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SHARE SUBSCRIPTION AGREEMENT

entered into between

UNIVERSITY OF CAPE TOWNa university registered as such under the Higher Education Act No. 101 of 1997 and the statute of the University of Cape Town, promulgated under Government Notice No. 1199 of 20 September 2002

and

BELINDA ANN SHAW(identity number: 591007 0097 08 9)

and

TAMLYN MARION SHAW(identity number: 890325 0093 08 2)

and

EDWARD RYBICKI(identity number 550322 5194 08 1)

and

law | tax | forensics | IP Edward Nathan Sonnenbergs Incorporated registration number 2006/018200/21

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Document last saved: 17/05/2019 07:51 AM

INGA ISABEL HITZEROTH(identity number 610227 0024 08 4)

and

ANN ELIZABETH MEYERS(identity number 650320 0115 08 )

with and in relation to:

CAPE BIO PHARMS PROPRIETARY LIMITED(registration number 2015/352954/07)

TABLE OF CONTENTS

Clause number and description Page

1. DEFINITIONS, INTERPRETATION AND PRELIMINARY....................................................................3

2. CONDITIONS PRECEDENT.......................................................................................................... 13

3. EXCLUSIVITY...............................................................................................................................15

4. CONSENT AND WAIVER OF PRE-EMPTIVES................................................................................15

5. ISSUE AND SUBSCRIPTION.........................................................................................................15

6. DELIVERY AND IMPLEMENTATION.............................................................................................17

7. OWNERSHIP, RISK AND BENEFIT................................................................................................17

8. GENERAL WARRANTIES............................................................................................................. 18

9. WARRANTIES IN RESPECT OF THE SUBSCRIPTION SHARES AND CBP.........................................18

10. BREACH...................................................................................................................................19

11. AGENT'S COMMISSION...........................................................................................................19

12. CONFIDENTIALITY, ANNOUNCEMENTS AND PUBLICITY.........................................................19

13. GOVERNING LAW AND DISPUTE RESOLUTION.......................................................................20

14. NOTICES AND ADDRESSES......................................................................................................22

15. ASSIGNMENT..........................................................................................................................23

16. CO-OPERATION.......................................................................................................................24

17. SEVERABILITY..........................................................................................................................24

18. INDEPENDENT ADVICE............................................................................................................25

19. WHOLE AGREEMENT, NO AMENDMENT AND GENERAL........................................................25

20. COSTS..................................................................................................................................... 26

21. STIPULATIO ALTERI.................................................................................................................27

22. EXECUTION IN COUNTERPARTS..............................................................................................27

ANNEXURES:

Annexure A - Warranties...............................................................................................................32

Annexure B - New MOI.................................................................................................................33

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WHEREBY IT IS AGREED AS FOLLOWS:

1. DEFINITIONS, INTERPRETATION AND PRELIMINARY

1.1. The headings of the clauses in this Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of this Agreement nor any clause hereof.

1.2. Unless a contrary intention clearly appears words importing -

1.2.1. any one gender include the other two genders;

1.2.2. the singular include the plural and vice versa (the other way around); and

1.2.3. natural persons include created entities (corporate or unincorporate) and the state and vice versa.

1.3. Unless a contrary intention clearly appears the following terms shall have the meanings assigned to them hereunder and cognate expressions shall have corresponding meanings, namely –

1.3.1. “AFSA” means the Arbitration Foundation of Southern Africa NPC (registration number 1996/007496/08), a non-profit company registered in South Africa, or its successor, or failing a successor, such other person or body as may be appointed by the President for the time being of Cape Law Society or its successor in the Western Cape, South Africa;

1.3.2. “Agreed Form” means in the standard form for such agreement or document, containing the principles contained in: (i) the Term Sheet and (ii) this Agreement as it may be initialled by the Parties for the purposes of identification;

1.3.3. “Agreement” means this share subscription agreement and any annexures hereto, as it may be amended in writing from time to time;

1.3.4. "Applicable Law" means, from time to time, any law (including statutory, common or customary law), statute, constitution, decree, judgment, treaty, regulation, directive, by-law, order, other legislative measure, or any directive, requirement, request or guideline (whether or not having the force of law but which, if not having the force of law, is generally complied with by the persons to whom it is addressed or applied) of any government, supranational, local government, statutory, regulatory, self-regulatory or similar body, authority or court, as it may be amended, replaced, re-enacted, restated or reinterpreted, including without limitation, the Companies Act;



1.3.5. “BAS” means Belinda Ann Shaw, a major South African national with identity number 591007 0097 08 9;

1.3.6. "Business Day" means a day which is not a Saturday, Sunday or a public holiday in South Africa, from time to time;

1.3.7. “CBP” means Cape Bio Pharms Proprietary Limited (registration number 2015/352954/07), a private company registered in accordance with the Applicable Laws of South Africa;

1.3.8. “CBP’s Bank Account” means the bank account of CBP with the following details:

Account Holder: Cape Bio Pharms Proprietary Limited

Bank: First National Bank, a division of FirstRand Bank Limited

Account no: 62738705451

Branch: 250655

Branch Code: 250655

Reference: UCT Evergreen Fund

1.3.9. “CIPC” means the Companies and Intellectual Property Commission as established in terms of section 185 of the Companies Act;

1.3.10. “Companies Act” means the Companies Act, 2008 (Act No. 71 of 2008);

1.3.11. “Commercially Reasonable Efforts” means at the relevant time in question, and from time to time, during the term hereof, taking such reasonable steps and performing such conduct in such a manner as a well-managed person for profit would undertake or perform in accordance with at least good industry practice where such person was acting in a determined, prudent and reasonable manner that will probably achieve the particular result for its own benefit; provided that this obligation shall not be construed to require a Party to:

1.3.11.1. undertake any conduct other than one which a prudent, determined and reasonable person, acting in his own interests and desiring to achieve that result, would take;

1.3.11.2. undertake any litigious process or appeal against a decision;



