Intention to establish primary listing on NASDAQ with continued
(secondary) listing on ASX
AVITA Medical Limited (Company) (ASX: AVH, NASDAQ: RCEL),
a regenerative medicine company with a technology platform
positioned to address unmet medical needs in therapeutic skin
restoration, announced today its intention to redomicile the
Company and its subsidiaries (Avita Group) from
Australia to the United States of America by way of a scheme of
arrangement under Part 5.1 of the Corporations Act 2001 (Cth)
(Redomiciliation).
To implement the Redomiciliation, the Company has entered into a
Scheme Implementation Agreement dated 20 April 2020 with AVITA
Therapeutics, Inc. (Avita US), a newly-formed company
incorporated in Delaware in the United States. A copy of the Scheme
Implementation Agreement is attached and will be available on the
Company’s website.
If the Redomiciliation is implemented:
- Avita US will become the new holding company of the Avita
Group;
- shareholders will effectively exchange their shares in the
Company for equivalent securities in Avita US; and
- the existing listing of the Company on the Australian
Securities Exchange (ASX) (being the Company’s current primary listing) and on the NASDAQ Stock
Market (NASDAQ) (being the Company’s current secondary listing) will be inverted and
replaced with a new listing of Avita US on NASDAQ (as its
future primary listing) and on the ASX
(as its future secondary
listing).
The Redomiciliation is subject to regulatory and court
approvals, as well as approval by the Company’s shareholders at an
extraordinary general meeting which will be convened to address the
Redomiciliation (Scheme Meeting).
Reasons for the Redomiciliation
After carefully considering the advantages, disadvantages and
risks of the Redomiciliation, the directors of the Company
(Board) are of the unanimous view that the advantages of the
Redomiciliation materially outweigh its disadvantages and risks. In
particular, the Board believes that the Redomiciliation will:
- substantially reduce the costs, burden, resourcing and risks
associated with dual financial reporting and related compliance
obligations that the Company has become subject to in both the
United States and Australia (since 31 December 2019), which is
expected to save approximately A$400,000 per annum in external
professional costs alone;
- create a “local” share listing on the NASDAQ exchange in the
United States, the largest market for the treatment for burns, and
where the Board’s immediate strategy is to further grow the Avita
Group’s visibility and presence;
- increase the attractiveness of the Avita Group to a broader
range of investors in the United States capital market, the largest
in the world in terms of market capitalisation and trading volume;
and
- better align the Avita Group’s corporate structure with its
business operations in the United States, which is where nearly all
of the Avita Group’s employees are located. The Company derives
virtually all of its revenue from the United States, has no
physical presence outside of the United States, and a significant
majority of its issued share capital (taking into account its
American Depositary Shares (ADSs), which are traded
exclusively on NASDAQ) is currently held by investors in the United
States.
The Board unanimously recommends the Redomiciliation
The Board unanimously recommends that shareholders vote in
favour of the resolution to approve the Redomiciliation at the
Scheme Meeting. Each member of the Board intends to vote the shares
in the Company which they hold (or which are held on their behalf)
in favour of that resolution.
Independent Expert
The Company has engaged BDO Corporate Finance Limited
(Independent Expert) to report on whether the
Redomiciliation is in the best interests of shareholders as a
whole. The scheme booklet in connection with the Redomiciliation
(Scheme Booklet) will include the report of the Independent
Expert.
Key features of the Redomiciliation
If the Redomiciliation is implemented:
- Avita US will acquire all of the Company’s ordinary shares
(Shares), and in exchange:
- shareholders in eligible jurisdictions who
hold Shares (other than the ADS Depositary) will receive 5 CHESS
depositary interests (CDIs) in Avita US (Avita US
CDIs) for every 100 Shares held by them on the record date for
the Redomiciliation (Record Date); and
- the ADS Depositary (who holds Shares for
the benefit of holders of the Company’s ADSs) will receive one
Avita US Share for every 100 Shares held by it on the Record Date
and will distribute to ADS holders one Avita US Share for every 5
ADSs held by them on the Record Date (upon surrender by them of
their ADSs and payment of the ADS Depositary’s fee for that
surrender).
Therefore, shareholders in eligible jurisdictions and ADS
holders (on the Record Date), upon receiving Avita US CDIs or Avita
US Shares, will hold an equivalent proportional interest in Avita
US as they held in the Company prior to implementation of the
Redomiciliation.
Shareholders (on the Record Date) in certain ineligible
jurisdictions (which are listed under the definition of “Ineligible
Shareholder” in the Scheme Implementation Agreement) will have
their entitlements sold pursuant to a sale facility, and those
holders will receive the relevant net proceeds of that sale. In
addition, shareholders (on the Record Date) who have a fractional
entitlement to an Avita US Share or an entitlement to Avita US CDIs
that is not sufficient to equate to a whole Avita US Share, will
have those fractional interests sold pursuant to the same sale
facility and those holders will receive the relevant net proceeds
of that sale.
- If the Redomiciliation is implemented
Avita US Shares will be quoted on NASDAQ and Avita US CDIs will be
quoted on the ASX. Avita US Shares and Avita US CDIs will be
transmutable, so that Avita US shareholders can convert their Avita
US Shares (on NASDAQ) into Avita US CDIs (on the ASX) (and vice
versa).
- It is not intended that the Redomiciliation will result in any
changes to the operations, management or strategy of the Avita
Group.
Implementation of the Redomiciliation is conditional upon the
satisfaction of certain conditions, which are set out in the
Implementation Agreement, including:
- The Independent Expert concluding that the scheme to give
effect to the Redomiciliation is in the best interests of the
Company’s shareholders as a whole;
- The Company’s shareholders approving the scheme;
- The Federal Court of Australia approving the scheme;
- Avita US obtaining approval from the Foreign Investment Review
Board;
- ASX approving Avita US for admission to the official list of
the ASX and the Avita US CDIs for official quotation, which
approval may be subject to satisfaction of various conditions;
and
- The Avita US Shares being authorised for listing on NASDAQ,
subject to official notice of issuance following implementation of
the scheme and any customary conditions.
Scheme Meeting
For the Redomiciliation to be implemented, a requisite majority
of shareholders must vote to approve the Redomiciliation at the
Scheme Meeting, which is intended to be held in June 2020.
Due to the COVID-19 pandemic and the restrictions imposed by
Australian governments in response to it, the Company will be
making an application to the Federal Court of Australia for orders
to permit the Scheme Meeting to be conducted exclusively as a
virtual meeting. Accordingly, it is proposed that the Scheme
Meeting will be conducted by way of a live webcast only.
Further details on how to participate in the Scheme Meeting by
way of live webcast and on how to vote (including by way of proxy,
attorney or corporate representative) will be provided in the
Scheme Booklet.
Any changes to the proposal that the Scheme Meeting be conducted
exclusively as a virtual meeting will be outlined in the Scheme
Booklet and thereafter on the ASX, NASDAQ and via news release, and
will also be notified on the Company’s website
(https://www.avitamedical.com/).
ADS holders will be entitled to vote and participate in the
Scheme Meeting through the Bank of New York Mellon, the ADS
depositary.
Indicative timetable and next steps
Shareholders do not need to take any action at this time.
The Scheme Booklet is intended to be sent to shareholders in May
2020. The Scheme Booklet will contain, amongst other things,
further information relating to the Redomiciliation, reasons for
the Board’s unanimous recommendation, information on the Scheme
Meeting and on how to vote and the report of the Independent
Expert.
If approved by the requisite majorities of shareholders (and
subject to regulatory and court approvals), the Avita Group is
targeting to implement the Redomiciliation by 30 June 2020,
following which Avita US Shares and Avita US CDIs will be issued
and can be traded on NASDAQ and the ASX respectively.
These dates are indicative only and subject to, amongst other
things, court availability (particularly in the current
environment) and the conditions precedent to completion of the
Redomiciliation (as set out in the Scheme Implementation Agreement)
being satisfied or waived.
Authorized for release by the Chief Financial Officer of AVITA
Medical Limited.
