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0001873875
Incannex Healthcare Ltd
0001873875
2023-11-28
2023-11-28
iso4217:USD
xbrli:shares
iso4217:USD
xbrli:shares
UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to Section
13 or 15(d)
of the Securities Exchange
Act of 1934
Date of Report (Date
of earliest event reported): November 28, 2023
Incannex
Healthcare Inc.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-41106 |
|
93-2403210 |
(State or other Jurisdiction
of Incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
Suite
105, 8 Century Circuit Norwest,
NSW 2153 Australia |
|
Not applicable |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s
Telephone Number, including Area Code: +61 425 703 805
(Former Name or Former
Address, if Changed Since Last Report): Not Applicable
Check the appropriate box below if the Form
8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section
12(b) of the Act:
Title of each class |
|
Trading Symbol |
|
Name of exchange on which registered |
Common Stock, $0.0001 par value per share |
|
IXHL |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter)
Emerging growth company ☒
If an emerging growth company, indicate by
check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Explanatory Note
Completion of Redomiciliation
On November 28, 2023 (“Effective Date”), the redomiciliation
(“Redomiciliation”) of Incannex Healthcare Limited, an Australian corporation (“Incannex Australia”), was implemented
under Australian law in accordance with the Scheme Implementation Deed, as amended and restated on September 13, 2023, between Incannex
Australia and Incannex Healthcare Inc., a Delaware corporation (“Incannex Delaware”). As a result of the Redomiciliation,
Incannex Australia became a wholly-owned subsidiary of Incannex Delaware, which is the new ultimate parent company. The terms “we,”
“our,” “us” refer to Incannex Australia prior to the Effective Date and Incannex Delaware after the Effective
Date.
The Redomiciliation was
effected pursuant to a statutory Scheme of Arrangement under Australian law (the “Scheme”). Upon completion of the Redomiciliation,
our primary listing changed from the Australian Securities Exchange (“ASX”) to the Nasdaq Global Market (“Nasdaq”).
In connection with the
Scheme:
| ● | holders of ordinary shares of Incannex Australia
received one share of common stock in Incannex Delaware for every 100 ordinary shares of Incannex Australia held on the Scheme record
date; |
| ● | holders of options of Incannex Australia received
one option in Incannex Delaware for every 100 options in Incannex Australia held on the Scheme record date; and |
| ● | holders of American Depositary Shares (“ADSs”),
with each ADS representing 25 ordinary shares of Incannex Australia, received one share of common stock of Incannex Delaware for every
4 ADSs held on the Scheme record date. |
The shares of common stock
and options issued by Incannex Delaware upon implementation of the Scheme were exempt from registration under the Securities Act of 1933,
as amended (the “Securities Act”), pursuant to Section 3(a)(10) thereof.
Prior to the Redomiciliation,
Incannex Australia’s ordinary shares were registered pursuant to Section 12(b) of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and ADSs representing its ordinary shares were listed on the Nasdaq Global Market (“Nasdaq”).
Incannex Australia’s ADSs were suspended from trading on Nasdaq prior to the start of trading on the Effective Date and, following
the Effective Date, will no longer trade on Nasdaq.
Pursuant to Rule 12g-3(a) under
the Exchange Act, as of the Effective Date:
| ● | Incannex
Delaware is the successor issuer to Incannex Australia; |
| ● | Incannex
Delaware’s shares of common stock are deemed to be registered under Section 12(b) of the Exchange Act; and |
| ● | Incannex
Delaware is subject to the periodic and current reporting requirements of the Exchange Act and the rules and regulations promulgated
thereunder. Incannex Delaware hereby reports this succession in accordance with Rule 12g-3(f) under the Exchange Act. |
Incannex Delaware’s
shares of common stock are expected to commence trading on Nasdaq at the start of trading on November 30, 2023, or as soon as possible
thereafter, under the symbol “IXHL”, the same symbol under which Incannex Australia’s ADSs were traded on Nasdaq prior
to the Effective Date. The CUSIP for Incannex Delaware’s shares common stock is 45333F109.
Nasdaq has filed a Form
25 with the SEC to remove Incannex Australia’s ADS listing on Nasdaq. Incannex Australia has filed a Form 15 with the Securities
and Exchange Commission (“SEC”) to terminate the registration under the Exchange Act of Incannex Australia’s ordinary
shares and to suspend its reporting obligations under Sections 13 and 15(d) of the Exchange Act.
Item 1.01 Entry
into a Material Definitive Agreement.
The information included
under the Explanatory Note of this Current Report on Form 8-K is incorporated by reference to this Item 1.01
Item 3.01 Notice of Delisting or Failure
to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
The information included
under the Explanatory Note of this Current Report on Form 8-K is incorporated by reference to this Item 3.01
Item 3.02 Unregistered
Sales of Equity Securities.
The information included
under the Explanatory Note of this Current Report on Form 8-K is incorporated by reference to this Item 3.02.
Item 3.03 Material Modification to Rights of Security Holders.
The information included
under the Explanatory Note, Item 5.03 and Item 8.01 of this Current Report on Form 8-K is incorporated by reference to
this Item 3.03.
Item 5.01 Changes in Control of Registrant.
The information included
under the Explanatory Note and Item 8.01 of this Current Report on Form 8-K is incorporated by reference to this Item 5.01
Item 5.02 Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Directors and Executive
Officers
Below is a list of the
names, ages, positions and a brief summary of business experience of the individuals who serve as Incannex Delaware’s directors
and executive officers as of November 28, 2023.
Name |
|
Age |
|
Position |
Joel Latham |
|
34 |
|
President and
Chief Executive Officer, Director (principal executive officer) |
Troy Valentine |
|
50 |
|
Chairman |
Peter Widdows |
|
57 |
|
Director |
George Anastassov |
|
60 |
|
Director |
Robert Clark |
|
63 |
|
Director |
Madhukar Bhalla |
|
65 |
|
Secretary and Chief Financial Officer (principal financial officer) |
Joseph Swan |
|
32 |
|
Treasurer and
Controller (principal accounting officer) |
Lekhram Changoer |
|
57 |
|
Chief Technology Officer |
Biographical information
with respect to the directors and officers above can be found under Item 6A of the Annual Report on Form 20-F filed by Incannex Australia
with the SEC on October 31, 2023, which information is incorporated by reference to this Item 5.02.
Classified Board
of Directors
Incannex Delaware’s
Certificate of Incorporation provides that the Board is divided into three classes with staggered three-year terms. Only one
class of directors is elected at each annual meeting of stockholders, with the other classes continuing for the remainder of their respective
terms.
The classes of the Board
are designated as follows:
| ● | Peter
Widdows is a Class I director, and his initial term will expire at the annual meeting of stockholders to be held in 2024; |
| ● | George
Anastassov and Robert Clark are Class II directors, and their initial terms will expire at the annual meeting of stockholders to be held
in 2025; and |
| ● | Joel
Latham and Troy Valentine are Class III directors, and their terms will expire at the annual meeting of stockholders to be held in 2026. |
Board Committees
The Board currently has,
and appoints the members of, a standing Audit Committee and Compensation Committee. Each of those committees has a written charter approved
by the Board. The current charter for each standing Board committee will be posted under the section “Corporate Governance”
of the Incannex Delaware’s website, www.incannex.com.
Members of the committees
are as follows:
Audit Committee: Peter Widdows
(Chair), Robert Clark and Troy Valentine
Compensation Committee:
Peter Widdows (Chair), Robert Clark and Troy Valentine
Stock Incentive Plan
Incannex Delaware has adopted
an incentive plan, the Incannex Healthcare Inc. 2023 Equity Incentive Plan, which is attached hereto as Exhibit 10.2 and incorporated
herein by reference.
Incannex Delaware assumed
Incannex Australia’s obligations with respect to the settlement of incentive options that were previously issued by Incannex Australia.
Indemnification Agreements
Incannex Delaware has entered into indemnification
agreements with each of the directors and executive officers of Incannex Delaware. These agreements provide for the indemnification by
Incannex Delaware of these persons against certain liabilities that may arise by reason of their status or service as a director or officer
or in such other capacity and to advance expenses incurred as a result of certain proceedings, to the fullest extent provided by law.
The foregoing description of the indemnification
agreements is qualified in its entirety by reference to the text of such agreement filed as Exhibit 10.1 to this Current Report on
Form 8-K and incorporated by reference to this Item 5.02.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
In connection with the
Redomiciliation, the rights of our shareholders are no longer governed by Incannex Australia’s organizational documents and instead
are now governed by Incannex Delaware’s Amended and Restated Certificate of Incorporation and its amended and restated bylaws (the
“Bylaws”), which are attached hereto as Exhibits 3.1 and 3.2 and incorporated herein by reference.
A summary of the material
terms of the Amended and Restated Certificate of Incorporation and the Bylaws are attached hereto as Exhibit 99.1 and incorporated herein
by reference.
Item 5.05 Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.
Incannex Delaware has adopted
a Code of Conduct (the “Code”), which applies to all directors, officers and employees of Incannex Delaware and its subsidiaries.
The foregoing description
of the Code is qualified in its entirety by reference to the text of the Code, which is filed as Exhibit 14.1 to this Current Report on
Form 8-K and incorporated by reference to this Item 5.05. The Code will be made available on Incannex Delaware’s website at www.incannex.com.
Item 8.01 Other Events.
Press Release
On November 28, 2023 (U.S. time), Incannex Delaware issued a press
release announcing the completion of the Redomiciliation and related information. A copy of the press release is filed as Exhibit 99.2
to this Current Report on Form 8-K and is incorporated by reference to this Item 8.01.
Successor Issuer
Pursuant to Rule 12g-3(a)
under the Exchange Act, Incannex Delaware is the successor issuer to Incannex Australia. As a result, Incannex Delaware’s shares
of common stock are deemed to be registered under Section 12(b) of the Exchange Act and Incannex Delaware is subject to the periodic and
current reporting requirements of the Exchange Act and the rules and regulations promulgated thereunder. Incannex Delaware hereby reports
this succession in accordance with Rule 12g-3(f) under the Exchange Act.
Transfer Agent and Registrar
The transfer agent and
registrar for Incannex Delaware’s shares of common stock is Computershare Trust Company, N.A. The transfer agent and registrar’s
address is 150 Royall Street, Canton, Massachusetts 02021.
Item 9.01. Financial Statements and Exhibits.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
Incannex Healthcare Inc. |
|
|
|
Date: November 29, 2023 |
|
/s/ Joel Latham |
|
Name: |
Joel Latham |
|
Title: |
Chief Executive Officer and President |
6
Exhibit 2.1
Deed of Amendment and Restatement
between
Incannex Healthcare Limited
ACN 096 635 246
(Incannex)
and
Incannex Healthcare Inc.
A company incorporated in Delaware, United States of America
(US Holdco)
DETAILS
Parties |
Incannex |
|
|
Name |
Incannex Healthcare Limited |
|
ACN |
096 635 246 |
|
Address |
Level 23, Rialto South Tower, 525 Collins Street, Melbourne |
|
|
VIC 3000 |
|
Email |
|
|
Attention |
Troy Valentine, Chairman |
With a copy to:
David Schiavello, Partner
Thomson Geer
Level 23, 525 Collins Street, Melbourne VIC 3000
US Holdco
| Name | Incannex Healthcare Inc. (a company incorporated in Delaware, USA) |
|
Address |
18 East 50th Street, 5th Floor, New York, NY 10022 |
|
Email |
|
|
Attention |
Joel Latham, Chief Executive Officer |
With a copy to:
Andrew Reilly, Partner
Rimon Law
Level 2, 50 Bridge Street, Sydney NSW 2000 a
BACKGROUND
A | Incannex and US HoldCo entered into a scheme implementation deed on 10 July 2023 (SID). |
B | On or around the time US HoldCo entered into the SID, US HoldCo also entered into a share scheme deed
poll (in the form set out in schedule 4 of the SID) (SSDP) and an option scheme deed poll (in the form set out in schedule 6 of
the SID) (OSDP and collectively with the SSDP, the DPs). |
C | The SID may be varied in accordance with clause 11.1 of the SID and each DP may be varied in accordance
with clause 7.7 of that DP. |
D | The parties have agreed to amend and restate the SID and to amend each DP, in each case on the terms of
this deed. |
AGREED TERMS
1 | Definitions and interpretation |
In this deed:
Amended OSDP the option scheme
deed poll in the form set out in schedule 4 of the SID as amended and restated by this deed (or such other form agreed to between Incannex
and Incannex US in accordance with the SID).
Amended SSDP the share scheme
deed poll in the form set out in schedule 2 of the SID as amended and restated by this deed (or such other form agreed to between Incannex
and Incannex US in accordance with the SID).
| Deed of Amendment and Restatement | |
OSDP Effective Date means the date on which US HoldCo
enters into the Amended OSDP.
Second Court Date has the meaning given to that term
in the SID as amended and restated in accordance with this deed.
SID Effective Date means the date of this deed.
SSDP Effective Date means the date on which US HoldCo
enters into the Amended SSDP.
Clause 1.2 of the SID applies to this deed.
This deed includes any appendix.
2.1 | Amendment and Restatement of the SID |
The parties agree that on and from
the SID Effective Date, the SID is amended in the manner reflected by, and restated in the form of, Appendix 1.
The parties agree that on and from
the SSDP Effective Date, the SSDP will be amended in the manner reflected by the Amended SSDP provided that the SSDP Effective Date is
before the Second Court Date.
The parties agree that on and from
the OSDP Effective Date, the OSDP will be amended in the manner reflected by the Amended OSDP provided that the OSDP Effective Date is
before the Second Court Date.
2.4 | Amendments not to affect validity, rights, obligations |
| (a) | This clause 2 is intended only to vary the SID and the DPs and not to terminate, discharge, rescind or replace the SID or any DP. |
| (b) | The amendments to the SID and DPs do not affect the validity or enforceability of the SID or any DP. |
| (i) | prejudices or adversely affects any right, power authority, discretion or remedy which arose or arises
under or in connection with the SID before the SID Effective Date, the SSDP before the SSDP Effective Date or the OSDP before the OSDP
Effective Date; or |
| (ii) | discharges, releases or otherwise affects any liability or obligation which arose or arises under or in
connection with the SID before the SID Effective Date, the SSDP before the SSDP Effective Date or the OSDP before the OSDP Effective Date. |
| (a) | On and from the SID Effective Date, each party is bound by the SID as amended and restated by this deed. |
| (b) | On and from the SSDP Effective Date, Incannex US will be bound by the Amended SSDP. |
| (c) | On and from the OSDP Effective Date, Incannex US will be bound by the Amended OSDP. |
| Deed of Amendment and Restatement | |
Each party acknowledges that this deed is entered into
in accordance with the SID and the DPs.
3.1 | Governing law and jurisdiction |
This deed is governed by the laws of Victoria. The parties
submit to the exclusive jurisdiction of the courts of Victoria and the courts competent to determine appeals from those courts. The parties
will not object to the exercise of jurisdiction by those courts on any basis.
Each party must pay its own costs and expenses for preparing,
negotiating, executing and completing this deed and any document related to this deed.
Each party must, at its own expense, do all things and
execute all documents necessary to give full effect to this deed and the transactions contemplated by it.
3.4 | Execution of separate documents |
This deed may be executed in any number of counterparts
and by the parties on separate counterparts. Each counterpart constitutes an original of this deed, all of which together constitute one
deed.
No variation of this deed will be of any force or effect
unless it is in writing and signed by each party to this deed.
| Deed of Amendment and Restatement | |
Executed as
a deed:
Executed as a deed by Incannex
Healthcare
Limited ACN 096 635 246 in accordance with
section 127 of the Corporations Act 2001 (Cth):
/s/ Joel Latham |
|
/s/ Madhukar Bhalla |
Director |
|
*Director/*Company Secretary |
|
|
|
Joel Latham |
|
Madhukar Bhalla |
Name of Director |
|
Name of *Director/*Company Secretary |
BLOCK LETTERS |
|
BLOCK LETTERS |
|
|
*please strike out as appropriate |
Executed by an authorised signatory of
Incannex Healthcare Inc.:
/s/ Joel Latham |
|
Signature of authorised person |
|
|
|
JOEL LATHAM |
|
Name of authorised person |
|
BLOCK LETTERS |
|
| Deed of Amendment and Restatement | |
APPENDIX 1 – AMENDED AND RESTATED SID
| Deed of Amendment and Restatement | |
|
|
|
Level 23, Rialto South Tower |
|
525 Collins Street |
|
Melbourne VIC 3000 Australia |
|
T +61 3 8080 3500 | F +61 3 8080 3599 |
Scheme Implementation
Deed
between
Incannex Healthcare Limited
ACN 096 635 246
(Incannex)
and
Incannex Healthcare Inc.
