Exhibit 4.16
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| Consultancy |
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| Agreement |
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| Opthea Limited |
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| Mr Lawrence Gozlan (Consultant) |
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Details
Date | 24 August 2023 | |
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Parties |
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Name | Opthea Limited | |
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ABN | 32 006 340 567 | |
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Short form name | Opthea | |
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Notice details | Attn: | Dr. Megan Baldwin |
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| Address: | Suite 0403, Level 4, 650 Chapel Street South Yarra |
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| Vic 3141 |
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| Australia |
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Name | Mr Lawrence Gozlan | |
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Short form name | Consultant | |
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Notice details | Attn: | Mr Lawrence Gozlan |
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| Email: | lawrence@jagen.com.au |
Background
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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Agreed terms
In this agreement:
Alternative Compensation means the amount of any additional payment agreed by the parties in accordance with and under clause 5.2(c).
Approval Resolution has the meaning given to that term in clause 5.2(b) of this agreement.
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne, Australia.
Capital Raising means an equity raising by Opthea of at least US$35,000,000 (or such lesser amount as may be approved by the Board of Opthea)
Commencement Date means 1 July 2023.
Confidential Information means:
but excludes information that the Consultant can prove:
Consultant Fees means the Special Exertion Fees and any Alternative Compensation (if any).
Contract Materials means all Materials created by the Consultant in the course of providing the Services.
Intellectual Property Rights includes all rights in respect of copyright, patents, patentable inventions, trademarks and designs (whether registered or unregistered), confidential information, know-how and trade secrets.
Materials includes documents, reports, drawings, plans, analyses, statements,
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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computer tapes or disks, printouts, video or audio tapes, microfiche, photographs, microchips or other materials in which information is stored, coded or embodied or from which information can be reproduced.
Opthea Materials means all Materials supplied by Opthea to the Consultant for the purposes of this Agreement.
Services means the services set out in item 1 of Schedule 1.
Special Exertion Fees means the fees set out in item 2 of Schedule 1.
Special Exertion Option means an option issued by Opthea to subscribe for one ordinary share in Opthea on the following terms:
Termination Date means the date on which the Opthea completes a capital raising.
In this agreement, except where the context otherwise requires:
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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The term of this agreement shall begin on the Commencement Date and end on the Termination Date, unless terminated earlier in accordance with Section 9 of this Agreement. The term of this agreement may only be extended upon the written consent of both parties.
The Consultant will provide the Services on the terms of this agreement.
The Consultant must, in carrying out the Services, act at all times:
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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The Consultant must ensure that it keeps Opthea informed of:
In consideration of the Consultant exclusively providing the Services in accordance with this agreement, and in accordance with article 61.5 of Opthea’s Constitution, Opthea will pay the Consultant the Special Exertion Fees, in the manner set out in clause 6.3.
Travel expenses will be reimbursed by Opthea in accordance with item 3 of Schedule 1.
The Consultant will invoice Opthea in the manner set out in items 2-4 of the Schedule 1.
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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Each invoice must:
Opthea shall pay each invoice in the manner specified in item 4 of Schedule 1.
The Consultant acknowledges and agrees that Opthea will not provide the Consultant with any employee benefits, including, without limitation, participation in any social security, unemployment, medical or pension benefit of Opthea, or any equity incentive plan or employee stock purchase plan, or the like, of Opthea. The Consultant is an independent contractor and not an employee of Opthea.
The Consultant acknowledges that, unless expressly agreed otherwise in writing, Opthea owns or is the licensee of the Intellectual Property Rights in the Opthea Materials.
Subject to clauses 8.2 and 8.3, the Consultant:
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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The Consultant may disclose:
only to its professional advisers or as required for accounting or tax purposes.
The Consultant may disclose any Confidential Information to the extent that the Consultant is required to do so in order to comply with any applicable law or legally binding order of any Court, government, semi-government authority or administrative or judicial body provided that, prior to such use or disclosure, the Consultant provides Opthea with full particulars of the proposed use or disclosure and only discloses information to the extent strictly required by the Court, authority or body.
Either party may terminate this agreement at any time by 30 days written notice given to the other party.
Termination of this agreement does not affect any accrued rights or remedies of a party.
On completion of the Services, or if this agreement terminates for any reason, the Consultant must return to Opthea, or at Opthea’s option destroy, all Confidential Information, Opthea’s Materials and Contract Materials in the possession or control of the Consultant, including any copies of Confidential Information, Opthea Materials and Contract Materials.
A party notifying or giving notice under this agreement must do so:
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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A notice given in accordance with clause 10.1 will be deemed received:
If to the Consultant:
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| Attention: Lawrence Gozlan |
| Email: | lawrence@jagen.com.au |
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If to Opthea: | Postal Address: | Opthea Limited |
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| Suite 0403, Level 4 |
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| 650 Chapel Street |
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| South Yarra |
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| Victoria 3141 Australia |
| Attention: | Megan Baldwin, CEO |
| Email Address: | megan.baldwin@opthea.com |
This agreement may be altered only in writing signed by each party.
Neither party may assign any of its rights or obligations arising out of this agreement without the prior written consent of the other party.
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, including clauses 7, 8, 9, 10 and this clause 11.
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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This agreement:
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.
This agreement may be executed in counterparts. Each of said counterparts, when so executed and delivered, shall be deemed an original, and taken together, shall constitute but one and the same instrument.
The signatures to this Agreement may be evidenced by electronic (e.g. PDF) or facsimile copies sent through email or facsimile transmission reflecting the signatures hereto, and any such electronic copy shall be sufficient to evidence the signature just as if it were an original signature
Except where this agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.
This agreement is governed by the laws of Victoria, Australia. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria entitled to hear appeals from those courts.
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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Signing page
EXECUTED as an agreement.
Signed by Opthea Limited in accordance with section 127 of the Corporations Act 2001 (Cth) by: |
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/s/ Quinton C. Oswald |
| /s/ Karem Adams |
Signature of director |
| Signature of director/secretary |
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Quinton C. Oswald |
| Karem Adams |
Name of director (print) |
| Name of director/secretary (print) |
Signed by Lawrence Gozlan in the presence of: | ||
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/s/ Annabel Humphreys |
| /s/ Lawrence Gozlan |
Signature of witness |
| Signature of Lawrence Gozlan |
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Annabel Humphreys |
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Name of witness (print) |
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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Schedule 1 - Contract details
Reporting to the Chairman of Opthea, the Consultant shall provide all services required or normally associated with managing and overseeing and co-ordinating the conduct and implementation of a Capital Raising.
Subject to clause 5 of this Schedule 1, Opthea shall pay the Consultant a Special Exertion Fee an amount of:
Expenses which the Consultant necessarily incurs for the purpose of carrying out the Services described in this Agreement will be reimbursed by the Opthea provided that:
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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Opthea Limited, Suite 0403, Level 4, 650 Chapel Street, South Yarra, Victoria 3141, Australia Phone: +61 3 9826 0399 / Fax: +61 3 9824 0083 |
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