###
ABOUT AVITA MEDICAL LIMITED
AVITA Medical is a regenerative medicine company with a
technology platform positioned to address unmet medical needs in
burns, chronic wounds, and aesthetics indications. AVITA Medical’s
patented and proprietary collection and application technology
provides innovative treatment solutions derived from the
regenerative properties of a patient’s own skin. The medical
devices work by preparing a RES® REGENERATIVE EPIDERMAL SUSPENSION,
an autologous suspension comprised of the patient’s skin cells
necessary to regenerate natural healthy epidermis. This autologous
suspension is then sprayed onto the areas of the patient requiring
treatment.
AVITA Medical’s first U.S. product, the RECELL® System, was
approved by the U.S. Food and Drug Administration (FDA) in
September 2018. The RECELL System is indicated for use in the
treatment of acute thermal burns in patients 18 years and older.
The RECELL System is used to prepare Spray-On Skin™ Cells using a
small amount of a patient’s own skin, providing a new way to treat
severe burns, while significantly reducing the amount of donor skin
required. The RECELL System is designed to be used at the point of
care alone or in combination with autografts depending on the depth
of the burn injury. Compelling data from randomized, controlled
clinical trials conducted at major U.S. burn centers and real-world
use in more than 8,000 patients globally, reinforce that the RECELL
System is a significant advancement over the current standard of
care for burn patients and offers benefits in clinical outcomes and
cost savings. Healthcare professionals should read the INSTRUCTIONS
FOR USE - RECELL® Autologous Cell Harvesting Device
(https://recellsystem.com/) for a full description of indications
for use and important safety information including
contraindications, warnings and precautions.
In international markets, our products are marketed under the
RECELL System brand to promote skin healing in a wide range of
applications including burns, chronic wounds and aesthetics. The
RECELL System is TGA-registered in Australia and received CE-mark
approval in Europe.
To learn more, visit www.avitamedical.com.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This letter includes forward-looking statements. These
forward-looking statements generally can be identified by the use
of words such as “anticipate,” “expect,” “intend,” “could,” “may,”
“will,” “believe,” “estimate,” “look forward,” “forecast,” “goal,”
“target,” “project,” “continue,” “outlook,” “guidance,” “future,”
other words of similar meaning and the use of future dates.
Forward-looking statements in this letter include, but are not
limited to, statements concerning, among other things, our ongoing
clinical trials and product development activities, regulatory
approval of our products, the potential for future growth in our
business, and our ability to achieve our key strategic, operational
and financial goal. Forward-looking statements by their nature
address matters that are, to different degrees, uncertain. Each
forward- looking statement contained in this letter is subject to
risks and uncertainties that could cause actual results to differ
materially from those expressed or implied by such statement.
Applicable risks and uncertainties include, among others, the
timing of regulatory approvals of our products; physician
acceptance, endorsement, and use of our products; failure to
achieve the anticipated benefits from approval of our products; the
effect of regulatory actions; product liability claims; risks
associated with international operations and expansion; and other
business effects, including the effects of industry, economic or
political conditions outside of the company’s control. Investors
should not place considerable reliance on the forward-looking
statements contained in this letter. Investors are encouraged to
read our publicly available filings for a discussion of these and
other risks and uncertainties. The forward-looking statements in
this letter speak only as of the date of this release, and we
undertake no obligation to update or revise any of these
statements.
SCHEME IMPLEMENTATION AGREEMENT
AVITA Medical Limited
AVITA Therapeutics, Inc.
KPMG Law
KPMG International Towers Sydney 3 300 Barangaroo Avenue Sydney
NSW 2000 ABN 78 399 289 481 | DX1056 Sydney
Liability limited by a scheme approved under Professional
Standards Legislation
CONTENTS
1. DEFINITIONS AND INTERPRETATION 2.
SCHEME 3. OPTIONS, RSUS AND WARRANTS IN AVITA
AUSTRALIA 4. CONDITIONS 5. GENERAL
OBLIGATIONS OF PARTIES 6. AVITA AUSTRALIA
OBLIGATIONS 7. AVITA US OBLIGATIONS 8.
ANNOUNCEMENT 9. TERMINATION 10.
REPRESENTATIONS AND WARRANTIES 11. RELEASE
12. COSTS AND STAMP DUTY 13. GST
14. NOTICES 15. AMENDMENT AND ASSIGNMENT
16. GENERAL
DATED 20 April 2020
PARTIES
AVITA Medical Limited ACN 058 466 523 of Level 7, 330 Collins Street, Melbourne, 3000,
Victoria, Australia (Avita Australia)
AVITA Therapeutics, Inc., a company incorporated in the
State of Delaware in the United States of America, with a principal
business address of 28159 Avenue Stanford, Suite 220, Valencia,
California 91355 (Avita US)
RECITALS
A.
Avita Australia is an Australian public
company listed on the ASX (as its primary listing) and on NASDAQ
(as its secondary listing).
B.
The Avita Australia securities quoted for
trading on the ASX are Avita Australia Shares, and the Avita
Australia securities quoted for trading on NASDAQ are Avita
Australia ADSs.
C.
Avita US is a company incorporated in
Delaware in the United States, which has been established for the
purpose of effecting a redomiciliation of the Avita Group to the
United States.
D.
The Avita Group wishes to effect a
redomiciliation from Australia to the United States by Avita US
acquiring all of the Avita Australia Shares by way of a scheme of
arrangement between Avita Australia and the Avita Australia
Shareholders under Part 5.1 of the Corporations Act.
E.
Avita Australia and Avita US propose to
implement the Scheme on the terms and conditions of this
agreement.
OPERATIVE PROVISIONS
1. DEFINITIONS AND INTERPRETATION
1.1. Definitions
The
following definitions apply in this agreement, unless the context
requires otherwise:
ADS means an American Depositary
Share.
ADS Depositary means The Bank of New York Mellon.
ADS Holder means a holder of Avita Australia
ADSs.
Announcement means an announcement, press release or other
public statement (other than a draft explanatory statement, an
explanatory statement or a supplementary explanatory statement as
required under Part 5.1 of the Corporations Act).
ASIC means the Australian Securities and
Investments Commission.
ASIC Policy means the regulatory policies (including
regulatory guides) issued by ASIC as at the date of this agreement
setting out its policy in relation to (among other things) the
interpretation and enforcement of relevant sections of the
Corporations Act.
ASX means ASX Limited (ABN 98 008 624 691) or the
securities market which it operates, as the context
requires.
ASX Settlement means ASX Settlement Pty Limited (ABN 49 008
504 532) as the holder of a licence to operate a clearing and
settlement facility.
ASX Settlement Operating Rules
means the operating rules of the
clearing and settlement facility operated by ASX Settlement for the
time being and from time to time, as modified by any express
written exemption or waiver given by ASX or ASX
Settlement.
ATO means the Australian Taxation
Office.
ATO Class Ruling means the class ruling which Avita Australia
will seek from the ATO to the effect that Australian resident
Scheme Participants who hold their Avita Australia Shares (or
Australian resident ADS Holders who hold their Avita Australia
ADSs) on capital account and who make a capital gain from the
exchange of their Avita Australia Shares (or Avita Australia ADSs)
for Avita US Shares or Avita US CDIs under the Scheme will
be eligible for scrip-for-scrip roll-over relief under the relevant
Australian tax laws.
Authorisation means:
(a)
an approval, authorisation, consent,
declaration, exemption, licence, notarisation, permit or waiver
(however it is described), including any amendment or renewal and
any condition attaching to it by or from a Government Authority;
and
(b)
in relation to anything that could be
prohibited or restricted by law if a Government Authority acts in
any way within a specified period, the expiry of that period
without that action being taken.
Authorised Nominee means CHESS Depositary Nominees Pty Limited
(ACN 071 346 503, Australian Financial Services Licence number
254514), an approved general participant of ASX Settlement and a
wholly-owned subsidiary of ASX.
Avita Australia means AVITA Medical Limited ACN 058 466
523.
Avita Australia ADS means an ADS representing 20 Avita Australia
Shares, which trade on NASDAQ under the ticker code “RCEL”.
Avita Australia Share means an issued fully paid ordinary share in
the capital of Avita Australia.
Avita Australia Shareholder
means a person entered in the
Register as the holder of one or more Avita Australia
Shares.