A company incorporated in Delaware, United States of America
(US Holdco)
Table of contents
1 |
Interpretation |
2 |
|
1.1 |
Definitions |
2 |
|
1.2 |
Interpretation |
6 |
|
1.3 |
Knowledge |
7 |
2 |
Agreement to propose and implement Schemes |
7 |
3 |
Conditions Precedent |
8 |
|
3.1 |
Conditions Precedent to implementation of the Share Scheme |
8 |
|
3.2 |
Conditions Precedent to implementation of the Option Scheme |
9 |
|
3.3 |
Reasonable endeavours to satisfy Conditions Precedent |
10 |
|
3.4 |
Waiver of Conditions Precedent |
10 |
|
3.5 |
Certificates in relation to Conditions Precedent |
11 |
|
3.6 |
Conditions Precedent not met |
11 |
|
3.7 |
Failure to agree |
12 |
4 |
Transaction steps – Share Scheme |
12 |
|
4.1 |
Share Scheme |
12 |
|
4.2 |
No amendment to the Share Scheme without consent |
12 |
|
4.3 |
Share Scheme Consideration |
12 |
|
4.4 |
Ineligible Foreign Shareholders |
13 |
|
4.5 |
Small Parcel Holders |
13 |
|
4.6 |
US Holdco Shares to rank equally |
14 |
|
4.7 |
Share Scheme Deed Poll |
14 |
5 |
Transaction Steps – Option Scheme |
14 |
|
5.1 |
Option Scheme |
14 |
|
5.2 |
No amendment to the Option Scheme without consent |
14 |
|
5.3 |
Option Scheme Consideration |
15 |
|
5.4 |
Terms of US Holdco Options |
15 |
|
5.5 |
Ineligible Foreign Optionholders |
15 |
|
5.6 |
Option Scheme Deed Poll |
15 |
6 |
Implementation of the Schemes |
15 |
|
6.1 |
General obligations |
15 |
|
6.2 |
Incannex obligations |
16 |
|
6.3 |
US Holdco obligations |
20 |
|
6.4 |
Form of Recommendation |
22 |
|
6.5 |
Scheme Booklet |
22 |
7 |
Termination rights |
23 |
|
7.1 |
Termination events |
23 |
|
7.2 |
Notice of breach |
23 |
|
7.3 |
Termination right |
23 |
|
7.4 |
Effect of termination |
23 |
|
7.5 |
Disclosure on termination of deed |
24 |
8 |
Public announcements |
24 |
|
8.1 |
Announcement of transaction |
24 |
|
8.2 |
Public announcements |
24 |
|
8.3 |
Statements on termination |
24 |
9 |
Notices |
25 |
|
9.1 |
Manner of giving notice |
25 |
|
9.2 |
When notice given |
25 |
|
9.3 |
Proof of service |
25 |
|
9.4 |
Documents relating to legal proceedings |
25 |
| Scheme Implementation Deed | Reference: DMS:YXG: 5412447 Legal/83374955_3 |
10 |
Entire agreement |
25 |
|
10.1 |
Entire agreement |
25 |
|
10.2 |
No reliance |
25 |
|
10.3 |
Termination rights |
26 |
11 |
General |
26 |
|
11.1 |
Amendments |
26 |
|
11.2 |
Assignments |
26 |
|
11.3 |
Costs |
26 |
|
11.4 |
GST |
26 |
|
11.5 |
Consents |
26 |
|
11.6 |
Counterparts |
26 |
|
11.7 |
Exercise and waiver of rights |
27 |
|
11.8 |
Further assurance |
27 |
|
11.9 |
No merger |
27 |
|
11.10 |
Severability |
27 |
12 |
Governing law and jurisdiction |
27 |
|
12.1 |
Governing law |
27 |
|
12.2 |
Jurisdiction |
27 |
|
|
|
|
Schedule 1 – Share Scheme of Arrangement
|
29 |
Schedule 2 – Share Scheme Deed Poll
|
45 |
Schedule 3 – Option Scheme of Arrangement
|
52 |
Schedule 4 – Option Scheme Deed Poll
|
63
|
| Scheme Implementation Deed | Reference: DMS:YXG: 5412447 Legal/83374955_3 |
DETAILS
Date |
10 July 2023 |
|
|
(as amended and restated on 13 September 2023) |
|
|
|
Parties |
Incannex |
|
|
Name |
Incannex Healthcare Limited |
|
ACN |
096 635 246 |
|
Address |
Level 23, Rialto South Tower, 525 Collins Street, Melbourne |
|
|
VIC 3000 |
|
Email |
|
|
Attention |
Troy Valentine, Chairman |
With a copy to:
David Schiavello, Partner
Thomson Geer
Level 23, 525 Collins Street, Melbourne VIC 3000
|
US Holdco |
|
|
Name |
Incannex Healthcare Inc. (a company incorporated in Delaware, USA) |
|
Address |
18 East 50th Street, 5th Floor, New York, NY 10022 |
|
Email |
|
|
Attention |
Joel Latham, Chief Executive Officer |
With a copy to:
Andrew Reilly, Partner
Rimon Law
Level 2, 50 Bridge Street, Sydney NSW 2000
Background
A | Incannex is an Australian public company listed on ASX (as its primary listing) and on NASDAQ (as its
secondary listing). |
B | The Incannex securities quoted for trading on ASX are Incannex Shares and the Incannex securities quoted
for trading on NASDAQ are ADSs. |
C | US Holdco is a company incorporated in the State of Delaware in the United States and which has been established
for the purposes of effecting a re-domiciliation of Incannex to the United States. |
D | Incannex wishes to effect the re-domiciliation by way of schemes of arrangement under Part 5.1 of the
Corporations Act, being the Share Scheme and the Option Scheme. |
E | US Holdco will acquire all of the Scheme Shares in consideration for US Holdco issuing US Holdco Shares
pursuant to this deed, the Share Scheme and the Share Scheme Deed Poll. |
F | All Scheme Options will be cancelled in consideration for US Holdco issuing US Holdco Options pursuant
to this deed, the Option Scheme and the Option Scheme Deed Poll. |
G | This deed is entered into to record and give effect to the terms and conditions on which US Holdco and
Incannex propose to implement the Share Scheme and the Option Scheme. |
| Scheme Implementation Deed | Reference: DMS:YXG: 5412447 Legal/83374955_3 |
Agreed Terms
In this deed the following terms shall bear the following
meanings:
ADS means an American Depositary Share.
ADS Depositary means Deutsche Bank Trust Company
Americas.
ADS Holder means a holder of Incannex ADSs.
Affiliate means, in relation
to any specified person (other than a natural person), any other person (which shall include a natural person) directly or indirectly
Controlling or Controlled by such specified person or under direct or indirect common control with such specified person.
Agreed Public Announcement means
an announcement of Incannex, released by Incannex on ASX (with a copy to be filed with the SEC) on 10 July 2023 pursuant to clauses 6.2(a)
and 8.
ASIC means the Australian Securities
and Investments Commission.
ASX means ASX Limited (ABN 98
008 624 691) or the Australian Securities Exchange, as the context requires.
Business Day means a business
day as defined in the Listing Rules and, to the extent any action must be taken in relation to NASDAQ, a day on which NASDAQ is operating
but excludes a day that is a Saturday, Sunday, bank holiday or public holiday in Melbourne, Victoria or New York, United States of America.
Conditions Precedent means the
conditions precedent to the Share Scheme in clause 3.1 and the conditions precedent to the Option Scheme in clause 3.2.
Control has the meaning given
to that term in section 50AA of the Corporations Act and Controlling and Controlled have the corresponding meaning.
Corporations Act means the Corporations
Act 2001 (Cth).
Corporations Regulations means
the Corporations Regulations 2001 (Cth).
Court means a court of competent
jurisdiction under the Corporations Act.
Court Documents means the documents
that Incannex determines (acting reasonably) are required for the purposes of appearing at a hearing of the Court in connection with either
or both of the Schemes, and which may include originating process, affidavits, submissions and draft minutes of Court orders.
Effect means, when used in relation
to a Scheme, the coming into effect pursuant to 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 that Scheme and Effective has a corresponding meaning.
Effective Date means the date
the Share Scheme or the Option Scheme (as applicable) becomes Effective.
Eligible Jurisdictions means Australia, Canada, Germany,
Hong Kong, Indonesia, Italy, Japan, Netherlands, New Zealand, Philippines, Singapore, United Kingdom and the United States and such other
jurisdictions as agreed in writing between Incannex and Incannex US from time to time.
Encumbrance means any
encumbrance, mortgage, pledge, charge, lien, assignment, hypothecation, security interest, title retention, preferential right or
trust arrangement and any other security arrangement of any kind given or created and including any possessory lien in the ordinary
course of business whether arising by law or contract.
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End Date means 29 February 2024,
or such later date as agreed to in writing between the parties from time to time.
Excluded Shareholder means any
member of the US Holdco Group.
Excluded Shares means any Incannex
Shares held by an Excluded Shareholder.
Excluded Small Parcel Holder means
a Small Parcel Holder who has made a valid election referred to in clause 4.5 to not participate in the Sale Facility and will not be
treated as a Small Parcel Holder.
Execution Date means the date
of this deed.
First Court Date means the first
day on which an application is made to the Court for an order under section 411(1) of the Corporations Act approving the convening of
the Share Scheme Meeting and the Option Scheme Meeting.
GST has the meaning given to
it in the GST Law.
GST Law has the meaning given
to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Implementation Date means the
fifth Business Day after the Record Date, or such other date agreed to in writing by the parties.
Incannex ADS means an ADS, representing
25 Incannex Shares and which trade on NASDAQ under the ticker code “IXHL”.
Incannex Board means the board
of directors of Incannex from time to time.
Incannex Director means a director
of Incannex from time to time.
Incannex Group means Incannex
and its Subsidiaries.
Incannex Information means all
information included in the Scheme Booklet other than US Holdco Information and the Independent Expert’s Report.
Incannex Option means an option
issued by Incannex to acquire an Incannex Share.
Incannex Option Register means
the register of Incannex optionholders maintained by or on behalf of Incannex in accordance with the Corporations Act.
Incannex Optionholder means
a person who is registered in the Incannex Option Register as the holder of one or more Incannex Options from time to time.
Incannex Share means a fully
paid ordinary share issued in the capital of Incannex.
Incannex Share Register means
the register of Incannex shareholders maintained by or on behalf of Incannex in accordance with the Corporations Act.
Incannex Shareholder means a
person who is registered in the Incannex Share Register as the holder of one or more Incannex Shares, from time to time.
Independent Expert means a person
to be appointed by Incannex to prepare the Independent Expert’s Report.
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Independent Expert’s Report means
the independent expert’s report prepared by the Independent Expert for inclusion in the Scheme Booklet, which states the Independent Expert’s
opinion in relation to whether:
| (a) | the Share Scheme is in the best interest of Incannex Shareholders; and |
| (b) | the Option Scheme is in the best interest of Incannex Optionholders,
including any updates or amendments to this report made by the Independent Expert. |
Ineligible Foreign Shareholder
means any Share Scheme Participant whose address shown on the Incannex Share Register is a place outside the Eligible Jurisdictions, unless,
no less than three Business Days prior to the Share Scheme Meeting, Incannex and US HoldCo agree in writing that it is lawful and not
unduly onerous or unduly impracticable to issue that Incannex Shareholder with the US HoldCo Shares when the Share Scheme becomes Effective..
Ineligible Foreign Optionholder
means any Option Scheme Participant whose address shown on the Incannex Option Register is a place outside the Eligible Jurisdictions,
unless, no less than three Business Days prior to the Option Scheme Meeting, Incannex and US HoldCo agree in writing that it is lawful
and not unduly onerous or unduly impracticable to issue that Incannex Optionholder with the US HoldCo Options when the Option Scheme becomes
Effective.
Listing Rules means the official
listing rules of the ASX.
Marketable Parcel has the meaning
given to that term in the Listing Rules, with the closing price on the last day of Incannex Shares trading on ASX used to determine this.
NASDAQ means the NASDAQ Stock
Market LLC.
Option Scheme means the scheme
of arrangement pursuant to Part 5.1 of the Corporations Act between Incannex and the Option Scheme Participants, the form of which is
set out in Schedule 3 (as amended by the parties in writing from time to time), together with any alterations or conditions made or required
by the Court under section 411(6) of the Corporations Act and approved in writing by US Holdco and Incannex.
Option Scheme Consideration
means the consideration to be provided by US Holdco to each Option Scheme Participant (other than Ineligible Foreign Optionholders) for
the cancellation of each Scheme Option under the Option Scheme as defined in clause 5.3(a).
Option Scheme Deed Poll means
the deed poll to be entered into by US Holdco the form of which is set out in Schedule 4 or in such other form as agreed in writing between
Incannex and US Holdco.
Option Scheme Meeting means
the meeting of Incannex Optionholders convened by the Court in relation to the Option Scheme pursuant to section 411(1) of the Corporations
Act and includes any adjournment of that meeting.
Option Scheme Participant means
each person who is an Incannex Optionholder on the Record Date.
Record Date means 7:00pm on
the second Business Day following the Effective Date, or such other date (after the Effective Date) as Incannex and US Holdco may agree
in writing.
Regulator’s Draft has the meaning
given in clause 6.2(e)(i).
Regulatory Authority includes:
| (a) | a government or governmental, semi-governmental, administrative, fiscal or judicial entity or authority; |
| (b) | a minister, department, office, commission, delegate, instrumentality, tribunal, agency, board, authority or organisation of any government; |
| (c) | any regulatory organisation established under statute; |
| (d) | any stock or securities exchange; |
| (e) | in particular, ASX, ASIC, SEC and NASDAQ; and |
| (f) | any representative of any of the above. |
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Relevant Interest has the meaning given to that term
in the Corporations Act.
Representative means:
| (a) | in relation to Incannex, any director, officer or employee of any member of Incannex and any financier,
financial adviser, accounting adviser, auditor, legal adviser or technical or other expert adviser or consultant to Incannex in relation
to the Transaction; and |
| (b) | in relation to US Holdco, any director, officer or employee of any member of US Holdco and any financier,
financial adviser, accounting adviser, auditor, legal adviser or technical or other expert adviser or consultant to US Holdco in relation
to the Transaction. |
RG 60 means Regulatory Guide 60 issued by ASIC in
September 2020.
RG 112 means Regulatory Guide 112 issued by ASIC
on 30 March 2011, as amended.
Sale Agent means a person appointed
by US Holdco to administer the Sale Facility and to sell or arrange the sale of US Holdco Shares that would otherwise be issued to or
for the benefit of Ineligible Foreign Shareholders or Small Parcel Holders (excluding Excluded Small Parcel Holders) under the terms of
the Share Scheme.
Sale Election Form means the
form pursuant to which Small Parcel Holders may elect not to participate in the Sale Facility and be treated as Excluded Small Parcel
Holders as contemplated in clause 4.5.
Sale Facility means the facility
to be administered by the Sale Agent pursuant to which Ineligible Foreign Shareholders and Small Parcel Holders (excluding Excluded Small
Parcel Holders) will have their Share Scheme Consideration sold on their behalf and have the net proceeds of sale remitted to them under
the terms of the Share Scheme.
Scheme Booklet means the information
booklet to be despatched to all Incannex Shareholders and Incannex Optionholders and approved by the Court in connection with the Schemes,
including the Share Scheme, the Option Scheme, the explanatory statement in respect of the Schemes, the Independent Expert’s Report and
the notice of meeting.
Scheme Options means all of
the Incannex Options on issue on the Record Date.
Scheme Shares means all of the
Incannex Shares on issue on the Record Date other than Excluded Shares.
Schemes means the Share Scheme
and the Option Scheme.
SEC means the U.S. Securities
and Exchange Commission.
Second Court Date means the
first day on which the application made to the Court for an order pursuant to section 411(4)(b) of the Corporations Act approving the
Share Scheme and Option Scheme is heard or, if the application is adjourned for any reason, the first day on which the adjourned application
is heard.
Share Scheme means the scheme
of arrangement pursuant to Part 5.1 of the Corporations Act between Incannex and Incannex Shareholders, the form of which is set out in
Schedule 1, together with any alterations or conditions made or required by the Court under section 411(6) of the Corporations Act and
approved in writing by US Holdco and Incannex.
Share Scheme Consideration means
such number of US Holdco Shares for each Scheme Share held by Share Scheme Participants at 7:00pm on the Record Date as described in clause
4.3.
Share Scheme Deed Poll means
the deed poll to be entered into by US Holdco, the form of which is set out in Schedule 2 or in such other form as agreed in writing between
Incannex and US Holdco.
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Share Scheme Meeting means the
meeting of Incannex Shareholders convened by the Court in relation to the Share Scheme pursuant to section 411(1) of the Corporations
Act and includes any adjournment of that meeting.
Share Scheme Participant means
each person who is an Incannex Shareholder on the Record Date (other than Excluded Shareholders).
Small Parcel Holder means a
Share Scheme Participant who is not an Ineligible Foreign Shareholder and who holds less than a Marketable Parcel of Incannex Shares on
the Record Date.
Subsidiaries has the meaning
given to that term in section 9 of the Corporations Act.
Trading Day means a trading
day as defined in the Listing Rules.
Transaction means:
| (a) | the acquisition by US Holdco of all of the Scheme Shares in consideration for US Holdco issuing US Holdco
Shares pursuant to this deed, the Share Scheme and the Share Scheme Deed Poll; and |
| (b) | the cancellation of the Scheme Options in consideration for US Holdco issuing US Holdco Options pursuant
to this deed, the Option Scheme and the Option Scheme Deed Poll. |
US Holdco means Incannex Healthcare
Inc., a corporation incorporated in the State of Delaware, United States of America and whose principal business address is 18 East 50th
Street, 5th Floor, New York, NY 10022.
US Holdco Board means the board
of directors of US Holdco.
US Holdco Group means US Holdco
and its Subsidiaries.
US Holdco Information means
the information that US Holdco provides to Incannex under clause 6.3(a) for inclusion in the Scheme Booklet.
US Holdco Option means an option
issued by US Holdco to acquire a US Holdco Share.
US Holdco Option Register means
the register of US Holdco optionholders maintained by or on behalf US Holdco and maintained in accordance with the Delaware General Corporation
Law.
US Holdco Optionholder means
a person who is registered in US Holdco Option Register as the holder of one or more US Holdco Options, from time to time.
US Holdco Share means a share
of common stock of US Holdco.
US Holdco Share Register means
the register of US Holdco shareholders maintained by or on behalf US Holdco and maintained in accordance with the Delaware General Corporation
Law.
In this deed, except where the context
otherwise requires:
| (a) | the singular includes the plural and vice versa, and a gender includes other genders; |
| (b) | another grammatical form of a defined word or expression has a corresponding meaning; |
| (c) | a reference to a clause, paragraph, or schedule is to a clause or paragraph of, or schedule to, this deed,
and a reference to this deed includes any schedule; |
| (d) | a reference to a document or instrument includes the document or instrument as novated, altered, supplemented
or replaced from time to time; |
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| (e) | a reference to A$, dollar, Australian dollar or $ is to Australian currency; |
| (f) | a reference to US$ or USD is to the lawful currency of the United States; |
| (g) | a reference to time is to time in Melbourne, Victoria, unless otherwise noted; |
| (h) | a reference to a party is to a party to this deed, and a reference to a party to a document includes the
party’s executors, administrators, successors and permitted assigns and substitutes; |
| (i) | a reference to a person includes a natural person, partnership, body corporate, association, governmental
or local authority or agency or other entity; |
| (j) | a reference to a statute, ordinance, code or other law includes regulations and other instruments under
it and consolidations, amendments, re-enactments or replacements of any of them; |
| (k) | a word or expression defined in the Corporations Act and not otherwise defined in this deed has the meaning
given to it in the Corporations Act; |
| (l) | the meaning of general words is not limited by specific examples introduced by including, for example
or similar expressions; |
| (m) | any agreement, representation, warranty or indemnity in favour of two or more parties (including where
two or more persons are included in the same defined term) is for the benefit of them jointly and severally; |
| (n) | a rule of construction does not apply to the disadvantage of a party because the party was responsible
for the preparation of this deed or any part of it; and |
| (o) | if a day on or by which an obligation must be performed or an event must occur is not a Business Day,
the obligation must be performed or the event must occur on or by the next Business Day. |
Where this deed makes reference to
the knowledge or awareness of a party, or any similar reference, such knowledge or awareness will be taken to mean the actual knowledge
and awareness of the party, but will not include any deemed or imputed knowledge of the party.
2 | Agreement to propose and implement Schemes |
2.1 | Incannex to propose Share Scheme and Option Scheme |
| (a) | Incannex agrees to propose the Share Scheme and the Option Scheme on and subject to the terms and conditions of this deed. |
| (b) | US Holdco agrees to assist Incannex to propose the Share Scheme and Option Scheme on and subject to the terms and conditions of this
deed. |
2.2 | Agreement to implement Transaction |
The parties agree to implement the Transaction on the terms
and conditions of this deed.