1.3.11.3. breach any fiduciary duty or contravene any Applicable Law; nor

1.3.11.4. undertake conduct that would be objectively unreasonable in all the circumstances then present,

and shall be limited to take into account the respective financial and/or commercial benefits and risk herein undertaken;

1.3.12. "Condition/s Precedent" means the conditions precedent set out in clause 2;

1.3.13. “Directors” means the board of directors of CBP as at the Signature Date;

1.3.14. “Documents of Title” means, in respect of each tranche of the Subscription Shares:

1.3.14.1. new share certificate(s) in respect of the relevant portion of the Subscription Shares reflecting UCT as the registered holder thereof, in accordance with this Agreement, the Companies Act and the Existing MOI (or the New MOI and the New SHA, as the case may be);

1.3.14.2. copy of the resolutions by the Directors passed in accordance with the Companies Act and the Existing MOI (or the New MOI and the New SHA, as the case may be):

1.3.14.2.1. approving the allotment and issue of the relevant tranche of the Subscription Shares to UCT;

1.3.14.2.2. approving the execution and implementation of this Agreement; and

1.3.14.2.3. approving the appointment of the person(s) nominated by UCT to act as Directors;

1.3.15. “DTI” means the National Department of Trade and Industry of the Government of South Africa;

1.3.16. “Effective Date” means,:

1.3.16.1. initially 25 January 2018 (or such other date as may be agreed to in writing, between the Parties) notwithstanding the date on which the last of the Conditions Precedent have been fulfilled or validly waived, as the case may be; and



1.3.16.2. after 25 January 2018 in respect of each subsequent pro-rata tranche/portion of the Subscription Shares, the same date on which the relevant payment due to CBP under the THRIP Agreement is made available to CBP thereunder i.e. the relevant cleared funds are available in CBP’s Bank Account;

1.3.17. "Encumbrance" includes any pledge, lien, notarial bond, hypothecation, security, cession, charge, assignment or any agreement or arrangement, whether conditional or not and whether relating to existing or future assets, having the effect of providing a security interest or preferential treatment to a person over another person's assets (including set-off, retention or reciprocal fee arrangements, or any arrangement to give effect to any form of security interest or preferential treatment to a person over another person's assets); and "Encumber" shall be construed accordingly;

1.3.18. “Existing MOI” means CBP’s MOI as at the Signature Date;

1.3.19. “Existing Shareholders” means each of the registered shareholders of CBP as at the Signature Date, being:

1.3.19.1. BAS, holding 67% (sixty seven percent) of the Shares;

1.3.19.2. TMS, holding 23% (twenty three percent) of the Shares; and

1.3.19.3. the IP Creators collectively holding 10% (ten percent) of the Shares,

as at the Signature Date, acting individually herein and in proportion to their respective shareholding interests in CBP;

1.3.20. “Independent Accountant” means as the context may require, either (i) an independent chartered accountant having no less than 10 (ten) years post-qualification experience as such, or (ii) a third party independent accounting and auditing firm, as the Existing Shareholders and UCT may agree and failing agreement, as determined by the chairperson of South African Institute of Chartered Accountants, or its successor-in-title;

1.3.21. “Independent Expert” means an independent expert agreed to by the Parties, and, failing agreement, means:

1.3.21.1. if the matter is of a legal nature, an Independent Legal Expert;



1.3.21.2. if the matter is of an accounting nature, or requires an audit or verification or calculation process, an Independent Accountant;

1.3.21.3. if the matter is of an economic theory or competition nature, then an independent economist or analyst of not less than 10 (ten) years post- qualification experience as such, and

in any other matter, or in the event of the Parties failing to agree on the identity of an expert within 5 (five) Business Days of request from either Party to the other, shall mean an independent person appointed by the Chairperson of AFSA, or his successor in title. To the extent that the Parties cannot agree as to the nature of the matter, it will be deemed that the matter is of a legal nature;

1.3.22. “Independent Legal Expert” means an independent practicing advocate of senior consultus or “silk” status, or an independent practicing attorney having no less than 15 (fifteen) years post-qualification experience as such;

1.3.23. “Implementation Date” means:

1.3.23.1. initially, the 5th (fifth) Business Day after the Long Stop Date (or such other date as the Parties may agree in writing); and

1.3.23.2. thereafter in respect of each subsequent pro-rata portion/tranche of the Subscription Shares, the same date on which the relevant payment due to CBP by DTI under the THRIP Agreement is made available to CBP thereunder,

being the date/s on which this Agreement is to be implemented and the transactions herein contained accounted for as being ‘complete’;

1.3.24. “IP Creators” means each of:

1.3.24.1. Edward Rybicki, a major South African national bearing identity number 550322 5194 08 1, the holder of 4% (four percent) of the Shares (immediately prior to the Signature Date);

1.3.24.2. Inga Isabel Hitzeroth, a major South African national bearing identity number 610227 0024 08 4, the holder of 3% (three percent) of the Shares (immediately prior to the Signature Date); and



1.3.24.3. Ann Elizabeth Meyers, a major South African national bearing identity number 650320 0115 08 4, the holder of 3% (three percent) of the Shares (immediately prior to the Signature Date),

acting jointly herein;

1.3.25. “Long Stop Date” means the last of the dates referred to in clause 2 by when the Conditions Precedent are to be fulfilled or waived (as the case may be), as that date may be extended from time to time in writing between the Parties;

1.3.26. “MOI” means a Memorandum of Incorporation as contemplated in the Companies Act;

1.3.27. “New MOI” means the Agreed Form MOI to be adopted by CBP in substitution of the Existing MOI as provided for under Annexure B;

1.3.28. “New SHA” means the Agreed Form written shareholders’ agreement (as contemplated in Section 15(7) of the Companies Act, to be concluded between UCT and the Existing Shareholders with and in relation to CBP;

1.3.29. “Parties” means the signatories to this Agreement, being each of CBP, UCT, and the Existing Shareholders and the term “Party” shall be a reference to any one of them, as the context may require;