Avita Australia Shareholder Approval
means the Scheme Resolution being
passed by the majorities of Avita Australia Shareholders required
under section 411(4)(a)(ii) of the Corporations Act.
Avita Group means Avita Australia and its Subsidiaries
and, after implementation of the Scheme, Avita US and its
Subsidiaries.
Avita US means AVITA Therapeutics, Inc..
Avita US CDI means a CDI representing a beneficial
interest in 1/5 of an Avita US Share.
Avita US Share means a fully paid share of voting common
stock in the capital of Avita US.
Business Day means a day that is not a Saturday, Sunday or
a public holiday or bank holiday in Melbourne,
Australia.
CDI means a CHESS Depositary Interest, being a
unit of beneficial ownership in a share that is registered in the
name of the Authorised Nominee in accordance with the ASX
Settlement Operating Rules for the purpose of enabling that share
to be recorded and transferred in accordance with those operating
rules.
Condition means a condition precedent set out in clause
4.1.
Corporations Act means the Australian Corporations Act 2001
(Cth).
Court means the Federal Court of Australia or any
other court of competent jurisdiction under the Corporations Act
agreed in writing by Avita Australia and Avita US.
Deed Poll means the deed poll to be executed by Avita
US substantially in the form of Schedule 3, pursuant to which Avita
US covenants in favour of Scheme Participants to perform certain of
its obligations under this agreement and certain steps attributed
to it under the Scheme, with such amendments as are approved in
accordance with its terms.
Effective means, in relation to the Scheme, the coming
into effect, under section 411(10) of the Corporations Act, of the
order of the Court made under section 411(4)(b) of the Corporations
Act in relation to the Scheme, but in any event at no time before
an office copy of the order of the Court is lodged with
ASIC.
Effective Date means the date on which the Scheme becomes
Effective.
FATA means the Foreign Acquisitions and Takeovers
Act 1975 (Cth).
FIRB means the Australian Foreign Investment
Review Board.
First Court Hearing Date means the first day of the hearing of the
Court of an application for an order under section 411(1) of the
Corporations Act convening the Scheme Meeting.
Fractional Avita US Share has the meaning given in clause
2.7.
Government Authority means:
(a)
a government, whether foreign, federal,
state, territorial or local;
(b)
a department, office or minister of a
government (whether foreign, federal, state, territorial or local)
acting in that capacity; or
(c)
a commission, delegate, instrumentality,
agency, board, or other government, semi-government, judicial,
administrative, monetary or fiscal authority, whether statutory or
not and whether foreign, federal, state, territorial or local,
and
includes ASX, ASIC, NASDAQ, FIRB, the Takeovers Panel and any
regulatory organisation established under statute.
GST has the same meaning as “GST” in A New Tax
System (Goods and Services Tax) Act 1999 (Cth).
Implementation means the implementation of the Scheme in
accordance with its terms on the Scheme becoming
Effective.
Implementation Date means the Business Day which is a minimum of
one Business Day, but a maximum of five Business Days, after the
Record Date, as Avita Australia and Avita US may agree in
writing.
Independent Expert means BDO Corporate Finance Limited (ACN 010
185 725, Australian Financial Services Licence number 245513),
being the independent expert in respect of the Scheme appointed by
Avita Australia to consider whether the Scheme is in the best
interests of Avita Australia Shareholders.
Independent Expert’s Report
means a report prepared by the
Independent Expert in accordance with ASIC Regulatory Guide 111 for
inclusion in the Scheme Booklet.
Ineligible Shareholder means a Scheme Participant whose address, as
shown in the Register (as at the Record Date), is in a place
outside Australia, the United States, Hong Kong, New
Zealand, the United Kingdom, France, Norway, Switzerland, the
United Arab Emirates and Singapore (unless Avita Australia is
satisfied, acting reasonably, that the laws of that place permit
the offer and issue of Avita US Shares or Avita US CDIs to that
Scheme Participant and, in Avita US’s sole discretion, it is not
unduly onerous or impractical for Avita US to issue Avita US Shares
or Avita US CDIs to that Scheme
Participant).
Listing Rules means the listing rules of ASX for the time
being and from time to time.
NASDAQ means the NASDAQ Stock Market LLC.
Notice has the meaning given to it in clause
14.1.
Option means an option to subscribe for a
share in a company, at a certain exercise price, within a certain
exercise period (other than a Warrant).
Record Date means 7.00pm (Sydney time) on the day which
is two Business Days after the Effective Date, or any other date
(after the Effective Date) agreed by the parties to be the record
date to determine entitlements to receive the Scheme Consideration
under the Scheme.
Register means the register of members of Avita
Australia.
Review Draft means the draft of the Scheme Booklet, which
is provided to ASIC for approval under section 411(2) of the
Corporations Act.
RSU means a restricted security unit of a
company, being an unfunded and unsecured contractual entitlement to
be issued or transferred a share in the company on a future date
(after vesting of the entitlement).
Sale Agent means a person nominated by Avita US to sell
the Scheme Consideration referrable to Selling Shareholders in
accordance with clause 2.8.
Sale Securities has the meaning given in clause
2.8(a).
Scheme means the scheme of arrangement between Avita
Australia and the Scheme Participants under which all of the Scheme
Shares will be transferred to Avita US by Scheme Participants under
Part 5.1 of the Corporations Act as described in the Scheme, in
consideration for the provision of the Scheme Consideration to the
Scheme Participants, subject to any alterations or conditions made
or required by the Court under section 411(6) of the Corporations
Act to the extent they are approved in writing by Avita Australia
and Avita US in accordance with the Scheme.
Scheme Booklet means the information booklet in respect of
the Scheme to be approved by the Court and despatched to Avita
Australia Shareholders to assist them in deciding how to vote on
the Scheme, and includes the Scheme, a copy of the Deed Poll
executed by Avita US, an explanatory statement (as that term is
defined in section 412 of the Corporations Act), the Independent
Expert’s Report and a notice of meeting and proxy form.
Scheme Consideration means the consideration payable by Avita US
for the transfer of the Scheme Shares under the terms of the
Scheme, being one Avita US Share (or five Avita US CDIs) for every
100 Avita Australia Shares held by a Scheme Participant on the
Record Date, which will be satisfied in the manner set out in
clause 2.4.
Scheme Meeting means the meeting of Avita Australia
Shareholders ordered by the Court to be convened under section
411(1) of the Corporations Act to consider the approval of the
Scheme Resolution.
Scheme Participant means an Avita Australia Shareholder as at
the Record Date, taking into account registration of all
registrable transfers and transmission applications received by the
Share Registry by the Record Date.
Scheme Resolution means a resolution of Avita Australia
Shareholders to approve the Scheme under section 411(4)(a)(ii) of
the Corporations Act.
Scheme Share means an Avita Australia Share held by a
Scheme Participant as at the Record Date.
SEC means the U.S. Securities and Exchange
Commission.
Second Court Hearing Date means the first day on which the Court hears
the application for an order under section 411(4)(b) of the
Corporations Act approving the Scheme or (if the application is
adjourned or subject to appeal for any reason) the first day on
which the adjourned or appealed application is heard.
Selling Shareholder has the meaning given in clause
2.8(a).
Share Registry means the person operating the
Register, being Computershare Investor Services Pty Limited
ACN 078 279 277.
Subsidiary has the meaning ascribed to it in the
Corporations Act.
Sunset Date means 5.00pm on 31 December 2020 or such
other date and time agreed in writing between the
parties.
Takeovers Panel means the Takeovers Panel constituted under
the Australian Securities and Investments Commission Act 2001
(Cth).
Timetable means the timetable for the Implementation of
the Scheme as set out in Schedule
1, subject to
any modifications as the parties may agree in writing.
Treasurer means the Treasurer of the Commonwealth of
Australia.
United States or US means the United States of
America.
Warrant means an option to subscribe for a
share in a company at an exercise price of $0.126 and with an
expiry date of 31 December 2020.
1.2. Interpretation
In the
interpretation of this agreement, the following provisions apply
unless the context otherwise requires:
(a)
The singular includes the plural and
conversely.
(b)
A gender includes all genders.
(c)
If a word or phrase is defined, its other
grammatical forms have a corresponding meaning.
