exv10w22






Exhibit 10.22




	 	 	 

	 

	 	Offer management
agreement
	 
	 	 
	 

	 	Inteq Limited (Lead Manager)

REVA Medical, Inc. (Company)
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 
	 
	 	 









 









 







Offer Management agreement




	 	 	 	 	 	 	 	 	 

	Details	 	 	3	 
	 
	 	 	 	 	 	 	 	 
	Agreed terms	 	 	4	 
	1.	 	Defined terms & interpretation	 	 	4	 
	2.	 	Conditions precedent	 	 	9	 
	3.	 	Lead Manager	 	 	10	 
	4.	 	Conduct of the Offer	 	 	11	 
	5.	 	Applications and allocations	 	 	12	 
	6.	 	Settlement and issue	 	 	13	 
	7.	 	Obligations of the Company	 	 	14	 
	8.	 	Due Diligence Investigations	 	 	15	 
	9.	 	Representations, warranties and undertakings	 	 	16	 
	10.	 	Fees and expenses	 	 	18	 
	11.	 	Relief from the Lead Manager’s Obligations	 	 	20	 
	12.	 	Indemnity	 	 	21	 
	13.	 	Continuing obligations	 	 	25	 
	14.	 	Goods and services tax	 	 	25	 
	15.	 	Notices and other communications	 	 	26	 
	16.	 	Miscellaneous	 	 	27	 
	Schedule 1	 	- Timetable	 	 	29	 
	Schedule 2	 	- Warranties by the Company	 	 	30	 
	Schedule 3	 	- Events causing relief of Lead Manager’ obligations	 	 	33	 
	Schedule 4	 	- Confirmation certificate	 	 	37	 
	 
	 	 	 	 	 	 	 	 
	Signing page	 	 	38	 






	 	 	 

	 
	 

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Details




Date




Parties




	 	 	 

	Name

	 	Inteq Limited
	ABN

	 	16 055 971 232
	Short form name

	 	Lead Manager
	Notice details

	 	Level 6, 175 Macquarie Street, Sydney NSW 2000 AUSTRALIA
	 

	 	Facsimile +61 2 9229 2727
	 

	 	Attention: Mr Kim Jacobs, Managing Director
	 
	 	 
	 
	 	 
	 
	 	 
	Name

	 	REVA Medical, Inc.
	ARBN

	 	[to be inserted on registration as a foreign company]
	Short form name

	 	Company
	Notice details

	 	5751 Copely Drive, Suite B, San Diego CA 92111-7905 UNITED STATES OF AMERICA
	 

	 	Facsimile +1 858 966 3099
	 

	 	Attention: Mr Robert Stockman, Chairman & CEO






Background





	A	 	The Company proposes to:






	 	(i)	 	conduct the Offer and issue Offer Securities to investors pursuant to the
Prospectus and the Registration Statement;
	 
	 	(ii)	 	apply for admission to the official list of ASX and for quotation of its CDIs
on ASX; and
	 
	 	(iii)	 	use the proceeds of the Offer for the purposes referred to in the Prospectus.






	B	 	The Company has requested the Lead Manager to manage the Non-US Offer and the Lead Manager has agreed to do so as set out in this agreement.





	 	 	 

	 
	 

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Agreed terms





	1.	 	Defined terms & interpretation






	1.1	 	Defined terms
	 
	 	 	In this agreement:
	 
	 	 	Application Form means:






	 	(a)	 	an application form accompanying the Prospectus or any Supplementary
Prospectus, including, as the context requires a general public offer application form,
broker firm application form or institutional application form; or
	 
	 	(b)	 	an application form, acceptance letter or other commitment in the form required
by the Lead Manager.






	 	 	Application Money means the money to apply for Offer Securities.
	 
	 	 	ASIC means the Australian Securities and Investments Commission.
	 
	 	 	ASIC Modifications means the modifications of, or exemptions from, the Corporations Act
required to be obtained by the Company from ASIC to enable it to conduct the Offer in
compliance with the Corporations Act (including ASIC instrument of relief INS 10-0760 dated
17 August 2010).
	 
	 	 	ASIC Deed means the deed of undertaking by the Company for the benefit of ASIC dated 19
August 2010.
	 
	 	 	ASX means ASX Limited or the financial market it operates, as the context requires.
	 
	 	 	ASX Approval means the decisions by ASX to:






	 	(a)	 	admit the Company to the official list of ASX; and
	 
	 	(b)	 	grant quotation (as that expression is used in the Listing Rules) on ASX of all
of the Offer Securities.






	 	 	ASX Settlement means ASX Settlement Pty Ltd ACN 008 504 532.
	 
	 	 	ASX Settlement Operating Rules means the settlement rules of the settlement facility
provided by ASX Settlement.
	 
	 	 	ASX Waivers means the waivers, confirmations and/or approvals required to be obtained by the
Company from ASX to enable it to conduct the Offer in compliance with the Listing Rules.
	 
	 	 	Authorisation means an authorisation, approval, consent, declaration, exemption,
notarisation, license, permit, concession, order, registration, qualification, decree or
waiver, of a Governmental Agency or otherwise, however it is described, and in relation to
anything that could be prohibited or restricted by law if a Governmental Agency acts in any
way within a specified period, the expiry of that period without that action being taken,
including any renewal or amendment.
	 
	 	 	Broker Firm Offer means the offer under the Prospectus to Australian and New Zealand retail
investors who receive a firm allocation of Offer Securities from a broker invited by the
Lead Manager to participate in that part of the Offer.
	 
	 	 	Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in
New South Wales, Australia and San Diego, United States.
	 
	 	 	Business Hours means from 9.00am and 5.00pm on a Business Day.





	 	 	 

	 
	 

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	 	 	CHESS has the meaning given to that expression in the ASX Settlement Operating Rules.
	 
	 	 	CHESS Rules means the ASX Settlement Operating Rules and the provisions of the Corporations
Act and Listing Rules concerning the electronic security registration and transfer system as
and to the extent that they apply to the Company.
	 
	 	 	CDI means a CHESS depositary interest (within the meaning of the ASX Settlement Operating
Rules) in one-tenth of a Share.
	 
	 	 	Completion will occur when all of the Offer Securities to be issued under the Offer have
been issued in accordance with the Prospectus (and Registration Statement).
	 
	 	 	Confirmation Certificate means a certificate signed by two directors of the Company in the
form set out in Schedule 4.
	 
	 	 	Constitution means the Amended and Restated By-Laws and the Amended and Restated Certificate
of Incorporation of the Company.
	 
	 	 	Corporations Act means the Corporations Act 2001 (Cth).
	 
	 	 	Designated Bank Account means an account that satisfies the requirements of section 722 of
the Corporations Act.
	 
	 	 	Disclosure Document means a document issued or published by the Company, or on behalf of the
Company with its consent, in respect of the Offer, including the Prospectus, the
Registration Statement, and any marketing presentation used by the Company to conduct the
marketing of the Offer.
	 
	 	 	Due Diligence Committee means the committee formed by the Company in connection with the
Offer pursuant to clause 8.2.
	 
	 	 	Due Diligence Investigations means the investigations conducted by or on behalf of the
Company and its directors for the purpose of preparing and verifying the Prospectus and
ensuring that the Prospectus complies with the Corporations Act, and includes the activities
referred to in clause 8.
	 
	 	 	Due Diligence Planning Memorandum means the planning memorandum adopted by the Due Diligence
Committee in respect of the Offer and the Prospectus.
	 
	 	 	Due Diligence Report means the report of the Due Diligence Committee to the directors of the
Company, including all annexures to such report.
	 
	 	 	General Institutional Offer means the offer of Offer Securities to Institutional Investors
in Australia and certain other jurisdictions outside the United States.
	 
	 	 	General Public Offer means the offer of Offer Securities under the Prospectus to retail
investors located in Australia and New Zealand, excluding the Broker Firm Offer.
	 
	 	 	Governmental Agency means a government or government department or other body, or a
governmental, semi-governmental or judicial person, or a person (whether autonomous or not)
who is charged with the administration of a law, or a stock exchange.
	 
	 	 	Group means the Company and each Related Body Corporate of the Company.
	 
	 	 	GST has the meaning in section 195-1 of the GST Act.
	 
	 	 	GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
	 
	 	 	Inquiry means an investigation or inquiry in relation to the Offer by ASIC, ASX or any other
regulatory body or any litigation or proceedings in relation to the Offer.





	 	 	 

	 
	 

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	 	 	Insolvency Event means in relation to a person:






	 	(a)	 	(Receiver Appointed) a receiver, receiver and manager, administrator, trustee
or similar official is appointed over any of the assets or undertaking of the person ,
or any similar process, procedure or event occurs in relation to the person under any
applicable law (including the law of the United States);
	 
	 	(b)	 	(Payments Suspended) the person suspends payment of its debts generally;
	 
	 	(c)	 	(Unable to Pay) the person is or becomes unable to pay its debts as and when
they are due or is unable to pay its debts within the meaning of any applicable law or
the person may be presumed to be insolvent under any applicable law;
	 
	 	(d)	 	(Arrangements with Creditors) the person enters into or resolves to enter into
any arrangement, composition or compromise with, or assignment for the benefit of, its
creditors or any class of them;
	 
	 	(e)	 	(Winding Up) an application or order is made for the winding up, deregistration
or dissolution of, or the appointment of a provisional liquidator or liquidator to the
person or a resolution is passed or steps are taken to pass a resolution for the
winding up, deregistration or dissolution of the person (or any similar process,
procedure or event occurs in relation to the person under any applicable law (including
the law of the United States) otherwise than for the purpose of an amalgamation or
reconstruction which has the prior written consent of the Lead Manager; or
	 
	 	(f)	 	(Administrator) an administrator is appointed in relation to the person under
any applicable law, or any similar process, procedure or event occurs in relation to
the person under any applicable law (including the law of the United States).






	 	 	Institutional Offer means the offer of Offer Securities to Institutional Investors, and
comprises the General Institutional Offer and US Offer.
	 
	 	 	Institutional Investor means, for the purposes of:






	 	(a)	 	an offer in Australia, a person to whom offers and issues of Offer Securities
may lawfully be made without the need for disclosure to investors under Chapter 6D of
the Corporations Act by virtue of section 708(8) or 708(11) of the Corporations Act;
	 
	 	(b)	 	an offer outside Australia, a person to whom an offer or issue of Offer
Securities may be lawfully made under the applicable laws of the relevant foreign
jurisdiction without lodgement, registration, approval or filing with a Government
Agency or other formality (other than one with which the Company is willing to comply).






	 	 	Lead Brokers means Southern Cross Equities Limited and Taylor Collison Limited and Lead
Broker means either of them.
	 
	 	 	Lead Manager’s Obligations means the obligations of the Lead Manager under this agreement.
	 
	 	 	Listing Rules means the Listing Rules of ASX as waived or modified by ASX in respect of the
Company.
	 
	 	 	Lodgement Date means the date specified as the Lodgement Date in the Timetable.
	 
	 	 	Mandate Letter means the mandate letter agreement between the Company and the Lead Manager
relating to the Offer dated 1 March 2010.
	 
