exv10w21



 





Exhibit 10.21





August 8, 2007




Peplin Limited




[SUBSCRIBER]




Subscription

 Agreement





 









 





Contents




	 	 	 	 	 
	1   Definitions and Interpretation
	 	 	1	 
	 
	 	 	 	 
	1.1 Definitions
	 	 	1	 
	1.2 Construction
	 	 	3	 
	1.3 Headings
	 	 	4	 
	 
	 	 	 	 
	2   Subscription
	 	 	5	 
	 
	 	 	 	 
	2.1 Obligation to subscribe
	 	 	5	 
	2.2 Terms of issue
	 	 	5	 
	 
	 	 	 	 
	3   Completion
	 	 	5	 
	 
	 	 	 	 
	3.1 Place and time
	 	 	5	 
	3.2 Obligations of Subscriber
	 	 	5	 
	3.3 Obligations of Company
	 	 	5	 
	3.4 Interdependence of obligations
	 	 	5	 
	 
	 	 	 	 
	4   Period after Completion
	 	 	6	 
	 
	 	 	 	 
	5   Confidentiality
	 	 	6	 
	 
	 	 	 	 
	5.1 Basis for providing Confidential Information
	 	 	6	 
	5.2 Maintenance of confidentiality and use of Confidential Information
	 	 	6	 
	5.3 Information that is not Confidential Information
	 	 	6	 
	5.4 Permitted disclosures
	 	 	7	 
	5.5 Public Disclosures
	 	 	7	 
	 
	 	 	 	 
	6   Standstill
	 	 	7	 
	 
	 	 	 	 
	6.1 Sale and purchase of Shares
	 	 	7	 
	6.2 Exceptions
	 	 	7	 
	6.3 Disposal of Securities
	 	 	7	 
	 
	 	 	 	 
	7   Insider Trading
	 	 	7	 
	 
	 	 	 	 
	8   Warranties
	 	 	8	 
	 
	 	 	 	 
	8.1 Mutual warranties
	 	 	8	 
	8.2 Additional warranties by the Subscriber
	 	 	8	 
	8.3 Subscriber Covenants
	 	 	9	 
	8.4 Additional warranty by the Company
	 	 	9	 
	 
	 	 	 	 
	9   Consent to be Named
	 	 	10	 
	 
	 	 	 	 
	10   Notices
	 	 	10	 
	 
	 	 	 	 
	10.1 General
	 	 	10	 
	10.2 How to give a communication
	 	 	10	 
	10.3 Communications by post
	 	 	10	 
	10.4 Communications by fax
	 	 	10	 
	10.5 After hours communications
	 	 	10	 
	10.6 Process service
	 	 	10	 
	 
	 	 	 	 
	11   GST
	 	 	11	 
	 
	 	 	 	 
	11.1 Interpretation
	 	 	11	 






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	11.2 GST gross up
	 	 	11	 
	11.3 Reimbursements
	 	 	11	 
	11.4 Tax invoice
	 	 	11	 
	11.5 Adjustment events
	 	 	11	 
	 
	 	 	 	 
	12   General
	 	 	11	 
	 
	 	 	 	 
	12.1 Duty
	 	 	11	 
	12.2 Legal costs and other expenses
	 	 	11	 
	12.3 Amendment
	 	 	11	 
	12.4 Waiver and exercise of rights
	 	 	12	 
	12.5 Rights cumulative
	 	 	12	 
	12.6 Further steps
	 	 	12	 
	12.7 Governing law and jurisdiction
	 	 	12	 
	12.8 Assignment
	 	 	12	 
	12.9 Counterparts
	 	 	12	 
	12.10 Entire understanding
	 	 	12	 
	 
	 	 	 	 
	Schedule 1 -
	 	 	14	 






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	 	 	Date
	 
	 	 	Parties
	 
	 	 	Peplin Limited ACN 090 819 275 of Level 2, Brisbane Portal, 1 Breakfast Creek
Road, Newstead, Queensland (Company)
	 
	 	 	[SUBSCRIBER] [ADDRESS] (Subscriber)
	 
	 	 	Background






	A	 	The Company is seeking to raise an aggregate amount of
approximately A$20 million by way of a placement to institutional
investors.
	 
	B	 	The Subscriber wishes to subscribe for the Subscription Shares
and the Company agrees to issue and allot the Subscription Shares
to the Subscriber on the terms set out in this document.
	 
