date of termination; and


 


(ii)            any reasonable substantiated unavoidable loss
(excluding loss of profits) incurred by the Participant as a direct consequence
of termination of this Funding Agreement.


 


13.3                        Termination for default


 


The Commonwealth may, without prejudice to any right of action or
remedy which has accrued or which may accrue in favour of the Commonwealth,
terminate this Funding Agreement by notice in writing to the Participant in the
event of any one or more of the following:


 


(a)                                  the Participant is in breach of this Funding
Agreement and in the opinion of the Commonwealth the breach is not capable of
being remedied:


 


(b)                                 the Participant is otherwise in breach of
this Funding Agreement and the Participant fails to remedy the breach within 21
days of receipt of a written notice from the Commonwealth requiring it to do so
(or within any longer period specified in the notice);


 


(c)                                  the Participant is in breach of a warranty
set out in this Funding Agreement;


 


(d)                                 the Commonwealth becomes entitled to
terminate pursuant to clause 6.1(d);


 


(e)                                  the Commonwealth becomes entitled to
terminate pursuant to clause 7.6;


 


(f)                                    the Commonwealth becomes entitled to
terminate pursuant to clause 8.4(e); or


 


(g)                                 an Insolvency Event occurs in relation to the
Participant.


 


13.4                        Force
majeure


 


The Commonwealth may not take action under clause 13.3
for a breach of this Funding Agreement due to a cause or causes beyond the
Participant’s reasonable control which does not continue for more than 12 weeks
in the aggregate.


 


13.5                        Survival
of obligations
after termination


 


Clauses 3.10, 4, 7.1, 7.3, 7.3(I), 7.7, 9, 10, 11, and this clause 13.5
of this Funding Agreement will remain in full force and effect and survive the
expiry or termination of the agreement evidenced by this Funding Agreement.


 


27





















 


14                                  COMMUNICATIONS


 


14.1                        General


 


A Communication must be in writing in English and may be given by an
agent of the sender.


 


14.2                        How
to give a Communication


 


In addition to any other lawful means, a Communication may be given to
a party by being:


 


(a)                                  personally delivered to the party;


 


(b)                                 left at the party’s registered office or
current business address;


 


(c)                                  subject to clauses
14.5 and 14.7, sent by
pre-paid ordinary mail to the party’s current address nominated for receipt of
Communications by mail or, if the address is outside Australia, by pre-paid
airmail;


 


(d)                                 subject to clauses
14.6 and 14.7, sent by facsimile to the party’s current facsimile number
nominated for receipt of Communications by facsimile; or


 


(e)                                  subject to clause
14.3, by email sent to the party’s current email address nominated
for receipt of Communications by email.


 


14.3                        Email communication


 


The following Communications must not be given by email:


 


(a)                                  Audit Statements:


 


(b)                                 Reports;


 


(c)                                  variations to this Funding Agreement; and


 


(d)                                 notices and information under clauses 3.10, 5.2, 5.3, 6.1, 7.5, 8.3(b), 8.4, 12.4(a), 13.1(b)(iii),
13.2, 13.3, 15,16.1 and 16.2.


 


14.4                        Current
address for delivery of Communications


 


(a)                                  The particulars for delivery of
Communications are initially as set out in Item 8 of the Schedule.


 


(b)                                 Each party may change its particulars for
delivery of Communications by notice in writing to the other party.


 


14.5                        Communications by post


 


Subject to clause 14.7, a Communication is given if posted:


 


(a)                                  within Australia to an Australian address, 3
days after posting; or


 


(b)                                 in any other case, 14 days after posting.


 


28





















 


14.6                        Communications by facsimile


 


Subject to clause 14.7, a communication is given if sent by facsimile, when
the sender’s facsimile machine produces a report that the facsimile was sent in
full to the addressee, the report being conclusive evidence that the addressee
received the facsimile in full at the time indicated on that report.


 


14.7                        After hours communications


 


If a Communication is given:


 


(a)                                  after 5.00 pm in the place of receipt; or


 


(b)                                 on a day which is a Saturday, Sunday or
public holiday in the place of receipt, 


 


it
is taken as having been given at 9.00 am on the next day which is not a
Saturday, Sunday or public holiday in that place.


 


14.8                        Process
service


 


Any process or other document relating to litigation, administrative or
arbitral proceedings relating to this Funding Agreement may be served by any
method contemplated by this clause 14 or
in accordance with any applicable law.