	 	 	Non-US Offer means the Offer excluding the US Offer.
	 
	 	 	Non-US Offer Proceeds means the total gross amount raised under the Non-US Offer, which
shall equal the total number of CDIs issued under the Non-US Offer multiplied by the Offer
Price.





	 	 	 

	 
	 

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	 	 	Offer means the General Public Offer, the Broker Firm Offer and the Institutional Offer.
	 
	 	 	Offer Closing Date means the date specified as such in the Timetable.
	 
	 	 	Offer Opening Date means the date specified as such in the Timetable.
	 
	 	 	Offer Price means A$[1.10] per CDI (being
the equivalent of A$[11.00] per Share).
	 
	 	 	Offer Proceeds means the total gross amount raised under the Offer, which shall equal the
total number of CDIs issued under the Offer multiplied by the Offer Price (and shall be a
minimum of A$70.0 million and up to A$85.0 million).
	 
	 	 	Offer Securities means the CDIs and Shares offered under the Offer (being a minimum of
63,636,370 CDIs representing 6,363,637 Shares and up to 77,272,730 CDIs representing
7,727,273 Shares).
	 
	 	 	Prospectus means the prospectus for the Non-US Offer in the form approved by the directors
of the Company for lodgement with ASIC.
	 
	 	 	Quotation Date means the date specified as such in the Timetable.
	 
	 	 	Registration Statement means the registration statement filed with the Securities and
Exchange Commission on Form S-1 (File No. 333-168852), and one or more amendments thereto,
and related preliminary prospectuses for the registration, under the Securities Act, of the
Offer, which registration statement, as so amended (including post-effective amendments, if
any), has been declared effective by the Securities and Exchange Commission.
	 
	 	 	Related Body Corporate means a body that is a related body corporate of the Company under
sections 9 and 50 of the Corporations Act.
	 
	 	 	Retail Offer means the General Public Offer and the Broker Firm Offer.
	 
	 	 	Securities Act means the United States Securities Act of 1933, as amended
	 
	 	 	Settlement Date means the date specified in the Timetable.
	 
	 	 	Share means a share of fully paid common stock in the capital of the Company.
	 
	 	 	Supplementary Prospectus means any supplementary or replacement prospectus to the Prospectus
required to be lodged with ASIC under Chapter 6D of the Corporations Act in connection with
the Offer.
	 
	 	 	Timetable means the timetable for the Offer set out in Schedule 1 (as it may be varied in
accordance with clause 4.1).
	 
	 	 	United States means the United States of America.
	 
	 	 	US Offer means the offer of Offer Securities to Institutional Investors in the United
States.
	 
	 	 	US Offer Documentation means the US Prospectus and any other document or material used by
the Company to conduct, or in connection with, the US Offer.
	 
	 	 	US Prospectus means the prospectus for the Offer filed with the Securities and Exchange
Commission pursuant to Rule 424(b) under the Securities Act and forming part of the
Registration Statement.
	 
	 	 	Valid Application means:






	 	(a)	 	in the case of the Retail Offer, an application for Offer Securities:






	 	(i)	 	that is made using a duly completed Application Form which is
received by the Company no later than 5.00pm on the Offer Closing Date (or such
other time as





	 	 	 

	 
	 

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	 	 	 	the Company and Lead Manager may agree) at the place specified in
the Prospectus (or the Application Form) for receipt of Application Forms;
	 
	 	(ii)	 	that is not withdrawn before the Offer Closing Date; and
	 
	 	(iii)	 	in respect of which the full Application Money for all of the
Offer Securities applied for is received and becomes cleared funds on or before
5.00pm on the Offer Closing Date (or such other time as the Company and Lead
Manager may agree);






	 	(b)	 	in the case of the Institutional Offer, an application for Offer Securities
that is made by an Institutional Investor using a duly completed Application Form
(which (except for applications under the US Offer) includes those details necessary to
permit delivery versus payment settlement to occur through CHESS in respect of those
Offer Securities by 10.00am on the Settlement Date) submitted in accordance with the
applicable Disclosure Document or such instructions as are issued by the Lead Manager
(or, in the case of the US Offer, by the Company).






	1.2	 	Interpretation
	 
	 	 	In this agreement, except where the context otherwise requires:






	 	(a)	 	the singular includes the plural and vice versa, and a gender includes other
genders;
	 
	 	(b)	 	another grammatical form of a defined word or expression has a corresponding
meaning;
	 
	 	(c)	 	a reference to a clause, paragraph, schedule or annexure is to a clause or
paragraph of, or schedule or annexure to, this agreement, and a reference to this
agreement includes any schedule or annexure;
	 
	 	(d)	 	a reference to a document or instrument includes the document or instrument as
novated, altered, supplemented or replaced from time to time;
	 
	 	(e)	 	a reference to A$, $A, $, dollars or Australian dollars is to Australian
currency;
	 
	 	(f)	 	a reference to US$ or United States dollars is to United States currency.
	 
	 	(g)	 	a reference to time is to Sydney, Australia time;
	 
	 	(h)	 	a reference to a party is to a party to this agreement, and a reference to a
party to a document includes the party’s executors, administrators, successors and
permitted assigns and substitutes;
	 
	 	(i)	 	a reference to a person includes a natural person, partnership, body corporate,
association, governmental or local authority or agency or other entity;
	 
	 	(j)	 	a reference to a statute, ordinance, code or other law includes regulations and
other instruments under it and consolidations, amendments, re-enactments or
replacements of any of them;
	 
	 	(k)	 	a word or expression defined in the Corporations Act has the meaning given to
it in the Corporations Act;
	 
	 	(l)	 	the meaning of general words is not limited by specific examples introduced by
including, for example or similar expressions;
	 
	 	(m)	 	any agreement, representation, warranty or indemnity by two or more parties
(including where two or more persons are included in the same defined term) binds them
severally;





	 	 	 

	 
	 

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	 	(n)	 	any agreement, representation, warranty or indemnity in favour of two or more
parties (including where two or more persons are included in the same defined term) is
for the benefit of them severally;
	 
	 	(o)	 	a rule of construction does not apply to the disadvantage of a party because
the party was responsible for the preparation of this agreement or any part of it; and
	 
	 	(p)	 	if a day on or by which an obligation must be performed or an event must occur
is not a Business Day, the obligation must be performed or the event must occur on or
by the next Business Day.






	1.3	 	Headings
	 
	 	 	Headings are for ease of reference only and do not affect interpretation.






	2.	 	Conditions precedent






	2.1	 	Conditional obligations
	 
	 	 	The obligations of the Lead Manager under this agreement are conditional on:






	 	(a)	 	(Due Diligence Report and Materials) delivery to the Lead Manager by the
Lodgement Date of:






	 	(i)	 	the Due Diligence Report signed by or on behalf of each member of
the Due Diligence Committee;
	 
	 	(ii)	 	all experts reports (being the Technical Expert’s Report and the
Long Form and Short Form Intellectual Property Report), the Australian and US
legal sign offs, the Australian and US tax sign offs, the investigating
accountant’s report to the Due Diligence Committee and the investigating
accountant’s report for inclusion in the Prospectus, and all management sign
offs described or contemplated in the Due Diligence Report or the Due Diligence
Planning Memorandum,






	 	 	 	each in a form and substance reasonably acceptable to the Lead Manager, and, except
for those expert reports for inclusion in the Prospectus, each addressed to, and
expressed to be for the benefit of, all of the members of the Due Diligence
Committee;.
	 
	 	(b)	 	(US Disclosure Documentation Lodgement) the Company filing with the U.S.
Securities and Exchange Commission by the Lodgement Date the Registration Statement,
in form and substance reasonably satisfactory to the Lead Manager;
	 
	 	(c)	 	(Prospectus Lodgement) the Company lodging the Prospectus, in form and
substance satisfactory to the Lead Manager (as evidenced by the Lead Manager’s
signature of the Due Diligence Report), with ASIC by the Lodgement Date; and
	 
	 	(d)	 	(ASIC Modifications and ASX Waivers) before the Lodgement Date:






	 	(i)	 	ASIC granting the ASIC Modifications; and
	 
	 	(ii)	 	ASX granting, or indicating in writing that it will be likely to
grant, the ASX Waivers,






	 	 	 	such that the Offer may be conducted in accordance with the Timetable and this
agreement.






	 	 	The conditions in clause 2.1(a)(ii) will be treated as satisfied if the representative of
the Lead Manager on the Due Diligence Committee signs the Due Diligence Report.





	 	 	 

	 
	 

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	2.2	 	Satisfaction of conditions
	 
	 	 	The Company must use its best endeavours to ensure that the conditions precedent in
clause 2.1 are satisfied by their respective deadlines.
	 
	2.3	 	Waiver
	 
	 	 	The Lead Manager has the benefit of the conditions precedent in clause 2.1 and the Lead
Manager alone may waive any or all of those conditions (on such terms as it determines in
its absolute, unfettered and sole discretion) by giving notice in writing to the Company to
that effect.
	 
	2.4	 	Notification of failure to satisfy
	 
	 	 	The Company must immediately notify the Lead Manager if any of the conditions precedent
in clause 2.1 becomes incapable of being satisfied, or is not satisfied, by the relevant
deadline.
	 
	2.5	 	Conditions not satisfied
	 
	 	 	If any of the conditions precedent in clauses 2.1 are not satisfied (or
waived by the Lead Manager) by their respective deadlines, the Lead Manager (in its
absolute, unfettered and sole discretion) may terminate this agreement by written notice to
the Company.






	3.	 	Lead Manager






	3.1	 	Appointment
	 
	 	 	The Company appoints the Lead Manager on an exclusive basis to arrange and lead manage,
and act as sole bookrunner for, the Non-US Offer and the Lead Manager accepts that
appointment. Pursuant to this appointment, the Lead Manager must (amongst other things):






	 	(a)	 	use its reasonable endeavours to procure subscriptions for the Offer Securities
(other than Offer Securities offered under the US Offer) at the Offer Price;
	 
	 	(b)	 	manage the allocation of the Offer Securities (other than Offer Securities
offered under the US Offer); and
	 
	 	(c)	 	manage settlement of the Offer (other than the US Offer),






	3.2	 	US Offer excluded
	 
	 	 	The Lead Manager is not appointed to arrange, or in any way manage, the US Offer and
has no obligations whatsoever with respect to the US Offer.
	 
	3.3	 	Lead Manager’s Obligations
	 
	 	 	Subject to this agreement, the Lead Manager must provide and carry out the Lead
Manager’s Obligations with all due skill, care and diligence in accordance with accepted
professional and business practices.
	 
	3.4	 	Co-managers and brokers to the Offer
	 
	 	 	The Lead Manager may at any time appoint co-managers and brokers, including lead
brokers, to the Non-US Offer. As at the date of this agreement, the Lead Manager has
appointed as joint lead brokers for the Non-US Offer, each of:






	 	(a)	 	Southern Cross Equities Limited, ABN 87 071 935 441 and holder of AFSL 247027;
and
	 
	 	(b)	 	Taylor Collison Limited, ABN 53 008 172 452 and holder of AFSL 247083,






	 	 	and each has agreed to their appointment as such and consented to the inclusion of their
name in the Prospectus as a lead broker. The Lead Manager may, in its absolute discretion,
terminate the appointment of either or both Lead Brokers (or any other co-manager or broker
appointed by it), and will promptly notify the Company of any such termination. Subject to
clause 10.2, the Lead





	 	 	 

	 
	 

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	 	 	Manager is responsible for all fees payable to any co-managers and/or
brokers appointed by the Lead Manager with respect to the Offer.
	 