	C	 	The Company and the Subscriber have agreed to exchange
Confidential Information for the purposes of the Placement on the
terms set out in this document.
	 
	 	 	Agreed terms

	 
	1	 	Definitions and
Interpretation
	 
	1.1	 	Definitions
	 
	 	 	The following definitions apply (including in the Recitals) unless the context
requires otherwise.
	 
	 	 	Adviser means, in relation to a party, its legal, financial or other expert advisers or
agents.
	 
	 	 	ASIC means the Australian Securities and Investments Commission.
	 
	 	 	Associate has the meaning given in sections 10 to 17 of the Corporations Act.
	 
	 	 	ASX means ASX Limited ACN 008 624 691.
	 
	 	 	ASX Listing Rules means the official rules of ASX as amended from time to time.
	 
	 	 	ASTC Settlement Rules means the settlement rules of the ASX Settlement and Transfer
Corporation Pty Ltd.










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	 	 	Business Day means a day which is not a Saturday, Sunday or bank or public holiday in
Sydney, New South Wales.
	 
	 	 	Completion means the issue and allotment of the Subscription Shares in accordance with
clause 3.
	 
	 	 	Completion Date means the date on which Completion takes place, being within 5 Business
Days of the earlier of:






	 	(a)	 	the dispatch of the Information Memorandum to shareholders and
optionholders of the Company; or
	 
	 	(b)	 	the termination of the Restructure Implementation Agreement.






	 	 	Confidential Information means:






	 	(a)	 	all information, whether written, oral, electronic or in any other form
provided (before or after the date of this document) by any party or its
Representatives relating to that party’s operations, affairs and/or business
including without limitation know how, trade secrets, intellectual property rights,
business, corporate or trade information;
	 
	 	(b)	 	all analyses, compilations, forecasts, studies or other documents
prepared by any party which contain or reflect any such information;
	 
	 	(c)	 	the existence and content of this document; and
	 
	 	(d)	 	the existence of the Placement and other potential transactions relating
to the operations, affairs and business of a party to this document or a
Representative of a party to this document.






	 	 	Constitution means the constitution of the Company.
	 
	 	 	Corporations Act means the Australian Corporations Act 2001 (Cth).
	 
	 	 	Encumbrance means any mortgage, charge (whether fixed or floating), pledge,
hypothecation, option, conditional sale agreement, trust arrangement, restriction as to
transfer, or other form of security or equity interest.
	 
	 	 	Immediately Available Funds means cash or bank cheque or any other form of payment that
the parties agree in writing.
	 
	 	 	Information Memorandum means the explanatory statement to be dispatched to shareholders
and optionholders of the Company detailing the proposed schemes of arrangement and
capital raising as contemplated by the Restructure Implementation Agreement.
	 
	 	 	Material Non Public Information means any information which is not widely known by
participants in a relevant market and which could reasonably be expected to have a
material effect on the price or value of securities that trade in that market.
	 
	 	 	Officer means, in relation to an entity, its directors, officers and employees.
	 
	 	 	Placement means the subscription for the Subscription Shares by the Subscriber, and the
issue of the Subscription Shares to the Subscriber by the Company.




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	 	 	Representative in relation to a party means:






	 	(a)	 	each of the party’s related bodies corporate; and
	 
	 	(b)	 	the party’s or any of its related bodies corporate’:






	 	(i)	 	Officers; and
	 
	 	(ii)	 	Advisers.






	 	 	Restructure Implementation Agreement means the agreement entitled “Restructure
Implementation Agreement” dated on or about the date of this document between the Company
and Peplin, Inc.
	 
	 	 	Securities means:






	 	(a)	 	any Shares; or
	 
	 	(b)	 	any securities which:






	 	(i)	 	are convertible into; or
	 
	 	(ii)	 	give any right to receive; or
	 
	 	(iii)	 	relate to,






	 	 	 	Shares in the capital of the Company; or






	 	(c)	 	any legal, equitable or economic interest in those Shares or securities.






	 	 	Securities Act means the United States Securities Act of 1933, as amended.
	 
	 	 	Securities Laws means any law or rule which applies to a party or any of its
Representatives which prohibits any person who has Material Non Public Information about
an entity, obtained directly or indirectly from that entity, from purchasing or selling
securities of that entity or from communicating that information to any other person
(including the Corporations Act and the ASX Listing Rules).
	 