1.3.30. “Rand" or "R" means South African Rand, the lawful currency of South Africa;

1.3.31. "Shares" means ordinary no par value shares (as contemplated in the Companies Act) in the capital of CBP;

1.3.32. “Signature Date” means the date upon which the last Party signing this Agreement does so;

1.3.33. "Subscription Consideration" means a maximum amount of R3,737,463.00 (three million seven hundred and thirty-seven thousand four hundred and sixty three rand), to be paid in tranches in accordance with clause 4;

1.3.34. "Subscription Shares" means, from time to time, such number of Shares in the capital of CBP as constitutes as at the date of completion of the THRIP Agreement, a maximum of 36% (thirty six percent) of the entire issued share capital of CBP;



1.3.35. “South Africa” means the Republic of South Africa;

1.3.36. “Term Sheet” means the written binding term sheet dated on or about 11 January 2018, concluded between UCT and CBP in terms whereof amongst other things:

1.3.36.1. UCT undertook to acquire the Subscription Shares;

1.3.36.2. CBP, BAS and UCT undertook to execute the New SHA,

all on the terms detailed therein;

1.3.37. “TMS” means Tamlyn Marion Shaw, a major South African national with identity number 890325 0093 08 2;

1.3.38. “THRIP” means that grant funding programme created, marketed, funded and/or managed by the DTI known as the ‘Technology and Human Resources for Industry Programme’;

1.3.39. “THRIP Agreement” means that written memorandum of funding agreement in relation to THRIP, dated 1 December 2017, concluded between DTI (as funder) as CBP (as recipient) in terms whereof, amongst other things, CBP was awarded a THRIP grant in an amount of R11,362,386.00 (eleven million three hundred sixty two thousand three hundred and eighty six Rand) registered with THRIP Project Reference No. THRIP 105/04/2017;

1.3.40. “UCT” means the University of Cape Town, a university registered as in terms of the Higher Education Act, 1997 (Act 101 of 1997) being a juristic person regulated by its establishment statute promulgated under Government Notice No. 1199 of 20 September 2002; and

1.3.41. “Warranties” means the warranties granted by CBP in favour of UCT as set out in clause 8, clause 9 and Annexure A and “Warranty” shall be construed accordingly.

1.4. If any provision in a definition is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of the Agreement.

1.5. Any reference in this Agreement to:

1.5.1. any other agreement or document shall be construed as a reference to such other agreement or document as same may have been, or may from time to time be, amended, varied, novated or supplemented;



1.5.2. time, is a reference to time in South Africa, including for purposes of the giving and receipt of notices in terms of this Agreement;

1.5.3. day/s (without being prefaced by the word “Business”), month/s or year/s, as the case may be, shall be construed as Gregorian calendar day/s, month/s or year/s;

1.5.4. a Party shall include a reference to that Party’s successors-in-title, as may be expressly permitted under this Agreement and, if such party is liquidated or sequestrated, be applicable also to and binding upon that party’s liquidator or trustee, as the case may be;

1.5.5. "business hours" shall be construed as being the hours between 08h00 and 17h00 on any Business Day. Any reference to time shall be based upon South African standard time;

1.5.6. the words "clause" or "clauses" and "annexure" or "annexures" refer to clauses of and annexures to this Agreement;

1.5.7. the words "include" and "including" mean "include without limitation" and "including without limitation". The use of the words "include" and "including" followed by a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it;

1.5.8. “law" means any law of general application and includes the common law and any statute, constitution, decree, treaty, regulation, directive, ordinance, by-law, order or any other enactment of legislative measure of government (including local and provincial government) statutory or regulatory body which has the force of law;

1.5.1. “material” and “materially” refer, with respect to a given Party, to a level of significance that would have affected any decision of a reasonable person in such Party’s position regarding whether or not to enter into this Agreement or implement the terms hereof, or would affect any decision of a reasonable person in that Party’s position regarding whether or not to consummate the transaction/s herein contained or the manner in which to exercise such Party’s rights and obligations provided for in this Agreement;

1.5.2. a “person” include an individual, body corporate (wherever incorporated), unincorporated association, company, close corporation, trust or partnership (whether or not having separate legal personality), or other entity whether or not having separate legal personality, government, state or agency of a state, or two or more of the foregoing;



1.5.3. the words "shall" and "will" and "must" used in the context of any obligation or restriction imposed on a Party have the same meaning;

1.5.4. "writing" means legible writing and in English and includes communication by telex, facsimile or electronic mail or any form of electronic communication contemplated in the Electronic Communications and Transactions Act, 2002 (Act No. 25 of 2002, as amended).

1.5.5. an enactment is to that enactment as at the Signature Date and as amended or re-enacted from time to time and includes any subordinate legislation made from time to time under such enactment. Any reference to a particular section in an enactment is to that section as at the Signature Date, and as amended or re-enacted from time to time and/or an equivalent measure in an enactment, provided that if as a result of such amendment or re-enactment, the specific requirements of a section referred to in this Agreement are changed, the relevant provision of this Agreement shall be read also as if it had been amended as necessary, without the necessity for an actual amendment;

1.5.6. defined terms appearing in this Agreement in title case shall be given their meaning as defined, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning; and

1.5.7. the words “other” and “otherwise” shall not be construed ejusdem generis (of the same kind) with any preceding words where a wider construction is possible.

1.6. Words and expressions defined in this Agreement shall bear the same meanings in schedules or annexures to this Agreement which do not themselves contain their own conflicting definitions.

1.7. When any number of days is prescribed in this Agreement, same shall be reckoned exclusively of the first and inclusively of the last.

1.8. Should:

1.8.1. the day for the performance of any payment obligation in terms of this Agreement fall on a day which is not a Business Day, then such obligation shall be performed on the next day which is a Business Day; and

1.8.2. this Agreement be signed on a date that results in the use of any tenses herein being inappropriate, the terms shall be read in the appropriate tense.