(d)
A reference to a person, corporation,
trust, partnership, unincorporated body or other entity includes
any of them.
(e)
A reference to a clause, schedule or
annexure is a reference to a clause of, or schedule or annexure to,
this agreement.
(f)
A reference to an agreement or document
(including a reference to this agreement) is to the agreement or
document as amended, varied, supplemented, novated or replaced,
except to the extent prohibited by this agreement or that other
agreement or document.
(g)
A reference to a person includes a
reference to the person’s executors, administrators, successors,
substitutes (including persons taking by novation) and assigns.
(h)
A reference to legislation (including
subordinate legislation) or to a provision of legislation includes
a modification or re-enactment of it, a legislative provision
substituted for it and a regulation or statutory instrument issued
under it.
(i)
A reference to $ is to the lawful currency
of Australia.
(j)
Words and phrases not specifically defined
in this agreement have the same meanings (if any) given to them in
the Corporations Act.
(k)
A reference to time is a reference to time
in Melbourne, Australia.
(l)
The meaning of general words is not
limited by specific examples introduced by including, for example,
or similar expressions.
1.3. Action by the next Business Day
If the day
on or by which a person must do something under this agreement is
not a Business Day, the person must do it on or by the next
Business Day.
1.4. Reasonable endeavours
A reference
in this agreement to a party using or having an obligation to use
reasonable endeavours does not oblige that party to:
(a)
pay money in the form of an inducement or
consideration to a third party to procure something (other than the
payment of immaterial expenses or costs, including costs of
advisers, to procure the relevant thing) or in circumstances that
are commercially onerous or unreasonable in the context of this
agreement;
(b)
provide other valuable consideration to or
for the benefit of any person; or
(c)
agree to commercially onerous or
unreasonable conditions.
2. SCHEME
2.1. Agreement to propose and implement the Scheme
(a)
Avita Australia agrees to propose and
implement the Scheme in accordance with Part 5.1 of the
Corporations Act and applicable ASIC Policy and subject to the
terms and conditions of this agreement, and to use reasonable
endeavours to do so in accordance with the Timetable.
(b)
Avita US agrees to assist Avita Australia
to propose and implement the Scheme in accordance with Part 5.1 of
the Corporations Act and applicable ASIC Policy and subject to the
terms and conditions of this agreement, and to use reasonable
endeavours to do so in accordance with the Timetable.
2.2. Outline of Scheme
Subject to
and in accordance with the terms and conditions of this agreement
and the Scheme, the parties agree that the Scheme Participants will
be entitled to receive the Scheme Consideration, except
that:
(a)
where a Scheme Participant would otherwise
be entitled under the Scheme to receive a Fractional Avita US Share
as part of its Scheme Consideration, the Scheme Participant will
receive, in accordance with clause 2.8 , the proceeds arising from
the sale of that Fractional Avita US Share; and
(b)
Ineligible Shareholders will receive, in
accordance with clause 2.8 , the proceeds arising from the sale of
the Scheme Consideration that they would otherwise be entitled to
receive.
2.3. No amendments to the Scheme without consent
Avita
Australia must not consent to any amendment to, or modification of,
or the imposition or making by the Court of any condition in
respect of, the Scheme without the prior written consent of Avita
US (which consent must not be unreasonably withheld).
2.4. Provision of Scheme Consideration
Subject to
clauses 2.7 and 2.8, Avita US agrees with Avita Australia that, in
consideration of the transfer to Avita US of each Scheme Share held
by a Scheme Participant under the terms of the Scheme, Avita US
will (subject to the terms and conditions of this agreement, the
Deed Poll and the Scheme) on the Implementation Date accept the
transfer of the Scheme Shares and:
- in the case of a Scheme Participant who holds Avita Australia
Shares (other than the ADS Depositary, an Ineligible Shareholder or
a Scheme Participant in respect of their entitlement to a
Fractional Avita US Share), cause the Authorised Nominee to issue
five Avita US CDIs to that Scheme Participant for every 100 Avita
Australia Shares held by that Scheme Participant on the Record Date
and issue to the Authorised Nominee (as depositary) the relevant
number of Avita US Shares underlying such Avita US CDIs (being one
Avita US Share for every five Avita US CDIs);
- in the case of the Scheme Participant who is the ADS Depositary
(who holds its Avita Australia Shares for the benefit of the ADS
Holders), issue one Avita US Share to the ADS Depositary for every
100 Avita Australia Shares held by the ADS Depositary and procure
the ADS Depositary to then, subject to compliance by the ADS
Holders with the terms of the arrangements pursuant to which the
ADS Depositary acts as depositary for ADS Holders, deliver (by way
of exchange) such Avita US Shares to the ADS Holders on the basis
of one Avita US Share for every five Avita Australia ADSs held by
the ADS Holder on the Record Date; and
- cause the Authorised Nominee to issue the Sale Securities to
the Sale Agent in the form of Avita US CDIs in accordance with
clauses 2.7 and 2.8 and issue to the Authorised Nominee (as
depositary) one Avita US Share for every 5 Avita US CDIs to be
issued to the Sale Agent.
2.5. CDIs - registration and notices
- On the Business Day prior to the Implementation Date, Avita
Australia must procure that Avita US enters in its register of
stockholders the name of the Authorised Nominee (as depositary) to
hold the Avita US Shares underlying the Avita US CDIs to be issued
in accordance with the Scheme.
- After the satisfaction of the obligation of Avita Australia in
clause 2.5 (a), Avita Australia must procure that Avita US:
- on the Implementation Date procures that the Authorised Nominee
records in the register of Avita US CDIs each Scheme Participant
who is to receive Avita US CDIs under the Scheme and issues Avita
US CDIs to the Sale Agent in accordance with clause 2.8; and
- as soon as is reasonably practical despatches, or causes to be
despatched, to each Scheme Participant who is to receive Avita US
CDIs under the Scheme, a holding statement or confirmation advice
in the name of that Scheme Participant representing the number of
Avita US CDIs issued to that Scheme Participant.
2.6. Avita US Shares - registration and notices
The
obligation of Avita Australia to procure that Avita US issues Avita
US Shares under clause 2.4 will be satisfied by Avita US, on the
Implementation Date, procuring the entry in its register of
stockholders of the name of each person who is to receive Avita US
Shares.
2.7. Fractional Avita US Shares
Where a
Scheme Participant would otherwise be entitled under the Scheme to
a fraction of an Avita US Share or a number of Avita US CDIs that
will not be sufficient to equate to a whole Avita US Share as part
of the Scheme Consideration (each a Fractional Avita US
Share), the Scheme Participant’s
Fractional Avita US Share will be aggregated with all other
Fractional Avita US Shares and issued to the Sale Agent (in the
form of Avita US CDIs) in accordance with clause 2.8.
2.8. Sale facility
- Where a Scheme Participant is an Ineligible Shareholder and/or
is entitled to a Fractional Avita US Share (each, a Selling
Shareholder), the number of Avita US Shares or Fractional Avita
US Shares to which that Selling Shareholder would otherwise be
entitledunder the Scheme as part of the Scheme Consideration will
be aggregated with those of all the other Selling Shareholders
(together, the Sale Securities) and issued to the Sale Agent
in the form of Avita US CDIs to be dealt with in accordance with
clause 2.8 (b). If the number of Sale Securities in aggregate
do not represent a whole Avita US Share, then the number of Sale
Securities will be rounded up to the next whole Avita US Share and
be issued to the Sale Agent.
- Avita US will procure that, after the Implementation Date, the
Sale Agent must:
- as soon as is reasonably practicable (and, in any case, within
one month after the Implementation Date) offer all such Sale
Securities for sale on the ASX in the form of Avita US CDIs in such
manner, at such price and on such other terms as the Sale Agent
determines in good faith and at the risk of the Selling
Shareholders; and
- as soon as is reasonably practicable (and, in any case, within
10 Business Days after settlement of the last of those sales of
Sale Securities) remit in Australian dollars the net proceeds to
Avita US who will remit to each Selling Shareholder the same
portion of the net proceeds of all such sales (after deduction of
any applicable brokerage, stamp duty and other charges, fees and
taxes) as the Sale Securities issued to the Sale Agent in respect
of the Selling Shareholder bears to the total Sale Securities
issued to and sold by the Sale Agent in respect of all Selling
Shareholders.