	 	 	Share means a fully paid ordinary share in the capital of the Company.
	 
	 	 	Standstill Period means the period commencing on the date of this document and ending
upon the earlier of the dispatch of the Information Memorandum to shareholders and
optionholders of the Company or the termination of the Restructure Implementation
Agreement.
	 
	 	 	Subscription Price means the amount set out in Part 2 of Schedule 1.
	 
	 	 	Subscription Shares means the Shares set out in Part 1 of Schedule 1.
	 
	1.2	 	Construction
	 
	 	 	Unless expressed to the contrary, in this document:






	 	(a)	 	words in the singular include the plural and vice versa;
	 
	 	(b)	 	any gender includes the other genders;
	 
	 	(c)	 	if a word or phrase is defined its other grammatical forms have
corresponding meanings;
	 
	 	(d)	 	“includes” means includes without limitation;





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






	 	(i)	 	a person includes a partnership, joint venture,
unincorporated association, corporation and a government or statutory body or
authority;
	 
	 	(ii)	 	a person includes the person’s legal personal
representatives, successors, permitted assigns and persons substituted by
permitted novation;
	 
	 	(iii)	 	any legislation includes subordinate legislation under it
and includes that legislation and subordinate legislation as modified or
replaced;
	 
	 	(iv)	 	an obligation includes a warranty or representation and a
reference to a failure to comply with an obligation includes a breach of
warranty or representation;
	 
	 	(v)	 	a right includes a benefit, remedy, discretion or power;
	 
	 	(vi)	 	time is to local time in Brisbane;
	 
	 	(vii)	 	“$” or “dollars” is a reference to Australian currency;
	 
	 	(viii)	 	this or any other document includes the document as novated, varied or
replaced by agreement between the parties and despite any change in the
identity of the parties;
	 
	 	(ix)	 	writing includes any mode of representing or reproducing
words in tangible and permanently visible form, and includes fax
transmissions;
	 
	 	(x)	 	this document includes all schedules and annexures to it;
and
	 
	 	(xi)	 	a clause, schedule or annexure is a reference to a clause,
schedule or annexure, as the case may be, of this document;






	 	(g)	 	if the date on or by which any act must be done under this document is
not a Business Day, the act must be done on or by the next Business Day;
	 
	 	(h)	 	where time is to be calculated by reference to a day or event, that day
or the day of that event is excluded; and
	 
	 	(i)	 	a reference to any statement, including a warranty made by a party on the
basis of its knowledge, belief or awareness, is made on the basis of the actual
knowledge, belief or awareness of the officers of the party (and no other persons)
as at the date of this document.






	1.3	 	Headings
	 
	 	 	Headings do not affect the interpretation of this document.




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	2	 	Subscription
	 
	2.1	 	Obligation to subscribe
	 
	 	 	Subject to the provisions of this document:






	 	(a)	 	the Subscriber subscribes for the Subscription Shares at the Subscription
Price; and
	 
	 	(b)	 	the Company will allot and issue the Subscription Shares to the
Subscriber on the Completion Date.






	2.2	 	Terms of issue
	 
	 	 	On issue of the Subscription Shares, the Subscriber will be bound by the
provisions of the Constitution.
	 
	3	 	Completion
	 
	3.1	 	Place and time
	 
	 	 	Completion of the issue and allotment of the Subscription Shares to the Subscriber
by the Company will take place on the Completion Date at the offices of the Company, or
at any other time, date and place agreed in writing between the parties.
	 
	3.2	 	Obligations of Subscriber
	 
	 	 	On the Completion Date, the Subscriber will pay to the Company the total
Subscription Price for the Subscription Shares in Immediately Available Funds.
	 
	3.3	 	Obligations of Company
	 
	 	 	On the Completion Date, the Company will:






	 	(a)	 	allot the Subscription Shares to the Subscriber;
	 
	 	(b)	 	enter the Subscriber in the share register of the Company;
	 
	 	(c)	 	deliver a holding statement for the Subscription Shares to the Subscriber
issued in accordance with the ASTC Settlement Rules;
	 
	 	(d)	 	apply for official quotation of the Subscription Shares by lodging in
accordance with the ASX Listing Rules a completed appendix 3B in relation to the
Subscription Shares; and
	 
	 	(e)	 	provide ASX with a notice that complies with sections 708A(5)(e) and
708A(6) of the Corporations Act in relation to the Subscription Shares.