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3.1 | Conditions Precedent to implementation of the Share Scheme |
Subject to this clause 3, the Share Scheme will not
become Effective, and the respective obligations of the parties in relation to the implementation of the Share Scheme are not
binding, unless each of the following conditions precedent are satisfied
or waived to the extent and in the manner set out in this clause 3:
| (a) | Regulatory Approvals: before 5:00pm on the Business Day before the Second Court Date in relation
to the Share Scheme: |
| (i) | ASIC: ASIC has issued or provided all such reliefs, confirmations, consents, approvals, qualifications
or exemptions, or does such other acts which the parties agree are reasonably necessary or desirable to implement the Share Scheme and
such reliefs, waivers, confirmations, consents, approvals, qualifications or exemptions or other acts (as the case may be) have not been
withdrawn, suspended, varied or revoked; |
| (ii) | ASX: ASX has issued or provided all such reliefs, confirmations, consents, approvals, waivers or
does such other acts which the parties agree are reasonably necessary to implement the Share Scheme and such reliefs, confirmations, consents,
approvals, waivers or other acts (as the case may be) have not been withdrawn, suspended, varied or revoked; |
| (iii) | Other: all other regulatory approvals, waivers, consents, exemptions or declarations that are necessary
or required by law, or by any Regulatory Authority, to implement the Share Scheme on the basis set out in this deed, to complete the transactions
contemplated by this deed being granted, given, made or obtained and those regulatory approvals or waivers not being withdrawn, cancelled,
revoked or varied in a manner that is materially adverse to the parties (or subject to any notice, intimation or indication of intention
to do any such thing); |
| (b) | Incannex Shareholder Approval: Incannex Shareholders approve the Share Scheme at the Share Scheme
Meeting by the requisite majorities under section 411(4)(a) of the Corporations Act, as modified under section 411(4)(a)(ii)(A) of the
Corporations Act or otherwise; |
| (c) | Court Approval of Share Scheme: the Court approves the Share Scheme in accordance with section
411(4)(b) of the Corporations Act, in a manner that satisfies section 3(a)(10) of the US Securities Act of 1933 with respect to all securities
to be offered, issued or sold by US Holdco under the Share Scheme; |
| (d) | Share Scheme Orders lodged with ASIC: an office copy of the Court order approving the Share Scheme
under section 411(10) of the Corporations Act is lodged with ASIC; |
| (e) | Restraining Orders: as at 8:00am on the Second Court Date, no judgement, order, decree, statute,
law, ordinance, rule of regulation, or other temporary restraining order, preliminary or permanent injunction, restraint or prohibition
or other order or decision has been issued, made, entered, enacted, promulgated or enforced by any court of competent jurisdiction or
any Regulatory Authority remains in effect that prohibits, restricts, makes illegal or restrains the completion of the Share Scheme, and
there is no other legal restraint or prohibition, preventing the consummation of any aspect of the Share Scheme on the Implementation
Date; |
| (f) | Independent Expert Report: the Independent Expert provides a report to Incannex that concludes
that the Share Scheme is in the best interests of Incannex Shareholders on or before the time when the Scheme Booklet is registered by
ASIC under the Corporations Act and the Independent Expert not withdrawing or adversely modifying that conclusion before 8:00am on the
Second Court Date; and |
| (g) | NASDAQ Listing: prior to 8:00am on the Second Court Date, Nasdaq has confirmed it has no objections
to listing on NASDAQ of US Holdco Shares, subject to official notice of issuance following implementation and any customary conditions. |
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3.2 | Conditions Precedent to implementation of the Option Scheme |
Subject to this clause 3, the Option
Scheme will not become Effective, and the respective obligations of the parties in relation to the implementation of the Option Scheme
are not binding, unless each of the following conditions precedent are satisfied or waived to the extent and in the manner set out in
this clause 3:
| (a) | Regulatory Approvals: before 5:00pm on the Business Day before the Second Court Date in relation
to the Option Scheme: |
| (i) | ASIC: ASIC has issued or provided all such relief, confirmations, consents, approvals, qualifications
or exemptions, or does such other acts which are necessary to implement the Option Scheme on the basis set out in this deed and complete
the transactions contemplated by this deed and such relief, waivers, confirmations, consents, approvals, qualifications or exemptions
or other acts (as the case may be) have not been withdrawn, suspended, varied or revoked; |
| (ii) | ASX: ASX has issued or provided all such relief, confirmations, consents, approvals, waivers or
does such other acts which are necessary to implement the Option Scheme on the basis set out in this deed and complete the transactions
contemplated by this deed and such relief, confirmations, consents, approvals, waivers or other acts (as the case may be) have not been
withdrawn, suspended, varied or revoked; |
| (iii) | Other approvals: all other regulatory approvals, waivers, consents, exemptions or declarations
that are necessary or required by law, or by any Regulatory Authority, to implement the Option Scheme on the basis set out in this deed,
to complete the transactions contemplated by this deed being granted, given, made or obtained and those regulatory approvals or waivers
not being withdrawn, cancelled, revoked or varied in a manner that is materially adverse to the parties (or subject to any notice, intimation
or indication of intention to do any such thing). |
| (b) | Incannex Optionholder Approval: Incannex Optionholders approve the Option Scheme at the Option
Scheme Meeting by the requisite majorities under section 411(4)(a) of the Corporations Act; |
| (c) | Court Approval of Option Scheme: the Court approves the Option Scheme in accordance with section
411(4)(b) of the Corporations Act, in a manner that satisfies section 3(a)(10) of the US Securities Act of 1933 with respect to all securities
to be offered, issued or sold by US Holdco under the Option Scheme; |
| (d) | Incannex Shareholder Approval of Share Scheme: Incannex Shareholders approve the Share Scheme at
the Share Scheme Meeting by the requisite majorities under section 411(4)(a) of the Corporations Act, as modified under section 411(4)(a)(ii)(A)
of the Corporations Act or otherwise; |
| (e) | Court Approval of Share Scheme: the Court approves the Share Scheme in accordance with section
411(4)(b) of the Corporations Act, in a manner that satisfies section 3(a)(10) of the US Securities Act of 1933 with respect to all securities
to be offered, issued or sold by US Holdco under the Share Scheme; |
| (f) | Option Scheme Orders lodged with ASIC: an office copy of the Court order approving the Option Scheme
under section 411(10) of the Corporations Act is lodged with ASIC; |
| (g) | Restraining Orders: as at 8:00am on the Second Court Date, no judgement, order, decree, statute,
law, ordinance, rule of regulation, or other temporary restraining order, preliminary or permanent injunction, restraint or prohibition
or other order or decision has been issued, made, entered, enacted, promulgated or enforced by any court of competent jurisdiction or
any Regulatory Authority remains in effect that prohibits, restricts, makes illegal or restrains the completion of the Option Scheme,
and there is no other legal restraint or prohibition, preventing the consummation
of any aspect of the Option Scheme on the Implementation Date; and |
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| (h) | Independent Expert Report: the Independent Expert provides a report to Incannex that concludes
that the Option Scheme is in the best interests of Incannex Optionholders on or before the time when the Scheme Booklet is registered
by ASIC under the Corporations Act and the Independent Expert not withdrawing or adversely modifying that conclusion before 8:00am on
the Second Court Date. |
3.3 | Reasonable endeavours to satisfy Conditions Precedent |
Each of the parties will use its reasonable endeavours to
procure that:
| (a) | each of the Conditions Precedent is satisfied as soon as practicable after the date of this deed and continues
to be satisfied at all times until the last time it is to be satisfied (as the case may require); and |
| (b) | there is no occurrence within the control of Incannex or US Holdco (as the context requires) or their
Affiliates that would prevent the Conditions Precedent being satisfied. |
3.4 | Waiver of Conditions Precedent |
| (a) | In relation to the Share Scheme, the Conditions Precedent in: |
| (i) | clauses 3.1(a)(i) and 3.1(a)(ii) (ASIC and ASX Regulatory Approvals), 3.1(b) (Incannex Shareholder
Approval), 3.1(c) (Court Approval of Share Scheme), 3.1(d) (Share Scheme Orders Lodged with ASIC), 3.1(e) (Restraining
Orders) and 3.1(g) (NASDAQ Listing) are for the benefit of both parties and cannot be waived; |
| (ii) | clause 3.1(a)(iii) (Other Regulatory Approvals) is for the benefit of both parties, and any breach
or non-fulfilment of such Condition Precedent may only be waived (if capable of waiver) with the written consent of both parties, which
consent either party may give or withhold in its absolute discretion; and |
| (iii) | clause 3.1(f) (Independent Expert Report) is for the sole benefit of, and any breach or non-fulfilment
of such Condition Precedent may only be waived with the written consent of, Incannex. |
| (b) | In relation to the Option Scheme, the Conditions Precedent in: |
| (i) | clauses 3.2(a)(i) and 3.2(a)(ii) (ASIC and ASX Regulatory Approvals), 3.2(b) (Incannex Optionholder
Approval), 3.2(c) (Court Approval of Option Scheme), 3.2(d) (Incannex Shareholder Approval of Share Scheme), 3.2(f)
(Option Scheme Orders lodged with ASIC) and 3.2(g) (Restraining Orders) are for the benefit of both parties and cannot be
waived; |
| (ii) | clause 3.2(a)(iii) (Other Regulatory Approvals) is for the benefit of both parties, and any breach
or non-fulfilment of such Condition Precedent may only be waived (if capable of waiver) with the written consent of both parties, which
consent either party may give or withhold in its absolute discretion; |
| (iii) | clause 3.2(e) (Court Approval of Share Scheme) is for the benefit of both parties, and any breach
or non-fulfilment of such Condition Precedent may only be waived with the written consent of both parties, which consent either party
may give or withhold in its absolute discretion; and |
| (iv) | clause 3.2(h) (Independent Expert Report) is for the sole benefit of, and any breach or non-fulfilment
of such Condition Precedent may only be waived with the written consent of, Incannex. |
| (c) | A party entitled to waive the breach or non-fulfilment of a Condition Precedent pursuant this clause 3.4
may do so in its absolute discretion subject to the provision of written notice to the other party. Any such waiver by a party for whose
benefit the relevant Condition Precedent applies must take place on or prior to
8:00am on the Second Court Date. |
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| (d) | If a party waives the breach or non-fulfilment of a Condition Precedent, that waiver precludes the party
from suing another party for any breach of this deed that resulted in the breach or non-fulfilment of the Condition Precedent. |
| (e) | Waiver of a breach or non-fulfilment in respect of one Condition Precedent does not constitute: |
| (i) | a waiver of breach or non-fulfilment of any other Condition Precedent resulting from the same event; or |
| (ii) | a waiver of breach or non-fulfilment of that Condition Precedent resulting from any other event. |
3.5 | Certificates in relation to Conditions Precedent |
| (a) | At the hearing at which the application for an order under section 411(4)(b) of the Corporations Act approving
the Share Scheme is considered by the Court, Incannex and US Holdco will provide a joint certificate to the Court confirming whether or
not the Conditions Precedent in relation to the Share Scheme have been satisfied or waived in accordance with the terms of this deed. |
| (b) | At the hearing at which the application for an order under section 411(4)(b) of the Corporations Act approving
the Option Scheme is considered by the Court, Incannex and US Holdco will provide a joint certificate to the Court confirming whether
or not the Conditions Precedent in relation to the Option Scheme have been satisfied or waived in accordance with the terms of this deed. |
| (c) | The parties shall use their reasonable endeavours to agree drafts of the joint certificates for the Share
Scheme and Option Scheme referred to in this clause 3.5 by 8:00am on the Second Court Date. |
3.6 | Conditions Precedent not met |
If:
| (a) | there is a non-fulfilment of a Condition Precedent which is not waived in accordance with this deed by
the time or date specified in this deed for the satisfaction of the Condition Precedent; |
| (b) | there is an act, failure to act or occurrence which will prevent a Condition Precedent being satisfied
by the time or date specified in this deed for the satisfaction of the Condition Precedent (and the non-fulfilment which would otherwise
occur has not already been waived in accordance with this deed); or |
| (c) | it becomes more likely than not that the Share Scheme or Option Scheme will not become Effective by the
End Date, |
the parties must consult in good faith with a view to:
| (d) | considering and if agreed, determining whether the Transaction may proceed by way of alternative means
or methods; |
| (e) | considering and if agreed, extending the time or date for satisfaction of the relevant Condition Precedent
or the End Date (as applicable); or |
| (f) | considering and if agreed, changing the date of application made to the Court for an order under section
411(4)(b) of the Corporations Act approving the Share Scheme and/or the Option Scheme or adjourning that application to another date agreed
to in writing by the parties (being a date no later than five Business Days before the End Date). |
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If the parties are unable to reach
agreement under clause 3.6 within five Business Days (or any shorter period ending on 5:00pm on the day before the Second Court Date),
either party may terminate this deed and such termination will be in accordance with clause 77.
4 | Transaction steps – Share Scheme |
| (a) | Incannex must, as soon as reasonably practicable after the Execution Date, propose the Share Scheme to
Incannex Shareholders on and subject to the terms and conditions of this deed and the Share Scheme. |
| (b) | If the Share Scheme becomes Effective, on the Implementation Date: |
| (i) | all of the Scheme Shares held by Share Scheme Participants on the Record Date will be transferred to US
Holdco; and |
| (ii) | in exchange, each Share Scheme Participant will receive the Share Scheme Consideration in accordance with
the terms of this deed, the Share Scheme and the Share Scheme Deed Poll. |
4.2 | No amendment to the Share Scheme without consent |
Incannex must not consent to any modification
of, or amendment to, or the making or imposition by the Court of any condition in respect of, the Share Scheme without the prior written
consent of US Holdco.
4.3 | Share Scheme Consideration |
| (a) | Subject to clauses 4.4 and 4.5, US Holdco undertakes and warrants to Incannex (in its own right and on
behalf of each Share Scheme Participant) that in consideration of the transfer to US Holdco of each Scheme Share held by a Share Scheme
Participant under the terms of the Share Scheme, US Holdco will (subject to the terms of this deed, the Share Scheme and the Share Scheme
Deed Poll) on the Implementation Date: |
| (i) | in the case of a Share Scheme Participant who holds Scheme Shares (other than the Australian custodian
for the ADS Depositary, an Ineligible Foreign Shareholder or a Small Parcel Holder (excluding an Excluded Small Parcel Holder)), issue
one new US Holdco Share to that Share Scheme Participant for every 100 Scheme Shares held by that Share Scheme Participant on the Record
Date; |
| (ii) | in the case of a Share Scheme Participant who holds Scheme Shares on behalf of the ADS Depositary (who
itself holds Incannex Shares for the benefit of the ADS Holders), being the Australian custodian for the ADS Depositary: |
| (A) | issue one US Holdco Share to the ADS Depositary for every 100 Scheme Shares held by the ADS Depositary;
and |
| (B) | procure the ADS Depositary to then, subject to compliance by the ADS Holder within the terms of the arrangements
pursuant to which the ADS Depositary acts as depositary for ADS Holders, deliver (by way of exchange) such US Holdco Shares to the ADS
Holders on the basis of one US Holdco Share for every four Incannex ADSs held by the ADS Holder on the Record Date; and |
| (iii) | issue to the Sale Agent such number of US Holdco Shares in accordance with clauses 4.4 and 4.5 that Ineligible
Foreign Shareholders and Small Parcel Holders (excluding Excluded Small Parcel Holders) would otherwise have been entitled to. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (b) | Where the calculation of the number of US Holdco Shares to be issued to a particular Share Scheme Participant
would result in the issue of a fraction of a US Holdco Share, then any such fractional entitlement will be rounded up to the nearest whole
number of US Holdco Shares. |
| (c) | Incannex acknowledges that the undertaking by US Holdco in clause 4.3(a) is given to Incannex in its own
right and in its capacity as trustee for each Share Scheme Participant. |
4.4 | Ineligible Foreign Shareholders |
| (a) | US Holdco will be under no obligation under this deed to allot or issue, and will not issue or procure
to be issued any Share Scheme Consideration (in the form of US Holdco Shares) in the name of any Ineligible Foreign Shareholder and, instead,
will issue US Holdco Shares to which the Ineligible Foreign Shareholder would have otherwise been entitled to the Sale Agent, in trust
for the Ineligible Foreign Shareholder who is the beneficial owner thereof. |
| (i) | instruct the Sale Agent, acting on behalf of the Ineligible Foreign Shareholders and not on behalf of
Incannex or US Holdco, to sell all of the US Holdco Shares issued in the name of the Sale Agent pursuant to clause 4.4(a) in such manner,
or such financial market, at such price and on such other terms as the Sale Agent determines in good faith, as soon as reasonably practicable
and in any event not more than eight weeks after the Implementation Date; and |
| (ii) | remit, or procure to be remitted, to the Ineligible Foreign Shareholder the proceeds of its sale (on an
averaged basis so that all Ineligible Foreign Shareholders receive the same price per US Holdco Share, subject to rounding to the nearest
whole cent) in Australian dollars (after deducting any applicable brokerage, foreign exchange, stamp duty and other selling costs, taxes
and charges). |
| (a) | Subject to clause 4.5(b), US Holdco will be under no obligation under this deed to allot or issue, and
will not issue or procure to be issued any Share Scheme Consideration (in the form of US Holdco Shares) in the name of any Small Parcel
Holder and, instead, will issue US Holdco Shares to which the Small Parcel Holder would have otherwise been entitled to the Sale Agent,
in trust for the Small Parcel Holder who is the beneficial owner thereof. |
| (b) | A Small Parcel Holder will be entitled, by providing a valid Sale Election Form on or before 7:00pm on
the Effective Date, to elect not to participate in the Sale Facility and be treated as an Excluded Small Parcel Holder for the purposes
of this clause 4.5. In the absence of such an election, each Small Parcel Holder will have any Share Scheme Consideration attributable
to them under the Share Scheme issued to the Sale Agent pursuant to this clause 4.5. |
| (i) | instruct the Sale Agent, acting on behalf of Small Parcel Holders (excluding Excluded Small Parcel Holders)
and not on behalf of Incannex or US Holdco, to sell all of the US Holdco Shares issued in the name of the Sale Agent pursuant to clause
4.5(a) in such manner, or such financial market, at such price and on such other terms as the Sale Agent determines in good faith, as
soon as reasonably practicable and in any event not more than eight weeks after the Implementation Date; and |
| (ii) | remit, or procure to be remitted, to the Small Parcel Holder (excluding Excluded Small Parcel Holders)
the proceeds of its sale (on an averaged basis so that all Small Parcel Holders (excluding Excluded Small Parcel Holders) receive
the same price per US Holdco Share, subject
to rounding to the nearest whole cent) in Australian dollars (after deducting any applicable brokerage, foreign exchange, stamp duty and
other selling costs, taxes and charges). |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
4.6 | US Holdco Shares to rank equally |
US Holdco covenants in favour of Incannex
(in its own right and on behalf of the Share Scheme Participants) that:
| (a) | US Holdco Shares to be issued pursuant to the Share Scheme will be duly and validly authorised and will
be of the same class of US Holdco Shares currently issued and outstanding and will rank equally in all respects with all issued and outstanding
US Holdco Shares; |
| (b) | US Holdco Shares issued as Share Scheme Consideration will be entitled to participate in and receive any
dividends or distribution of capital paid and any other entitlements accruing in respect of US Holdco Shares on and after the Implementation
Date; |
| (c) | each such US Holdco Share issued pursuant to the Share Scheme will be validly issued, fully paid, free
from any Encumbrance or other third party rights and non-assessable; and |
| (d) | it will use reasonable endeavours to ensure that US Holdco Shares issued as Share Scheme Consideration
will be listed for quotation on NASDAQ with effect from the Business Day after the Implementation Date (or such later date as NASDAQ may
require). |
4.7 | Share Scheme Deed Poll |
US Holdco covenants in favour of Incannex
(in its own right and separately as trustee for each of the Share Scheme Participants) to execute and deliver to Incannex before 5:00pm
on the Business Day prior to the First Court Date the Share Scheme Deed Poll.
5 | Transaction Steps – Option Scheme |
| (a) | Incannex must, as soon as reasonably practicable after the Execution Date, propose the Option Scheme to
Incannex Optionholders on and subject to the terms and conditions of this deed and the Option Scheme. |
| (b) | If the Option Scheme becomes Effective, on the Implementation Date: |
| (i) | all of the Scheme Options held by Option Scheme Participants on the Record Date will be cancelled; and |
| (ii) | in consideration for the cancellation of the Scheme Options, each Option Scheme Participant that is not
an Ineligible Foreign Optionholder will receive the Option Scheme Consideration in accordance with the terms of this deed, the Option
Scheme and the Option Scheme Deed Poll. |
5.2 | No amendment to the Option Scheme without consent |
Incannex must not consent to any modification
of, or amendment to, or the making or imposition by the Court of any condition in respect of, the Option Scheme without the prior written
consent of US Holdco.