1.9. The expiration or termination of this Agreement shall not affect such of the provisions of this Agreement as expressly provide that they will operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

1.10. If:

1.10.1. any provision in a definition is a substantive provision conferring rights or imposing obligations on any party, notwithstanding that it is only in the definition clause, effect shall be given to it as if it were a substantive provision in the body of this Agreement;

1.10.2. figures are referred to in numerals and in words and if there is any conflict between the two, the numerals shall prevail; and

1.10.3. any term is defined within the context of any particular clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this interpretation clause.

1.11. The rule of construction that if general words or terms are used in association with specific words or terms which are a species of a particular genus or class, the meaning of the general words or terms shall be restricted to that same class (i.e. the ejusdem generis rule) shall not apply.

1.12. Each of the provisions of this Agreement have been negotiated by the Parties and drafted for the benefit of the Parties, and accordingly the rule of construction that the contract shall be interpreted against or to the disadvantage of the Party responsible for the drafting or preparation of the Agreement (i.e. the contra proferentem (against the offeror) rule) shall not apply.

2. CONDITIONS PRECEDENT

2.1. Save for clauses 1, this clause 2, clauses 3, 4 and clauses 10 to 22 below (both inclusive) (“Immediately Operative Provisions”), which are of immediate force and effect, this Agreement is subject to the fulfilment, or if applicable, waiver, of the following Conditions Precedent, namely that on or before close of business on the 30th (thirtieth) Business Day after the Signature Date, -

2.1.1. UCT supplies to CBP a document reflecting that its Intellectual Property Advisory Committee has approved of the execution and implementation of this Agreement;



2.1.2. the Existing Shareholders adopt special resolutions authorising (i) the creation of the Subscription Shares and (ii) the issue of the initial tranche/portion of the Subscription Shares to UCT as contemplated in sections 15, 16 and 41 respectively, of the Companies Act; and

2.1.3. the Directors adopt resolutions authorising:

2.1.3.1. the execution and implementation of this Agreement; and

2.1.3.2. the creation and issue of the Subscription Shares to UCT and confirming that the Subscription Shares will be issued for adequate consideration, as contemplated in section 38(1) and section 40 respectively of the Companies Act; and

2.1.4. the Directors adopt resolutions approving the (i) execution and implementation of the New SHA and (ii) the adoption of the New MOI;

2.1.5. the New SHA is executed by the parties thereto and becomes unconditional on it terms, save for any condition precedent contained therein relating to this Agreement becoming unconditional; and

2.1.6. a New MOI (on terms acceptable to UCT, acting reasonably) for CBP is adopted by special resolution of the Existing Shareholders and filed (together with such other documentation as may be required in terms of the Companies Act) together with the CIPC.

2.2. Forthwith after the Signature Date:

2.2.1. UCT shall use its Commercially Reasonable Efforts to procure the timeous fulfilment of that Conditions Precedent contained in clause 2.1.1;

2.2.2. CBP and the Existing Shareholders shall use their respective Commercially Reasonable Efforts to procure the timeous fulfilment of those Conditions Precedent contained in clauses 2.1.2, 2.1.3, and 2.1.4; and

2.2.3. the Parties shall use their respective Commercially Reasonable Efforts to procure the timeous fulfilment of those Conditions Precedent contained in clauses 2.1.5 and 2.1.6.

2.3. It is agreed that:

2.3.1. the Conditions Precedent contain in clause 2.1.1 is stated to be for the sole benefit of CBP, who may by notice in writing to such effect to UCT prior to the relevant date for fulfilment thereof, unilaterally extend the



date of fulfilment thereof by not more than an additional 10 (ten) Business Days, or waive the same;

2.3.2. those Conditions Precedent contained in clause 2.1.3.1, 2.1.5, and 2.1.6 are for the benefit of UCT and the Existing Shareholders who may by agreement in writing between them, prior to the relevant dates for fulfilment thereof, agree to extend the date of fulfilment thereof by not later than an additional 10 (ten) Business Days, or waive the same; and

2.3.3. those Conditions Precedent contained in clauses 2.1.2, and 2.1.3.2 are regulatory in nature and may not be waived; provided that the date for their fulfilment may be extended in each case by not later than an additional 10 (ten) Business Days, or such other period as CBP and UCT may agree in writing.

2.4. This Agreement, save for the Immediately Operative Provisions, shall be of no force or effect if the Conditions Precedent are not fulfilled or waived (to the satisfaction of UCT) on or before 17h00 (GMT) on the Long Stop Date, or such other later date as may be agreed in writing between the Parties prior to the Long Stop Date.

2.5. Should this Agreement (save for Immediately Operative Provisions) cease to be of any force or effect by reason of clause 2.4 above:

2.5.1. the Parties shall be restored as near as may be possible to the position in which they would have been had this Agreement not been entered into; and

2.5.2. no Party shall have any claim against the other as a result of the Conditions Precedent not having been fulfilled, except for such damages, if any, resulting from a breach of the provisions of clause 2.2.

3. EXCLUSIVITY

The Parties hereby undertake using their respective Commercially Reasonable Efforts that, from the Signature Date, until the earlier of the failure of the Conditions Precedent or the Implementation Date that, -

3.1. they will deal and negotiate with each other in a bona fide manner, in good faith and exclusively, in connection with and in order to give effect to the transaction/s herein contained; and

3.2. should any third party approach the Existing Shareholders or CBP in connection with the transaction herein contained, or any other transaction to be concluded on terms and conditions substantially similar to the transaction herein contained, the Existing Shareholders and CBP will explain to such third party that it is prohibited



from dealing or negotiating with them in terms hereof, and will refrain absolutely from dealing or negotiating with them until either this Agreement has lapsed, or is fully implemented on its terms.