-
The remittance by Avita US to each Selling Shareholder of the
sale proceeds contemplated in clause 2.8 (b) is in full and final
satisfaction of that Selling Shareholder’s rights and entitlements
to the Scheme Consideration referable to it.
3. OPTIONS, RSUS AND WARRANTS IN AVITA
AUSTRALIA
The parties acknowledge and agree that:
- the existing Options, RSUs and Warrants in Avita Australia
arise out of contracts between Avita Australia and the holders of
those securities;
- under the contracts referred to in clause 3 (a) , the existing
Options, RSUs and Warrants in Avita Australia will continue after
implementation of the Scheme; however, the entitlements of holders
to be issued Avita Australia Shares will instead become
entitlements to be issued Avita US Shares (in the ratio of one
Avita US Share for every 100 Avita Australia Shares to which the
holder would otherwise be entitled);
- Avita US will, before the First Court Hearing Date, separately
covenant (by way of deed poll, substantially in the form of
Schedule 4) in favour of holders of the existingOptions, RSUs and
Warrants in Avita Australia to ensure that holders’ entitlements
are made available in accordance with the contracts referred to in
clause 3 (a) ; and
- in all other respects, the existing Options, RSUs and Warrants
in Avita Australia will continue to be subject to the contracts
referred to in clause 3 (a) .
4. CONDITIONS
4.1. Conditions precedent to implementation of the
Scheme
Subject to
this clause 4, the Scheme will not become Effective and the
obligations of the parties with respect to Implementation
(including Avita US’s obligation to provide the Scheme
Consideration) do not become binding unless and until each of the
following Conditions is satisfied or (to the extent they can be)
waived under clause 4.2:
- (ASIC and ASX) before 8.00am on the Second Court Hearing
Date, ASIC and ASX issue or provide all reliefs, waivers,
confirmations, exemptions, consents or approvals, and have
performed all other acts, necessary, or which Avita Australia and
Avita US agree are desirable, to implement the Scheme and such
reliefs, waivers, confirmations, exemptions, consents, approvals or
other acts (as the case may be) have not been withdrawn, suspended
or revoked at 8.00am on the Second Court Hearing Date.
- (Avita Australia Shareholder Approval): Avita Australia
Shareholder Approval is obtained at the Scheme Meeting convened in
accordance with the orders made under section 411(1) of the
Corporations Act.
- (Court approval of the Scheme): The Court makes orders
under section 411(4)(b) of the Corporations Act approving the
Scheme.
- (Regulatory Approvals): Before 8.00am on the Second
Court Hearing Date:
- (FIRB approval) one of the following occurs:
- Avita Australia has received written notification by or on
behalf of the Treasurer under the FATA to the effect that the
Commonwealth Government has no objection (unconditionally or on
conditions acceptable to Avita US acting reasonably) under its
foreign investment policy to Avita US acquiring all of the Scheme
Shares under the Scheme (or is precluded from objecting because the
time for doing so has passed);
- the period provided for under the FATA during which the
Treasurer may make an order or interim order under the FATA
prohibiting Avita US from acquiring all of the Scheme Shares under
the Scheme has elapsed without such an order being made; or
-
if an interim order has been made by the Treasurer to prohibit
Avita US from acquiring the Scheme Shares under the Scheme, the
subsequent period for making a final order under the FATA has
elapsed without any final order being made; and
-
(Other approvals) the approvals of all other
Government Authorities which Avita Australia and Avita US agree
(acting reasonably) are necessary to implement the Scheme or
conduct the Avita Group’s business on and from Implementation
occurring are obtained.
-
(Independent Expert’s Report): The Independent Expert
issues an Independent Expert’s Report on or before the date on
which the Scheme Booklet is lodged with ASIC, which concludes that
the Scheme is in the best interests of Avita Australia Shareholders
as a whole, without changing that conclusion prior to 8.00am on the
Second Court Hearing Date.
-
(No restraint adversely affecting Implementation): No
temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction or other
legal prohibition or restraint preventing the acquisition of all
the Scheme Shares by Avita US or otherwise preventing
Implementation is in effect as at 8.00am on the Second Court
Hearing Date.
- (ASX listing and quotation of CDIs): Prior to 8.00am on
the Second Court Hearing Date, ASX approves:
- Avita US for admission to the official list of ASX; and
- the Avita US CDIs for official quotation on the ASX,
which approval may be conditional
on the Scheme becoming Effective and any such other conditions that
are acceptable to the boards of Avita Australia and Avita
US.
- (NASDAQ listing): Prior to 8.00am on the Second Court
Hearing Date, the Avita US Shares have been authorised for listing
on NASDAQ, subject to official notice of issuance following
Implementation and any customary conditions.
- (Sale Agent): Prior to 8.00am on the Second Court
Hearing Date, Avita US appoints the Sale Agent and the Sale Agent
has agreed to be issued and to sell the Sale Securities as
contemplated by clause 2.8 .
- (Authorised Nominee): Prior to 8.00am on the Second
Court Hearing Date, Avita US appoints the Authorised Nominee and
the Authorised Nominee has agreed to the allotment to it of Avita
US Shares under the Scheme.
- (ATO Class Ruling): The ATO confirms that the ATO Class
Ruling will be issued on terms and conditions satisfactory to Avita
Australia and Avita US (both acting reasonably).
4.2. Benefit and waiver of Conditions
- Each of the Conditions is for the benefit of both Avita
Australia and Avita US and a breach or non-fulfilment of a
Condition can only be waived with the written consent of both
parties and any such waiver will only be effective to the extent
specifically set out in the waiver. The Conditions in clauses 4.1
(b) and 4.1 (c) are not capable of waiver.
- Each party must use its reasonable endeavours to procure that
each Condition is satisfied as soon as practicable after the date
of this agreement and continues to be satisfied at all times until
the last time it is to be satisfied (as the case may require).
4.3. Parties to provide certificates to Court
Each of
Avita Australia and Avita US must provide to the other and to the
Court before or at the Second Court Hearing Date a certificate (or
such other evidence as the Court requests) confirming whether or
not the Conditions have been satisfied or waived.
4.4. Condition not satisfied or waived
If:
- there is a non-fulfilment of a Condition which is not waived in
accordance with this agreement by the time or date specified in
this agreement for the satisfaction of the Condition;
- there is an act, failure to act or occurrence which will
prevent a Condition being satisfied by the time or date specified
in this agreement for the satisfaction of the Condition (and the
non-fulfilment which would otherwise occur has not already been
waived in accordance with this agreement); or
- the Scheme has not become Effective by the Sunset Date,
the parties must consult in good
faith with a view to determine whether:
- the Scheme may proceed by way of alternative means or
methods;
- to extend the relevant time for satisfaction of the Condition
or to adjourn or change the date of an application to the Court;
or
- to extend the Sunset Date.
4.5. Failure to agree
If the
parties are unable to reach agreement under clause 4.4 within five
Business Days (or any shorter period ending on 5.00pm on the day
before the Second Court Hearing Date), either party may terminate
this agreement and such termination will be in accordance with
clause 9.3.
5. GENERAL OBLIGATIONS OF PARTIES
Each party
must use reasonable endeavours to give effect to the Scheme,
subject to compliance with their respective duties, obligations and
powers under this agreement, their constituent documents and all
applicable laws and the proper performance by the directors of each
of Avita Australia and Avita US (respectively) of their fiduciary
duties.
6. AVITA AUSTRALIA OBLIGATIONS
Avita
Australia must take all reasonable steps to implement the Scheme on
a basis consistent with this agreement and as expeditiously as
practicable and use all reasonable endeavours to do so in
accordance with the Timetable, including taking each of the
following steps:
- (Announcement): On the date of this agreement, make an
Announcement on the ASX (with a copy of such Announcement to be
filed with the SEC) in a form agreed between Avita Australia and
Avita US.
- (Independent Expert’s Report): Commission the
preparation of the Independent Expert’s Report and provide all
assistance and information reasonably requested by the Independent
Expert to enable it to prepare and deliver the Independent Expert’s
Report.