 


15                                  GST


 


15.1                        Construction


 


In this clause 15 words
and expressions which are not defined in this Funding Agreement but which have
a defined meaning in GST Law have the same meaning as in the GST Law.


 


15.2                        Consideration GST exclusive


 


Unless otherwise expressly stated, all prices or other sums payable or
consideration to be provided under this Funding Agreement are exclusive of GST.


 


15.3                        Payment of GST


 


If GST is payable by a supplier, or by the representative member for a
GST group of which the supplier is a member, on any supply made under this
Funding Agreement, the recipient will pay to the supplier an amount equal to
the GST payable on the supply.


 


15.4                        Timing
of GST payment


 


The recipient will pay the amount referred to in clause 15.3 in addition to and at the same
time that the consideration for the supply is to be provided under this Funding
Agreement.


 


15.5                        Tax
invoice


 


Except where clause 15.8 applies:


 


(a)                                  the supplier must deliver a tax invoice or an
adjustment note to the recipient before the supplier is entitled to payment of
an amount under clause 15.3; and


 


29





















 


(b)                                 the recipient can withhold payment of the
amount payable under clause 15.3
until the supplier provides a tax invoice or an adjustment note as appropriate.


 


15.6                        Adjustment event


 


If an adjustment event arises in respect of a taxable supply made by a
supplier under this Funding Agreement the amount payable by the recipient under
clause 15.3 will be recalculated to
reflect the adjustment event and a payment will be made by the recipient to the
supplier or by the supplier to the recipient as the case requires.


 


15.7                        Reimbursements


 


Where a party is required under this Funding Agreement to pay or
reimburse an expense or outgoing of another party, the amount to be paid or
reimbursed by the first party will be the sum of:


 


(a)                                  the amount of the expense or outgoing less
any input tax credits in respect of the expense or outgoing to which the other
party, or to which the representative member for a GST group of which the other
party is a member, is entitled; and


 


(b)                                 if the payment or reimbursement is subject to
GST, an amount equal to that GST.


 


15.8                        Recipient created tax invoice


 


Where the Participant makes a taxable supply to the Commonwealth under
this Funding Agreement, the parties agree:


 


(a)                                  the Commonwealth will issue a recipient
created tax invoice for the supply at the same time that the Commonwealth
provides the consideration for the supply;


 


(b)                                 the Participant will not issue a tax invoice
in respect of the supply;


 


(c)                                  the Commonwealth will issue an adjustment
note for any adjustment event that arises in relation to the supply; and


 


(d)                                 the Participant will not issue an adjustment
note for any adjustment event that arises in relation to the supply.


 


15.9                        Acknowledgment
by
Commonwealth


 


The Commonwealth acknowledges that it is registered for GST at the date
of entry into this Funding Agreement and that it will notify the Participant if
it ceases to be so registered.


 


15.10                 Acknowledgment by Participant


 


The Participant acknowledges that it is registered for GST at the date
of entry into this Funding Agreement and that it will notify the Commonwealth
if it ceases to be so registered.


 


30





















 


16                                  SUBSTITUTION, VARIATION, ASSIGNMENT AND WAVER


 


16.1                        Substitution and variation


 


(a)                                  At any time during the term of this Funding
Agreement, the Participant may submit in writing to the Commonwealth a proposal
to:


 


(i)                                     substitute a different Eligible
Pharmaceutical R&D Activity for an activity in the Portfolio; or


 


(ii)                                  add an Eligible Pharmaceutical R&D
Activity to the Portfolio.


 


(b)                                 Subject to clause
16.1(c), the Commonwealth may, in its discretion, accept or reject a
proposal referred to in clause 16.1 (a), with
or without conditions.


 


(c)                                  This Funding Agreement may only be varied or
replaced:


 


(i)                                     in accordance with clause 5.2, clause 5.3 or clause 8.4; or


 


(ii)                                  by written agreement of both parties.


 


16.2                        Assignment and dealing


 


(a)                                  The Participant must not assign, novate or
deal with any right under this Funding Agreement without the prior written
consent of the Commonwealth.


 


(b)                                 Any assignment, novation or dealing or
purported assignment, novation or dealing in breach of this clause 16.2 will have no effect in so far
as it might otherwise affect the Commonwealth.