4. CONSENT AND WAIVER OF PRE-EMPTIVES

On and with effect from the Signature Date the Existing Shareholders hereby, -

4.1. acknowledge that they are fully aware of the transaction contained in this Agreement whereby, amongst other things, UCT shall acquire Shares in CBP on the terms detailed herein; and

4.2. irrevocably and unconditionally:

4.2.1. waive all and any rights of pre-emption which they each may have to acquire any Shares in CBP pursuant to and/or in accordance with the terms of this Agreement, irrespective of whether such rights arise in terms of the Existing MOI, the Companies Act, or otherwise in law;

4.2.2. waive all and any claims or title which they each may have against CBP and/or UCT to the Subscription Shares irrespective of whether such rights arise in terms of the Existing MOI, the Companies Act, or otherwise in law; and

4.2.3. consent and agree to UCT implementing this Agreement with CBP and in particular consent to the creation and issue of the Subscription Shares to UCT.

5. ISSUE AND SUBSCRIPTION

5.1. On and with effect from the initial Effective Date (and with effect from each subsequent Effective Date in respect of each tranche of shares issued), CBP hereby issues and UCT hereby subscribes for, an initial tranche/portion of the Subscription Shares (and with effect from each subsequent Effective Date) cum (with) any dividend, distribution and rights declared, paid, made or created on or after the relevant Effective Date, but free from any Encumbrances in exchange for the relevant tranche/portion of the Subscription Consideration, apportioned proportionately to each Share then constituting the Subscription Shares.

5.2. For clarity it is agreed that:

5.2.1. UCT shall subscribe for and CBP shall issue the Subscription Shares in tranches/portions; and

5.2.2. UCT shall pay and CBP shall receive the Subscription Consideration in tranches/portions,



so as to coincide with each payment of grant funding under the THRIP Agreement to CBP i.e. in accordance with each 2018/2019 CBP THRIP Project Plan and Milestones.

5.3. For clarity, it is recorded that as at the Signature Date,-

5.3.1. the 2018/2019 CBP THRIP Project Plan and Milestones (and the terms & conditions of the THRIP Grant) require that matching funds due must be deposited prior to any claim being submitted;

5.3.2. the initial Subscription Consideration in an amount of R571,285.00 (five hundred and seventy one thousand, two hundred and eighty five rand) will result in UCT holding 7.24% (seven point two four percent) of the total issued share capital of CBP at that time;

5.3.3. the second Subscription Consideration in an amount of R855,192.00 (eight hundred and fifty five thousand, one hundred and ninety two rand) will result in UCT holding a total of 18.08% (eighteen point zero eight) of the total issued share capital of CBP at that time; and

5.3.4. the third Subscription Consideration in an amount of R1,413,523 (one million, four hundred and thirteen thousand five hundred and twenty three rand) will result in UCT holding a total of 36% (thirty six percent) of the total issued share capital of CBP at that time.

5.3.5. A fourth amount of R 897 463 (eight hundred and ninety-seven four hundred and sixty three rand) shall be paid by UCT on confirmation from CBP that it is in a position to request Year 2: Milestone 2 funding from THRIP, but UCT shall not receive any additional equity in CBP associated with this payment.

5.4. UCT shall effect each payment of the Subscription Consideration, free of any deductions, set-off or charges of any kind, by cleared electronic funds transfer into CBP’s Bank Account on the relevant due date/s therefor.

5.5. It is hereby recorded that:

5.5.1. on 23 February 2018 UCT transferred into CBP’s Bank Account the amount of R571,285.00 (five hundred and seventy one thousand, two hundred and eighty five rand) in full settlement of its initial tranche of the Subscription Consideration; and

5.5.2. on 1 June 2018 UCT transferred into CBP’s Bank Account the amount of R855,192.00 (eight hundred and fifty-five thousand, one hundred and



ninety two rand) in full settlement of its second tranche of the Subscription Consideration; and

5.5.3. on 8 February 2019 UCT transferred into CBP’s Bank Account the amount of R1,413,523 (one million, four hundred and thirteen thousand five hundred and twenty-three rand) in full settlement of its third tranche of the Subscription Consideration; and

5.5.4. CBP shall against receipt of the funds referred to in clauses 5.5.1, 5.5.2 and 5.5.3 issue the respective pro rata portions of the Subscription Shares to UCT.

6. DELIVERY AND IMPLEMENTATION

6.1. On each relevant Implementation Date, the Existing Shareholders or CBP shall deliver the following to UCT:

6.1.1. the Documents of Title (signed but undated) in respect of each tranche of the Subscription Shares; and

6.1.2. such other documents as are necessary in order to enable UCT to procure the registration of the Subscription Shares into its name and/or the name/s of its nominee/s on Implementation Date.

6.2. The Parties may by agreement between them arrange for completion of such matters contemplated herein in such manner as they may specifically agree, in writing (including e-mail), to be convenient.

7. OWNERSHIP, RISK AND BENEFIT

7.1. Against payment of each tranche of the Subscription Consideration:

7.1.1. full title of ownership of that tranche of the Subscription Shares shall be deemed to have transferred to UCT on and with effect from the relevant Effective Date, free from any Encumbrance; and

7.1.2. all risk in and benefits attaching to that tranche of the Subscription Shares shall be deemed to have passed to UCT on the relevant Effective Date.

For clarity it is recorded that the risks and benefits (including voting rights) attached to each specific tranche of Subscription Shares will vest in UCT proportionately coinciding with each tranche acquisition of Subscription Shares by UCT on each relevant Effective Date.



7.2. This Agreement itself constitutes a transfer and issue of each tranche of the Subscription Shares, insofar as such transfer and issue is capable in law of being effected in accordance herewith.

8. GENERAL WARRANTIES

Each Party warrants to each other Party that as at the Signature Date and the Effective Date:

8.1. it has the full legal right, power, authority and capacity to execute, deliver and fully perform their obligations under the this Agreement; and

8.2. the execution, delivery and performance by it of this Agreement do not:

8.2.1. conflict with, result in a breach of, or constitute a default under, any Applicable Laws;

8.2.2. violate any agreement, instrument, note, mortgage, licence, permit or other authorisation, right, restriction or obligation to which it is bound;

8.2.3. violate any order, injunction, judgment or decree of any governmental authority by which it may be bound;

8.2.4. constitute an act of bankruptcy, preference, insolvency or fraudulent conveyance under any insolvency law or other Applicable Laws for the protection of debtors or creditors; or

8.2.5. conflict with or result in any breach or violation of the terms, conditions or provisions of its constitutional documents.