- (Prepare Scheme Booklet): Prepare the
Scheme Booklet and ensure that the Scheme Booklet includes all
information required by the Corporations Act, the Corporations
Regulations 2001 (Cth), applicable ASIC Policy, applicable
Takeovers Panel policy and guidance notes, applicable United States
securities laws and regulations, the Listing Rules and the
applicable rules of NASDAQ.
- (Continuing obligation of
disclosure): Between the date of despatch of the Scheme
Booklet and the date of the Scheme Meeting, provide to Avita
Australia Shareholders such further or new information that may
arise during that period and which is necessary to ensure that the
information contained in the Scheme Booklet is not false,
misleading or deceptive in any material respect (whether by
omission or otherwise).
- (Court documents): Prepare all documents
necessary for the Court proceedings relating to the Scheme in
accordance with all applicable laws.
- (Consult with Avita US): In a
timely manner, consult with Avita US as to the form and content of
all documents required for the purposes of the Scheme, including:
- the Scheme Booklet; and
- the Court proceedings relating to the Scheme.
- (Lodgement of Review Draft): As soon as
practicable, provide the Review Draft to ASIC (as contemplated by
section 411(2) of the Corporations Act).
- (Register Scheme Booklet): Request ASIC to
register the Scheme Booklet under section 412 of the Corporations
Act.
- (Apply to Court for order to convene Scheme Meeting):
Apply to the Court under section 411(1) of the Corporations Act for
an order directing Avita Australia to convene the Scheme
Meeting.
- (Convene Scheme Meeting): Convene the
Scheme Meeting in accordance with any order made by the Court under
section 411(1) of the Corporations Act.
- (Despatch Scheme Booklet): As
expeditiously as practicable following an order made by the Court
under section 411(1) of the Corporations Act, despatch a copy of
the Scheme Booklet to each Avita Australia Shareholder, each holder
of existing Options, RSUs and Warrants in Avita Australia (for
information purposes only) and to all other persons entitled to
receive notice of the Scheme Meeting.
- (ATO Class Ruling): Apply to the ATO for
the ATO Class Ruling.
- (Section 411(17)(b) statement): Apply to ASIC for:
- production of a letter stating that it does not intend to
appear at the First Court Hearing Date; and
- if Avita Australia Shareholder Approval is obtained, a
statement under section 411(17)(b) of the Corporations Act that
ASIC has no objection to the Scheme.
- (Court approval): Subject to the satisfaction or
waiver of all Conditions (other than the Condition in clause 4.1
(c)), apply to the Court for orders approving the Scheme under
section 411(4)(b) of the Corporations Act.
- (Certificate): Before commencement of the hearing by the
Court of the application for the order under section 411(4)(b) of
the Corporations Act, give:
- to Avita US a certificate signed by Avita Australia stating
whether or not each representation or warranty given by Avita
Australia is true and correct as at the time it is given or made
under clause 10 ; and
- to Avita US and the Court the certificate referred to in clause
4.3 .
- (Not act inconsistently): Not act in a
manner inconsistent with obtaining Court approval for the
Scheme.
- (Lodge copy of order): If the Court
approves the Scheme under section 411(4) of the Corporations Act,
lodge an office copy of the Court order with ASIC in accordance
with section 411(10) of the Corporations Act by 5.00pm on the first
Business Day after the day on which the Court approves the Scheme
(unless Avita Australia and Avita US agree on a later date).
- (Scheme Participants): Close the Register as at
the Record Date and give to the Share Registry details of the
names, registered addresses and holdings of Avita Australia Shares
of every Scheme Participant as shown in the Register on the Record
Date, in such form as Avita US may reasonably require, and
determine each Scheme Participant’s respective entitlements to the
Scheme Consideration (including under clauses 2.7 and 2.8 ) in
accordance with the Scheme.
- (Register transfers): Subject to Avita US
providing the Scheme Consideration in accordance with the Scheme
and the Deed Poll, on the Implementation Date, execute proper
instruments of transfer (as applicable) to effect the transfer of
all Scheme Shares on issue to Avita US and register all transfers
of Scheme Shares in the name of Avita US.
- (Suspension of trading): Apply to ASX to suspend trading
in Avita Australia Shares with effect from the close of trading on
the ASX on the Effective Date, and apply to NASDAQ to suspend
trading in Avita Australia ADSs (by way of submission of a “company
event form” to NASDAQ in order to transfer the listing of the Avita
Australia ADSs to a listing of the Avita US Shares) with effect
from the close of trading on NASDAQ on the Implementation
Date.
- (Scheme): Do all things within its power that are
reasonably necessary to lawfully give effect to the Scheme and the
orders of the Court approving the Scheme.
7. AVITA US OBLIGATIONS
Avita US
must take all reasonable steps to assist Avita Australia to
implement the Scheme on a basis consistent with this agreement and
as expeditiously as practicable and use all reasonable endeavours
to do so in accordance with the Timetable, including performing
each of the following steps:
- (Scheme Booklet): Promptly provide to Avita
Australia for inclusion in the Scheme Booklet all information
relating to Avita US, Avita US Shares and Avita US CDIs as is
required for Avita Australia to prepare the Scheme Booklet
(including giving its consent to the form and context in which that
information appears in the Scheme Booklet), and ensure that all
such information provided is not false, misleading or deceptive in
any material respect (whether by omission or otherwise).
- (Additional information): As expeditiously as
practicable, give to Avita Australia for inclusion in the Scheme
Booklet such additional information regarding Avita US which may
arise after the Scheme Booklet has been prepared and is required
under the Corporations Act, the Corporations Regulations 2001
(Cth), applicable ASIC Policy, applicable Takeovers Panel policy
and guidance notes, applicable US securities laws and regulations,
the Listing Rules and the applicable rules of NASDAQ to be included
in the Scheme Booklet to ensure that the Scheme Booklet is not
false, misleading or deceptive in any material respect (whether by
omission or otherwise).
- (Independent Expert’s Report): Provide all
assistance and information reasonably requested by the Independent
Expert in connection with the preparation and delivery of the
Independent Expert’s Report.
- (Deeds poll): Before the First Court Hearing
Date, duly execute and enter into the Deed Poll and the deed poll
referred to in clause 3 (c) .
- (United States legal opinion): Deliver to
Avita Australia an opinion from its United States legal counsel, in
a form satisfactory to Avita Australia (acting reasonably), that
the Deed Poll and the deed poll referred to in clause 3 (c) are
legally binding on and enforceable against Avita US under the laws
of Delaware.
- (Court documents): Prepare all documents which
Avita US is required to submit to the Court, and promptly give such
documents to Avita Australia for inclusion in the documents which
Avita Australia is required to submit to the Court, in connection
with the proceedings relating to the Scheme in accordance with all
applicable laws.
- (Certificate): Before commencement of the hearing by the
Court of the application for the order under section 411(4)(b) of
the Corporations Act, give:
- to Avita Australia a certificate signed by Avita US stating
whether or not each representation or warranty given by Avita US is
true and correct as at the time it is given or made under clause 10
; and
- to Avita Australia and the Court the certificate referred to in
clause 4.3 .
- (Not act inconsistently): Not act in a
manner inconsistent with obtaining Court approval for the
Scheme.
- (Authorised Nominee): Appoint the Authorised
Nominee to receive under the Scheme and hold Avita US Shares for
the benefit of Scheme Participants who are to receive Avita US CDIs
as the Scheme Consideration.
- (Share transfers): If the Scheme becomes Effective,
accept a transfer of all of the Scheme Shares held by Scheme
Participants and execute (or procure the execution of) proper
instruments of transfer of those securities to Avita US in
accordance with the Scheme.
- (Avita US Shares): Apply to NASDAQ to list
the Avita US Shares via a transfer of listing from Avita Australia
to Avita US (subject to the Scheme becoming Effective) and use
reasonable endeavours to obtain the satisfaction of any conditions
imposed by NASDAQ for such transfer of listing.
- (Avita US CDIs): Apply for the Avita US
CDIs to be approved for official quotation on the ASX (subject to
the Scheme becoming Effective) and use reasonable endeavours to
obtain ASX’s approval for official quotation by 8.00am on the
Second Court Hearing Date.