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
5.3 | Option Scheme Consideration |
| (a) | US Holdco undertakes and warrants to Incannex (in its own right and on behalf of each Option Scheme
Participant) that in consideration for the Option Scheme Participants agreeing to cancel their respective Scheme Options under the
terms of the Option Scheme, US Holdco will on the Implementation
Date issue one US Holdco Option to each Option Scheme Participant that is not an Ineligible Foreign Optionholder for every 100 Scheme
Options held by that Option Scheme Participant on the Record Date (Option Scheme Consideration) in accordance with the terms of
the Option Scheme and Option Scheme Deed Poll. |
| (b) | Where the calculation of the number of US Holdco Options to be issued to a particular Option Scheme Participant
would result in the issue of a fraction of a US Holdco Option, then any such fractional entitlement will be rounded up to the nearest
whole number of US Holdco Options. |
| (c) | Incannex acknowledges that the undertaking by US Holdco in clause 5.3(a) is given to Incannex in its own
right and in its capacity as trustee and nominee for each Option Scheme Participant. |
5.4 | Terms of US Holdco Options |
Each US Holdco Option issued as Option
Scheme Consideration in accordance with the Option Scheme and the Option Scheme Deed Poll will:
| (a) | have an exercise price per US Holdco Share equal to 100 times the exercise price per Incannex Share of
the relevant Scheme Option it replaces, converted from Australian dollars to US dollars at the prevailing currency exchange rate on the
Implementation Date, as reasonably determined by Incannex; |
| (b) | have an exercise period equal to the unexpired exercise period of the relevant Scheme Option it replaces; |
| (c) | have the same terms as to vesting as the relevant Scheme Option it replaces; and |
| (d) | otherwise be on the same terms as the Scheme Option it replaces, with necessary changes due to US Holdco
being the issuer in place of Incannex. |
5.5 | Ineligible Foreign Optionholders |
US Holdco will be under no obligation
under this deed to allot or issue, and will not issue any Option Scheme Consideration (in the form of US Holdco Options) in the name of
any Ineligible Foreign Optionholder and, instead, any Scheme Options held by Ineligible Foreign Optionholders on the Record Date will
be cancelled for nil consideration.
5.6 | Option Scheme Deed Poll |
US Holdco covenants in favour of Incannex
(in its own right and separately as trustee for each of the Option Scheme Participants) to execute and deliver to Incannex before 5:00pm
on the Business Day prior to the First Court Date the Option Scheme Deed Poll.
6 | Implementation of the Schemes |
Incannex and US Holdco must each:
| (a) | use all reasonable endeavours and commit necessary resources (including management and corporate relations
resources and the resources of external advisers); and |
| (b) | procure that its officers and advisers act reasonably and work in a timely and co- operative fashion with
the other party (including by attending meetings and by providing information), |
to procure the preparation of the Scheme Booklet and implement
the Schemes as soon as reasonably practicable.
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Incannex must, acting at all times
in good faith, take all steps reasonably necessary to implement the Schemes as soon as reasonably practicable and on and subject to the
terms of this deed. Without limiting the foregoing, Incannex must (to the fullest extent applicable):
| (a) | (announce directors’ recommendation) following execution of this deed, announce, in the form
of its Agreed Public Announcement (on the basis of statements made to Incannex by each Incannex Director that): |
| (i) | in respect of the Share Scheme: |
| (A) | the Incannex Directors intend to recommend the Share Scheme to Incannex Shareholders and recommend that
Incannex Shareholders vote in favour of the Share Scheme at the Share Scheme Meeting; and |
| (B) | each Incannex Director intends to vote, or cause to be voted, all Incannex Shares in which they have a
Relevant Interest in favour of the Share Scheme at the Share Scheme Meeting, |
in each case in the absence of:
| (C) | the Independent Expert concluding in the Independent Expert’s Report (or any update or variation
to that report) that the Share Scheme is not in the best interests of Incannex Shareholders; or |
| (D) | in the case of the recommendation in clause 6.2(a)(i)(A), an Incannex Director making a determination
in accordance with clause 6.4; and |
| (ii) | in respect of the Option Scheme: |
| (A) | the Incannex Directors intend to recommend the Option Scheme to Incannex Optionholders and recommend that
Incannex Optionholders vote in favour of the Option Scheme at the Option Scheme Meeting; and |
| (B) | each Incannex Director intends to vote, or cause to be voted, all Incannex Options in which they have
a Relevant Interest in favour of the Option Scheme at the Option Scheme Meeting, |
in each case in the absence of:
| (C) | the Independent Expert concluding in the Independent Expert’s Report (or any update or variation
to that report) that the Option Scheme is not in the best interests of Incannex Optionholders; or |
| (D) | in the case of the recommendation in clause 6.2(a)(ii)(A), an Incannex Director making a determination
in accordance with clause6.4; |
| (b) | (Independent Expert) as soon as reasonably practicable after the Execution Date, appoint the Independent
Expert, in accordance with RG 112, and provide all assistance and information reasonably requested by the Independent Expert in connection
with the preparation of the Independent Expert’s Report (and any update to any such report); |
| (c) | (preparation of Scheme Booklet): |
| (i) | prepare the Scheme Booklet (other than US Holdco Information and the Independent Expert’s Report)
in accordance with all applicable laws (including the Corporations Act and Corporations Regulations), RG 60, the Listing Rules, applicable
United States securities laws and regulations, the applicable rules of NASDAQ and, subject to clause 6.3(a), include US Holdco Information
in the Scheme Booklet; and |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (ii) | consult with US Holdco as to the content and presentation of the Scheme Booklet, including providing US
Holdco with drafts of the Scheme Booklet and the factual information sections relating to US Holdco in the Independent Expert’s
Report, in a timely manner and, acting reasonably and in good faith, consider (and, where applicable, promptly provide to the Independent
Expert in writing) all reasonable comments from US Holdco and its Representatives on those drafts when preparing revised drafts, provided
that such comments are provided to Incannex in a timely manner (however, in relation to the Independent Expert’s Report, Incannex
is only responsible to ensure that the Independent Expert considers comments relating exclusively to factual accuracy); |
| (d) | (Incannex Directors recommendation and voting intentions in Scheme Booklet) state in the Scheme Booklet that: |
| (i) | in respect of the Share Scheme: |
| (A) | the Incannex Directors recommend the Share Scheme to Incannex Shareholders and recommend that Incannex
Shareholders vote in favour of the Share Scheme at the Share Scheme Meeting; and |
| (B) | each Incannex Director intends to vote, or cause to be voted, all Incannex Shares in which they have a
Relevant Interest in favour of the Share Scheme at the Share Scheme Meeting, |
in each case in the absence of:
| (C) | the Independent Expert concluding in the Independent Expert’s Report (or any update or variation
to that report) that the Share Scheme is not in the best interests of Incannex Shareholders; or |
| (D) | in the case of the recommendation in clause 6.2(d)(i)(A), an Incannex Director making a determination
in accordance with clause 6.4; and |
| (ii) | in respect of the Option Scheme: |
| (A) | the Incannex Directors recommend the Option Scheme to Incannex Optionholders and recommend that Incannex
Optionholders vote in favour of the Option Scheme at the Option Scheme Meeting; and |
| (B) | each Incannex Director intends to vote, or cause to be voted, all Incannex Options in which they have
a Relevant Interest in favour of the Option Scheme at the Option Scheme Meeting, |
in each case in the absence of:
| (C) | the Independent Expert concluding in the Independent Expert’s Report (or any update or variation
to that report) that the Option Scheme is not in the best interests of Incannex Optionholders; or |
| (D) | in the case of the recommendation in clause 6.2(d)(ii)(A), an Incannex Director making a determination
in accordance with clause 6.4; |
| (e) | (lodgement of Regulator’s Drafts) |
| (i) | no later than 14 days before the First Court Date, provide a near final draft of the Scheme Booklet (Regulator’s
Draft) to ASIC for its review for the purposes of section 411(2) of the Corporations Act, and provide a copy of the Regulator’s
Draft to US Holdco immediately thereafter; and |
| (ii) | keep US Holdco reasonably informed of any material issues raised by ASIC in relation to the Regulator’s
Draft and, where practical to do so, consult with US Holdco in good faith prior to taking any steps or actions to address any such material
issues (provided that, where such issues relate to US Holdco Information, Incannex must not take any steps to address
them without US Holdco’s prior written consent, not to be unreasonably withheld or delayed); |
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| (f) | (no objection statement) apply to ASIC for a statement under section 411(17)(b) of the Corporations
Act stating that ASIC has no objection to each of the Schemes; |
| (g) | (First Court Hearing) apply to the Court for orders under section 411(1) of the Corporations Act
directing Incannex to convene the Share Scheme Meeting and the Option Scheme Meeting; |
| (h) | (due diligence and verification) undertake appropriate due diligence and verification processes
in relation to the Incannex Information, and, once such processes have been completed, provide written confirmation to US Holdco of the
completion of such processes; |
| (i) | (approval and registration of Scheme Booklet) if the Court directs Incannex to convene the Share
Scheme Meeting and the Option Scheme Meeting, request that, in accordance with section 412(6) of the Corporations Act, ASIC register the
Scheme Booklet; |
| (j) | (Share Scheme Meeting and Option Scheme Meeting) as soon as reasonably practicable following registration
of the Scheme Booklet by ASIC, despatch the Scheme Booklet to Incannex Shareholders and Incannex Optionholders, and convene and hold the
Share Scheme Meeting and the Option Scheme Meeting in accordance with the orders made by the Court at the First Court Hearing; |
| (k) | (Director votes and participation) use its reasonable endeavours to procure that each Incannex
Director votes any Incannex Shares and Incannex Options in which they have a Relevant Interest in favour of the Share Scheme at the Share
Scheme Meeting and the Option Scheme at the Option Scheme Meeting and participates in reasonable efforts to promote the Share Scheme (in
the absence of the Independent Expert concluding in the Independent Expert’s Report (or any update or variation to that report)
that the Share Scheme is not in the best interests of Incannex Shareholders) and the Option Scheme (in the absence of the Independent
Expert concluding in the Independent Expert’s Report (or any update or variation to that report) that the Option Scheme is not in
the best interests of Incannex Optionholders); |
| (l) | (supplementary disclosure) if, after despatch of the Scheme Booklet, Incannex becomes aware: |
| (i) | that information included in the Scheme Booklet is or has become false, misleading or deceptive in any
material respect (whether by omission or otherwise); or |
| (ii) | of information that is required to be disclosed to Incannex Shareholders or Incannex Optionholders under
any applicable law or having regard to RG 60 but was not included in the Scheme Booklet, |
promptly disclose such information to
and consult with US Holdco in good faith as to the need for, and form of, any supplementary disclosure to Incannex Shareholders and Incannex
Optionholders, the need for, the timing of, and directions to be sought at, an additional application to the Court, and make any disclosure
that it is ordered to make or considers reasonably necessary in the circumstances, having regard to orders made by the Court, applicable
laws and RG 60;
| (m) | (Conditions Precedent certificate) at the Second Court Hearing, provide to the Court (through its
counsel): |
| (i) | a certificate confirming (in respect of matters within its knowledge) whether or not the Conditions Precedent
in respect of the Share Scheme (other than the Conditions Precedent in clauses 3.1(c) and 3.1(d)) have been satisfied or waived in accordance
with clause 3, a draft of which certificate must be provided to US Holdco by 5:00pm on the Business Day prior to the Second Court Date; |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (ii) | a certificate confirming (in respect of matters within its knowledge) whether or not the Conditions Precedent
in respect of the Option Scheme (other than the Conditions Precedent in clauses 3.2(c), 3.2(e) and 3.2(f)) have been satisfied or waived
in accordance with clause 3, a draft of which certificate must be provided to US Holdco by 5:00pm on the Business Day prior to the Second
Court Date; and |
| (iii) | any certificate provided to it by US Holdco pursuant to clause 6.3(i); |
| (n) | (Second Court Hearing) subject to: |
| (i) | the Conditions Precedent (other than the Conditions Precedent in clauses 3.1(c) and 3.1(d)) being satisfied
or waived in accordance with clause 3, apply to the Court for orders under section 411(4)(b) of the Corporations Act approving the Share
Scheme; and |
| (ii) | the Conditions Precedent (other than the Conditions Precedent in clauses 3.2(c), 3.2(e) and 3.2(f)) being
satisfied or waived in accordance with clause 3, apply to the Court for orders under section 411(4)(b) of the Corporations Act approving
the Option Scheme; |
| (o) | (Court Documents) prepare the Court Documents, provide drafts of those documents to US Holdco in
a timely manner and, acting reasonably and in good faith, take into account all reasonable comments from US Holdco and its Representatives
on those drafts, provided that such comments are provided in a timely manner; |
| (p) | (extract Court order and notify ASX) as soon as reasonably possible after conclusion of the Second
Court Hearing: |
| (i) | obtain an office copy of the orders made by the Court under section 411(4)(b) of the Corporations Act
approving the Share Scheme; and |
| (ii) | obtain an office copy of the orders made by the Court under section 411(4)(b) of the Corporations Act
approving the Option Scheme, |
and, promptly after receipt of the orders, tell ASX of the
Incannex’s intention to lodge the Court orders with ASIC the following day;
| (q) | (lodgement of Court order) for the purposes of section 411(10) of the Corporations Act, lodge with
ASIC an office copy of the orders made by the Court under section 411(4)(b) of the Corporations Act approving the Share Scheme and the
Option Scheme before 5:00pm on the Business Day following the day on which it receives such office copy; |
| (r) | (suspension of trading and de-listing) apply to: |
| (A) | trading in Incannex Shares suspended from the close of trading on the Effective Date; and |
| (B) | Incannex removed from the official list of ASX, and quotation of Incannex Shares on ASX terminated, with
effect on and from the close of trading on the Trading Day immediately following, or shortly after, the Implementation Date, |
or, in each case, such other dates
as the parties may agree, acting reasonably, following consultation with ASX and not do anything to cause any of these things to happen
before the time specified in this clause 6.2(r); and
| (ii) | NASDAQ to have trading suspended in Incannex ADSs (by way of submission of a “corporate action”
form to NASDAQ in order to transfer the listing of the Incannex ADSs to a listing of US Holdco Shares) from the close of trading on NASDAQ
on the Implementation Date; |
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| (s) | (Share Scheme implementation): if the Court makes orders under section 411(4) of the Corporations
Act approving the Share Scheme: |
| (i) | determine the identity of each Share Scheme Participant and their entitlement to the Share Scheme Consideration
as at the Record Date, including by taking up-to-date copies of the Incannex Share Register current as at the Record Date; |
| (ii) | provide to US Holdco all information about the Share Scheme Participants that US Holdco reasonably requires
in order for US Holdco to provide the Share Scheme Consideration to the Share Scheme Participants in accordance with the Share Scheme; |
| (iii) | execute proper instruments of transfer of and giving effect to and registering the transfer of the Incannex
Shares to US Holdco in accordance with the Share Scheme; |
| (iv) | do all other things contemplated by or necessary to give effect to the Share Scheme and the orders of
the Court; |
| (t) | (Option Scheme Implementation) if the Court makes orders under section 411(4) of the Corporations
Act approving the Option Scheme: |
| (i) | determine the identity of each Option Scheme Participant and their entitlement to the Option Scheme Consideration
as at the Record Date, including by taking up-to-date copies of the Incannex Option Register current as at the Record Date; |
| (ii) | provide to US Holdco all information about the Option Scheme Participants that US Holdco reasonably requires
in order for US Holdco to provide the Option Scheme Consideration to the Option Scheme Participants in accordance with the Option Scheme;
and |
| (iii) | subject to US Holdco satisfying its obligations to provide the Option Scheme Consideration to the Option
Scheme Participants in accordance with the Option Scheme, cancel the Scheme Options on the Implementation Date; |
| (u) | (Share Scheme Consideration) subject to the Share Scheme being Effective, facilitate the provision
of the Share Scheme Consideration to Share Scheme Participants; |
| (v) | (Option Scheme Consideration) subject to the Option Scheme being Effective, facilitate the provision
of the Option Scheme Consideration to Option Scheme Participants; and |
| (w) | (compliance with laws) do everything reasonably within its power to ensure that the Transaction
is effected in accordance with all applicable laws, regulations and policy. |
US Holdco must, acting at all times
in good faith, take all steps reasonably necessary to implement the Schemes as soon as reasonably practicable and on and subject to the
terms of this deed. Without limiting the foregoing, US Holdco must (to the fullest extent applicable):
| (a) | (prepare US Holdco Information) |
| (i) | as soon as reasonably practicable after the Execution Date, prepare the US Holdco Information for
inclusion in the Scheme Booklet in accordance with all applicable laws (including the Corporations Act and Corporations
Regulations), RG 60 and the Listing Rules; and |
| (ii) | provide Incannex with drafts of the US Holdco Information in a timely manner and, acting reasonably and
in good faith, take into account all reasonable comments from Incannex and its Representatives on those drafts, provided that such comments
are provided to US Holdco in a timely manner; |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (b) | (assistance with Scheme Booklet and Court Documents) provide any assistance or information reasonably
requested by Incannex or its Representatives in connection with the preparation of the Scheme Booklet (including any supplementary disclosure
to Incannex Shareholders or Incannex Optionholders) or any Court Documents, including reviewing the drafts of the Scheme Booklet prepared
by Incannex and provide comments in a timely manner on those drafts in good faith; |
| (c) | (Independent Expert’s Report) subject to the Independent Expert agreeing to reasonable confidentiality
restrictions, provide any assistance or information reasonably requested by Incannex or its Representatives, or by the Independent Expert,
in connection with the preparation of the Independent Expert’s Report (and any update or variation to any such report); |
| (d) | (due diligence and verification) undertake appropriate due diligence and verification processes
in relation to the US Holdco Information, and, once those processes have been completed, provide written confirmation to Incannex of the
completion of such processes; |
| (e) | (confirmation of US Holdco Information) promptly after Incannex requests that it does so, confirm
in writing to Incannex that: |
| (i) | it consents to the inclusion of the US Holdco Information in the Scheme Booklet, in the form and context
in which the US Holdco Information appears; and |
| (ii) | the US Holdco Information in the Scheme Booklet is not misleading or deceptive in any material respect
(whether by omission or otherwise), and the inclusion of such US Holdco Information, in that form and context, has been approved by the
US Holdco Board; |
| (f) | (Share Scheme Deed Poll and Option Scheme Deed Poll) before 5:00pm on the Business Day prior to
the First Court Date, enter into the Share Scheme Deed Poll and the Option Scheme Deed Poll and deliver them to Incannex, and: |
| (i) | if the Share Scheme becomes Effective, fully comply with its obligations under the Share Scheme Deed Poll;
and |
| (ii) | if the Option Scheme becomes Effective, fully comply with its obligations under the Option Scheme Deed
Poll; |
| (g) | (United States legal opinion): deliver to Incannex an opinion from its United States legal counsel,
in a form satisfactory to Incannex (acting reasonably), that each of the Share Scheme Deed Poll and the Option Scheme Deed Poll are legally
binding on and enforceable against US Holdco under the laws of Delaware; |
| (h) | (update US Holdco Information) promptly advise Incannex in writing if it becomes aware: |
| (i) | of information which should have been but was not included in the US Holdco Information in the Scheme
Booklet (including if known at the time), and promptly provide Incannex with the omitted information; or |
| (ii) | that the US Holdco Information in the Scheme Booklet is or
has become misleading or deceptive in any material respect (whether by omission or otherwise), and promptly provide Incannex with any
information required to correct the misleading or deceptive statements; |
| (i) | (Conditions Precedent certificate) before 8:00am on the Second Court Date, provide to Incannex
for provision to the Court at the Second Court Hearing: |
| (i) | a certificate confirming (in respect of matters within its knowledge) whether or not the Conditions Precedent
in respect of the Share Scheme (other than the Conditions Precedent in clauses 3.1(c) and 3.1(d)) have been satisfied or waived in accordance
with clause 3, a draft of which certificate must be provided to Incannex by 5:00pm on the Business Day prior to the Second Court Date; |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (ii) | a certificate confirming (in respect of matters within its knowledge) whether or not the Conditions Precedent
in respect of the Option Scheme (other than the Conditions Precedent in clauses 3.2(c), 3.2(e) and 3.2(f)) have been satisfied or waived
in accordance with clause 3, a draft of which certificate must be provided to Incannex by 5:00pm on the Business Day prior to the Second
Court Date; |
| (j) | (Share Scheme Consideration) if the Share Scheme becomes Effective, do all things necessary to
issue the Share Scheme Consideration in accordance with the terms of this deed, the Share Scheme and the Share Scheme Deed Poll; |
| (k) | (Option Scheme Consideration) if the Option Scheme becomes Effective, do all things necessary to
issue the Option Scheme Consideration in accordance with the terms of this deed, the Option Scheme and the Option Scheme Deed Poll; |
| (l) | (Scheme Shares transfer) if the Share Scheme becomes Effective, accept a transfer of the Scheme
Shares and execute instruments of transfer in respect of the Scheme Shares, in each case, in accordance with this deed, the Share Scheme
and the Share Scheme Deed Poll; |
| (m) | (US Holdco Shares) apply to NASDAQ to list US Holdco Shares via a successor listing (subject to
the Share Scheme becoming Effective), and use reasonable endeavours to obtain the satisfaction of any conditions imposed by NASDAQ for
such listing; and |
| (n) | (compliance with laws) do everything reasonably within its power to ensure that the Transaction
is effected in accordance with all applicable laws, regulations and policy. |
6.4 | Form of Recommendation |
Clauses 6.2(a) and 6.2(d) are qualified
to the extent that, after first obtaining written advice from external legal counsel, an Incannex Director reasonably determines that
they should not provide or continue to maintain any recommendation because that Incannex Director has an interest in the Share Scheme
or the Option Scheme that renders it inappropriate for them to maintain any such recommendation in relation to that Scheme.