	3.5	 	No underwriting
	 
	 	 	Nothing in this agreement constitutes an agreement or imposes an obligation to
underwrite the Offer or any part of the Offer.
	 
	3.6	 	No fiduciary relationship






	 	(a)	 	The parties agree that it is not the intention of the parties to create a fiduciary
relationship between them.
	 
	 	(b)	 	Without limiting clause 3.6(a), the parties each acknowledge and agree that:






	 	(i)	 	the Company is contracting with the Lead Manager on an
arms-length basis to provide the services set out in this agreement;
	 
	 	(ii)	 	the Lead Manager is not acting as the Company’s agent or in a
fiduciary capacity with respect to it; and
	 
	 	(iii)	 	the Lead Manager is not assuming any duties or obligations other
than those expressly set out in this agreement and the Mandate Letter.






	3.7	 	Termination of obligations
	 
	 	 	The Lead Manager’s obligations under this agreement, including clause 3.1, cease on the
earliest to occur of:






	 	(a)	 	Completion;
	 
	 	(b)	 	the Lead Manager terminating this agreement in accordance with clause 11; or
	 
	 	(c)	 	the Company withdrawing the Offer or the Prospectus (or any Supplementary
Prospectus).






	3.8	 	Representations and warranties by Lead Manager
	 
	 	 	The Lead Manager represents and warrants to the Company that each of the warranties in
paragraphs (a) to (d) below is true and correct in all material respects as at the date of
this agreement and will remain so at all times until Completion or the earlier termination
of this agreement in accordance with its terms:






	 	(a)	 	it has the power to enter into and perform all of its obligations under and
comply with all of the terms and conditions of this agreement;
	 
	 	(b)	 	all approvals and authorities that may be required to permit it to enter into
this agreement and to perform this agreement in accordance with its terms have been
obtained and remain valid and subsisting;
	 
	 	(c)	 	this agreement is a valid and binding obligation of it; and
	 
	 	(d)	 	it is a body corporate duly incorporated and validly existing under the laws of
its place of incorporation.






	4.	 	Conduct of the Offer
	 
	4.1	 	Timetable
	 
	 	 	The Company must conduct the Offer in accordance with the Timetable, which may only be
amended by the Company with the prior consent of the Lead Manager (such consent not to be
unreasonably withheld or delayed). However, the Company may withdraw the Offer at any time
before allotment of the Offer Securities at its absolute discretion.





	 	 	 

	 
	 

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	4.2	 	Regulatory compliance
	 
	 	 	The Company must:






	 	(a)	 	conduct the Offer in accordance with the Prospectus, the US Prospectus, its
Constitution and this agreement and in accordance with;
	 
	 	(b)	 	ensure that the Prospectus and each other Disclosure Document complies with;
and
	 
	 	(c)	 	ensure that advertising, publicity and all other material issued or published
by it and relating to advertising and publicity of or in relation to the Offer, the
Prospectus or any other Disclosure Document complies with,






	 	 	the Corporations Act, the Securities Act, any other applicable law or regulation (except to
the extent that compliance with the same has been modified or waived, or an exemption has
been granted by a person having authority to do so), the Listing Rules, any legally binding
requirement of ASIC, ASX or any other Governmental Agency, the ASIC Modifications, the ASIC
Deed, the ASX Waivers.
	 
	4.3	 	Support and access






	 	(a)	 	The Company must keep the Lead Manager fully informed as to the progress of the
Offer including all strategies, developments and discussions relevant to the Offer.
	 
	 	(b)	 	The Company must provide to the Lead Manager the full support of, and access
to, its senior executives and the senior management, in the marketing of the Non-US
Offer, including attendance and participation of such senior executives and senior
management of the Company at roadshow presentations and other investor briefings.
	 
	 	(c)	 	The Company must provide to the Lead Manager advanced copies of drafts of the
Prospectus (and any other Disclosure Document requested by the Lead Manager) for
distribution to prospective co-managers, brokers and institutional investors and a
marked copy of the lodged version of the Prospectus (and the final version of any other
Disclosure Document requested by the Lead Manager) showing all changes from the draft
provided to the Lead Manager for prospective co-managers, brokers and institutional
investors.
	 
	 	(d)	 	The Company must provide to the Lead Manager, at the Company’s cost, such
number of printed copies, and electronic copies, of the Prospectus (and any other
Disclosure Document) as the Lead Manager may reasonably request.






	5.	 	Applications and allocations
	 
	5.1	 	Notification of applications
	 
	 	 	The Company must direct its share registry, whenever requested by the Lead Manager, to
notify the Lead Manager of:






	 	(a)	 	the particulars of the applications for Offer Securities received including the
number of Offer Securities applied for; and
	 
	 	(b)	 	the number of applications for Offer Securities which are not Valid
Applications and the grounds on which the Company believes those applications are not
Valid Applications,






	 	 	within a reasonable time of any such request being made.






	5.2	 	Valid Applications
	 
	 	 	Subject to clause 5.4, the Company must accept all Valid Applications lodged:






	 	(a)	 	by the Lead Manager pursuant to firm allocations made by the Lead Manager; and





	 	 	 

	 
	 

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	 	(b)	 	to the extent Offer Securities remain after acceptance of the Valid
Applications referred to in clause 5.2(a), by other applicants on or before 5.00pm on
the Offer Closing Date,






	 	 	up to the number of Offer Securities.
	 
	5.3	 	Scale back
	 
	 	 	The parties acknowledge and agree that, subject to clause 5.4, Valid Applications may
be scaled back or rejected in a manner consistent with the allocation principles outlined in
clause 5.4.
	 
	5.4	 	Allocation






	 	(a)	 	Allocation of Offer Securities shall occur on the Allocation Date or such other
date as the Company and the Lead Manager shall agree.
	 
	 	(b)	 	Subject to clauses 5.4(d), 5.4(e) and 5.4(f), the allocation of Offer
Securities under the Offer will be determined by the Company in consultation with the
Lead Manager.
	 
	 	(c)	 	Without limiting the generality of clause 5.4(a), the Company will determine,
in consultation with the Lead Manager, the allocation of Offer Securities between:






	 	(i)	 	the General Public Offer, the Broker Firm Offer and the
Institutional Offer; and
	 
	 	(ii)	 	the General Institutional Offer and the US Offer.






	 	(d)	 	Once the allocation to brokers under the Broker Firm Offer has been determined
under the rest of this clause 5.4, the brokers participating in the Broker Firm Offer
will determine the allocation of Offer Securities among their clients.
	 
	 	(e)	 	The Company (and not the Lead Manager) shall determine the allocation of Offer
Securities under the US Offer.
	 
	 	(f)	 	In allocating Offer Securities under the Non-US Offer, to the extent they are
able to, the Company and the Lead Manager shall use reasonable endeavours to ensure
that the Offer Securities are allocated such that upon issue of all of the Offer
Securities there will be at least 500 holders of Offer Securities each having a parcel
of Offer Securities of at least A$2,000.






	5.5	 	Acceptance of applications
	 
	 	 	Without limiting any other provision in this clause 5, the Company must not, without
the prior consent of the Lead Manager:






	 	(a)	 	refuse or reject a Valid Application; or
	 
	 	(b)	 	accept an application for Offer Securities under the Retail Offer that is not a
Valid Application.






	6.	 	Settlement and issue






	6.1	 	Settlement






	 	(a)	 	The Company must do, and procure its share registry to do, everything required on
its or its security registry’s behalf, to facilitate the settlement of the
subscriptions for the Offer Securities by 5.00pm on the Settlement Date (and in
accordance with this agreement, the Prospectus, its Constitution, the Listing Rules,
the ASX Settlement Operating Rules, the Corporations Act and all other applicable
laws).
	 
	 	(b)	 	To the extent practicable, settlement of the subscriptions for the Offer
Securities shall take place on a delivery versus payment basis in accordance with the
CHESS Rules. The Lead Manager (or its nominee) will act as a broker under the CHESS
Rules and manage settlement on behalf of the Company.





	 	 	 

	 
	 

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	6.2	 	Confirmation Certificate
	 
	 	 	The Company must give the Lead Manager a Confirmation Certificate duly signed by two
directors of the Company no later than 10.00am on the Settlement Date.
	 
	6.3	 	Issue
	 
	 	 	Subject to clause 6.1(b), on or before the Settlement Date, the Company must take all
necessary and appropriate steps to cause the issue on the Settlement Date of, and must issue
on the Settlement Date, all the Offer Securities in respect of which Valid Applications have
been received to or for the account of those applicants who submitted Valid Applications and
to whom allocations have been made under clause 5.4.
	 
	6.4	 	Holding statements
	 
	 	 	The Company or its share registry must despatch holding statements in respect of the
Offer Securities and refund cheques (if any) in accordance with the Corporations Act and the
Listing Rules as soon as practicable after the Settlement Date.
	 
	6.5	 	No settlement support or underwriting






	 	(a)	 	The parties acknowledge and agree that the Lead Manager is not providing any
settlement support (nor or, as stated in clause 3.5, any underwriting) for the Offer.
	 
	 	(b)	 	Without limiting clause 6.5(a), the Lead Manager has no liability whatever if
any person applying for Offer Securities under the Institutional Offer breaches any
agreement for the issue to the person of all or any of the Offer Securities allocated
to the person, including by failing to pay when due the amount payable for the Offer
Securities.






	7.	 	Obligations of the Company






	7.1	 	ASX Approval
	 
	 	 	The Company must:






	 	(a)	 	no later than 7 days after the date of the Prospectus apply to ASX for
admission to the official list of ASX and for quotation of the Offer Securities by ASX
in compliance with the Listing Rules, the Corporations Act and according to the
Prospectus; and
	 
	 	(b)	 	use all reasonable endeavours to ensure that ASX Approval (subject only to
customary listing and quotation conditions imposed by ASX) is obtained before the
Settlement Date;
	 
	 	(c)	 	use all reasonable endeavours to ensure that all conditions of ASX Approval are
satisfied to enable the Offer Securities to be admitted to quotation as soon as is
reasonably practicable and in any event no later than the Quotation Date; and
	 
	 	(d)	 	deliver to the Lead Manager, on the same day on which it is received or sent,
copies of each item of correspondence received and sent by the Company that relates to
the application for ASX Approval.






	7.2	 	Designated Bank Account
	 
	 	 	The Company must:






	 	(a)	 	open a Designated Bank Account before the Offer Opening Date; and
	 
	 	(b)	 	ensure that the Application Money (if any) deposited in the Designated Bank
Account is not withdrawn until the earlier of:






	 	(i)	 	the issue of the Offer Securities; or
	 
	 	(ii)	 	the withdrawal of the Offer and return of Application Monies to
Applicants.