- (Issue of Avita US Shares):
Do all things necessary to issue the Avita US Shares in accordance
with the Scheme and this agreement.
- (Issue of Avita US CDIs): Do all things necessary
under the ASX Settlement Operating Rules to enable the Avita US
CDIs to be issued in accordance with the Scheme and this agreement
(including confirm to ASX Settlement that the Avita US Shares
underlying the Avita US CDIs have been issued to the Authorised
Nominee in accordance with ASX Settlement Operating Rule
13.2.3).
- (Scheme Consideration): If the Scheme becomes
Effective, provide, or cause to be provided, the Scheme
Consideration to Scheme Participants as contemplated by the Scheme
and in accordance with the Deed Poll on the Implementation
Date.
- (Notice to holders of Options, RSUs and
Warrants): If Implementation occurs, on or shortly after the
Implementation Date,provide a notice to each holder of existing
Options, RSUs and Warrants in Avita Australia advising them of
particulars relating to the number of Avita US Shares or Avita US
CDIs that are capable of being issued to them under their Options,
RSUs and Warrants (which Options, RSUs and Warrants will continue
to operate in accordance with their existing contractual
terms).
- (Conversion of Avita Australia to a proprietary limited
company): Within 40 Business Days following Implementation,
pass a special resolution to convert Avita Australia from a public
company to a proprietary company limited by shares and lodge all
necessary documentation with ASIC to give effect to that
conversion.
- (Scheme): Do all things within its power that are
reasonably necessary to lawfully give effect to the Scheme and the
orders of the Court approving the Scheme.
8. ANNOUNCEMENT
8.1. Announcements
- Neither party may make an Announcement about this agreement nor
any document or transaction contemplated by this agreement or the
Scheme unless:
- the other party has approved the form of the Announcement;
or
- the law, the Listing Rules or SEC or NASDAQ rules or
regulations require a party to make the Announcement, subject to
clause 8.1 (b) .
-
If the law, the Listing Rules or SEC or NASDAQ rules or
regulations require a party to make an Announcement about either
the subject matter of this agreement or any document or transaction
contemplated by this agreement or the Scheme, that party must give
the other party as much notice as is reasonably practicable and, to
the extent reasonably practical, consult with the other party about
the form and content of the Announcement or disclosure.
9. TERMINATION
9.1. Termination for breach
Without
prejudice to any other rights of termination under this agreement,
either party may terminate this agreement by giving the other party
written notice at any time prior to 8.00am on the Second Court
Hearing Date if:
- the other party is in material breach of any term of this
agreement, or there has been a material breach of a warranty or
representation given by the other party under clause 10.1, before
the Second Court Hearing Date;
- the non-defaulting party has given written notice to the
defaulting party specifying the breach and stating an intention to
terminate this agreement; and
- the breach is not capable of remedy or has not been remedied
within five Business Days (or any shorter period ending at 5.00pm
on the last Business Day before the Second Court Hearing Date) from
the date a notice under this clause is given.
9.2. Termination by agreement
This
agreement may be terminated at any time prior to 8.00am on the
Second Court Hearing Date by written agreement between the parties
to that effect.
9.3. Effect of termination
If this
agreement is terminated under clause 4.5, 9.1 or 9.2:
- this agreement and the parties obligations under it cease,
other than the obligations under clauses 1 , 10 , 11 , 12 , 13 , 15
and 16 , which will survive termination; and
- such termination of this agreement does not affect any accrued
rights arising from a breach of this agreement prior to
termination.
10. REPRESENTATIONS AND WARRANTIES
10.1. Mutual representations and warranties
Each party
represents and warrants to the other party that:
- (status): it is a validly existing corporation under the
laws of its place of incorporation;
- (power): it has full legal capacity and power to:
- own its property and carry on its business; and
- enter into this agreement and carry out the transactions that
this agreement contemplates in accordance with its terms;
- (corporate authority): it has taken all corporate
action that is necessary or desirable to authorise it entering into
this agreement and carrying out the transactions that this
agreement contemplates in accordance with its terms;
- (authorisations): it holds each material Authorisation
that is necessary or desirable to:
- enable it to properly execute this agreement and to carry out
the transactions that this agreement contemplates in accordance
with its terms;
- ensure that this agreement is legal, valid, binding and
admissible in evidence; and
- enable it to properly carry on its business, and it is complying with any material
conditions to which any such Authorisation is subject;
-
(document effective): this agreement constitutes
its legal, valid and binding obligations, enforceable against it in
accordance with its terms; and
-
(no contravention): neither its execution of this
agreement nor the carrying out by it of the transactions that this
agreement contemplates in accordance with its terms does or will
contravene, in any material respect:
- any law to which it or any of its property is subject or any
order of any Government Authority that is binding on it or any of
its property;
- any Authorisation held by it;
- any instrument or undertaking binding on it or any of its
property; or
- its constitution or by laws, as applicable.
10.2. No other representations
Each party
acknowledges and agrees that the other party makes no
representation or warranty other than as set out in this clause
10.
10.3. Reliance on representations and warranties
Each party
acknowledges that the other party has executed this agreement and
agreed to undertake the transactions that this agreement
contemplates in reliance on the representations and warranties that
are made in clause 10.1.
10.4. When warranties are given
Each
representation and warranty given or made under clause 10.1 is
given:
- as at the date of this agreement;
- as at 8.00am on the Second Court Hearing Date; and
- at any other date at which the representation or warranty is
expressed to be given under this agreement.
11. RELEASE
Each party
agrees with the other, and declares and covenants in favour of each
party’s officers and employees, as follows:
- subject to applicable laws (including section 199A of the
Corporations Act) and clause 11 (b) , no officer or employee of a
party is liable for anything done or purported to be done in
connection with Implementation;
- clause 11 (a) does not exclude an officer or employee from any
liability which may arise from wilful misconduct or bad faith on
the part of that person; and
- this clause 11 operates as a deed poll in favour of and for the
benefit of each officer and each employee of each party and may be
relied on and enforced by each such officer or employee in
accordance with its terms even though the officer or employee is
not named as a party to this agreement.
12. COSTS AND STAMP DUTY
- Subject to clause 12 (b) , Avita Australia will bear all costs
and expenses (including professional fees) incurred by Avita
Australia and Avita US in connection with the Scheme.
- Avita US will pay all stamp duty and any related fines or
penalties in respect of the Scheme (including in connection with
the acquisition of the Scheme Shares by Avita US under the
Scheme).
13. GST
- In this clause 13 :
- any words or expressions used in this clause which have a
particular meaning in the A New Tax System (Goods and Services Tax)
Act 1999 (GST Act) have the same meanings given to those
terms in the GST Act unless the context otherwise requires;
and
- Supplier means any party treated by the GST Act as making a
Supply under this agreement.
- Unless otherwise expressly stated, all prices or other sums
payable under or in accordance with this agreement are exclusive of
GST.
- If GST is imposed on any Supply made under or in accordance
with this agreement, the Recipient of the Taxable Supply must pay
to the Supplier an additional amount equal to the GST payable on or
for the Taxable Supply, subject to the Recipient receiving a valid
Tax Invoice in respect of the Supply at or before the time of
payment.
- Payment of the additional amount must be made at the same time
as payment for the Taxable Supply is required to be made in
accordance with this agreement.
- If this agreement requires a party (the First Party) to
pay for, reimburse, set off or contribute to any expense, loss or
outgoing (Reimbursable Expense) suffered or incurred by the
other party (the Other Party), the amount required to be
paid, reimbursed, set off or contributed by the First Party will be
the sum of:
- 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 (Net Amount); and
- if the Other Party’s recovery from the First Party is a Taxable
Supply, any GST payable in respect of that Supply, such that after the Other Party meets the GST
liability, it retains the Net Amount.
-
If an adjustment event occurs in relation to a Supply made under
or in connection with this agreement, the GST payable on or for the
Taxable Supply will be recalculated to reflect that adjustment and
an appropriate payment will be made between the parties.
14. NOTICES
14.1. How to give notice
Any notice,
demand, consent or other communication (Notice) given or made under this
agreement:
- must be in writing and signed by a person duly authorised by
the sender;
- must be delivered to the intended recipient by hand, prepaid
post or by email to that person’s address or email address set out
in clause 14.3 .