	3.4	 	Interdependence of obligations
	 
	 	 	The obligations of the parties under this clause 4 are interdependent. All acts
on the Completion Date must be treated as done simultaneously and no payment, delivery or
other act may be treated as made or done until all such deliveries, payments or acts are
made or done.




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	4	 	Period after Completion
	 
	 	 	The Company undertakes to use its best endeavours to obtain official quotation of
the Subscription Shares on ASX.
	 
	5	 	Confidentiality
	 
	5.1	 	Basis for providing Confidential Information
	 
	 	 	Each party will disclose Confidential Information to the other party to permit the
negotiation and completion of the Placement on the terms of this document.
	 
	5.2	 	Maintenance of confidentiality and use of Confidential Information
	 
	 	 	Each party agrees that:






	 	(a)	 	it will not disclose the other party’s Confidential Information to any
person or make use of or take advantage of the other party’s Confidential
Information for any purpose other than as expressly permitted by this document;
	 
	 	(b)	 	it will take all steps necessary to ensure that the other party’s
Confidential Information is kept confidential;
	 
	 	(c)	 	it will not copy the other party’s Confidential Information or permit the
copying of the other party’s Confidential Information in any form other than as
permitted by the other party;
	 
	 	(d)	 	upon request, it will return a party’s Confidential Information to that
party, together with any copies of that party’s Confidential Information; and
	 
	 	(e)	 	it will not make use of the other party’s Confidential Information in any
manner so as to obtain any benefit, right or privilege for itself or for any other
person that would not have been available but for it having access to the
Confidential Information except as permitted by this document.






	5.3	 	Information that is not Confidential Information
	 
	 	 	Clause 5.1 will not apply to any information which:






	 	(a)	 	at the time of disclosure is in the public domain or thereafter becomes
part of the public domain through no fault of the party receiving such information;
	 
	 	(b)	 	the party receiving such information can establish that it was in its
possession prior to the time of disclosure;
	 
	 	(c)	 	is independently made available to the party receiving such information
by a third party who is not thereby in violation of a confidential relationship with
the other party; and
	 
	 	(d)	 	the party receiving such information can conclusively establish that it
was independently developed by the party receiving such information without use of
the Confidential Information of the other party.




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	5.4	 	Permitted disclosures
	 
	 	 	A party may disclose any Confidential Information where disclosure is required by
law or by any notice, order or regulation of any regulatory authority (including the ASX
Listing Rules) which is binding upon a party.
	 
	5.5	 	Public Disclosures
	 
	 	 	Subject to clause 5.4 the Subscriber will not, and will not permit any person
under its control or influence (including any Representative) to, make a public
statement, press release or other communication announcing the Placement before the
Company has announced the Placement.
	 
	6	 	Standstill
	 
	6.1	 	Sale and purchase of Shares
	 
	 	 	Subject to clause 6.2, the Subscriber agrees that during the Standstill Period
neither it, nor, so far as it is able (using its best endeavours) to procure, any of its
Associates or Representatives, will:






	 	(a)	 	directly or indirectly make or cause to be made any offer for, invitation
to dispose of, or solicitation for Securities (or announcement of such an offer or
an intention to make such an offer); or
	 
	 	(b)	 	purchase or otherwise acquire Securities; or
	 
	 	(c)	 	co-operate or assist or enter into any agreement or arrangement of any
kind with any person relating to (or in any way connected with) anything in
paragraphs (a) or (b) above.






	6.2	 	Exceptions
	 
	 	 	Clause 6.1 does not apply to the acquisition of Securities pursuant to the
Placement.
	 
	6.3	 	Disposal of Securities
	 
	 	 	If the Subscriber or any of its Associates or Representatives acquires ownership
of any interest in, or rights over, any Securities in contravention of the provisions of
this document it must promptly dispose, or procure the disposal, of such Securities and
until such disposal the Subscriber will not, and will procure that no other person shall,
exercise any voting rights attached to such Securities.
	 
	7	 	Insider Trading






	 	(a)	 	The Subscriber acknowledges that as a result of its receipt of the
Confidential Information it may be (or be taken to be) in possession of Material Non
Public Information in relation to the Securities.
	 
	 	(b)	 	The Subscriber acknowledges that it is aware of and agrees to comply with
(and that it will ensure that its Representatives who receive access to any part of
the Confidential Information will have been advised of and will comply with)
Securities Laws in respect of the Securities.






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