| (a) | If the parties are unable to agree on the form or content of a particular part of the Scheme Booklet,
then: |
| (i) | if the relevant part of the Scheme Booklet is US Holdco Information, Incannex will make such amendments
to that part of the Scheme Booklet as required by US Holdco (acting reasonably and in good faith); and |
| (ii) | in any other case, Incannex (acting reasonably and in good faith) will decide the form and content of
that part of the Scheme Booklet. |
| (b) | The parties agree that the Scheme Booklet will contain a responsibility statement to the effect that: |
| (i) | Incannex is responsible for the Incannex Information contained in the Scheme Booklet; |
| (ii) | US Holdco is responsible for the US Holdco Information contained in the Scheme Booklet; and |
| (iii) | the Independent Expert is responsible for the Independent Expert’s Report, and none of Incannex,
US Holdco or their respective Representatives assumes any responsibility for the accuracy or completeness of the Independent Expert’s
Report or any other report or letter issued to Incannex by a third party in connection with the Independent Expert’s Report. |
| (c) | Each party must undertake appropriate verification processes for the information supplied by that party
for the Scheme Booklet. |
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Without limiting any other provision of this deed:
| (a) | either party may terminate this deed by notice in writing to the other party: |
| (i) | if the End Date has passed before the Transaction has been implemented (other than as a result of a breach
by the terminating party of its obligations under this deed); |
| (ii) | if each of the following has occurred: |
| (A) | the other party (being a defaulting party) is in breach of a material provision of this deed at any time
prior to 8:00am on the Second Court Date; |
| (B) | the terminating party (being a non-defaulting party) has given notice to the defaulting party setting
out the relevant circumstances of the breach and stating an intention to terminate this deed; and |
| (C) | the relevant circumstances have continued to exist 10 Business Days (or any shorter period ending at 8:00am
on the Second Court Date) from the time the notice in clause 7.1(a)(ii)(B) is given; |
| (iii) | if the required majorities of Incannex Shareholders do not approve the Share Scheme at the Share Scheme
Meeting; or |
| (iv) | if any of the Conditions Precedent in clause 3.1 or 3.2 is incapable of being satisfied or fulfilled (other
than as a result of a breach by the terminating party of its obligations under this deed); or |
| (v) | if a Court or other Regulatory Authority has issued an order, decree or ruling or taken other action that
permanently restrains or prohibits the Transaction and that order, decree, ruling or other action has become final and cannot be appealed;
and |
| (b) | either party may terminate this agreement if the other party consents to do so and both parties confirm
it in writing. |
Each party must give notice to the other party as soon as
practicable after it becomes aware of a breach by it of this deed.
| (a) | Any right to terminate this deed under clauses 7.1(a) or 7.1(b) that arises before the Second Court Date
ceases at 8:00am on the Second Court Date. |
| (b) | Subject to clause 7.3(a), any right to terminate this deed ceases when the Share Scheme becomes Effective. |
| (a) | If a party terminates this deed, each party will be released from all further obligations under this deed
other than under clauses 1, 8, 9, 10, 11 (other than 11.8) and 12. |
| (b) | Subject to any rights or obligations arising under or pursuant to clauses that are expressed to survive
termination (including by virtue of this clause 7.4), on termination of this deed, no party shall have any rights against or obligations
to any other party under this deed except for those rights and obligations which accrued prior to termination. |
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7.5 | Disclosure on termination of deed |
The parties agree that, if this deed is terminated under
this clause 7, any party may disclose:
| (a) | the fact that this deed has been terminated, where such disclosure is required by the Listing Rules or
the rules of NASDAQ, or is in the reasonable opinion of that party required to ensure that the market in its securities is properly informed; |
| (b) | the fact that this deed has been terminated to ASIC and the Court; and |
| (c) | information that is required to be disclosed as a matter of law or in any proceedings. |
8.1 | Announcement of transaction |
Immediately after execution of this
deed, Incannex must release the Agreed Public Announcement.
| (a) | Subject to clause 8.2(b), no public announcement or disclosure in relation to the Transaction or any subject
matter thereof, or any other transaction the subject of this deed, the Share Scheme or the Option Scheme (including any staff or client
announcements or presentations) may be made other than in a form approved by each party (acting reasonably), but each party must use all
reasonable endeavours to provide such approval as soon as practicable. |
| (b) | Where US Holdco, Incannex or any of their Affiliates is required by law and/or ASX (e.g., pursuant to
the Listing Rules), ASIC, SEC or NASDAQ, to make any announcement or make any filing or disclosure in relation to the Transaction or any
other transaction the subject of this deed, the Share Scheme or the Option Scheme, it may do so only after it has given as much notice
as possible to, and has consulted (to the fullest extent reasonable in the circumstances) with the other party prior to making the relevant
disclosure. |
| (c) | US Holdco and Incannex agree to consult with each other in advance in relation to: |
| (i) | overall communication plans; |
| (ii) | approaches to Incannex Shareholders; |
| (iii) | approaches to the media; |
| (iv) | proxy solicitations; and |
| (v) | written presentations, |
including to provide each other a reasonable
advance opportunity to comment, to ensure that the information used in clauses 8.2(c)(i) to 8.2(c)(v) above is consistent with the information
in the Scheme Booklet.
8.3 | Statements on termination |
The parties must act in good faith
and use all reasonable endeavours to issue agreed statements in respect of any termination of this deed and, to that end but without limitation,
clauses 8.2(a) to 8.2(c) applies to any such statements or disclosures.
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9.1 | Manner of giving notice |
Any notice or other communication to
be given under this deed must be in writing (which includes email) and may be delivered or sent by post or email to the party to be served
in accordance with the details set out in the ‘Details’ section of this deed on page 1 or at any such other address or email address notified
for this purpose to the other parties under this clause. Any notice or other communication sent by post must be sent by prepaid ordinary
post (if the country of destination is the same as the country of origin) or by airmail (if the country of destination is not the same
as the country of origin).
| (a) | Any notice or other communication is deemed to have been given: |
| (i) | if delivered, on the date of delivery; or |
| (ii) | if sent by post, on the third day after it was put into the post (for post within the same country) or
on the fifth day after it was put into the post (for post sent from one country to another); or |
| (iii) | if sent by email, on the earlier of the sender receiving an automated message confirming delivery or,
provided no automated message is received stating that the email has not been delivered, three hours after the time the email was sent
by the sender, such time to be determined by reference to the device from which the email was sent, |
but if the notice or other communication
would otherwise be taken to be received after 5:00pm or on a Saturday, Sunday or public holiday in the place of receipt then the notice
or communication is taken to be received at 9:00am on the next day that is not a Saturday, Sunday or public holiday.
In proving service of a notice or other
communication, it shall be sufficient to prove that delivery was made or that the envelope containing the communication was properly addressed
and posted either by prepaid post or by prepaid airmail or that the email was properly addressed and transmitted by the sender’s server
into the network and there was no apparent error in the operation of the sender’s email system, as the case may be.
9.4 | Documents relating to legal proceedings |
This clause 9 does not apply in relation
to the service of any claim form, notice, order, judgment or other document relating to or in connection with any proceedings, suit or
action arising out of or in connection with this deed.
This deed contains the entire agreement
between the parties relating to the Transaction and supersedes all previous agreements, whether oral or in writing, between the parties
relating to the Transaction.
Each party acknowledges that in agreeing
to enter into this deed it has not relied on any express or implied representation, warranty, collateral contract or other assurance (except
those expressly set out in this deed) made by or on behalf of any other party before the entering into of this deed. Each party waives
all rights and remedies which, but for this clause 10.2 might otherwise be available to it in respect of any such representation,
warranty, collateral contract or other assurance.
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Except for the express rights of termination contained in
clauses 3.7 and 7:
| (a) | no party has any right to terminate this deed; and |
| (b) | the parties waive their rights (if any) to annul, rescind, dissolve, withdraw from, cancel or terminate this deed in any circumstances. |
This deed may only be amended in writing
and where such amendment is signed by all the parties.
None of the rights or obligations of
a party under this deed may be assigned or transferred without the prior written consent of the other party.
Incannex must pay the costs and expenses
of the Schemes, except that US Holdco must pay all stamp duties (if any) and any fines and penalties with respect to stamp duty in respect
of this deed, the Share Scheme or the Option Scheme or the steps to be taken under this deed, the Share Scheme or the Option Scheme (including
without limitation the acquisition or transfer of Scheme Shares under the Share Scheme and the cancellation of Scheme Options under the
Option Scheme).
| (a) | Where under the terms of this deed one party is liable to indemnify or reimburse another party in respect
of any costs, charges or expenses, the payment shall include an amount equal to any GST thereon not otherwise recoverable by the other
party, subject to that party using all reasonable endeavours to receive such amount of GST as may be practicable. |
| (b) | If any payment under this deed constitutes the consideration for a taxable supply for GST purposes, then
in addition to that payment the payer shall pay any GST due. |
| (c) | Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under
or in accordance with this deed are exclusive of GST. |
Except as otherwise expressly provided
in this deed a party may give or withhold its consent to any matter referred to in this deed in its absolute discretion. A party that
gives its consent to any matter referred to in this deed is not taken to have made any warranty or representation as to any matter or
circumstance connected with the subject matter of that consent.
This deed may be executed in counterparts,
which taken together must constitute one and the same agreement, and any party (including any duly authorised representative of a party)
may enter into this deed by executing a counterpart.
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11.7 | Exercise and waiver of rights |
The rights of each party under this
deed:
| (a) | may be exercised as often as necessary; |
| (b) | except as otherwise expressly provided by this deed, are cumulative and not exclusive of rights and remedies provided by law; and |
| (c) | may be waived only in writing and specifically, |
and delay in exercising or non-exercise
of any such right is not a waiver of that right.
Each party undertakes, at the request,
cost and expense of the other party, to sign all documents and to do all other acts, which may be necessary to give full effect to this
deed.
Each of the obligations, warranties
and undertakings set out in this deed (excluding any obligation which is fully performed at the Implementation Date) must continue in
force after the Implementation Date.
The provisions contained in each clause
and sub clause of this deed shall be enforceable independently of each of the others and their validity shall not be affected if any of
the others is invalid.
12 | Governing law and jurisdiction |
This deed and any non-contractual obligations
arising out of or in connection with it is governed by the law applying in Victoria, Australia.
The courts having jurisdiction in Victoria
have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this deed (including a dispute relating to
any non-contractual obligations arising out of or in connection with this deed) and each party irrevocably submits to the non-exclusive
jurisdiction of the courts having jurisdiction in Victoria.
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EXECUTION
Executed as a deed
Executed as a deed by Incannex
Healthcare Limited ACN 096 635 246 in accordance with section 127 of the Corporations Act 2001 (Cth):
/s/ Joel Latham |
|
/s/ Madhukar Bhalla |
Director |
|
*Director/*Company Secretary |
|
|
|
JOEL LATHAM |
|
Madhukar Bhalla |
Name of Director |
|
Name of *Director/*Company Secretary |
BLOCK LETTERS |
|
BLOCK LETTERS |
|
|
*please strike out as appropriate |
Executed by an authorised signatory of Incannex Healthcare Inc.: |
|
|
|
/s/ Joel Latham |
|
Signature of authorised person |
|
|
|
JOEL LATHAM |
|
Name of authorised person |
|
BLOCK LETTERS |
|
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Schedule 1– Share Scheme of
Arrangement
SCHEME
OF ARRANGEMENT MADE
UNDER SECTION 411 OF THE
CORPORATIONS ACT 2001 (CTH)
Incannex Healthcare Limited – Shares
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DETAILS
Parties | Incannex Healthcare Limited ACN 096 635 246 of Level 23, Rialto South Tower, 525 Collins Street, Melbourne VIC 3000 (Incannex) |
AND
The registered holders of the fully paid ordinary shares
in the capital of Incannex as at 7:00pm on the Record Date other than an Excluded Shareholder (Share Scheme Participants)
1 | Defined terms & interpretation |
In this Share Scheme, except where the context otherwise
requires:
ADS means an American Depositary Share.
ADS Depositary means Deutsche Bank Trust Company
Americas.
ADS Holder means a holder of Incannex ADSs.
ASIC means the Australian Securities and Investments
Commission.
ASX means ASX Limited (ABN 98 008 624 691) or the
Australian Securities Exchange, as the context requires.
ASX Settlement means ASX Settlement Pty Ltd ABN 49
008 504 532.
ASX Settlement Rules means the ASX Settlement Operating
Rules of ASX Settlement.
Business Day means a business
day as defined in the Listing Rules and, to the extent any action must be taken in relation to NASDAQ, a day on which NASDAQ is operating
but excludes a day that is a Saturday, Sunday, bank holiday or public holiday in Melbourne, Victoria or New York, United States of America.
CHESS means the clearing house
electronic sub-register system of security transfers operated by ASX Settlement.
Conditions Precedent means the
conditions precedent to this Share Scheme set out in clause 3.1 of the Scheme Implementation Deed.
Corporations Act means the Corporations
Act 2001 (Cth).
Court means a court of competent
jurisdiction under the Corporations Act.
Effective means, when used in
relation to the Share Scheme, the order of the Court made under section 411(4)(b) of the Corporations Act in relation to the Share Scheme
taking effect pursuant to section 411(10) of the Corporations Act, 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 Share Scheme becomes Effective.
Election Form means the form
accompanying the Scheme Booklet, pursuant to which Small Parcel Holders may elect to not participate in the Sale Facility.
Eligible Jurisdictions means Australia,
Canada, Germany, Hong Kong, Indonesia, Italy, Japan, Netherlands, New Zealand, Philippines, Singapore, United Kingdom and the United
States and such other jurisdictions as agreed in writing between Incannex and Incannex US from time to time.
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Encumbrance means any encumbrance,
mortgage, pledge, charge, lien, assignment, hypothecation, security interest, title retention, preferential right or trust arrangement
and any other security arrangement of any kind given or created and including any possessory lien in the ordinary course of business whether
arising by law or contract.
End Date means 29 February 2024,
or such later date as agreed to in writing between Incannex and US Holdco from time to time.
Excluded Shareholder means any
member of the US Holdco Group.
Excluded Shares means any Incannex
Shares held by an Excluded Shareholder.
Excluded Small Parcel Holder means
a Small Parcel Holder who has made a valid election referred to in clause 6.7 to not participate in the Sale Facility and will not be
treated as a Small Parcel Holder.
Ineligible Foreign Shareholder
means any Share Scheme Participant whose address shown on the Incannex Share Register is a place outside the Eligible Jurisdictions, unless,
no less than three Business Days prior to the Share Scheme Meeting, Incannex and US HoldCo agree in writing that it is lawful and not
unduly onerous or unduly impracticable to issue that Incannex Shareholder with the US HoldCo Shares when the Share Scheme becomes Effective.
Implementation Date means the
fifth Business Day after the Record Date, or such other date agreed to in writing by Incannex and US Holdco.
Incannex ADS means an ADS, representing
25 Incannex Shares and which trade on NASDAQ under the ticker code “IXHL”.
Incannex Share means a fully
paid ordinary share issued in the capital of Incannex.
Incannex Share Register means
the register of Incannex shareholders maintained by or on behalf of Incannex in accordance with the Corporations Act.
Incannex Shareholder means a
person who is registered in the Incannex Share Register as the holder of one or more Incannex Shares, from time to time.
Independent Expert means a person
to be appointed by Incannex to prepare the Independent Expert’s Report.
Independent Expert’s Report means
the independent expert’s report prepared by the Independent Expert for inclusion in the Scheme Booklet, which states the Independent Expert’s
opinion in relation to whether:
| (a) | the Share Scheme is in the best interest of Incannex Shareholders; and |
| (b) | the Option Scheme is in the best interest of Incannex Optionholders,
including any updates or amendments to this report made by the Independent Expert. |
Listing Rules means the official listing rules of the ASX.
Marketable Parcel has the meaning given to that term
in the Listing Rules, with the closing price on the last day of Incannex Shares trading on ASX used to determine this.
NASDAQ means the NASDAQ Stock
Market LLC.
Option Scheme has the meaning
given to it in the Scheme Implementation Deed.
Record Date means 7:00pm on
the second Business Day following the Effective Date, or such other date (after the Effective Date) as Incannex and US Holdco may agree
in writing.
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Representative
means:
| (a) | in
relation to Incannex, any director, officer or employee of any member of Incannex and any
financier, financial adviser, accounting adviser, auditor, legal adviser or technical or
other expert adviser or consultant to Incannex in relation to the Schemes; and |
| (b) | in
relation to US Holdco, any director, officer or employee of any member of US Holdco and any
financier, financial adviser, accounting adviser, auditor, legal adviser or technical or
other expert adviser or consultant to US Holdco in relation to the Schemes. |
Sale
Agent means a person appointed by US Holdco to administer the Sale Facility and to sell or arrange the sale of US Holdco Shares that
would otherwise be issued to or for the benefit of Ineligible Foreign Shareholders or Small Parcel Holders (excluding Excluded Small
Parcel Holders) under the terms of the Share Scheme.
Sale
Facility means the facility to be administered by the Sale Agent pursuant to which Ineligible Foreign Shareholders and Small Parcel
Holders (excluding Excluded Small Parcel Holders) will have their Share Scheme Consideration sold on their behalf and have the net proceeds
of sale remitted to them under the terms of the Share Scheme.