	 	 	 

	 
	 

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	8.	 	Due Diligence Investigations






	8.1	 	Due Diligence
	 
	 	 	Until Completion or the earlier termination of this agreement in accordance with its
terms, the Company must:






	 	(a)	 	make such enquiries as are reasonable; and
	 
	 	(b)	 	exercise due diligence,






	 	 	to ensure that:






	 	(c)	 	there are no omissions from the Prospectus of information required to be
included by the Corporations Act or otherwise;
	 
	 	(d)	 	that the statements included in the Prospectus are not misleading or deceptive,
and do not become misleading or deceptive.






	8.2	 	Due Diligence Committee
	 
	 	 	The Company confirms that it has established a Due Diligence Committee to assist in
complying with its obligations under clause 8.1.
	 
	8.3	 	Due Diligence Report
	 
	 	 	The Company must provide the Lead Manager with full and free access to, and on request,
copies of the Due Diligence Report and all materials and documents used or created in
connection with the Due Diligence Investigations, on receipt of reasonable notice from the
Lead Manager, and must maintain those materials and documents for at least seven years from
Completion for that purpose. The Lead Manager must keep and must procure that it and its
advisers keep confidential all information obtained under this clause 8.3, other than:






	 	(a)	 	as required by law, the Listing Rules or the requirements of any governmental
agency;
	 
	 	(b)	 	that the Lead Manager may provide such information to its advisers to obtain
advice in relation to the Offer, in which case it must ensure that its advisers keep
such information confidential to the extent required hereunder;
	 
	 	(c)	 	for purposes which directly relate to the Offer or the preparation of the
Prospectus; or
	 
	 	(d)	 	as needed in relation to any actual or potential claim against the Lead
Manager, its Related Bodies Corporate and directors, officers, employees and advisers
of each of them in relation to the Offer or the Prospectus,






	 	 	for so long as such information remains confidential information and that such persons only
use such information in connection with the Offer or any Inquiry.
	 
	8.4	 	Access to premises, books and records
	 
	 	 	The Company agrees to allow the Lead Manager and its officers and advisers full and
free access to the personnel, premises, books and records of the Company and its Related
Bodies Corporate at all reasonable times:






	 	(a)	 	before Completion; or
	 
	 	(b)	 	during any regulatory enquiry or litigation proceedings in relation to the
Offer,






	 	 	to enable the Lead Manager to obtain any information about the Group and any matters which
the Lead Manager reasonably requires in relation to the Offer. The Company must provide any
information, assistance and facilities which the Lead Manager reasonably requires for those
purposes.





	 	 	 

	 
	 

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	8.5	 	ASX and ASIC
	 
	 	 	Without limiting the generality of clause 8.4, the Company must promptly provide the
Lead Manager with copies of all submissions and notices to, correspondence with and
approvals of, ASIC and ASX relating to the Prospectus or the Offer, evidence of the lodging
of the Prospectus with ASIC and any other similar material relating to the Prospectus or the
Offer.
	 
	8.6	 	Supplementary Prospectus
	 
	 	 	Without prejudice to any right of the Lead Manager to terminate this agreement, if the
Company becomes aware of or is notified of any matter that would require the Company to
lodge a Supplementary Prospectus with ASIC, the Company must immediately notify the Lead
Manager and the Company must:






	 	(a)	 	if required by the Lead Manager, as soon as practicable and in any event within
3 Business Days, lodge a Supplementary Prospectus with ASIC, in a form approved in
writing by the Lead Manager, such approval not to be unreasonably withheld or delayed;
and
	 
	 	(b)	 	make any related filings or lodgements with any Governmental Agency required
under any applicable law (including any related filings required to be made with the
U.S. Securities and Exchange Commission of, or in connection with, the US Offer
Documentation), any such filings to be in form and substance approved by the Lead
Manager, such approval not to be unreasonably withheld or delayed.






	9.	 	Representations, warranties and undertakings






	9.1	 	Warranties
	 
	 	 	The Company represents and warrants to the Lead Manager, that each of the warranties
set out in Schedule 2 is true and correct in material all respects as at the date of this
agreement and will remain so at all times until Completion or the earlier termination of
this agreement in accordance with its terms.
	 
	9.2	 	Undertakings
	 
	 	 	The Company undertakes to the Lead Manager that it will:






	 	(a)	 	not, before Completion, breach, nor permit any Related Body Corporate to
breach, or be involved in or acquiesce to any breach of:






	 	(i)	 	the Constitution or the constitution or constituent or governing
documents of a Related Body Corporate;
	 
	 	(ii)	 	the Corporations Act;
	 
	 	(iii)	 	any other applicable law or regulation;
	 
	 	(iv)	 	the Listing Rules;
	 
	 	(v)	 	any legally binding requirement of ASIC, ASX or any other
Governmental Agency; or
	 
	 	(vi)	 	the ASIC Modifications, the ASIC Deed or the ASX Waivers;






	 	(b)	 	until Completion, carry on its business and procure that each other member of
its Group carries on its business in the ordinary course
	 
	 	(c)	 	not, before Completion, dispose of or license, nor agree to dispose of or
license, the whole, or a substantial part, of its business or property (except where
already contemplated in the Prospectus) without the prior written consent of the Lead
Manager;





	 	 	 

	 
	 

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	 	(d)	 	not, before Completion, make any written statements or announcements to ASX or
to another person in relation to the Offer, or issue any press releases directly or
indirectly in respect of the Offer (including without limitation, the progress or
results of the Offer), the Prospectus or the Company without prior consultation with,
and the prior written consent of, the Lead Manager (such consent not to be unreasonably
withheld or delayed) ; and
	 
	 	(e)	 	not make any material amendment to the terms of the material contracts referred
to in the Prospectus without the prior written consent of the Lead Manager (such
consent not to be unreasonably withheld or delayed).;
	 
	 	(f)	 	obtain the prior written consent of the Lead Manager to any amendment to any
Disclosure Document, such consent not to be unreasonably withheld or delayed;
	 
	 	(g)	 	ensure that each of its directors, as at the date of the Prospectus, has
consented, and are stated in the Prospectus as having consented, to the lodgement of
the Prospectus;
	 
	 	(h)	 	not, before Completion, other than as contemplated in the Prospectus, vary any
term of the Constitution or permit the Constitution to be varied without the prior
written consent of the Lead Manager to the terms of the variation, such consent not to
be unreasonably withheld or delayed;
	 
	 	(i)	 	maintain and permit the Lead Manager to inspect at any reasonable time accurate
records of the receipt of applications, the banking of application monies, the
processing of applications and the despatch of holding statements in respect of the
Offer Securities issued as a result of the Offer; and
	 
	 	(j)	 	until the Offer Closing Date, use best endeavours to undertake an advertising
and marketing campaign for the Offer.






	9.3	 	Notification to Lead Manager
	 
	 	 	The Company must notify the Lead Manager immediately it becomes aware of:






	 	(a)	 	the occurrence of any event set out in Schedule 3;
	 
	 	(b)	 	any breach of this agreement including any representation, warranty or
undertaking contained in this agreement;
	 
	 	(c)	 	any proposal to lodge with ASIC a Supplementary Prospectus; or
	 
	 	(d)	 	any of the following occurring in relation to the Offer or the Prospectus:






	 	(i)	 	ASIC issuing an order (including an interim order);
	 
	 	(ii)	 	ASIC holding a hearing;
	 
	 	(iii)	 	an application being made by ASIC for an order in relation to
the Offer or the Prospectus;
	 
	 	(iv)	 	ASIC commencing any investigation or hearing under Part 3 of the
Australian Securities and Investments Commission Act 2001 (Cth); or
	 
	 	(v)	 	any person other than the Lead Manager who has previously
consented to the inclusion of their name in the Prospectus or to be named in the
Prospectus withdrawing that consent.






	9.4	 	Moratorium
	 
	 	 	Except as disclosed in the Prospectus, the Company must not:






	 	(a)	 	without the prior written consent of the Lead Manager, at any time after the
date of this agreement and before the expiration of 180 days after the Issue Date,
issue or agree to





	 	 	 

	 
	 

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	 	 	 	issue or indicate in any way that it may or will issue or agree to issue any shares
(including Shares), options to acquire shares (including Shares), or other interests
or securities in the Company, other than pursuant to the Offer or this agreement or
under the Equity Incentive Plan described in the Prospectus;
	 
	 	(b)	 	in any way reduce, reorganise, or otherwise alter the Company’s capital
structure, or agree or announce an intention to do any of those things, without the
prior written consent of the Lead Manager at any time after the date of this agreement
and before the expiration of 180 days after the Issue Date.






	9.5	 	Undertakings by the Lead Manager
	 
	 	 	Subject to the Company performing its obligations under this agreement, the Lead
Manager:






	 	(a)	 	will perform its obligations under this agreement in accordance with all
applicable laws (except to the extent that breach is caused or contributed to by the
act or omission of the Company, a Related Body Corporate of the Company or any of their
respective officers, employees or advisers or caused by reliance on information
contained in the Prospectus or any other Disclosure Document or other information
provided by the Company in relation to the affairs of the Company);
	 
	 	(b)	 	will perform its obligations under this agreement in the manner contemplated in
the Prospectus and otherwise on the terms of this agreement;
	 
	 	(c)	 	will seek to procure subscriptions for Offer Securities under the Institutional
Offer, only from persons who have represented to the Lead Managers that they are
Institutional Investors;
	 
	 	(d)	 	confirms that it will not seek to procure subscriptions for Offer Securities
from investors in any jurisdiction outside Australia, New Zealand, the United States,
Hong Kong, Singapore and the United Kingdom without the prior written consent of the
Company; and
	 
	 	(e)	 	confirms that, in respect of the conduct of the Offer in Hong Kong, Singapore
and the United Kingdom, it will only seek to procure subscriptions for Offer Securities
from investors in those countries who are Institutional Investors.






	10.	 	Fees and expenses






	10.1	 	Management and placing fee
	 
	 	 	The Company must pay to the Lead Manager in cleared funds a management and placing fee
equal to:






	 	(a)	 	A$3.5 million; plus
	 
	 	(b)	 	5% of the Non-US Offer Proceeds in excess of A$70 million; plus
	 
	 	(c)	 	A$50,000 for out of scope work.






	 	 	exclusive of GST, on the Settlement Date.
	 