9. WARRANTIES IN RESPECT OF THE SUBSCRIPTION SHARES AND CBP

9.1. Each of the Existing Shareholders and CBP hereby jointly and severally, grant to UCT the Warranties set out in Annexure A.

9.2. It is agreed that UCT has entered into this Agreement on the strength of the Warranties given to it by CBP and the Existing Shareholders and on the basis that such Warranties will be true and correct and not misleading as at the Signature Date and the Implementation Date. All the Warranties given in terms of this Agreement shall be deemed to be material.

9.3. Each of the Warranties shall be separate and independent and shall not be limited by anything in this Agreement.

9.4. Nothing contained in this Agreement shall relieve the Existing Shareholders from its/their obligation to make those disclosures which the Existing Shareholders are in law obliged to make but which are not recorded herein.



10. BREACH

10.1. If any of the Parties commits a breach of this Agreement and/or fails to comply with any of the provisions hereof (the “Defaulting Party”), then the other Party (the “Innocent Party”) shall be entitled to give the Defaulting Party 10 (ten) Business Days’ notice in writing to remedy such breach and/or failure and if the Defaulting Party fails to comply with such notice, then the Innocent Party shall forthwith be entitled but not obliged, without prejudice to any right the Innocent Party may have in law to claim damages:

10.1.1. in respect of a material breach, to cancel this Agreement, provided that notwithstanding any other provision of this Agreement or any right which might otherwise exist in law:

10.1.1.1. no cancellation shall occur after the Implementation Date; and/or

10.1.1.2. breaches of Warranties shall not give rise to a right of cancellation but only to a financial claim in terms of this Agreement; or

10.1.2. to claim immediate performance and/or payment of such obligations.

10.2. Should a Party take steps against the other pursuant to a breach of this Agreement, then, without prejudice to any other rights which such Party may have, it shall be entitled to recover from the Defaulting Party all reasonable legal costs incurred by it including attorney and own client charges and such collection commission as it is obliged to pay to its attorneys.

11. AGENT'S COMMISSION

It is recorded that this sale and subscription was not effected through the instrumentality of any agent.

12. CONFIDENTIALITY, ANNOUNCEMENTS AND PUBLICITY

12.1. Any information obtained by any Party to this Agreement in terms, or arising from the implementation, of this Agreement shall be treated as confidential by the Parties and shall not be used, divulged or permitted to be divulged to any Person not being a Party to this Agreement, without the prior written consent of the other Parties save that:

12.1.1. each of the Parties may disclose any information which they would otherwise be prohibited from doing so, to their directors, employees, agents, professional advisers or consultants, to their direct and indirect shareholders or investors and the directors, employees, agents,



professional advisers or consultants of any such direct or indirect shareholders or investors, to any bona fide prospective shareholders or investors or their professional advisers or consultants, and to any bona fide third party prospective purchasers of the shares or other securities held by them, provided that any such Party procures that any such recipient is bound to substantially the same obligations of confidentiality contained herein;

12.1.2. any information which is required to be furnished by law or by existing contract or by any stock exchange on which the shares or other securities of any Party or any Affiliate of a Party are listed may be so furnished;

12.1.3. no Party shall be precluded from divulging any information to any person who is negotiating with such party for the acquisition of an interest in such Party, provided that the person to whom any disclosure is made in the aforesaid circumstances shall first have undertaken in writing not to divulge such information to any other person and to use it only for the purpose of evaluating the Business; and/or

12.1.4. no Party shall be precluded from using or divulging such information in order to pursue any legal remedy available to it.

12.2. No announcements of any nature whatsoever will be made by or on behalf of a Party relating to this Agreement without the prior written consent of the other Parties, save for any announcement or other statement required to be made in terms of the provisions of any law (or, where applicable, by the rules of any securities exchange on which the shares or other securities of any of the Parties, or the shares or other securities of a holding company of any of the Parties, may be listed), in which event the Party obliged to make such statement will first consult with the other Parties in order to enable them in good faith to attempt to agree the content of such announcement, which (unless agreed) must go no further than is required in terms of such law or rules.

13. GOVERNING LAW AND DISPUTE RESOLUTION

13.1. Should any dispute, disagreement or claim arise between any of the Parties concerning this Agreement (“the Dispute”), the Parties shall endeavour to resolve the Dispute by negotiation.

13.2. This entails one of the Parties inviting the other/s in writing to meet and to attempt to resolve the Dispute within 10 (ten) Business Days from date of written invitation.



13.3. If the Dispute has not been resolved by negotiation within 10 (ten) Business Days of the commencement thereof, the Parties shall:

13.3.1. submit the Dispute to mediation to be administered by AFSA, upon such terms as agreed between the Parties and the secretariat of AFSA; and

13.3.2. Failing agreement as aforesaid within 10 (ten) Business Days of the Dispute being submitted to mediation, the Parties shall refer the Dispute to arbitration as provided in clause 13.5

13.4. Should the Parties be unable to reach resolution of the Disputes consequent to mediation within 10 (ten) Business Days of commencement thereof, the Dispute shall be referred to arbitration in accordance with the provisions of clause 13.5

13.5. Failing agreement as referred to in clause 13.3.2 or in the event of an unresolved mediation as envisaged in terms of clause 13.4, the Dispute shall be submitted to arbitration for final resolution in accordance with then commercial rules of AFSA (as read conjunctively with the procedural rules of the High Court of South Africa) by an arbitrator or arbitrators appointed by AFSA.

13.6. Unless otherwise agreed in writing by the Parties, any such negotiation, mediation or arbitration shall be held in Cape Town.

13.7. Notwithstanding anything to the contrary contained in this clause 13, any Party shall be entitled to apply for, and if successful, be granted, an interdict or other interim and/or urgent relief from any competent court having jurisdiction.