Scheme
Booklet means the information booklet to be despatched to all Incannex Shareholders and Incannex Optionholders and approved by the
Court in connection with the Schemes, including this Share Scheme, the Option Scheme, the explanatory statement in respect of the Schemes,
the Independent Expert’s Report and the notice of meeting.
Scheme
Implementation Deed means the scheme implementation deed dated on or about 10 July 2023 between Incannex and US Holdco, as amended
or varied from time to time.
Scheme
Shares means all of the Incannex Shares on issue on the Record Date other than Excluded Shares.
Schemes
means this Share Scheme and the Option Scheme.
Second
Court Date means the first day on which the application made to the Court for an order pursuant to section 411(4)(b) of the Corporations
Act approving the Share Scheme and Option Scheme is heard or, if the application is adjourned for any reason, the first day on which
the adjourned application is heard.
Share
Scheme means the scheme of arrangement pursuant to Part 5.1 of the Corporations Act proposed between Incannex and Incannex Shareholders,
as set out in this document, together with any alterations or conditions made or required by the Court under section 411(6) of the Corporations
Act and approved in writing by US Holdco and Incannex.
Share
Scheme Consideration means such number of US Holdco Shares for each Scheme Share held by Share Scheme Participants at 7:00pm on the
Record Date as described in clause 6.3.
Share
Scheme Deed Poll means the deed poll executed by US Holdco, substantially in the form of Schedule 2 to the Scheme Implementation
Deed.
Share
Scheme Meeting means the meeting of Incannex Shareholders convened by the Court in relation to the Share Scheme pursuant to section
411(1) of the Corporations Act and includes any adjournment of that meeting.
Share
Scheme Order means the orders of the Court made under section 411(4)(b) of the Corporations Act (and, if applicable and subject to
clause 8.9, section 411(6) of the Corporations Act) in relation to this Share Scheme.
Share
Scheme Participant means each person who is an Incannex Shareholder on the Record Date (other than Excluded Shareholders).
Share
Scheme Transfer means, for each Share Scheme Participant, a duly completed and executed proper instrument of transfer of the Scheme
Shares held by that Share Scheme Participant for the purposes of section 1071B of the Corporations Act, which may be a master transfer
for all Scheme Shares.
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Small
Parcel Holder means a Share Scheme Participant who is not an Ineligible Foreign Shareholder and who holds less than a Marketable
Parcel of Incannex Shares on the Record Date.
Subsidiaries
has the meaning given to that term in section 9 of the Corporations Act.
Trading
Day means a trading day as defined in the Listing Rules.
US
Holdco means Incannex Healthcare Inc., a corporation incorporated in the State of Delaware, United States of America and whose principal
business address is 18 East 50th Street, 5th Floor, New York, NY 10022.
US
Holdco Share means a share of common stock of US Holdco.
US
Holdco Share Register means the register of US Holdco shareholders maintained by or on behalf US Holdco and maintained in accordance
with the Delaware General Corporation Law.
In
this Share Scheme:
| (a) | the
singular includes the plural and vice versa, and a gender includes other genders; |
| (b) | another
grammatical form of a defined word or expression has a corresponding meaning; |
| (c) | a
reference to a clause, paragraph, or schedule is to a clause or paragraph of, or schedule
to, this agreement, and a reference to this document includes any schedule; |
| (d) | a
reference to a document or instrument includes the document or instrument as novated, altered,
supplemented or replaced from time to time; |
| (e) | a
reference to A$, dollar, Australian dollar or $ is to Australian currency; |
| (f) | a
reference to US$ or USD is to the lawful currency of the United States; |
| (g) | a
reference to time is to time in Melbourne, Victoria time, unless otherwise noted; |
| (h) | a
reference to a party is to a party to this agreement, and a reference to a party to a document
includes the party’s executors, administrators, successors and permitted assigns and substitutes; |
| (i) | a
reference to a person includes a natural person, partnership, body corporate, association,
governmental or local authority or agency or other entity; |
| (j) | a
reference to a statute, ordinance, code or other law includes regulations and other instruments
under it and consolidations, amendments, re-enactments or replacements of any of them; |
| (k) | a
word or expression defined in the Corporations Act and not otherwise defined in this agreement
has the meaning given to it in the Corporations Act; |
| (l) | the
meaning of general words is not limited by specific examples introduced by including, for
example or similar expressions; |
| (m) | any
agreement, representation, warranty or indemnity in favour of two or more parties (including
where two or more persons are included in the same defined term) is for the benefit of them
jointly and severally; |
| (n) | a
rule of construction does not apply to the disadvantage of a party because the party was
responsible for the preparation of this document or any part of it; and |
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| (o) | if
a day on or by which an obligation must be performed or an event must occur is not a Business
Day, the obligation must be performed or the event must occur on or by the next Business
Day. |
| (a) | Incannex
is a public company limited by shares incorporated in Australia and registered in Western
Australia. |
| (b) | Incannex
is admitted to the official list of ASX and its shares, being the Incannex Shares, are officially
quoted on the securities market conducted by ASX. Incannex is also admitted to NASDAQ and
Incannex ADSs are quoted on NASDAQ. |
| (c) | Incannex’s
registered office is at Level 23, Rialto South Tower, 525 Collins Street, Melbourne 3000
Victoria Australia. |
US
Holdco is a company incorporated under the laws of Delaware in the United States of America. US Holdco’s principal business office is
at 18 East 50th Street, 5th Floor, New York, NY 10022.
| 2.3 | Agreement
to implement this Share Scheme |
Incannex
and US Holdco have agreed, by executing the Scheme Implementation Deed, to implement the terms of this Share Scheme and the steps contemplated
to follow the implementation of this Share Scheme, to the extent those steps are required to be done by each of them.
| 2.4 | Share
Scheme Deed Poll |
| (a) | This
Share Scheme attributes actions to US Holdco but does not itself impose an obligation on
US Holdco to perform those actions. US Holdco has undertaken in favour of each Share Scheme
Participant, by executing the Share Scheme Deed Poll, that it will fulfil its obligations
under the Scheme Implementation Deed and do all acts and things necessary or desirable on
its part to give full effect to this Share Scheme, including to issue to each Share Scheme
Participant the Share Scheme Consideration for each Scheme Share held by the Share Scheme
Participant. |
| (b) | Incannex
undertakes in favour of each Share Scheme Participant to enforce the Share Scheme Deed Poll
against US Holdco on behalf of and as agent and attorney for the Share Scheme Participants. |
| 2.5 | Summary
of Share Scheme |
If
this Share Scheme becomes Effective:
| (a) | all
of the Scheme Shares (together with all rights and entitlements attaching to the Scheme Shares)
will be transferred to US Holdco and Incannex will become a subsidiary of US Holdco on the
Implementation Date; |
| (b) | in
consideration of the transfer to US Holdco of each Scheme Share held by a Share Scheme Participant,
US Holdco will, on the Implementation Date, provide to each Share Scheme Participant the
Share Scheme Consideration in accordance with the terms of the Scheme Implementation Deed,
this Share Scheme and the Share Scheme Deed Poll; |
| (c) | Incannex
will enter the name of US Holdco in the Incannex Share Register as the holder of all the
Scheme Shares; |
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| (d) | it
will bind Incannex and all Share Scheme Participants, including those who do not attend the
Share Scheme Meeting, those who do not vote at the Share Scheme Meeting and those who vote
against this Share Scheme at the Share Scheme Meeting; and |
| (e) | it
will override the constitution of Incannex, to the extent of any inconsistency. |
This
Share Scheme is conditional upon, and will have no force or effect until, the satisfaction of each of the following conditions:
| (a) | all
of the Conditions Precedent being satisfied or waived (other than the conditions in clauses
3.1(c) (Court Approval of Share Scheme) and 3.1(d) (Share Scheme Orders Lodged
with ASIC) of the Scheme Implementation Deed) in accordance with the Scheme Implementation
Deed by the times set out in the Scheme Implementation Deed; |
| (b) | as
at 8:00 am on the Second Court Date, the Scheme Implementation Deed not having been terminated
in accordance with its terms; |
| (c) | as
at 8:00 am on the Second Court Date, the Share Scheme Deed Poll not having been terminated
in accordance with its terms; |
| (d) | approval
of the Share Scheme by the Court pursuant to section 411(4)(b) of the Corporations Act and
if applicable, Incannex and US Holdco having accepted in writing any modification or condition
made or required by the Court under section 411(6) of the Corporations Act; |
| (e) | such
other conditions made or required by the Court under section 411(6) of the Corporations Act
in relation to this Share Scheme and agreed to by Incannex and US Holdco as having been satisfied
or waived; |
| (f) | lodgement
with ASIC of an office copy of the order of the Court approving the Share Scheme pursuant
to section 411(10) of the Corporations Act; and |
| (g) | the
Share Scheme Order comes into effect, pursuant to section 411(10) of the Corporations Act. |
| 3.2 | Effect
of Conditions Precedent |
The
satisfaction of each condition in clauses 3.1(a) to 3.1(g) (inclusive) of this Share Scheme (Condition) is a condition precedent
to the operation of this Share Scheme.
| (a) | Incannex
and US Holdco will provide to the Court on the Second Court Date a certificate signed by
US Holdco and Incannex (or such other evidence as the Court requests): |
| (i) | stating
whether or not the Conditions Precedent have been satisfied or waived (other than the Conditions
Precedent in clauses 3.1(c) and 3.1(d) of the Scheme Implementation Deed) as at 8:00am on
the Second Court Date; and |
| (ii) | confirming
(in respect of matters within their knowledge) whether or not the conditions precedent in
clauses 3.1(b) and 3.1(c) of this Share Scheme have been satisfied or waived as at 8:00am
on the Second Court Date. |
| (b) | The
certificate referred to in clause 3.3(a) will constitute conclusive evidence of whether such
Conditions Precedent have been satisfied or waived as at 8:00am on the Second Court Date. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Subject
to clause 4.2, this Share Scheme will come into effect pursuant to section 411(10) of the Corporations Act on and from the Effective
Date.
Without
limiting any rights under the Scheme Implementation Deed, this Share Scheme will lapse and be of no further force or effect (and US Holdco
is released from any obligations and any liability in connection with this Share Scheme and the Share Scheme Deed Poll) if:
| (a) | the
Effective Date has not occurred on or before the End Date; or |
| (b) | the
Scheme Implementation Deed or Deed Poll is terminated in accordance with its terms, |
unless
Incannex or US Holdco otherwise agree in writing (and, if required, as approved by the Court).
| 5 | Implementation of the Share Scheme |
| 5.1 | Lodgement
of Share Scheme Order with ASIC |
Incannex
will lodge with ASIC in accordance with section 411(10) of the Corporations Act an office copy of the Share Scheme Order as soon as practicable,
and in any event by no later than 5:00pm on the first Business Day after the date on which the Court makes that Share Scheme Order (or
on such other Business Day as Incannex and US Holdco agree).
| 5.2 | Transfer
of Scheme Shares |
Subject
to the Share Scheme becoming Effective, on the Implementation Date:
| (a) | subject
to the provision of the Share Scheme Consideration in accordance with clause 6, the Scheme
Shares, together with all rights and entitlements attaching to the Scheme Shares at the Implementation
Date, must be transferred to US Holdco, without the need for any further act by any Share
Scheme Participant (other than acts performed by Incannex as agent and attorney of the Share
Scheme Participants under clauses 8.1 and 8.2 or otherwise), by: |
| (i) | Incannex
delivering to US Holdco a duly completed Share Scheme Transfer, executed on behalf of the
Share Scheme Participants by Incannex; and |
| (ii) | US
Holdco executing that Share Scheme Transfer, attending to the stamping of the Share Scheme
Transfer (if required) and delivering it to Incannex for registration; and |
| (b) | immediately
after receipt of the Share Scheme Transfer in accordance with clause 5.2(a)(ii), but subject
to the stamping of the Share Scheme Transfer (if required), Incannex must enter, or procure
the entry of, the name of US Holdco in the Incannex Share Register in respect of the Scheme
Shares transferred to US Holdco in accordance with the Share Scheme. |
Notwithstanding
any other provision of this Share Scheme, while US Holdco Shares forming the Share Scheme Consideration must be issued (and the US Holdco
Share Register updated to record their issuance) on the Implementation Date, any requirements under clause 6 for the sending of holding
statements or allotment advices (or equivalent) may be satisfied as soon as practicable after the Implementation Date.
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| 5.4 | Entitlement
to Share Scheme Consideration |
Subject
to this Share Scheme becoming Effective, in consideration of the transfer of the Scheme Shares to US Holdco, and subject to the other
terms and conditions of this Share Scheme, on the Implementation Date:
| (a) | each
Share Scheme Participant (who is not an Ineligible Foreign Shareholder or Small Parcel Holder
(excluding Excluded Small Parcel Holders)) will be issued the Share Scheme Consideration
in respect of the Scheme Shares held by them on the Record Date in accordance with clause
6 of this Share Scheme; and |
| (b) | the
Sale Agent will be issued the Share Scheme Consideration by US Holdco in respect of the Scheme
Shares held by all Ineligible Foreign Shareholders and Small Parcel Holders (excluding Excluded
Small Parcel Holders) on the Record Date in accordance with clause 6 of this Share Scheme. |
| 6 | Share
Scheme Consideration |
| 6.1 | Share
Scheme Consideration |
On
the Implementation Date, Incannex must procure US Holdco to issue the Share Scheme Consideration to:
| (a) | the
Share Scheme Participants (other than Ineligible Foreign Shareholders and Small Parcel Holders
(excluding Excluded Small Parcel Holders)) in accordance with clause 6.3(c) of this Share
Scheme; and |
| (b) | the
Sale Agent in respect of all Ineligible Foreign Shareholders and Small Parcel Holders (excluding
Excluded Small Parcel Holders) on the Record Date to be dealt with in accordance with clause
6.8(a) of this Share Scheme. |
Where
the calculation of the number of US Holdco Shares to be issued to a particular Share Scheme Participant would result in the issue of
a fraction of a US Holdco Share, then any such fractional entitlement will be rounded up to the nearest whole number of US Holdco Shares.
| 6.3 | Issue
of Share Scheme Consideration |
| (a) | Not
later than one Business Day after the Record Date, Incannex will give to US Holdco a notice
specifying the persons to whom US Holdco Shares are to be issued pursuant to clause 5.4 and
the number of US Holdco Shares to which they are entitled (including the number to be issued
to the Sale Agent). |
| (b) | On
the Implementation Date, Incannex must procure the issue, to each Share Scheme Participant
the Share Scheme Consideration for each Scheme Share transferred to US Holdco on the Implementation
Date by that Share Scheme Participant. |
| (c) | The
obligation of Incannex to procure the issue of the Share Scheme Consideration under this
Share Scheme will be satisfied by US Holdco: |
| (i) | in
the case of a Share Scheme Participant who holds Scheme Shares (other than the Australian
custodian for the ADS Depositary, an Ineligible Foreign Shareholder or a Small Parcel Holder
(excluding an Excluded Small Parcel Holder)), issuing one new US Holdco Share to that Share
Scheme Participant for every 100 Scheme Shares held by that Share Scheme Participant on the
Record Date; |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (ii) | in
the case of a Share Scheme Participant who holds Scheme Shares on behalf of the ADS Depositary
(who itself holds Incannex Shares for the benefit of the ADS Holders), being the Australian
custodian for the ADS Depositary: |
| (A) | issuing
one US Holdco Share to the ADS Depositary for every 100 Scheme Shares held by the ADS Depositary;
and |
| (B) | procuring
the ADS Depositary to then, subject to compliance by the ADS Holder within the terms of the
arrangements pursuant to which the ADS Depositary acts as depositary for ADS Holders, deliver
(by way of exchange) such US Holdco Shares to the ADS Holders on the basis of one US Holdco
Share for every four Incannex ADSs held by the ADS Holder on the Record Date; and |
| (iii) | issuing
to the Sale Agent such number of US Holdco Shares in accordance with clause 6.8 that Ineligible
Foreign Shareholders and Small Parcel Holders (excluding Excluded Small Parcel Holders) would
otherwise have been entitled to, |
and
in each case US Holdco entering into the US Holdco Share Register the name of each person who is to receive US Holdco Shares pursuant
to this Share Scheme.
In
the case of Scheme Shares held in joint names:
| (a) | US
Holdco Shares to be issued under this Share Scheme will be issued to and registered in the
names of the joint holders; |
| (b) | any
other document required to be sent under this Share Scheme will be forwarded to the registered
address recorded in the Incannex Share Register; and |
| (c) | in
respect of any Ineligible Foreign Shareholder or Small Parcel Holder (excluding Excluded
Small Parcel Holders), any cheque required to be paid to Share Scheme Participants will be
payable to the joint holders and will be forwarded to the registered address recorded on
the Incannex Share Register on the Record Date. |
| 6.5 | Share
Scheme Participants’ agreement |
If
the Share Scheme becomes Effective:
| (a) | each
Share Scheme Participant (other than an Ineligible Foreign Shareholder or Small Parcel Holder
(excluding an Excluded Small Parcel Holder)) will be deemed: |
| (i) | to have agreed
to become a member of US Holdco; |
| (ii) | to
have accepted the US Holdco Shares issued to that holder under this Share Scheme; |
| (iii) | to
have agreed to have their name and address entered into the US Holdco Share Register; and |
| (iv) | to
have agreed to be bound by the certificate of incorporation and by-laws of US Holdco in force
from time to time in respect of the Holdco Shares; |
| (b) | each
Share Scheme Participant that is an Ineligible Foreign Shareholder or Small Parcel Holder
(excluding an Excluded Small Parcel Holder) agrees and acknowledges that the payment to it
of an amount in accordance with clause 6.8(c) constitutes the satisfaction in full of its
entitlement under this Share Scheme; and |
| (c) | each
Share Scheme Participant agrees to the transfer of their Scheme Shares, together with all
rights and entitlements attaching to those Scheme Shares, in accordance with the terms of
this Share Scheme. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| 6.6 | Warranty
by Share Scheme Participants |
Each
Share Scheme Participant warrants to US Holdco and is deemed to have authorised Incannex to warrant to US Holdco as agent and attorney
for the Share Scheme Participant by virtue of this clause 6.6, that:
| (a) | all
their Scheme Shares (including any rights and entitlements attaching to those shares) transferred
to US Holdco under the Share Scheme will, as at the date of the transfer, be fully paid and
free from all Encumbrances; and |
| (b) | they
have full power and capacity to sell and to transfer their Scheme Shares (including any rights
and entitlements attaching to those Scheme Shares) to US Holdco under the Share Scheme. |
Each
Small Parcel Holder will be entitled to elect not to participate in the Sale Facility by completing the Election Form and returning it
to the address specified on the Election Form so that it is received by the Record Date. An election under this clause 6.7 must be made
in accordance with the terms and conditions on the Election Form.
| 6.8 | Ineligible
Foreign Shareholders and Small Parcel Holders |
| (a) | US
Holdco has no obligation under this Share Scheme to issue any Share Scheme Consideration
in the name of an Ineligible Foreign Shareholder or Small Parcel Holder (excluding an Excluded
Small Parcel Holder). |
| (b) | US
Holdco Shares, that would but for clause 6.8(a), have been issued in the name of an Ineligible
Foreign Shareholder or a Small Parcel Holder (excluding an Excluded Small Parcel Holder pursuant
to clause 6.7) as Share Scheme Consideration, must be issued by US Holdco to the Sale Agent
and Incannex must procure that: |
| (i) | the
name and registered address of the Sale Agent is entered into the US Holdco Share Register
on the Implementation Date in respect of the US Holdco Shares required to be issued to it
under clause 5.4(b); and |
| (ii) | a
holding statement is sent to the registered address of the Sale Agent, representing the number
of US Holdco Shares issued to it. |
| (c) | Incannex
and US Holdco must procure that the Sale Agent: |
| (i) | as
soon as reasonably practicable and, in any event, not more than eight weeks after the Implementation
Date, sells all US Holdco Shares issued to the Sale Agent pursuant to clause 6.8(b) in such
manner at such price and other terms as the Sale Agent determines in good faith for the benefit
of the Ineligible Foreign Shareholders and Small Parcel Holders (excluding Excluded Small
Parcel Holders); |
| (ii) | promptly
after receiving the proceeds in respect of the sale of all of the US Holdco Shares referred
to in clause 6.8(c)(i), accounts to the Ineligible Foreign Shareholders and Small Parcel
Holders (excluding Excluded Small Parcel Holders) for the net proceeds of sale (on an averaged
basis so that all Ineligible Foreign Shareholders and Small Parcel Holders (excluding Excluded
Small Parcel Holders) receive the same price per US Holdco Share, subject to rounding up
to the nearest whole cent), and any income referable to those US Holdco Shares, after deduction
of any applicable costs or fees, brokerage, taxes and charges, at the risk of the Ineligible
Foreign Shareholders and Small Parcel Holders’ (excluding Excluded Small Parcel Holders)
in full satisfaction of the Ineligible Foreign Shareholders’ and Small Parcel Holders’
rights under this Share Scheme; and |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (iii) | remits
the net proceeds of sale to the Ineligible Foreign Shareholders and Small Parcel Holders
(excluding Excluded Small Parcel Holders) by: |
| (A) | making
a deposit in Australian dollars into a bank account notified by the Ineligible Foreign Shareholders
or Small Parcel Holders (excluding Excluded Small Parcel Holders) to Incannex and recorded
in the Incannex Share Register on the Record Date; or |
| (B) | dispatching,
or procuring the dispatch of, a cheque for the relevant amount in Australian dollars drawn
in the name of the Ineligible Foreign Shareholders and Small Parcel Holders (excluding Excluded
Small Parcel Holders) (or in the case of joint holders, in accordance with clause 6.4) by
ordinary pre-paid post to the address of that Ineligible Foreign Shareholder and Small Parcel
Holder appearing in the Incannex Share Register on the Record Date. |
| (d) | In
the event that the Sale Agent believes, after consultation with Incannex, that an Ineligible
Foreign Shareholder or Small Parcel Holder (excluding Excluded Small Parcel Holders) is not
known at its address appearing in the Incannex Share Register on the Record Date, the Sale
Agent may credit the amount payable to that Ineligible Foreign Shareholder or Small Parcel
Holder (as applicable) to a separate bank account of US Holdco to be held until the Ineligible
Foreign Shareholder or Small Parcel Holder (as applicable) claims the amount or the interest
is dealt with in accordance with unclaimed money legislation, and US Holdco must hold the
amount in trust but any amount accruing from the amount will be to the benefit of US Holdco.