	10.2	 	Reimbursement of expenses
	 
	 	 	The Company must:






	 	(a)	 	pay or reimburse the Lead Manager for all reasonable expenses (including any
applicable GST in accordance with clause 14.5) incurred by the Lead Manager in
connection with this agreement, the Prospectus and the Offer including:





	 	 	 

	 
	 

	 	Offer Management Agreement | page 18






 









 






	 	(i)	 	legal fees of the Lead Manager;
	 
	 	(ii)	 	marketing, travel, postage, printing and accommodation expenses
and other costs, fees, commissions, disbursements, charges, taxes or duties
(including the marketing, travel, postage, printing and accommodation expenses
and other costs and disbursements incurred by a Lead Broker in respect of the
Offer and charged to the Lead Manager but excluding the fees in respect of the
Offer payable by the Lead Manager to a Lead Broker);






	 	(b)	 	pay all other reasonable costs and expenses of and incidental to the Offer
including costs and expenses for promotion, advertising and roadshows (including
international travel expenses) and brokerage (including such costs and expenses
incurred by a Lead Broker and charged to the Lead Manager);
	 
	 	(c)	 	pay all costs and expenses payable in relation to completion of the Offer (on a
delivery versus payment basis) including any fees or charges payable by the Lead
Manager or a Lead Broker to ASX or ASX Settlement; and
	 
	 	(d)	 	pay reasonable costs in respect of any review of the Prospectus undertaken by
ASX or ASIC or any other Governmental Agency,






	 	 	as soon as reasonably practicable after a request for payment or reimbursement by the
Company is made by the Lead Manager. The Lead Manager’s right to reimbursement for travel
will be based on business class travel and the Lead Manager undertakes not to incur any
individual expense for which reimbursement will be sought exceeding A$1,000 without the
Company’s prior approval. All payments or reimbursements under this clause 10.2 shall be in
Australian dollars.
	 
	10.3	 	Direction to pay
	 
	 	 	The Lead Manager may obtain, and the Company, on the Lead Manger’s request shall
provide, a direction to the Company’s bankers to pay on the Settlement Date (or, if earlier,
immediately upon the issue of any Offer Securities under the Offer) all amounts payable to
the Lead Manager under this agreement (including this clause 10) directly from the
Designated Bank Account or any other bank account of the Company into which Offer Proceeds
are received.
	 
	10.4	 	Fees on termination, break fee and alternate transaction fee
	 
	 	 	If this agreement is terminated pursuant to clause 2.5 or clause 11 or the Offer does
not proceed or is not completed for any reason:






	 	(a)	 	the Company is obliged to pay or reimburse the Lead Manager for the costs and
expenses referred to in clause 10.2
	 
	 	(b)	 	subject to clause 10.4(c), the Company is not obliged to pay the fees referred
to in clause 10.1;
	 
	 	(c)	 	other than where the termination occurred, or the Offer did not proceed or was
not completed, due to the Lead Manager’s fraud, recklessness, wilful misconduct or
gross negligence or material breach of this agreement:






	 	(i)	 	the Company must pay the Lead Manager a break fee of US$225,000
(exclusive of GST); and
	 
	 	(ii)	 	if the Company or a Related Body corporate of the Company decides
to undertake the same transaction or a transaction substantially similar to the
Offer, or another financing transaction, or a trade sale or enters into a joint
venture arrangement or licensing deal (Alternate Transaction) any time within 12
months after the date of this agreement, the Company must pay to the Lead
Manager the a fee of 3.5% of the total gross amount raised or the consideration
received under the Alternate





	 	 	 

	 
	 

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	 	 	 	Transaction (exclusive of GST) immediately upon
completion of the Alternate Transaction.






	10.5	 	Set off
	 
	 	 	The Lead Manager may set off all amounts payable or reimbursable by the Company under
this clause 10 against any payment obligation owed to the Company by the Lead Manager or its
Related Bodies Corporate.
	 
	10.6	 	Lead Manager’ own costs
	 
	 	 	The Lead Manager is responsible for paying any fees (but not costs, expenses or
disbursements) payable to co-managers or brokers appointed by it in relation to the Offer
out of the fees it receives from the Company under clause 10.1.






	11.	 	Relief from the Lead Manager’s Obligations






	11.1	 	Right to terminate
	 
	 	 	Subject to clause 11.2, the Lead Manager may terminate this agreement at any time
before Completion by written notice to the Company if an event set out in Schedule 3 occurs,
without cost or liability to the Lead Manager (other than with respect to any antecedent
breach of this agreement by the Lead Manager).
	 
	11.2	 	Limitation on right to terminate
	 
	 	 	If an event specified in Part 2 of Schedule 3 occurs, the Lead Manager can only
exercise its rights under clause 11.1 if the Lead Manager determines reasonably and in good
faith that the event:






	 	(a)	 	has or would have a material adverse effect on:






	 	(i)	 	the Offer (including the marketing, success, acceptance or
settlement of the Offer) or Completion; or
	 
	 	(ii)	 	the price at which Offer Securities may trade on ASX after their
quotation; or
	 
	 	(iii)	 	the willingness of investors to pay the Offer Price for the
Offer Securities; or






	 	(b)	 	could create a liability for the Lead Manager under the Corporations Act or any
other law or regulation.






	11.3	 	Notification to Lead Manager
	 
	 	 	The Company must notify the Lead Manager as soon as it becomes aware that any of the
events set out in Schedule 3 has occurred. A notice given under this clause must specify
the event or events in relation to which the notice is given.
	 
	11.4	 	Effect of termination
	 
	 	 	If this agreement is terminated pursuant to clause 2 or 11.1 or the Offer does not
proceed or is not completed for any reason:






	 	(a)	 	clause 10.4 shall apply in respect of the Lead Manager’s fees and expenses;
	 
	 	(b)	 	the Lead Manager shall continue to be entitled to the benefit of the indemnity
referred to in clause 12; and
	 
	 	(c)	 	subject to clauses 11.4(a), 11.4(b) and 13, the parties will be relieved of all
further obligations under this agreement, other than in respect of any antecedent
breach of this agreement.





	 	 	 

	 
	 

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	11.5	 	Claims
	 
	 	 	Nothing contained in this clause 11 will prejudice or nullify any Claim (as defined in
clause 12.1) for damages or other right which the Lead Manager or any other Indemnified may
have against the Company, or which the Company may have against the Lead Manager, for or
arising out of
any breach of covenant, warranty or representation or failure to observe or perform an
obligation under this agreement.
	 
	11.6	 	Waiver
	 
	 	 	The Lead Manager may, by written notice to the Company, waive any of its rights under
clause 11.1. Any waiver will only affect the Lead Manager’ rights in relation to the
particular event expressly referred to in the notice.






	12.	 	Indemnity






	12.1	 	Clause definitions
	 
	 	 	In this clause 12:






	 	(a)	 	Claim means, in relation to a party or other person, a demand, claim, action or
proceeding made or brought against by or against the party or person, however arising
and whether present, unascertained, immediate, future or contingent;
	 
	 	(b)	 	Indemnified has the meaning given in clause 12.3; and
	 
	 	(c)	 	Liabilities means Claims, losses, liabilities, costs (including reasonable
legal costs on a solicitor and own client basis and whether incurred by or awarded
against the Indemnified) or expenses of any kind however arising, including penalties,
fines and interest, and including those which are prospective or contingent and those
the amount of which for the time being is not ascertained or ascertainable.






	12.2	 	Company to indemnify






	 	(a)	 	Subject to clause 12.3, the Company indemnifies, and undertakes to keep
indemnified, the Lead Manager and its related bodies corporate (within the meaning of
the Corporations Act) and their respective directors, officers, employees and advisers
(as the case may be) (Indemnified) against all Liabilities that any of the Indemnified
may sustain or incur as a result of the appointment of the Lead Manger pursuant to this
agreement, whether directly or indirectly, including (without limitation) as a result
of:






	 	(i)	 	a representation or warranty given under clause 9 being untrue;
	 
	 	(ii)	 	the Company breaching this agreement or failing to perform or
observe any of its obligations under this agreement;
	 
	 	(iii)	 	a Claim brought by a third party against the Lead Manager in
relation to the Offer, Prospectus or other Disclosure Document;
	 
	 	(iv)	 	the application for or issue of the Offer Securities;
	 
	 	(v)	 	any statement in the Disclosure Documents being misleading or
deceptive (including by omission);
	 
	 	(vi)	 	any announcement, advertising, publicity or other promotion made
or distributed by the Company or any Indemnified (or on behalf of an
Indemnified) with the prior consent of the Company including as to the content
of any such announcement, advertising, publicity or promotion in relation to the
Prospectus or the Offer; or





	 	 	 

	 
	 

	 	Offer Management Agreement | page 21






 









 






	 	(vii)	 	any investigations, enquiries, legal proceedings or review of
the Prospectus or Offer undertaken by ASIC, ASX or any other Governmental
Agency.






	 	 	 	Each of the paragraphs in this clause 12.2(a) will be construed independently and no
paragraph will be limited by implication arising from any other paragraph.
	 
	 	(b)	 	The indemnity in clause 12.2(a) is given to the Lead Manager on behalf of
itself and the Indemnified, and may be enforced by an Indemnified directly or on that
Indemnified’s behalf by the Lead Manager.
	 
	 	(c)	 	It is not necessary for an Indemnified to incur expense or make payment before
enforcing a right of indemnity under this agreement.
	 
	 	(d)	 	Without limiting any other provision of this clause 12, the Company shall pay
to an Indemnified any amount payable by the Company to the Indemnified under this
clause 12 promptly upon request for payment by the Indemnified (or the Lead Manger on
behalf of the Indemnified).






	12.3	 	Limitation on indemnity
	 
	 	 	The indemnity contained in clause 12.2 does not apply to an Indemnified to the extent
to which any Liability of the Indemnified:






	 	(a)	 	is agreed or finally judicially determined by a court of competent jurisdiction
to have resulted primarily from an Indemnified’s fraud, recklessness, wilful misconduct
or gross negligence or a material breach of this agreement by an Indemnified Party,
except to the extent caused, induced or contributed to by the acts or omissions of the
Company or its officers or employees, or caused by an Indemnified’s reliance on
information contained in the Prospectus or other information provided by or on behalf
of the Company or its officers or employees;
	 
	 	(b)	 	results from any penalty or fine which that Indemnified is required to pay for
any contravention by it of the Corporations Act or other applicable law, except to the
extent caused, induced or contributed to by the acts or omissions of the Company or its
officers or employees, or caused by an Indemnified’s reliance on information contained
in the Prospectus or other information provided by or on behalf of the Company or its
officers or employees; or
	 
	 	(c)	 	represents any amount in respect of which the indemnities would be illegal,
void or unenforceable under any applicable law; or
	 
	 	(d)	 	represents any loss of any fee which may have been (but had not yet become)
payable to the Lead Manager under this agreement if the agreement had not been
terminated.






	12.4	 	Contribution






	 	(a)	 	If for any reason the indemnity in clause 12.2 is unavailable to an Indemnified or
insufficient to indemnify it under clause 12.2 in respect of any Liability (other than
by the operation of clause12.2), then the Company must contribute to the amount paid or
payable by the Indemnified as a result of the Liability in such proportion as is
appropriate to reflect the relative fault or involvement in the act complained of by
the Company on the one hand and the Lead Manager on the other in respect of the
Liability.
	 
	 	(b)	 	The amount paid or payable by the Company as a result of a Liability referred
to above in this clause 12.4 will be deemed to include any legal or other expenses
reasonably incurred by the Indemnified in connection with investigating or defending
any such action or claim.





	 	 	 

	 
	 

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	12.5	 	No excess contribution
	 
	 	 	The Company agrees that in no event will all the Indemnifieds collectively be required
to contribute under clause 12.4, an aggregate amount that exceeds the total of the fees
payable under clause 10.1 to the Lead Manager.
	 