 


16.3                        Waiver and exercise of rights


 


(a)                                  A single or partial exercise or waiver by a
party of a right relating to this Funding Agreement does not prevent any other
exercise of that right or the exercise of any other right.


 


(b)                                 A party is not liable for any loss, cost or
expense of any other party caused or contributed to by the waiver, exercise,
attempted exercise, failure to exercise or delay in the exercise of a right.


 


17                                  GENERAL


 


17.1                        Further
steps


 


Each party must promptly do whatever any other party reasonably
requires of it to give effect to this Funding Agreement and to perform its
obligations under it.


 


17.2                        Governing
law and
jurisdiction


 


(a)                                  This Funding Agreement is governed by and is
to be construed in accordance with the laws applicable in the Australian
Capital Territory.


 


31





















 


(b)                                 Each party irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of the Australian
Capital Territory 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.


 


17.3                        Liability


 


An obligation of two or more persons binds them separately and
together.


 


17.4                        Good
faith and reasonableness


 


During the term of this Funding Agreement, the parties must act towards
each other reasonably and in good faith when exercising rights and discretions,
considering consents or approvals, and performing obligations under this
Funding Agreement.


 


17.5                        Relationship of parties


 


(a)                                  This Funding Agreement does not create a
partnership, joint venture, employment or agency relationship between the
parties.


 


(b)                                 The Participant must not represent that it
is, or act as if it was, a partner, joint venturer, employee or agent of the
Commonwealth.


 


32





















 


PHARMACEUTICALS PARTNERSHIPS PROGRAM


 


P3


 


FUNDING AGREEMENT


 


 


PARTICULAR CONDITIONS


 


33





















 


PARTIES


 


1                                         Commonwealth of Australia
represented by the Department of Industry, Tourism and Resources


 


ABN 51 835 430479 001


 


GPO Box 9839 


Canberra ACT 2601


 


20 Allara Street 


Canberra ACT 2600


 


2                                         The Participant


 


Pharmaxis Ltd 


 


ABN 75082811630 


 


Unit 2


 


10 Rodborough Road 


 


FRENCHS FOREST NSW 2086 


 


OPERATIVE
PROVISIONS


 


1                                          This Funding Agreement is made, and the
Funding is made available to the Participant, under the Pharmaceuticals
Partnerships Program.


 


2                                          The Funding is made available to the
Participant on the terms and conditions of the Funding Agreement, which
comprises the General Conditions and the Particular Conditions (including the
schedules).


 


3                                          The Participant acknowledges that it has
received and read a copy of the General Conditions, and agrees that the terms
and conditions of the General Conditions form part of the Funding Agreement.


 


4                                          Terms defined in the General Conditions have
the same meaning in the Particular Conditions.


 


5                                          The Participant acknowledges that it has
received and read a copy of the Program Guidelines.


 


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


 


34





















 


	
  EXECUTED as a deed.

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date of Deed:  12  AUGUST 2004

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Commonwealth of Australia

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SIGNED SEALED AND DELIVERED

  	
  )

  	
   

  	
   

  	
   

  
	
  for
  and on behalf of the

  	
  )

  	
   

  	
   

  	
   

  
	
  COMMONWEALTH OF AUSTRALIA

  	
  )

  	
   

  	
   

  	
   

  
	
  by
  

  	
  Judith
  Zielber

  	
   

  	
  )

  	
   

  	
   

  	
   

  
	
  a
  delegate of the Minister for Industry

  	
  )

  	
   

  	
  /s/ Judith Zielber

  	
   

  
	
  Tourism
  and Resources

  	
  )

  	
   

  	
  Signature of delegate

  	
   

  
	
  in
  the presence of:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
     /s/
  Lyn Dodd

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   Signature
  of witness

  	
   

  	
   

  	
   

  	
   

  
	
     /s/
  Lyn Dodd

  	
   

  	
   

  	
   

  	
   

  
	
   Name
  of witness (print)

  	
   

  	
   

  	
   

  	
   

  
								



 


 


I hereby accept the terms and conditions pursuant to which the Funding
is made available. 