13.8. For the purposes of clause 13.7 and for the purposes of having any award made by the arbitrator/s being made an order of court, each of the Parties hereby submits itself to the jurisdiction of the High Court of South Africa, Western Cape division, seated at Cape Town.

13.9. This clause 13 constitutes an irrevocable consent by each of the Parties to any proceedings in terms hereof, is severable from the rest of this Agreement and shall, notwithstanding the termination of this Agreement, remain in full force and effect.

14. NOTICES AND ADDRESSES

14.1. For the purposes of the giving of notices and the serving of legal process in terms of this Agreement, each of the Parties chooses the address set out below:

14.1.1. CBP and BAS:

Address: Unit 2, The Powder Mill, 5 Sunrise Circle, Ndebeni, 7405



Attention: BAS

Email: [email protected]

14.1.2. IP Creators:

Physical: 34 Uitvlugt Road, Pinelands, Cape Town, 7405

14.1.3. TMS:

Address: Unit 2, The Powder Mill, 5 Sunrise Circle, Ndabeni, 7405

Attention: TMS


14.1.4. UCT:

Address: Bremner Building, Lovers Walk, Rondebosch, 7701, Cape Town

Attention: Mr Royston Pillay, Registrar


14.2. Any Party may at any time, by notice in writing to the other Parties, change its chosen address to any other address that is not a post office box.

14.3. Any notice given in connection with this Agreement shall, save where a particular form of notice is stipulated, be:

14.3.1. delivered by hand; or

14.3.2. sent by courier; or

14.3.3. sent by email,

to the address chosen by the Party concerned.

14.4. A notice given as set out above shall be deemed to have been duly given (unless a disputing Party proves the contrary):

14.4.1. if delivered by hand, on the date of delivery; or

14.4.2. if sent by courier, on the date of delivery by the courier service concerned; or

14.4.3. if sent by email, on the 1st (first) Business Day after the date of transmission.

mailto:[email protected]





14.5. Any written notice (including any electronic mail) actually received by a Party shall be valid, notwithstanding that it may not have been given in accordance with the preceding provisions of this clause 14.

15. ASSIGNMENT

No Party shall be entitled to:

15.1. cede its rights;

15.2. delegate its obligations; and/or

15.3. assign its rights and obligations,

under this Agreement unless the other Parties consent thereto in writing.

16. CO-OPERATION

Each of the Parties hereby undertakes to:

16.1. do and to procure the doing by other persons, and to refrain and procure that other persons will refrain from doing, all such acts; and

16.2. pass and to procure the passing of all such resolutions of directors or shareholders of any company,

to the extent that the same may lie within such Party's power and may be required to give effect to the import or intent of this Agreement, or any contract concluded pursuant to the provisions of this Agreement.

17. SEVERABILITY

17.1. The agreements and undertaking of Parties contained in this Agreement shall each be construed as a separate agreement and undertaking independent of any other provision of this Agreement.

17.2. The Parties hereby expressly agree that it is not the intention of any Party to violate any public policy, statutory or common law.

17.3. The Parties further acknowledge that it is their intention that the provisions of this Agreement be binding only to the extent that they may be lawful under existing Applicable Laws, and in the event that any provision hereof is determined by a competent court to be overly broad or unenforceable, the Parties hereby agree to the modification and reduction of such provisions by their respective attorneys or an arbitrator or court of law to the minimum extent required to make them valid and enforceable.

17.4. For as long as:



17.4.1. any part of this Agreement is void, voidable, illegal, unenforceable, or contrary to or inconsistent with any Applicable Law, rule or order of a court of competent jurisdiction; or

17.4.2. this Agreement would be void, voidable, illegal or unenforceable if that part be operative,

that part shall be deemed deleted from this Agreement, inoperative and of no force or effect (and such deeming shall not affect the continued operation of the rest of this Agreement); provided however, in any such event, the Parties shall meet and in good faith negotiate with a view to ensuring that the severance does not in any way derogate from or prejudice the commercial position of the affected Party and to restore each of the Parties to the same commercial position as would have applied but for such severance.

17.5. If on any date a part of this Agreement which has been deemed deleted and inoperative pursuant to clause 17.4 ceases to be void, voidable, illegal, unenforceable, or contrary to or inconsistent with any Applicable Law, rule or order of a court of competent jurisdiction or its inclusion in this Agreement as an operative provision would no longer render this Agreement void, voidable, illegal or unenforceable, that part shall be deemed to have been reinserted into this Agreement ipso facto (by that fact) as from the effective date of that cessation and shall be operative from that date.

18. INDEPENDENT ADVICE

Each Party acknowledges that it has been free to secure independent legal, financial, tax and/or other professional advice as to the nature and effect of all of the provisions of this Agreement and that it has either taken such independent advice or dispensed with the necessity of doing so. Further, each Party acknowledges that all of the provisions of this Agreement and the restrictions herein contained are fair and reasonable in all the circumstances and are part of the overall intention of the Parties in connection with this Agreement.

19. WHOLE AGREEMENT, NO AMENDMENT AND GENERAL

19.1. This Agreement constitutes the whole of the agreement between the Parties relating to the subject matter thereof and supersedes all prior agreements and understandings, whether oral or written, including specifically the Term Sheet. The Parties agree that no other terms or conditions, whether oral or written, and whether express or implied, apply.

19.2. No amendment of this Agreement, nor any addition to, variation, novation or agreed cancellation of any provision of this Agreement, will be of any force or effect



unless reduced to writing and signed by or on behalf of the Parties to this Agreement.

19.3. No indulgence or extension of time which any Party may grant to any other shall constitute a waiver of or, whether by estoppel or otherwise, limit any of the existing or future rights of the grantor in terms hereof, save in the event and to the extent that the grantor has signed a written document expressly waiving or limiting such right.

19.4. Without prejudice to any other provision of this Agreement, any successor-in-title, including any executor, heir, liquidator, judicial manager, curator or trustee, of any party shall be bound by this Agreement.