	12.6	 	Notice of potential action






	 	(a)	 	If any Indemnified receives notice of any act, matter or thing which in the opinion
of the Indemnified will give rise to an action or proceeding against any Indemnified in
relation to which the Company would be required to indemnify any of them under clause
12.1, then the relevant person must promptly notify the Company giving full details so
far as is practicable, and in any event notify the Company within 10 Business Days of
it forming that opinion.
	 
	 	(b)	 	Failure on the part of an Indemnified to notify the Company in accordance with
clause 12.6(a) will not release the Company from any obligation or liability which it
may have pursuant to this agreement except that such liability will be reduced in
relation to that Indemnified to the extent to which the Company has suffered damage or
loss or the amount the subject of the indemnity under clause 12.1has increased as a
result of the failure to so notify.






	12.7	 	Conduct of proceedings
	 
	 	 	The Company is, subject to clause 12.10, entitled to defend or to institute legal or
other proceedings of the type referred to in clause 12.6 in the name of any of the
Indemnifieds and to have those proceedings conducted under the sole management and control
of the Company provided that:






	 	(a)	 	the Company diligently pursues or defends any such proceedings;
	 
	 	(b)	 	the Indemnified has the right to information, consultation and representation
concerning the development and defence of any litigation or threatened litigation; and
	 
	 	(c)	 	without limiting clause 12.11, no admission of liability or compromise in
connection with the claim or action may take place without the appropriate
Indemnified’s prior written consent (such consent not to be unreasonably withheld) and
an unconditional release of the relevant Indemnified arising out of such Claims.






	12.8	 	Obligations of Indemnified
	 
	 	 	Each Indemnified, subject only to clauses 12.9 and 12.10, is required, and the Lead
Manager must take reasonable steps to cause the Indemnified:






	 	(a)	 	promptly to take such reasonable action as the Company requests to avoid,
dispute, resist, appeal, compromise or defend the Claim or any adjudication in respect
of it;
	 
	 	(b)	 	not to settle any Claim without the prior written consent of the Company (such
consent not to be unreasonably withheld or delayed) unless such settlement includes an
unconditional release of the Company from all liability arising out of such Claim;
	 
	 	(c)	 	promptly to give all reasonable assistance and co-operation to the Company in
the conduct of any Claim, including providing the Company with any documents in their
possession (other than those which, in its reasonable opinion, are protected by legal
professional privilege) and signing all documents, authorities and directions which the
Company may reasonably require for the prosecution or advancement of any legal or other
proceedings; and
	 
	 	(d)	 	to do anything reasonably necessary or desirable to ensure that the Company is
subrogated to and enjoys the benefit of the rights of the Indemnified in relation to
any cross claim and





	 	 	 

	 
	 

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	 	 	to render such assistance as may be reasonably requested by the
Company for that purpose.
	 
	12.9	 	Damage to reputation
	 
	 	 	An Indemnified is under no obligation to take or refrain from taking any action under
clause 12.8 if to do so would, in the reasonable opinion of the Indemnified, lead to a risk
of material damage to its reputation or standing.
	 
	12.10	 	Further indemnity
	 
	 	 	The Indemnifieds are under no obligations under clause 12.8, nor are the terms of
clause 12.7 to apply, unless, at the time at which the Company requests any of the
Indemnifieds to take any action, the Company irrevocably and unconditionally agrees in a
form acceptable to the Indemnifieds to indemnify those Indemnifieds against all Liabilities
directly or indirectly incurred by or awarded against the Indemnifieds in taking the action
required, as and when they fall due, including legal costs and disbursements of their
lawyers on a full indemnity basis and the cost of any involvement of any officers of the
Indemnifieds at normal commercial rates, unless such Liabilities result from the fraud,
recklessness, wilful misconduct or gross negligence of, or material breach of this agreement
by, the relevant Indemnifieds.
	 
	12.11	 	Settlement of Claims
	 
	 	 	The Company must not, without the prior written consent of the Lead Manager, settle any
pending or threatened Claim of whatever nature and in whatever jurisdiction which refers or
relates or arises from, directly or indirectly, this agreement or the Offer, and to which
the Lead Manager or another Indemnified is party, unless the settlement:






	 	(a)	 	includes a provision unconditionally releasing the Lead Manager (and each
Indemnified) from all Claims by any releasing party related to or arising from,
directly or indirectly, this agreement or the Offer; and
	 
	 	(b)	 	does not include any statement or acknowledgement of fault or liability on the
part of any Indemnified.






	12.12	 	Release






	 	(a)	 	The Company agrees that no Claim may be made by it against an Indemnified, and the
Company unconditionally and irrevocably releases and discharges the Indemnified, from
any Claim that may be made by it to recover from the Indemnified any Liabilities
suffered or incurred by the Company arising directly or indirectly as a result of the
participation of that Indemnified in the preparation of the Prospectus, the Due
Diligence Investigations, or in relation to the making or conduct of the Offer, except
to the extent those Liabilities are agreed or finally judicially determined by a court
of competent jurisdiction to have resulted from the fraud, recklessness, wilful
misconduct or gross negligence of the Indemnified or a material breach of this
agreement by an Indemnified.
	 
	 	(b)	 	No Indemnified is liable for any indirect or consequential loss or damage, even
if the Company is advised of the possibility of such loss or damage and irrespective of
whether any Claim for damages is made in negligence, for breach of contract or statute
or otherwise.
	 
	 	(c)	 	No Claim may be made by the Company against any officer, employee, adviser or
agent of the Lead Manager or any related body corporate of the Lead Manager (Released
Parties), and the Company unconditionally and irrevocably releases and discharges each
Released Party from any Claim that may be made by it to recover from any Released Party
any Liability incurred or sustained by the Company arising directly or indirectly as a
result





	 	 	 

	 
	 

	 	Offer Management Agreement | page 24






 









 






	 	 	 	of the participation of that Released Party in the preparation of the Prospectus
or the Due Diligence Investigations, or in relation to the making or conduct of the
Offer.






	12.13	 	Benefit and enforcement






	 	(a)	 	Further to clause 12.2(b), the Lead Manager holds the provisions of this clause 12
for itself and as agent and trustee of the other Indemnified who are not party to this
agreement, and accordingly accepts the full benefit of this clause 12 on behalf of the
Indemnified who shall to this extent be taken to be parties to this agreement.
	 
	 	(b)	 	Despite clause 12.13(a), the Lead Manager may enter into any agreement with any
person and deal with its rights under this clause 12 without regard to the interests of
any other Indemnified.






	12.14	 	Approval does not prejudice
	 
	 	 	Any approval or consent given by the Lead Manager to any act, matter or thing does not
waive or in any way prejudice the right of the Indemnified to the indemnity contained in
clause 12.2.






	13.	 	Continuing obligations






	 	 	Each of the:






	 	(a)	 	indemnity in, and the obligations and undertakings of the Company under, clause
12; and
	 
	 	(b)	 	the obligations of the Company under clause 10.4,






	 	 	is a continuing obligation, separate from and independent of the other obligations of the
Company and continues in full force after the date of the termination of this agreement.






	14.	 	Goods and services tax






	14.1	 	Interpretation
	 
	 	 	In this clause:






	 	(a)	 	expressions which are not defined, but which have a defined meaning in GST Law,
have the same meaning; and
	 
	 	(b)	 	“GST Law” has the meaning given to that expression in the GST Act.






	14.2	 	Consideration is exclusive of GST
	 
	 	 	Unless otherwise expressly stated, all prices or other sums payable or consideration to
be provided under or in accordance with this agreement are exclusive of GST.
	 
	14.3	 	Recipient to pay an additional amount
	 
	 	 	If GST is imposed on any supply made under or in accordance with this agreement then:






	 	(a)	 	the recipient of the taxable supply must pay to the supplier an additional
amount equal to the GST payable on that supply (GST Amount); and
	 
	 	(b)	 	payment of the GST Amount will be made at the same time as payment for the
taxable supply is required to be made in accordance with this agreement.






	14.4	 	Tax Invoice
	 
	 	 	A party need not make a payment for a taxable supply made under or in connection with
this agreement until it receives a tax invoice for the supply to which the payment relates.





	 	 	 

	 
	 

	 	Offer Management Agreement | page 25






 









 






	14.5	 	Reimbursement
	 
	 	 	If this document requires a party to pay for, reimburse or contribute to any expense,
loss or outgoing (reimbursable expense) suffered or incurred by another party, the amount
required to be paid, reimbursed or contributed by the first party will be the amount of the
reimbursable
expense net of input tax credits (if any) to which the other party is entitled in respect of
the reimbursable expense, plus any GST payable by the other party.
	 
	14.6	 	Adjustment events
	 
	 	 	If at any time an adjustment event arises in respect of any supply made by a party
under this agreement, a corresponding adjustment must be made between the parties in respect
of any amount paid to that party by the other party pursuant to clause 14.3 and payments to
give effect to the adjustment must be made and the supplier must issue an adjustment note.
	 
	14.7	 	Misconstrued supply
	 
	 	 	If a supply made under or in connection with this agreement is treated by the supplier
as a supply but not a taxable supply (misconstrued supply) and the supplier subsequently
becomes aware that the supply is a taxable supply, the recipient must pay (without set off,
deduction or requirement for demand), to the supplier the amount on account of GST
calculated for that supply in accordance with paragraph 14.3 upon receipt of a valid tax
invoice.
	 
	14.8	 	GST excluded from formulas and calculations
	 
	 	 	If a payment to be made under this document is calculated as a percentage of or by
reference to another amount or revenue stream, that payment shall be calculated as a
percentage of or by reference to that other amount or revenue stream net of any GST
component.






	15.	 	Notices and other communications






	15.1	 	Service of notices
	 
	 	 	A notice, demand, consent, approval or communication under this agreement (Notice) must
be:






	 	(a)	 	in writing, in English and signed by a person duly authorised by the sender;
and
	 
	 	(b)	 	hand delivered or sent by prepaid post or facsimile to the recipient’s address
for Notices specified in the Details, as varied by any Notice given by the recipient to
the sender.






	15.2	 	Effective on receipt
	 
	 	 	A Notice given in accordance with clause 15.1 takes effect when taken to be received
(or at a later time specified in it), and is taken to be received:






	 	(a)	 	if hand delivered, on delivery;
	 
	 	(b)	 	if sent by prepaid post, two Business Days after the date of posting (or seven
Business Days after the date of posting if posted to or from a place outside
Australia);
	 
	 	(c)	 	if sent by facsimile, when the sender’s facsimile system generates a message
confirming successful transmission of the entire Notice unless, within eight Business
Hours after the transmission, the recipient informs the sender that it has not received
the entire Notice,






	 	 	but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on
a Business Day, the Notice is taken to be received at 9.00am on the next Business Day.





	 	 	 

	 
	 

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	16.	 	Miscellaneous






	16.1	 	Alterations
	 
	 	 	This agreement may only be altered, including in a manner adverse to the interests of
an Indemnified (as defined in clause 12.2), in writing signed by each of the Company and the
Lead Manager.
	 
	16.2	 	Assignment
	 
	 	 	A party may only assign this agreement or a right under this agreement with the prior
written consent of the other party.
	 