14.2. When notice is given
Any Notice
given or made under this agreement will be taken to be
received:
- in the case of delivery by hand, when delivered at the relevant
address;
- in the case of delivery by post, three Business Days after the
date of posting (if posted to an address in the same country) and
seven Business Days after the date of posting (if posted to an
address outside of the same country); and
- in the case of email, when sent by the sender (as recorded on
the device from which the sender sent the email) unless the sender
receives a delivery failure notification indicating that the email
has not been delivered to the addressee, but if the result is that a Notice would be
taken to be received on a day that is not a Business Day in the
place to which the Notice is sent or is later than 5.00pm (local
time), it will be taken to have been duly given or made at 9.00am
on the next Business Day in that place.
14.3. Address for notices
A person’s address and email
address are those set out below (or as the person subsequently
notifies the sender):
Avita Australia
Address: Level 7, 330 Collins
Street, Melbourne, 3000, Victoria, Australia
Email address:
dmcintyre@avitamedical.com
Attention: David
McIntyre
Avita US
Address: 28159 Avenue
Stanford, Suite 220, Valencia, California 91355
Email address:
dmcintyre@avitamedical.com
Attention: David
McIntyre
15. AMENDMENT AND ASSIGNMENT
15.1. Amendment
This
agreement can only be amended or replaced by another document duly
executed by the parties.
15.2. Assignment
A party may
only assign, encumber, declare a trust over or otherwise deal with
its rights under this agreement with the prior written consent of
the other party.
16. GENERAL
16.1. Consents
Where this
agreement contemplates that a party may agree or consent to
something (however it is described), unless this agreement
expressly contemplates otherwise, the party may:
- agree or consent (or not agree or consent) in its absolute and
sole discretion; and
- agree or consent subject to conditions.
16.2. Further assurances
Each party
must do anything within its power (including executing any
document) that the other party may reasonably require to give full
effect to the provisions of this agreement and the transactions
contemplated by it.
16.3. Entire agreement
This
agreement contains the entire agreement between the parties as at
the date of this agreement with respect to its subject matter and
supersedes all prior agreements and understandings between the
parties in connection with it.
16.4. Remedies cumulative
Except as
provided in this agreement and permitted by law or equity, the
rights, powers and remedies provided to each party in this
agreement are in addition to, and do not exclude or limit, any
right, power or remedy provided by law or equity or by any
agreement.
16.5. No merger
The
provisions of this agreement will not merge on Implementation. They
will survive the execution and delivery of any assignment or other
document entered into for the purpose of implementing any
transaction contemplated by this agreement.
16.6. Severability of provisions
Any
provision of this agreement that is prohibited or unenforceable in
any jurisdiction is ineffective as to that jurisdiction to the
extent of the prohibition or unenforceability. That does not
invalidate the remaining provisions of this agreement nor affect
the validity or enforceability of that provision in any other
jurisdiction.
16.7. Waivers
- Failure to exercise or enforce or a delay in exercising or
enforcing or the partial exercise or enforcement of any right,
power or remedy provided by law or under this agreement by any
party will not in any way preclude, or operate as a waiver of, any
exercise or enforcement, or further exercise or enforcement of that
or any other right, power or remedy provided by law or under this
agreement.
- No waiver of a breach of any term of its agreement will operate
as a waiver of another breach of that term or of a breach of any
other term of this agreement.
- Nothing in this agreement obliges a party to exercise a right
to waive any conditional term of this agreement that may be in its
power.
- A provision of or right under this agreement may not be waived
except in writing signed by the person granting the waiver.
16.8. Governing law
This
agreement is governed by the laws of New South Wales, Australia.
The parties submit to the non-exclusive jurisdiction of its courts
and courts of appeal from them. The parties will not object to the
exercise of jurisdiction by those courts on any basis.
16.9. Counterparts
This
agreement may be executed in any number of counterparts. All
counterparts together will be taken to constitute one
instrument.
SCHEDULE 1 - TIMETABLE
INDICATIVE SCHEME TIMETABLE
Event
Indicative date
Avita Australia and Avita US enter into
Scheme Implementation Agreement
The Scheme Implementation Agreement will
commit Avita Australia and Avita US to the transactions
contemplated by the Scheme and will set out the terms of the
Scheme
20 April 2020
Scheme announced publicly
Upon the Scheme Implementation Agreement
being signed by Avita Australia and Avita US
20 April 2020
Lodgement of Scheme documents with ASIC
and ASX
Avita Australia to lodge the Scheme
documents with ASIC for review (which takes a minimum of 14 days)
and also with ASX
20 April 2020
Lodgement of Scheme documents with
Court
4 May 2020
First Court Hearing Date*
Date of first Court hearing for Avita
Australia to seek the Court’s approval to despatch the Scheme
Booklet to Avita Australia Shareholders and convene the Scheme
Meeting
11 May 2020
Printing of Scheme Booklet
12-13 May 2020
Date of Scheme Booklet
Date on which the Scheme Booklet is
despatched to Avita Australia Shareholders (together with notice of
the Scheme Meeting)
14 May 2020
Avita US applies to ASX for
admission
Avita US to apply to ASX for admission to
the official list of ASX (usually within 7 days of the date of the
Scheme Booklet).
21 May 2020
Proxy forms cut-off date
Latest time and date by which proxy forms
for the Scheme Meeting must be received by the Share Registry
9.00am on 13 June 2020
Voting Record Date
Time and date for determining eligibility
to vote at the Scheme Meeting
7.00pm on 13 June 2020
Scheme Meeting
Avita Australia Shareholders attend Scheme
Meeting (by way of live webcast) and vote on whether to approve the
Scheme
9.00am on 15 June 2020
Following Avita Australia Shareholder Approval:
Event
Indicative date
Second Court Hearing Date*
Date of second Court hearing for approval
of the Scheme
22 June 2020
Avita Australia informs ASX of
intention to lodge Court order with ASIC
Avita Australia informs ASX of its
intention to lodge the Court order with ASIC on the following
Business Day (being 23 June 2020)
22 June 2020 (after Second Court
Hearing)
Scheme Effective Date
Avita Australia lodges Court order with
ASIC and informs ASX. Avita Australia Shares are suspended from
trading at the close of trading on the ASX
23 June 2020
Listing of Avita US on the ASX
Avita US CDIs commence trading on the ASX
on a deferred settlement basis
24 June 2020
Record Date
Time and date for determining entitlements
to Scheme Consideration
7.00pm on 25 June 2020
Implementation Date
The date of transfer of all Scheme Shares
to Avita US and subsequent issue of Avita US CDIs and Avita US
Shares to eligible Scheme Participants
29 June 2020
Despatch of holding statements (to
issuer sponsored holders) and confirmation advices (to CHESS
holders)
30 June 2020
Avita US CDIs commence trading on the
ASX on a normal basis
30 June 2020
*Subject to the availability of the Court
SCHEDULE 2 - SCHEME OF ARRANGEMENT
Attached.
SCHEDULE 3 - DEED POLL
Attached.
SCHEDULE 4 - DEED POLL (OPTIONS, RSUS AND WARRANTS)
Attached.
EXECUTION
Executed as an agreement
Executed by AVITA Medical Limited
in accordance with section 127 of the Corporations Act 2001
(Cth):
Signature of director
Signature of director / company
secretary
Name of director (print)
Name of director / company secretary
(print)
Executed by an authorised signatory of
AVITA Therapeutics, Inc.:
Signature of authorised person
Name of authorised person (print)
Title of authorised person (print)
View source
version on businesswire.com: https://www.businesswire.com/news/home/20200420005418/en/
U.S. Media Sam Brown, Inc. Christy Curran Phone +1
615 414 8668 christycurran@sambrown.com O.U.S Media
Monsoon Communications Rudi Michelson Phone +61 (0)3 9620
3333 Mobile +61 (0)411 402 737 rudim@monsoon.com.au
Investors: Westwicke Partners Caroline Corner
Phone +1 415 202 5678 caroline.corner@westwicke.com AVITA
Medical Ltd David McIntyre Chief Financial Officer Phone +1 661
367 9178 dmcintyre@avitamedical.com
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