An amount credited to the account is to be treated as having been paid to the Ineligible
Foreign Shareholder or Small Parcel Holder (as applicable). US Holdco must maintain records
of the amounts paid, the people who are entitled to the amounts and any transfers of the
amounts. |
| (e) | Payment
by US Holdco to an Ineligible Foreign Shareholder or Small Parcel Holder in accordance with
this clause 6.8 satisfies in full the Ineligible Foreign Shareholder’s or Small Parcel Holder’s
(excluding Excluded Small Parcel Holder’s) right to the Share Scheme Consideration. |
| (f) | None
of US Holdco, Incannex or the Sale Agent gives any assurance as to the price that will be
achieved for the sale of US Holdco Shares described in this clause 6.8, and the sale of US
Holdco Shares under this clause 6.8 will be at the risk of the Ineligible Foreign Shareholder
or Small Parcel Holder (as applicable). |
| (g) | Each
Ineligible Foreign Shareholder and Small Parcel Holder appoints Incannex as its agent to
take any necessary or appropriate actions, or to receive on its behalf any financial services
guide or other notice which may be given by the Sale Agent to the Ineligible Foreign Shareholder
or Small Parcel Holder, in connection with its appointment or sales. |
| 7 | Dealings in Incannex Shares |
| 7.1 | Determination
of Share Scheme Participants |
To
establish the identity of Share Scheme Participants, dealings in Incannex Shares will only be recognised if:
| (a) | in
the case of dealings of the type to be effected using CHESS, the transferee is registered
in the Incannex Share Register as holder of the relevant Incannex Shares on or before the
Record Date; and |
| (b) | in
all other cases, registrable transmission applications or transfers in registrable form in
respect of those dealings are received on or before the Record Date at the place where the
Incannex Share Register is kept. |
| 7.2 | Incannex
Share Register |
Incannex
must register any transmission application or transfer received in accordance with clause 7.1 by the Record Date.
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| 7.3 | Transfer
requests received after Record Date |
Incannex
will not accept for registration or recognise for any purpose any transfer, transmission or application in respect of Incannex Shares
received after the times specified in clause 7.1, or received prior to such times but not in registrable form, other than a transfer
to US Holdco in accordance with this Share Scheme.
| 7.4 | No
disposals after Record Date |
If
this Share Scheme becomes Effective, each Share Scheme Participant, and any person claiming through that Share Scheme Participant, must
not dispose of or purport or agree to dispose of any Scheme Shares or any interest in them after the Record Date.
| 7.5 | Maintenance
of Incannex Share Register |
Subject
to issuance of the Share Scheme Consideration and registration of the transfer to US Holdco in accordance with clause 5.2, any statements
of holding in respect of Scheme Shares will cease to have effect on the Record Date as documents of title in respect of those shares.
On the Record Date, each entry on the Incannex Share Register (other than entries in respect of the Excluded Shareholders or their successors
in title) will cease to have effect except as evidence of entitlement to the Share Scheme Consideration.
| 7.6 | Effect
of Holding Statements |
Subject
to provision of the Share Scheme Consideration and registration of the transfer to US Holdco, any statements of holding in respect of
Incannex Shares will cease to have effect after the Record Date as documents of title in respect of those shares. After the Record Date,
each entry current on the Incannex Share Register on the Record Date will cease to have effect except as evidence of entitlement to the
Share Scheme Consideration.
| 7.7 | Details
of Share Scheme Participants |
As
soon as practicable after the Record Date, and in any event within one Business Day of the Record Date, Incannex will ensure that details
of the names, registered addresses and holdings of Incannex Shares for each Share Scheme Participant, as shown in the Incannex Share
Register on the Record Date, are available to US Holdco in such form as US Holdco reasonably requires.
| 7.8 | Removal
from quotation and de-listing |
| (i) | apply
to ASX to suspend trading in Incannex Shares with effect from the close of trading on ASX
on the Effective Date; and |
| (ii) | apply
to NASDAQ to suspend trading in Incannex ADSs (by way of submission of a “corporate
action” form to NASDAQ in order to transfer the listing of Incannex ADSs to a listing
of US Holdco Shares) from the close of trading on NASDAQ on the Implementation Date. |
| (b) | With
effect on and from the close of trading on the Trading Day immediately following, or shortly
after, the Implementation Date, Incannex will apply: |
| (i) | for
termination of the official quotation of Incannex Shares on ASX; and |
| (ii) | to
have itself removed from the official list of the ASX. |
| 8.1 | Share
Scheme Participant agreements and consents |
Each
Share Scheme Participant:
| (a) | irrevocably
agrees to the transfer of their Scheme Shares, together with all rights and entitlements
attaching to those Scheme Shares, to US Holdco in accordance with the terms of the Share
Scheme; |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (b) | irrevocably
consents to Incannex and US Holdco doing all things and executing all deeds, instruments,
transfers or other documents as may be necessary or desirable to give full effect to the
terms of the Share Scheme and the transactions contemplated by it, |
without
the need for any further act by that Share Scheme Participant.
| 8.2 | Authority
given to Incannex |
On
this Share Scheme becoming Effective, each Share Scheme Participant, without the need for any further act, is deemed to have irrevocably
appointed Incannex (and all of its directors and officers (jointly and severally)) as its attorney and agent for the purposes of:
| (a) | enforcing
the Share Scheme Deed Poll against US Holdco; |
| (b) | in the case
of Scheme Shares in a CHESS holding: |
| (i) | causing
a message to be transmitted to ASX Settlement in accordance with the ASX Settlement Rules
so as to transfer the Scheme Shares held by the Share Scheme Participant from the CHESS sub-register
of Incannex to the issuer sponsored sub-register operated by Incannex or its share registry
at any time after US Holdco has provided the Share Scheme Consideration which is due under
this Share Scheme to Share Scheme Participants; and |
| (ii) | completing
and signing on behalf of Share Scheme Participants any required form of transfer of Scheme
Shares; |
| (c) | in
the case of Scheme Shares registered in the issuer sponsored sub-register operated by Incannex
or its share registry, completing and signing on behalf of Share Scheme Participants any
required form of transfer; and |
| (d) | doing
all things and executing any agreements, instruments, transfers or other documents as may
be necessary or desirable to give full effect to this Share Scheme and the transactions contemplated
by it, including the effecting of a valid transfer or transfers (or the execution and delivery
of any Share Scheme Transfers) as contemplated by clause 5.2, |
and
Incannex accepts such appointment. Incannex as attorney and agent of each Share Scheme Participant, may sub delegate its functions, authorities
or powers under this clause 8.2 to all or any of its directors and officers (jointly, severally or jointly and severally).
Each
Share Scheme Participant and Incannex will execute documents and do all things and acts necessary or expedient in order to implement
this Share Scheme.
This
Share Scheme binds Incannex and all Share Scheme Participants (including those who do not attend the Share Scheme Meeting, those who
do not vote at that meeting or vote against this Share Scheme) and, to the extent of any inconsistency, overrides the constitution of
Incannex.
| 8.5 | Variation,
cancellation or modification of rights |
The
Share Scheme Participants agree to the transfer of their Scheme Shares in accordance with this Share Scheme and agree to the variation,
cancellation or modification of the rights attached to their Scheme Shares constituted or resulting from this Share Scheme (if any).
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| 8.6 | Beneficial
entitlement to Scheme Shares |
Immediately
from the time that US Holdco has satisfied its obligations under clauses 5.4 and 6 pending registration by Incannex of US Holdco in the
Incannex Share Register as the holder of the Scheme Shares:
| (a) | US Holdco
will be beneficially entitled to the Scheme Shares transferred to it under this Share Scheme;
and |
| (b) | each Share
Scheme Participant, without the need for any further act by that Share Scheme Participant: |
| (i) | irrevocably
appoints US Holdco as attorney and agent (and directs US Holdco in each capacity) to appoint
any director, officer, secretary or agent nominated by US Holdco as its sole proxy and, where
applicable, its corporate representative to attend shareholder meetings of Incannex, exercise
the votes attached to the Scheme Shares registered in the name of the Share Scheme Participant
and sign any shareholders resolution of Incannex; |
| (ii) | undertakes
not to otherwise attend or vote at any such meetings or sign any such resolutions, whether
in person, by proxy or by corporate representative other than pursuant to clause 8.6(b)(i); |
| (iii) | must
take all other actions in the capacity of a registered holder of Scheme Shares as US Holdco
reasonably directs; and |
| (iv) | acknowledges
and agrees that in exercising the powers referred to in this clause 8.6(b), any director,
officer, secretary or agent nominated by US Holdco may act in the best interests of US Holdco
as the intended registered holder of the Scheme Shares. |
If
US Holdco considers that it must pay an amount to the Commissioner of Taxation (Commissioner) under Subdivision 14-D of Schedule
1 of the Taxation Administration Act 1953 (Cth) (TAA) in relation to the acquisition of the Scheme Shares from a Share
Scheme Participant, US Holdco will:
| (a) | determine
the amount to be paid to the Commissioner (Withholding Amount) being 12.5% (or a lesser rate
approved by the Commissioner) of the Share Scheme Consideration otherwise payable to the
Share Scheme Participant or Sale Agent, as appropriate; |
| (b) | withhold
the Withholding Amount from the Share Scheme Consideration (by issuing such lesser number
of US Holdco Shares to the Share Scheme Participant or Sale Agent, as appropriate for the
Withholding Amount) and remit the Withholding Amount to the Commissioner within the timeframe
required under the TAA (and issued of the reduced number of US Holdco Shares shall be taken
to be full payment of the Share Scheme Consideration for the purposes of this Share Scheme);
and |
| (c) | if
requested in writing by the relevant Share Scheme Participant, provide a receipt or other
appropriate evidence of payment of the Withholding Amount to the Commissioner (or procure
the provision of such receipt or other evidence) to the relevant Share Scheme Participant. |
| (a) | Where
a notice, transfer, transmission application or other communication referred to in this Share
Scheme is sent by post to Incannex, it will not be deemed to be received in the ordinary
course of post or on a date other than the date (if any) on which it is actually received
at Incannex’s registered office or at the office of Incannex’s share registry. |
| (b) | The
accidental omission to give notice of the Share Scheme Meeting to any Incannex Shareholders,
or the non-receipt of such a notice by any Incannex Shareholders, will not, unless ordered
by the Court, invalidate this Share Scheme or the proceedings at the Share Scheme Meeting. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| 8.9 | Alterations
and conditions |
If
the Court proposes to approve this Share Scheme subject to any conditions or alterations under section 411(6) of the Corporations Act,
Incannex may, by its counsel on behalf of all persons concerned, consent to only such of those conditions or alterations to this Share
Scheme to which US Holdco has consented, such consent not to be unreasonably withheld or delayed.
| 8.10 | Enforcement
of Share Scheme Deed Poll |
Incannex
undertakes in favour of each Share Scheme Participant that it will enforce the Share Scheme Deed Poll against US Holdco on behalf of
and as agent and attorney for the Share Scheme Participants.
All
duty (including stamp duty), and any related fines, penalties and interest, payable in connection with the transfer by Share Scheme Participants
of the Scheme Shares to US Holdco pursuant to the Share Scheme will be payable by US Holdco.
| 8.12 | Limitation
of liability |
None
of Incannex or US Holdco nor any of their respective Representatives are liable for anything done or omitted to be done in the performance
of this Share Scheme or the Share Scheme Deed Poll in good faith.
| (a) | This
Share Scheme is governed by and will be construed according to the laws of Victoria, Australia. |
| (b) | Each
party irrevocably: |
| (i) | submits
to the non exclusive jurisdiction of the courts of Victoria and of the courts competent to
determine appeals from those courts, with respect to any proceedings that may be brought
at any time relating to this Share Scheme; and |
| (ii) | waives
any objection it may now or in the future have to the venue of any proceedings, and any claim
it may now or in the future have that any proceedings have been brought in an inconvenient
forum, if the venue of those proceedings fall within clause 8.13(b)(i). |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Schedule
2 – Share Scheme Deed Poll
DEED POLL
IN FAVOUR OF SCHEME
PARTICIPANTS
Incannex
Healthcare Limited – Shares
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
DETAILS
Date |
13 September 2023 |
|
|
|
|
By |
US Holdco |
|
|
NAME |
Incannex Healthcare Inc. |
|
ADDRESS |
18 East 50th Street, 5th Floor, New York, NY 10022 |
|
EMAIL |
|
|
ATTENTION |
Joel Latham, Chief Executive Officer |
|
|
|
IN FAVOUR OF |
Each registered holder of fully paid ordinary shares in
Incannex Healthcare Limited ACN 096 635 246 of Level 23, Rialto South Tower, 525 Collins Street, Melbourne VIC 3000 (Incannex)
on the Record Date (Share Scheme Participants). |
BACKGROUND
| A | Incannex
and US Holdco have entered into a scheme implementation deed dated on or about 10 July 2023
(as amended and restated on 13 September 2023) (Scheme Implementation Deed). |
| B | Under
the Scheme Implementation Deed, Incannex has agreed that it will propose and implement the
Share Scheme in accordance with the Scheme Implementation Deed, pursuant to which US Holdco
will acquire all of the Scheme Shares. |
| C | Under
the Scheme Implementation Deed, US Holdco has agreed to take all steps reasonably necessary
to assist Incannex in proposing and implementing the Share Scheme in accordance with the
Scheme Implementation Deed, the Share Scheme and this deed poll (being the Share Scheme Deed
Poll). |
| D | US
Holdco is entering into this Share Scheme Deed Poll for the purposes of: |
| i) | covenanting
in favour of the Share Scheme Participants to perform certain of its obligations under the
Scheme Implementation Deed; |
| ii) | covenanting
in favour of the Share Scheme Participants to perform the steps attributed to it under the
Share Scheme; and |
| iii) | ensuring
that the Share Scheme Consideration is provided to the Share Scheme Participants. |
| E | The
effect of the Share Scheme will be that the Scheme Shares, together with all rights and entitlements
attaching to them, will be transferred to US Holdco in exchange for the Share Scheme Consideration. |
AGREED
TERMS
| 1 | Definitions and interpretation |
In
this deed:
Share
Scheme means the scheme of arrangement pursuant to Part 5.1 of the Corporations Act proposed between Incannex and Incannex Shareholders
together with any alterations or conditions made or required by the Court under section 411(6) of the Corporations Act and approved in
writing by Incannex and US Holdco.
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| 1.2 | Terms
defined in Scheme Implementation Deed |
Words
and phrases defined in the Scheme Implementation Deed have the same meanings in this Share Scheme Deed Poll unless the context requires
otherwise.
| (a) | Clause
1.2 of the Share Scheme applies to the interpretation of this Share Scheme Deed Poll, except
that references to “this Share Scheme” in that clause are to be read as references
to “this Share Scheme Deed Poll”. |
| (b) | Clause
headings in this Share Scheme Deed Poll do not affect the interpretation of this Share Scheme
Deed Poll. |
| (a) | If
the day on or by which a payment or an act is to be done under this Share Scheme Deed Poll
is not a Business Day, that act must be done on the next Business Day. |
| (b) | In
this Share Scheme Deed Poll, if a period occurs from, after or before a day or the day of
an act or event, it excludes that day. |
| (c) | In
this Share Scheme Deed Poll, a reference to a day is to be interpreted as the period of time
commencing at midnight and ending 24 hours later. |
| (d) | In
this Share Scheme Deed Poll a reference to time is a reference to Melbourne, Australia time. |
| 2 | Nature of this Share Scheme Deed Poll |
US
Holdco acknowledges that:
| (a) | this
Share Scheme Deed Poll may be relied on and enforced by any Share Scheme Participant in accordance
with its terms, even though the Share Scheme Participants are not party to it; and |
| (b) | under
the Share Scheme, each Share Scheme Participant irrevocably appoints Incannex and each of
its directors, officers and secretaries (jointly and each of them severally) as its agent
and attorney to enforce this Share Scheme Deed Poll against US Holdco. |
The
obligations of US Holdco under this Share Scheme Deed Poll are subject to the Share Scheme becoming Effective.
The
obligations of US Holdco under this Share Scheme Deed Poll to Share Scheme Participants will automatically terminate and the terms of
this Share Scheme Deed Poll will be of no further force or effect, if and only if the Scheme Implementation Deed is terminated in accordance
with its terms or the Share Scheme does not become Effective on or before the End Date, unless US Holdco and Incannex otherwise agree
in writing.