19.5. Each Party warrants to the other Party/ies that it has the power, authority and legal right to sign and perform this Agreement and that this Agreement has been duly authorised by all necessary actions of its directors and constitutes valid and binding obligations on it in accordance with the terms of this Agreement.

19.6. All notices, consents, advice or other communication by any Party to the other, shall be in writing in the English language and signed by the relevant Party, and unless in writing and signed, shall be deemed not to have been given or made. For such purpose "writing" shall be deemed to include any e-mail and/or telefacsimile communications; provided that such e-mail and/or telefacsimile has been acknowledged or deemed to be received by the recipient.

19.7. The Parties record that it is not required for this Agreement to be valid and enforceable that a Party shall initial each of the pages of this Agreement and/or have its signature of this Agreement verified by a witness.

20. COSTS

20.1. Save as expressly detailed to the contrary, each Party shall:

20.1.1. bear its own costs in the preparation, drafting and negotiating of this Agreement and all attendances incidental thereto, including the costs of any mediation or arbitration conducted hereunder; and

20.1.2. be liable for their own respective tax(es) arising from the implementation of this Agreement.

20.2. All costs, charges and expenses of every nature whatever which may be incurred by any Party in enforcing its rights in terms of this Agreement, including without limiting the generality of the aforegoing, legal costs on the scale as between attorney and own client and collection commission, irrespective of whether any



action has been instituted, shall be recoverable from the Party against which such rights are successfully enforced.

20.3. All the costs of Edward Nathan Sonnenbergs Inc. of and incidental to the preparation of this Agreement (including prior drafts and consultations) shall be borne by CBP. The provisions hereof amount to a stipulatio alteri (contract for the benefit of a third party) in favour of Edward Nathan Sonnenbergs Inc. capable of acceptance and implementation at any time without notice.

21. STIPULATIO ALTERI

No part of this Agreement shall constitute a stipulatio alteri (contract for the benefit of a third party) in favour of any person who is not a party to this Agreement unless the provision in question expressly provides that it does constitute a stipulatio alteri.

22. EXECUTION IN COUNTERPARTS

This Agreement:

22.1. may be executed in separate counterparts, none of which need contain the signature of all the Parties, each of which shall be deemed to be an original and all of which taken together constitute one agreement; and

22.2. shall be valid and binding upon the Parties, notwithstanding that one or more of the Parties may sign a facsimile or scanned and emailed copy thereof and whether or not such facsimile or scanned and emailed copy contains the signature of any other Party.



SIGNED BY THE PARTIES AND WITNESSED ON THE FOLLOWING DATES AND AT THE FOLLOWING PLACES RESPECTIVELY:

For: CAPE BIO PHARMS PROPRIETARY LIMITED

Signature:who warrants that he / she is duly authorised thereto

Name: Belinda Ann Shaw

Title/Capacity: Director

Date:

Place: Cape Town, South Africa

Witness 1:

Name of Witness 1:

Witness 2:

Name of Witness 2:



For: THE UNIVERSITY OF CAPE TOWN

Signature:who warrants that he / she is duly authorised thereto

Name: Mr Royston Pillay

Title/Capacity: Registrar

Date:

Place:Rondebosch, Cape Town, South Africa

Witness 1:

Name of Witness 1:

Witness 2:

Name of Witness 2:

BELINDA ANN SHAW

Signature:

Date:

Place:

Witness 1:

Name of Witness 1:

Witness 2:

Name of Witness 2:



TAMLYN MARION SHAW

Signature:

Date:

Place:

Witness 1:

Name of Witness 1:

Witness 2:

Name of Witness 2:

EDWARD RYBICKI

Signature:

Date:

Place:

Witness 1:

Name of Witness 1:

Witness 2:

Name of Witness 2:



INGA ISABEL HITZEROTH

Signature:

Date:

Place:

Witness 1:

Name of Witness 1:

Witness 2:

Name of Witness 2:

ANN ELIZABETH MEYERS

Signature:

Date:

Place:

Witness 1:

Name of Witness 1:

Witness 2:

Name of Witness 2:

32

Annexure A - Warranties

LIST OF WARRANTIES

1. Organisation and Good Standing

1.1. CBP is a private company duly organised, validly existing under the laws of South Africa and has all requisite power and authority to own its assets, lease and operate properties and to carry on its Business as presently conducted.

1.2. Each of the Existing Shareholders and CBP has at the Signature Date, and will on the Effective Date have, all requisite power and authority to execute this Agreement and each other agreement, document, or instrument or certificate contemplated by this Agreement or to be executed by them in connection with the consummation of the transactions contemplated by this Agreement to consummate the transactions contemplated hereby and thereby.

2. SHARES AND RIGHTS

2.1. No person (other than the Existing Shareholders and UCT) will have any right (including any option, right of first refusal or contingent right) to (i) acquire legal ownership of any Shares (whether issued or unissued) in CBP or any interest therein; (ii) exercise any voting rights in relation to CBP (other than in their capacity as registered shareholder thereof); or (iii) participate in the profits of CBP (other than in their capacity as registered shareholder thereof).

2.2. None of the Subscription Shares shall be subject to any Encumbrance, and CBP shall give free and unencumbered title of the Subscription Shares to UCT.

2.3. All the Shares in CBP were validly issued in compliance with the Applicable Laws, and were not issued in violation of any pre-emptive or similar rights created by the Companies Act or the MOI of CBP or any agreement by which CBP is bound.

2.4. Subscription Shares

2.4.1. No entity or person has any right to seek to amend the securities register of CBP and it is not under any obligation to alter its share capital in any respect.

2.4.2. All the Subscription Shares are validly existing and created and no person or entity other than the Existing Shareholders have any right to participate or share in the profits, dividends or income of CBP or to any payment of any kind calculated with reference to the profits or income of CBP.

/tt/file_convert/5e18ec878befbe5e9e3c8aee/document.docx-ENS 0400509 33


Annexure B New MOI

[To insert New MOI once finalised]

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