	16.3	 	Costs
	 
	 	 	The Company must pay its own costs of negotiating, preparing and executing this agreement.
	 
	16.4	 	Stamp duty
	 
	 	 	Any stamp duty, duties or other taxes of a similar nature (including fines, penalties
and interest) in connection with this agreement must be paid by the Company.
	 
	16.5	 	Survival
	 
	 	 	Any indemnity or any obligation of confidence under this agreement is independent and
survives termination of this agreement. Any other term by its nature intended to survive
termination of this agreement survives termination of this agreement.
	 
	16.6	 	Counterparts
	 
	 	 	This agreement may be executed in counterparts. All executed counterparts constitute
one document.
	 
	16.7	 	No merger
	 
	 	 	The rights and obligations of the parties under this agreement do not merge on
completion of any transaction contemplated by this agreement.
	 
	16.8	 	Entire agreement






	 	(a)	 	This agreement and the Mandate Letter constitute the entire agreement between the
parties in connection with their subject matter and supersede all previous agreements
or understandings between the parties in connection with their subject matter.
	 
	 	(b)	 	This agreement prevails over the Mandate Letter to the extent of any
inconsistency between them.






	16.9	 	Further action
	 
	 	 	Each party must do, at its own expense, everything reasonably necessary (including
executing documents) to give full effect to this agreement and any transactions contemplated
by it.
	 
	16.10	 	Severability
	 
	 	 	A term or part of a term of this agreement that is illegal or unenforceable may be
severed from this agreement and the remaining terms or parts of the term of this agreement
continue in force.
	 
	16.11	 	Waiver
	 
	 	 	A party does not waive a right, power or remedy if it fails to exercise or delays in
exercising the right, power or remedy. A single or partial exercise of a right, power or
remedy does not prevent another or further exercise of that or another right, power or
remedy. A waiver of a right, power or remedy must be in writing and signed by the party
giving the waiver.





	 	 	 

	 
	 

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	16.12	 	Relationship
	 
	 	 	Except where this agreement expressly states otherwise, it does not create a
relationship of employment, trust, agency or partnership between the parties.
	 
	16.13	 	Confidentiality
	 
	 	 	A party may only use confidential information of another party for the purposes of this
agreement, and must keep the existence and the terms of this agreement and any confidential
information of another party confidential except where:






	 	(a)	 	the information is public knowledge (but not because of a breach of this
agreement) or the party has independently created the information;
	 
	 	(b)	 	disclosure is required by law or a regulatory body (including a relevant stock
exchange); or
	 
	 	(c)	 	disclosure is made to a person who must know for the purposes of this agreement
on the basis that the person keeps the information confidential.






	16.14	 	Conflict of interest
	 
	 	 	The Lead Manager’s rights and remedies under this agreement may be exercised even if
this involves a conflict of duty or it has a personal interest in their exercise. The
Company further acknowledges that the Lead Manager does not owe any duty to disclose to the
Company or utilise for the benefit of the Company any information acquired in the course of
providing services to any other person, engaging in any other transaction or otherwise
carrying on its business or any obligation to refrain from undertaking any other transaction
or otherwise carrying on any aspect of its business.
	 
	16.15	 	Time of essence
	 
	 	 	Time is of the essence in this agreement.
	 
	16.16	 	Governing law and jurisdiction
	 
	 	 	This agreement is governed by the law of New South Wales and each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.





	 	 	 

	 
	 

	 	Offer Management Agreement | page 28







 












 





Schedule 1 — Timetable




(clause 1)




	 	 	 
	Event	 	Date
	 
	 	 
	Lodgement Date

	 	12 November 2010
	 
	Offer Opening Date

	 	22 November 2010
	 
	Application for listing and quotation lodged with ASX

	 	19 November 2010
	 
	Offer Closing Date

	 	6 December 2010
	 
	Allocation Date

	 	10 December 2010
	 
	Settlement Date

	 	10 December 2010
	 
	Quotation Date (date on which Offer Securities commence 

deferred settlement trading on ASX)

	 	13 December 2010






Note: The dates referred to above may be varied under clause 4.1.




	 	 	 

	 
	 

	 	Offer Management Agreement | page 29






 









 





Schedule 2 — Warranties by the Company




(clause 9)





	1.	 	(Power) The Company has power to make the Offer and to enter into, perform all of its
obligations under, and be bound by all of the terms and conditions of, this agreement.
	 
	2.	 	(Authority) All approvals and authorities that may be required to permit the Company to enter
into this agreement and to perform this agreement in accordance with its terms have been
obtained and remain valid and subsisting.
	 
	3.	 	(Agreement binding) This agreement is a valid and binding obligation of the Company.
	 
	4.	 	(No Contravention) Neither the entry into nor the performance by the Company of this
agreement will conflict with, result in a breach or default of any material terms of, or
violate in any material respect:






	 	(a)	 	any law or regulation;
	 
	 	(b)	 	the Constitution or the constitution or constituent or governing documents of a
Related Body Corporate;
	 
	 	(c)	 	any document, agreement or other arrangement binding on a Group member or its
assets; or
	 
	 	(d)	 	any judgment binding on a Group member;
	 
	 	(e)	 	any Authorisation, or order of any Governmental Agency, binding on a Group
member.






	5.	 	(Incorporation) each Group member is duly incorporated and validly subsisting as a
corporation in good standing (to the extent such concept has meaning under applicable law)
under the laws of its jurisdiction of incorporation.
	 
	6.	 	(Offer Securities) The Offer Securities:






	 	(a)	 	will be validly issued on the terms of this agreement;
	 
	 	(b)	 	investors who acquire the Offer Securities will acquire marketable title, free
from all liens, security interests, charges and other encumbrances; and
	 
	 	(c)	 	will not be subject to any pre-emptive or similar right and the issue of the
Offer Securities will not breach any obligation binding on a Group member.






	7.	 	(Shares) All of the issued shares in the capital of:






	 	(a)	 	the Company have been duly and validly authorised and issued, are fully paid
and conform to the description of the Shares contained in the Prospectus; and
	 
	 	(b)	 	each subsidiary of the Company have been duly and validly authorised and
issued, are fully paid and are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims.






	8.	 	(No share issue obligations) Except as disclosed in the Prospectus, there are no outstanding
securities convertible into or exchangeable for, or warrants, rights or options to purchase or





	 	 	 

	 
	 

	 	Offer Management Agreement | page 30






 









 






	 	 	acquire from the Company, or obligations of the Company to issue, the Offer Securities or any
other class of shares or securities in the capital of the Company.
	 
	9.	 	(Prospectus compliance) The Prospectus complies with the Corporations Act, the Listing Rules
and all other applicable laws and binding regulations, does not omit information required to
be included in the Prospectus under the Corporations Act, and the issue and distribution of
the Prospectus will not constitute conduct by any person which is misleading or deceptive.
	 
	10.	 	(Disclosure Documents — international compliance) Each Disclosure Document used in
connection with the conduct of the Offer outside of Australia complies with all applicable
laws and regulations in those jurisdictions outside Australia in which the Offer is being made
and will not omit information required to be included in the Disclosure Document under
applicable laws and regulations.
	 
	11.	 	(No misleading statements) The Disclosure Documents will not contain any statements which are
misleading or deceptive or likely to mislead or deceive and do not omit information necessary
in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. All expressions of opinion, intention and expectation contained in
the Disclosure Documents are truly and honestly held.
	 
	12.	 	(Forward looking statements) Any forward looking statements (including the assumptions
described therein) included in a Disclosure Document were made after due and careful inquiry
in good faith using reasonable assumptions and have been properly made on the bases described
therein.
	 
	13.	 	(Due Diligence Committee) all the components of the due diligence system and procedures have
been, or will prior to the lodgement of the Prospectus be, implemented in accordance with the
Due Diligence Planning Memorandum in all material respects and:






	 	(a)	 	verification of the Prospectus has been, or will prior to the lodgement of the
Prospectus be, carried out in accordance with the Due Diligence Planning Memorandum to
the satisfaction of the Due Diligence Committee and by appropriately qualified persons
and the documents evidencing the verification have been retained by the Company; and
	 
	 	(b)	 	all reports required to be issued and referred to in the Due Diligence Planning
Memorandum have been, or will prior to the lodgement of the Prospectus be, so issued to
the satisfaction of the Due Diligence Committee.






	14.	 	(On going due diligence) The Company has made and will continue until Completion to make
reasonable enquiries to ensure that there are no omissions from the Disclosure Documents of
information required by the Corporations Act (or any other applicable law or regulation) and
that the statements included in the Disclosure Documents are true and not misleading or
deceptive, and do not become misleading or deceptive and do not constitute conduct by any
person which is misleading or deceptive.
	 
	15.	 	(Information accurate) None of the information provided to the Lead Manager by the Company or
its employees or agents is misleading or deceptive and nothing has been omitted from that
information which would make it misleading or deceptive.
	 
	16.	 	(Publications) Any publication, offer marketing materials and any announcements,
advertisements or publicity, made or published by the Company or on its behalf in relation to
the Offer any time before Completion will:






	 	(a)	 	be made in accordance with this agreement;
	 
	 	(b)	 	not be misleading or deceptive, or likely to mislead or deceive; and
	 
	 	(c)	 	comply with all applicable laws.





	 	 	 

	 
	 

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	17.	 	(Lead Manager’ consent) The Company will obtain the prior written consent of the Lead Manager
(such consent not to be unreasonably withheld) to the form and content of, and any
amendments to, the Prospectus (or any Supplementary Prospectus) prior to its lodgement with
ASIC.
	 
	18.	 	(Eligible for listing) The Company is, or will at the time of apply for admission to the
official list of ASX be, eligible under the Listing Rules and other requirements of ASX to be
listed on ASX and will not breach the Listing Rules in relation to the making of the Offer.
	 
	19.	 	(Constitution) the copy of the Constitution of the Company provided to the Lead Manager
before execution of this agreement is a true, correct and complete copy of the document that
will be the Constitution of the Company with effect on and from the Settlement Date.
	 
	20.	 	(Stamp duty) No stamp duty, duty or tax of a similar nature is or will be payable on the
issue of Offer Securities to an applicant making an application for Offer Securities.
	 
	21.	 	(Financial statements) Since the date of its last audited financial accounts, and with the
exception of the Offer or matters described in the Prospectus:






	 	(a)	 	each Group member has carried on its business in the ordinary and usual course;
	 
	 	(b)	 	there has been no change in its assets, liabilities, financial position or
performance except for changes in the ordinary course of business; and
	 
	 	(c)	 	there has been no material adverse change, or any development involving a
prospective material adverse change, in the business, condition, financial or
otherwise, or in the earnings, results of operations or business affairs of the Group
considered as one enterprise, whether or not arising in the ordinary course of business
(a Material Adverse Effect).






	22.	 	(Compliance) No Group member is:






	 	(a)	 	in breach of any provision of the Corporations Act or any other applicable law
or regulation (whether relating to the conduct of its business or otherwise) to an
extent that is material to the Company or the outcome of the Offer;
	 
	 	(b)	 	in violation of the Constitution or the constitution or other constituent or
governing documents of a Related Body Corporate; or
	 
	 	(c)	 	in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by which it
or any of its properties may be bound, except for any such default that would not
individually or in aggregate be reasonably expected to have Material Adverse Effect (or
a material adverse effect on the performance by the Company of its obligations under
this agreement or the outcome of the Offer).