 


Participant


 


	
  THE COMMON SEAL of

  	
  )

  	
   

  	
   

  
	
  Pharmaxis Ltd

  	
  )

  	
   

  	
   

  
	
   

  	
  )

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   is affixed in the presence of:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [SEAL]

  
	
   

  	
   

  	
   

  	
   

  
	
  /s/ David M McGarvey

  	
   

  	
   

  	
   

  	
      /s/
  Alan D. Robertson

  	
   

  
	
   Company
  Secretary

  	
   

  	
   

  	
    Director

  
	
   David
  M McGarvey

  	
   

  	
   

  	
   

  	
    Alan
  D Robertson

  	
   

  
	
   Name
  of Company Secretary (print)

  	
   

  	
   

  	
    Name
  of Director (print)

  
							



 


35





















 


SCHEDULE –
PARTICULARS


 


1.                                      (a)                                  Start Date:                                    1 July 2004


 


(b)                                  Exit Date:                                           30 June 2008


 


2.                                      Base Expenditure


 


	
  Base Year

  	
   

  	
  Expenditure

  	
   

  
	
  (a)                                  First
  Base Year:

  	
   

  	
  1 July 2001
  to 30 June 2002

  	
   

  	
  $

  	
  *

  	
   

  
	
  (b)                                  Second
  Base Year:

  	
   

  	
  1 July 2002
  to 30 June 2003

  	
   

  	
  $

  	
  *

  	
   

  
	
  (c)                                  Third
  Base Year:

  	
   

  	
  1 July 2003
  to 30 June 2004

  	
   

  	
  $

  	
  *

  	
   

  



 


(d)                                  Base Expenditure:  $*


 


3.                                    Forecast Expenditure,
Maximum Annual Payment and Maximum Payment


 


	
  Payment Year

  	
   

  	
  Forecast Expenditure

  	
   

  	
  Base Expenditure

  	
   

  	
  Maximum Annual 

  Payment

  	
   

  
	
  2004/2005

  	
   

  	
  $

  	
  *

  	
   

  	
  $

  	
  *

  	
   

  	
  $

  	
  *

  	
   

  
	
  2005/2006

  	
   

  	
  $

  	
  *

  	
   

  	
  $

  	
  *

  	
   

  	
  $

  	
  *

  	
   

  
	
  2006/2007

  	
   

  	
  $

  	
  *

  	
   

  	
  $

  	
  *

  	
   

  	
  $

  	
  *

  	
   

  
	
  2007/2008

  	
   

  	
  $

  	
  *

  	
   

  	
  $

  	
  *

  	
   

  	
  $

  	
  *

  	
   

  



 


Maximum Payment: $6,126,398


 










* 
Confidential portion omitted and filed separately with the Commission


 


36





















 


4.                                     Portfolio


 


	
  Project

  	
   

  	
  Project Title

  	
   

  	
  2004/2005

  	
   

  	
  2005/2006

  	
   

  	
  2006/2007

  	
   

  	
  2007/2008

  	
   

  
	
  1

  	
   

  	
  Development
  of new treatments for autoimmune diseases (multiple sclerosis and rheumatoid
  arthritis)

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  Development
  of new treatments for chronic respiratory disease

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  	
  *

  	
   

  



 


5.                                      Forecast Activity and Performance
Milestones


 


	
  Project

  	
   

  	
  Milestone

  	
   

  	
  Expected 

  Achievement Date

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  1

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  
	
  2

  	
   

  	
  *

  	
   

  	
  *

  	
   

  



 










*  Confidential portion omitted and filed
separately with the Commission


 


37





















 


	
  6.

  	
  Members:

  	
  Pharmaxis
  Ltd (ABN 75 082 811 630)

  
	
   

  	
   

  	
   

  
	
  7.

  	
  Interest:

  	
  2
  percentage points higher than the 90 day bank bill swap rate sourced from the
  Commonwealth Banking Corporation as published in the Australian Financial
  Review on the date of the notice for repayment, or if such rate ceases to be
  sourced or published, a rate which, in the Commonwealth’s opinion, is an
  appropriate replacement for that rate.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  8.

  	
  Communications:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  (a)

  	
  Commonwealth

  	
  Address:
  GPO Box 9839, Canberra ACT 2601

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile:
  02 6213 7360

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Email:
  p3@industry.gov.au

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:
  Manager, P3 Program, AusIndustry

  
	
   

  	
   

  	
   

  
	
   

  	
  (b)

  	
  Participant

  	
  Address:
  Unit 2, 10 Rodborough Road, Frenchs Forest NSW 2086

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Facsimile:
  02 9451 3622

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Email:
  david.mcgarvey@pharmaxis.com.au

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:
  David McGarvey

  



 


38