	23.	 	(Future conduct) No Group member will before Completion enter into any agreement or otherwise
do any thing which could reasonably be expected to have an adverse effect on the outcome of
the Offer.
	 
	24.	 	(Litigation) Except as disclosed in the Prospectus, no Group member is engaged in or
threatened with any legal action and there are no circumstances known or which on reasonable
enquiry would be known to the Company that are likely to give rise to any such proceedings.
	 
	25.	 	(Insolvency) No Insolvency Event has occurred with respect to a Group member.





	 	 	 

	 
	 

	 	Offer Management Agreement | page 32






 









 






	 	 	Schedule 3 — Events causing relief of Lead Manager’ obligations





(clause 11)




PART 1




	1.	 	(ASX Indices fall) The S&P/ASX 200 Index at any time falls to a level which is 90% or less
than the level at the close of trading on the date of this agreement and remains below that
level for a period of three consecutive Business Days.
	 
	2.	 	(NASDAQ fall) The NASDAQ Composite Index at any time falls to a level which is 90% or less
than the level at the close of trading on the date of this agreement and remains below that
level for a period of three consecutive Business Days.
	 
	3.	 	(Withdrawal) The Company withdraws the Prospectus, any Supplementary Prospectus, the
Registration Statement, any of the US Offer Documentation or the Offer.
	 
	4.	 	(Change of material terms) The Company changes the material terms of the Offer as set out in
the Prospectus (or any Supplementary Prospectus).
	 
	5.	 	(Minimum subscription condition not satisfied) Any minimum subscription condition that is
stated in the Prospectus is not satisfied by 5.00pm on the Offer Closing Date.
	 
	6.	 	(Net proceeds less than US$50 million) Based on the Valid Applications received by 5.00pm on
the Offer Closing Date, in the reasonable opinion of the Lead Manger, the net proceeds of the
Offer (being the Offer Proceeds less all costs and expenses of the Offer) will not exceed
US$50 million.
	 
	7.	 	(Listing and quotation)






	 	(a)	 	ASX makes an official statement to any person, or indicates to the Company or
the Lead Manager that:






	 	(i)	 	the Company will not be admitted to the official list of ASX;
	 
	 	(ii)	 	ASX Approval will not be given; or
	 
	 	(iii)	 	ASX Approval will be given but that the Company will not be
admitted to the official list of ASX or the Offer securities will not be quoted
by ASX before 31 January 2011.






	 	(b)	 	ASX Approval (subject only to customary listing and quotation conditions
imposed by ASX) has not been given before the Settlement Date.






	8.	 	(Prospectus/Disclosure Documents) Without limiting any other paragraph of this schedule:






	 	(a)	 	there is an material omission from the Prospectus or any other Disclosure
Document of information required by the Corporations Act or any other applicable law or
requirement;
	 
	 	(b)	 	the Prospectus or any other Disclosure Document contains a misleading or
deceptive statement;
	 
	 	(c)	 	a statement in the Prospectus or any other Disclosure Document becomes
misleading or deceptive;





	 	 	 

	 
	 

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	 	(d)	 	a matter referred to in section 719 of the Corporations Act occurs in respect
of the Prospectus;
	 
	 	(e)	 	a Disclosure Document does not comply with any applicable law.






	9.	 	(Certificate) A statement in any Confirmation Certificate is untrue or incorrect in any
material respect.
	 
	10.	 	(Due Diligence Report) The Due Diligence Report or any other information supplied by or on
behalf of the Company to the Lead Manager in relation to Shares, Offer Securities, the
Company, or the Offer, is untrue, incorrect, misleading or deceptive in a material respect.
	 
	11.	 	(Corporations Act) Without limiting any other paragraph of this schedule:






	 	(a)	 	ASIC applies for an order under section 1324B of the Corporations Act in
relation to the Prospectus and the application is not dismissed or withdrawn before the
Offer Closing Date;
	 
	 	(b)	 	a person (other than the Lead Manager) gives a notice under section 730 of the
Corporations Act in relation to the Prospectus;
	 
	 	(c)	 	ASIC gives notice of intention to hold a hearing in relation to the Prospectus,
or makes an interim order, under section 739 of the Corporations Act;
	 
	 	(d)	 	any person (other than the Lead Manager) gives a notice under section 733(3) of
the Corporations Act;
	 
	 	(e)	 	any person (other than the Lead Manager) who consented to the inclusion of a
statement in, or to being named in, the Prospectus (or any Supplementary Prospectus)
withdraws that consent;
	 
	 	(f)	 	an application is made by ASIC for an order under Part 9.5 in relation to the
Prospectus or ASIC commences any investigation or hearing under Part 3 of the
Australian Securities and Investments Commission Act 2001 (Cth) in relation to the
Prospectus.






	12.	 	(Supplementary Prospectus) The Lead Manager reasonably forms the view that a Supplementary
Prospectus must be lodged with ASIC under section 719 of the Corporations Act and the Company
does not lodge a Supplementary Prospectus in the form, with the content and within the time
reasonably required by the Lead Manager.
	 
	13.	 	(Insolvency Event) An Insolvency Event occurs with respect to the Company or a Related Body
Corporate.
	 
	14.	 	(Change in management) A change to the board of directors or senior management of the Company
occurs from those identified in the Prospectus.





PART 2





	1.	 	(Change in Law) There is introduced, or there is a public announcement of a proposal to
introduce into any legislature of Australia or the United States, a law or regulation, or a
new government policy is adopted by a government in any of those jurisdictions or there is a
public announcement of a proposal to adopt a new government policy by such a government (other
than a law or government policy announced before the date of this agreement) any of which does
or is likely to prohibit, regulate or affect the Offer, capital issues or the taxation
treatment of the Offer Securities.
	 
	2.	 	(Breach of significant contracts) A material contract or an agreement referred to in section
11 of the Prospectus is, without the prior written consent of the Lead Manager:





	 	 	 

	 
	 

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	 	(a)	 	breached by the Company or a Related Body Corporate; or
	 
	 	(b)	 	terminated (whether by breach or otherwise).






	3.	 	(Fails to Comply) The Company or any Related Body Corporate fails to comply in any material
way with any of the following:






	 	(a)	 	a provision of the Constitution or a Related Body’s Corporate’s constitution or
constituent or governing documents;
	 
	 	(b)	 	the Corporations Act or any other law or regulation;
	 
	 	(c)	 	the Listing Rules; or
	 
	 	(d)	 	any binding policy of ASIC or any other Governmental Agency or any other
requirement, order or request made by or on behalf of ASIC, ASX or any other
Governmental Agency.






	4.	 	(Default) A default by the Company in the performance of any of its obligations under this
agreement occurs.
	 
	5.	 	(Warranties) a warranty or representation contained in this agreement on the part of the
Company is not true or correct.
	 
	6.	 	(Prosecution) Any of the following occur:






	 	(a)	 	a director or member of senior management of the Company (as listed in the
Prospectus) is charged with an indictable offence;
	 
	 	(b)	 	any Governmental Agency commences any public action against the Company or any
of its directors or senior managers in their capacity as a director or senior manager
of the Company;
	 
	 	(c)	 	any director or senior manager of the Company is disqualified from managing a
corporation under any law of any jurisdiction; or
	 
	 	(d)	 	the Company or a director or senior manager of the Company engages in any
fraudulent conduct or activity.






	7.	 	(Hostilities) There is an outbreak of hostilities (whether or not war or a national emergency
has been declared) not presently existing, or a major escalation in existing hostilities
occurs, or a major act of terrorism occurs in or involving any one or more of the following:






	 	(a)	 	Australia;
	 
	 	(b)	 	New Zealand;
	 
	 	(c)	 	the United Kingdom;
	 
	 	(d)	 	the United States of America;
	 
	 	(e)	 	any member country of the European Union;






	 	 	or involving any diplomatic, military, commercial or political establishment of any of those
countries elsewhere in the world.
	 
	8.	 	(Adverse change) Any adverse change occurs in the assets, liabilities, financial position or
performance, profits, losses or prospects of the Company (or the Group), including any adverse
change in the assets, liabilities, financial position or performance, profits, losses or
prospects of the Company (or the Group) from those disclosed in the Prospectus.
	 
	9.	 	(Other Events) There is:





	 	 	 

	 
	 

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	(a)	 	a suspension or limitation in trading in all securities quoted or listed on
ASX, the New York Stock Exchange or the NASDAQ, for one day on which that exchange is
open for trading;
	 
	(b)	 	a general moratorium on commercial banking activities in Australia, the United
States of America, the United Kingdom or the European Union, is declared by the
relevant authorities, or there is a disruption in commercial banking or securities
settlement or clearance services in those places; and
	 
	(c)	 	any adverse change or disruption to the existing financial markets, political
or economic conditions of, or currency exchange rates or controls in Australia, the
United States of America, the United Kingdom or the European Union, or the
international financial markets or any adverse change in national or international
political, financial or economic conditions.





	 	 	 

	 
	 

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Schedule 4 — Confirmation certificate




(clause 6.2)




The Directors

Inteq Limited




Dear Sirs




Offer management agreement



We refer to the offer management agreement made between REVA Medical, Inc. and Inteq Limited
relating to the management of the offer of Offer Securities under a prospectus dated [#] 2010
(Offer Management Agreement). Terms used in the Offer Management agreement have the same meanings
when used in this letter.



We certify that, at the time of delivery of this certificate to the best of our knowledge and
belief after having made due enquiry:





	(a)	 	no event referred to in Schedule 3 to the Offer Management Agreement has occurred;
	 
	(b)	 	the Company has complied in all material respects with all of its obligations:






	 	(a)	 	under the Offer Management Agreement; and
	 
	 	(b)	 	in respect of the Offer whether arising under the Corporations Act, the Listing
Rules or other applicable law;






	(d)	 	the representations and warranties given by the Company in clause 9 of the Offer Management
Agreement are true and correct in all material respects.





Signed by




	 	 	 	 	 	 	 

	 

	 	¬
	 	 	 	¬
	 

	 	 	 	 	 	 
	Signature of director

	 	 	 	Signature of director	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Name of director (print)

	 	 	 	Name of director (print)	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





	 	 	 

	 
	 

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Signing page




EXECUTED as an agreement




Executed by REVA Medical, Inc.




	 	 	 	 	 	 	 

	 

	 	¬
	 	 	 	¬
	 

	 	 	 	 	 	 
	Signature of duly authorised officer

	 	 	 	Signature of duly authorised officer

(Please delete as applicable)	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Name of duly authorised officer (print)

	 	 	 	Name of duly authorised officer (print)	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





Executed by Inteq Limited




	 	 	 	 	 	 	 

	 

	 	¬
	 	 	 	¬
	 

	 	 	 	 	 	 
	Signature of director

	 	 	 	Signature of director/company secretary

(Please delete as applicable)	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	Name of director (print)

	 	 	 	Name of director/company secretary (print)	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 





	 	 	 

	 
	 

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