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| 3.3 | Consequences
of termination |
If
this Share Scheme Deed Poll is terminated under clause 3.2, then in addition and without prejudice to any other rights, powers or remedies
available to it:
| (a) | US
Holdco is released from its obligations to further perform this Share Scheme Deed Poll except
for any obligations which by their nature survive termination; and |
| (b) | each
Share Scheme Participant retains the powers and remedies they have against US Holdco in respect
of any breach of this Share Scheme Deed Poll which occurs before it is terminated. |
| 4 | Share Scheme obligations |
Subject
to clause 3, US Holdco undertakes in favour of each Share Scheme Participant to:
| (a) | issue
and provide to the Share Scheme Participant (or to the Sale Agent on behalf of the Share
Scheme Participant in accordance with the Share Scheme) the Share Scheme Consideration for
each Scheme Share held by each Share Scheme Participant; and |
| (b) | undertake
all other actions attributed to it under the Share Scheme and do all acts and things necessary
or desirable on its part to give full effect to the Share Scheme, |
all
in accordance with the terms of the Share Scheme and the Scheme Implementation Deed.
US
Holdco represents and warrants to each Share Scheme Participant that:
| (a) | it
is a corporation validly existing under the laws of its place of incorporation; |
| (b) | it
has the corporate power to enter into and perform its obligations under this Share Scheme
Deed Poll and to carry out the transactions contemplated by this Share Scheme Deed Poll; |
| (c) | it
has taken all necessary corporate action to authorise its entry into this Share Scheme Deed
Poll and has taken or will take all necessary corporate action to authorise the performance
of this Share Scheme Deed Poll and to carry out the transactions contemplated by this Share
Scheme Deed Poll; |
| (d) | this
Share Scheme Deed Poll has been duly and validly executed and delivered by it and is valid
and binding upon it; and |
| (e) | the
execution and performance by it of this Share Scheme Deed Poll and each transaction contemplated
by this Share Scheme Deed Poll did not and will not violate in any respect a provision of: |
| (i) | a
law, judgement, ruling, order or decree being on it; or |
| (ii) | its
constitution or other constituent documents. |
This
Share Scheme Deed Poll is irrevocable and, subject to clause 3, remains in full force and effect until the earlier of:
| (a) | US
Holdco having fully performed its obligations under this Share Scheme Deed Poll; or |
| (b) | termination
of this Share Scheme Deed Poll under clause 3.2. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (a) | The
rights and obligations of US Holdco and each Share Scheme Participant under this Share Scheme
Deed Poll are personal. They cannot be assigned, charged or otherwise dealt with without
the prior written consent of US Holdco and Incannex. |
| (b) | Any
purported dealing in contravention of clause 7.1(a) is invalid. |
The
rights, powers and remedies of US Holdco and the Share Scheme Participant under this Share Scheme Deed Poll are cumulative with the rights,
powers or remedies provided by law independently of this Share Scheme Deed Poll.
US
Holdco will, at its own expense, do all things reasonably required of it by law to give full effect to this Share Scheme Deed Poll and
the transactions contemplated by it.
| (a) | This
Share Scheme Deed Poll is governed by and will be construed according to the laws of Victoria,
Australia. |
| (b) | US Holdco
irrevocably: |
| (i) | submits
to the non-exclusive jurisdiction of the courts of Victoria and of the courts competent to
determine appeals from those courts, with respect to any proceedings that may be brought
at any time relating to this Share Scheme Deed Poll; and |
| (ii) | waives
any objection it may now or in the future have to the venue of any proceedings, and any claim
it may now or in the future have that any proceedings have been brought in an inconvenient
forum, if the venue of those proceedings fall within clause 7.4(b)(i). |
Any
notice or other communication to US Holdco under or in connection with this Share Scheme Deed Poll must be in writing and:
|
Address |
18 East 50th Street, 5th Floor, New York, NY 10022
|
|
|
|
|
E-mail |
|
|
|
|
|
Attention |
Joel Latham, Chief Executive Officer |
|
|
|
|
(or at any
such other address or email address notified for this purpose by US Holdco to Incannex from time to time); |
| (b) | must
be signed by the party making the communication or by a person duly authorised by that party
or, in the case of email, set out the full name and position or title of the duly authorised
sender; |
| (c) | must
be delivered or posted by prepaid post to the address or emailed to the email address of
the addressee in accordance with clause 7.5(a); and |
| (d) | will
be deemed to have been given: |
| (i) | if delivered,
on the date of delivery; or |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (i) | if
sent by post, on the third day after it was put into the post (for post within the same country)
or on the fifth day after it was put into the post (for post sent from one country to another);
or |
| (ii) | if
sent by email, on the earlier of the sender receiving an automated message confirming delivery
or, provided no automated message is received stating that the email has not been delivered,
three hours after the time the email was sent by the sender, such time to be determined by
reference to the device from which the email was sent, |
but
if the notice or other communication would otherwise be taken to be received after 5:00pm or on a Saturday, Sunday or public holiday
in the place of receipt then the notice or communication is taken to be received at 9:00am on the next day that is not a Saturday, Sunday
or public holiday in the place of receipt.
| (a) | US
Holdco must bear its own costs arising out of the negotiation, preparation and execution
of this Share Scheme Deed Poll. |
| (i) | must
pay all duty (including stamp duty) and any related fines, penalties and interest in respect
of the Share Scheme and this Share Scheme Deed Poll (including without limitation the acquisition
or transfer of Scheme Shares pursuant to the Share Scheme), the performance of this Share
Scheme Deed Poll and each transaction effected by or made under or pursuant to the Share
Scheme and this Share Scheme Deed Poll; and |
| (ii) | indemnifies
each Share Scheme Participant against any liability arising from failure to comply with clause
7.6(b)(i). |
| (a) | A
provision of this Share Scheme Deed Poll may not be varied, altered or otherwise amended
unless: |
| (i) | before
the Second Court Date, the variation, alteration or amendment is agreed to in writing by
Incannex (which such agreement may be given or withheld without reference to or approval
by any Incannex Shareholder); or |
| (ii) | on
or after the Second Court Date, the variation, alteration or amendment is agreed to in writing
by Incannex and is approved by the Court (which such agreement may be given or withheld without
reference to or approval by any Incannex Shareholder), |
in
which event US Holdco will enter into a further deed poll in favour of each Share Scheme Participant giving effect to the variation,
alteration or amendment.
| (a) | A
provision of or right under this Share Scheme Deed Poll may not be waived except in writing
signed by the person granting the waiver. |
| (b) | A failure or
delay in exercise, or partial exercise, of: |
| (i) | a
right arising from a breach of this Share Scheme Deed Poll; or |
| (ii) | a
right, power, authority, discretion or remedy created or arising upon default under this
Share Scheme Deed Poll, |
does
not result in a waiver of that right, power, authority, discretion or remedy.
| (c) | US
Holdco is not entitled to rely on a delay in the exercise or non-exercise of a right, power,
authority, discretion or remedy arising from a breach of this Share Scheme Deed Poll or on
a default under this Share Scheme Deed Poll as constituting a waiver of that right, power,
authority, discretion or remedy. |
| (d) | US
Holdco may not rely on any conduct of another person as a defence to the exercise of a right,
power, authority, discretion or remedy by that other person. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Executed
as a deed poll |
|
|
|
Executed by an authorised
signatory of |
|
Incannex Healthcare
Inc. |
|
|
|
/s/
Joel Latham |
|
|
|
Signature of authorised
person |
|
|
|
|
|
JOEL LATHAM |
|
|
|
Name of authorised person
|
|
BLOCK LETTERS |
|
|
|
CHIEF
EXECUTIVE OFFICER |
|
Title of authorised person |
|
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Schedule
3 – Option Scheme of Arrangement
SCHEME
OF ARRANGEMENT MADE
UNDER SECTION 411 OF THE
CORPORATIONS ACT 2001 (CTH)
Incannex
Healthcare Limited – Options
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
DETAILS
| Parties | Incannex
Healthcare Limited ACN 096 635 246 of Level 23, Rialto South Tower, 525 Collins Street,
Melbourne VIC 3000 (Incannex) |
AND
The
registered holders of options issued by Incannex to acquire fully paid ordinary shares in the capital of Incannex as at 7:00pm on the
Record Date (Option Scheme Participants)
| 1 | Defined terms & interpretation |
In
this Option Scheme, except where the context otherwise requires:
ADS
means an American Depositary Share.
ASIC
means the Australian Securities and Investments Commission.
ASX
means ASX Limited (ABN 98 008 624 691) or the Australian Securities Exchange, as the context requires.
Business
Day means a business day as defined in the Listing Rules and, to the extent any action must be taken in relation to NASDAQ, a day
on which NASDAQ is operating but excludes a day that is a Saturday, Sunday, bank holiday or public holiday in Melbourne, Victoria or
New York, United States of America.
Conditions
Precedent means the conditions precedent to this Option Scheme set out in clause
3.2
of the Scheme Implementation Deed.
Corporations
Act means the Corporations Act 2001 (Cth).
Court
means a court of competent jurisdiction under the Corporations Act.
Effective
means:
| (a) | when
used in relation to the Option Scheme, the order of the Court made under section 411(4)(b)
of the Corporations Act in relation to the Option Scheme taking effect pursuant to section
411(10) of the Corporations Act, but in any event at no time before an office copy of the
order of the Court is lodged with ASIC; and |
| (b) | when
used in relation to the Share Scheme, the order of the Court made under section 411(4)(b)
of the Corporations Act in relation to the Share Scheme taking effect pursuant to section
411(10) of the Corporations Act, 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 Option Scheme becomes Effective.
Eligible
Jurisdictions means Australia, Canada, Germany, Hong Kong, Indonesia, Italy, Japan, Netherlands, New Zealand, Philippines, Singapore,
United Kingdom and the United States and such other jurisdictions as agreed in writing between Incannex and Incannex US from time to
time.
Encumbrance
means any encumbrance, mortgage, pledge, charge, lien, assignment, hypothecation, security interest, title retention, preferential
right or trust arrangement and any other security arrangement of any kind given or created and including any possessory lien in the ordinary
course of business whether arising by law or contract.
End
Date means 29 February 2024, or such later date as agreed to in writing between Incannex and US Holdco from time to time.
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Implementation
Date means the fifth Business Day after the Record Date, or such other date agreed to in writing by Incannex and US Holdco.
Incannex
Option means an option issued by Incannex to acquire an Incannex Share.
Incannex
Option Register means the register of Incannex optionholders maintained by or on behalf of Incannex in accordance with the Corporations
Act.
Incannex
Optionholder means a person who is registered in the Incannex Option Register as the holder of one or more Incannex Options from
time to time.
Incannex
Share means a fully paid ordinary share issued in the capital of Incannex.
Incannex
Share Register means the register of Incannex shareholders maintained by or on behalf of Incannex in accordance with the Corporations
Act.
Incannex
Shareholder means a person who is registered in the Incannex Share Register as the holder of one or more Incannex Shares, from time
to time.
Ineligible
Foreign Optionholder means any Option Scheme Participant whose address shown on the Incannex Option Register is a place outside the
Eligible Jurisdictions, unless, no less than three Business Days prior to the Option Scheme Meeting, Incannex and US HoldCo agree in
writing that it is lawful and not unduly onerous or unduly impracticable to issue that Incannex Optionholder with the US HoldCo Options
when the Option Scheme becomes Effective.
Listing
Rules means the official listing rules of the ASX.
NASDAQ
means the NASDAQ Stock Market LLC.
Option
Scheme means the scheme of arrangement pursuant to Part 5.1 of the Corporations Act proposed between Incannex and Incannex Optionholders,
as set out in this document, together with any alterations or conditions made or required by the Court under section 411(6) of the Corporations
Act and approved in writing by US Holdco and Incannex.
Option
Scheme Consideration means the consideration to be provided by US Holdco to each Option Scheme Participant for the cancellation of
each Scheme Option under the Option Scheme in accordance with clause 6.3 of this Option Scheme.
Option
Scheme Deed Poll means the deed poll executed by US Holdco, substantially in the form of Schedule 4 to the Scheme Implementation
Deed.
Option
Scheme Meeting means the meeting of Incannex Optionholders convened by the Court in relation to the Option Scheme pursuant to section
411(1) of the Corporations Act and includes any adjournment of that meeting.
Option
Scheme Order means the orders of the Court made under section 411(4)(b) of the Corporations Act (and, if applicable and subject to
clause 8.6, section 411(6) of the Corporations Act) in relation to this Option Scheme.
Option
Scheme Participant means each person who is an Incannex Optionholder on the Record Date.
Record
Date means 7:00pm on the second Business Day following the Effective Date, or such other date (after the Effective Date) as Incannex
and US Holdco may agree in writing.
Representative
means:
| (a) | in
relation to Incannex, any director, officer or employee of any member of Incannex and any
financier, financial adviser, accounting adviser, auditor, legal adviser or technical or
other expert adviser or consultant to Incannex in relation to the Schemes; and |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (b) | in
relation to US Holdco, any director, officer or employee of any member of US Holdco and any
financier, financial adviser, accounting adviser, auditor, legal adviser or technical or
other expert adviser or consultant to US Holdco in relation to the Schemes. |
Scheme
Implementation Deed means the scheme implementation deed dated on or about 10 July 2023 between Incannex and US Holdco, as amended
or varied from time to time.
Scheme
Option means all of the Incannex Options on issue on the Record Date.
Schemes
means the Share Scheme and this Option Scheme.
Second
Court Date means the first day on which the application made to the Court for an order pursuant to section 411(4)(b) of the Corporations
Act approving the Share Scheme and Option Scheme is heard or, if the application is adjourned for any reason, the first day on which
the adjourned application is heard.
Share
Scheme has the meaning given to that term in the Scheme Implementation Deed.
Share
Scheme Order means the orders of the Court made under section 411(4)(b) of the Corporations Act (and, if applicable and subject to
terms of the Share Scheme, section 411(6) of the Corporations Act) in relation to the Share Scheme.
US
Holdco means Incannex Healthcare Inc., a corporation incorporated in the State of Delaware, United States of America and whose principal
business address is 18 East 50th Street, 5th Floor, New York, NY 10022.
US
Holdco Option means an option issued by US Holdco to acquire a US Holdco Share.
US
Holdco Option Register means the register of US Holdco optionholders maintained by or on behalf US Holdco and maintained in accordance
with the Delaware General Corporation Law.
US
Holdco Optionholder means a person who is registered in US Holdco Option Register as the holder of one or more US Holdco Options,
from time to time.
US
Holdco Share means a share of common stock of US Holdco.
In
this Option Scheme:
| (a) | the
singular includes the plural and vice versa, and a gender includes other genders; |
| (b) | another
grammatical form of a defined word or expression has a corresponding meaning; |
| (c) | a
reference to a clause, paragraph, or schedule is to a clause or paragraph of, or schedule
to, this agreement, and a reference to this document includes any schedule; |
| (d) | a
reference to a document or instrument includes the document or instrument as novated, altered,
supplemented or replaced from time to time; |
| (e) | a
reference to A$, dollar, Australian dollar or $ is to Australian currency; |
| (f) | a
reference to US$ or USD is to the lawful currency of the United States; |
| (g) | a
reference to time is to time in Melbourne, Victoria time, unless otherwise noted; |
| (h) | a
reference to a party is to a party to this agreement, and a reference to a party to a document
includes the party’s executors, administrators, successors and permitted assigns and substitutes; |
| (i) | a
reference to a person includes a natural person, partnership, body corporate, association,
governmental or local authority or agency or other entity; |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (j) | a
reference to a statute, ordinance, code or other law includes regulations and other instruments
under it and consolidations, amendments, re-enactments or replacements of any of them; |
| (k) | a
word or expression defined in the Corporations Act and not otherwise defined in this agreement
has the meaning given to it in the Corporations Act; |
| (l) | the
meaning of general words is not limited by specific examples introduced by including, for
example or similar expressions; |
| (m) | any
agreement, representation, warranty or indemnity in favour of two or more parties (including
where two or more persons are included in the same defined term) is for the benefit of them
jointly and severally; |
| (n) | a
rule of construction does not apply to the disadvantage of a party because the party was
responsible for the preparation of this document or any part of it; and |
| (o) | if
a day on or by which an obligation must be performed or an event must occur is not a Business
Day, the obligation must be performed or the event must occur on or by the next Business
Day. |
| (a) | Incannex
is a public company limited by shares incorporated in Australia and registered in Western
Australia. |
| (b) | Incannex
is admitted to the official list of ASX and its shares, being the Incannex Shares, are officially
quoted on the securities market conducted by ASX. Incannex is also admitted to NASDAQ and
Incannex ADSs are quoted on NASDAQ. |
| (c) | The
Incannex Options are not quoted on ASX. |
| (d) | Incannex’s
registered office is at Level 23, Rialto South Tower, 525 Collins Street, Melbourne 3000
Victoria Australia. |
US
Holdco is a company incorporated under the laws of Delaware in the United States of America. US Holdco’s principal business office is
at 18 East 50th Street, 5th Floor, New York, NY 10022.
| 2.3 | Agreement
to implement this Option Scheme |
Incannex
and US Holdco have agreed, by executing the Scheme Implementation Deed, to implement the terms of this Option Scheme and the steps contemplated
to follow the implementation of this Option Scheme, to the extent those steps are required to be done by each of them.
| 2.4 | Option
Scheme Deed Poll |
| (a) | This
Option Scheme attributes actions to US Holdco but does not itself impose an obligation on
US Holdco to perform those actions. US Holdco has undertaken in favour of each Option Scheme
Participant, by executing the Option Scheme Deed Poll, that it will fulfil its obligations
under the Scheme Implementation Deed and do all acts and things necessary or desirable on
its part to give full effect to this Option Scheme, including to issue to each Option Scheme
Participant (other than Ineligible Foreign Optionholders) the Option Scheme Consideration
for each Scheme Option held by the Option Scheme Participant. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (b) | Incannex
undertakes in favour of each Option Scheme Participant to enforce the Option Scheme Deed
Poll against US Holdco on behalf of and as agent and attorney for the Option Scheme Participants. |
| 2.5 | Summary
of Option Scheme |
If
this Option Scheme becomes Effective:
| (a) | all
of the Scheme Options held by Option Scheme Participants on the Record Date will be cancelled; |
| (b) | in
consideration for the cancellation of the Scheme Options, each Option Scheme Participant
that is not an Ineligible Foreign Optionholder will receive the Option Scheme Consideration
in accordance with the terms of the Scheme Implementation Deed, this Option Scheme and the
Option Scheme Deed Poll; |
| (c) | the
Scheme Options held by Option Scheme Participants that are Ineligible Foreign Optionholders
will be cancelled for nil consideration; |
| (d) | it
will bind Incannex and all Option Scheme Participants, including those who do not attend
the Option Scheme Meeting, those who do not vote at the Option Scheme Meeting and those who
vote against this Option Scheme at the Option Scheme Meeting; and |
| (e) | it
will override the constitution of Incannex, to the extent of any inconsistency. |
This
Option Scheme is conditional upon, and will have no force or effect until, the satisfaction of each of the following conditions:
| (a) | all
of the Conditions Precedent being satisfied or waived (other than the conditions in clauses
3.2(c) (Court Approval of Option Scheme), 3.2(f) (Option Scheme Orders lodged with
ASIC) of the Scheme Implementation Deed) in accordance with the Scheme Implementation
Deed by the times set out in the Scheme Implementation Deed; |
| (b) | as
at 8:00 am on the Second Court Date, the Scheme Implementation Deed not having been terminated
in accordance with its terms; |
| (c) | as
at 8:00 am on the Second Court Date, the Option Scheme Deed Poll not having been terminated
in accordance with its terms; |
| (d) | approval
of the Share Scheme by the Court pursuant to section 411(4)(b) of the Corporations Act, with
respect to all securities to be offered, issued or sold by US Holdco under the Share Scheme; |
| (e) | approval
of the Option Scheme by the Court pursuant to section 411(4)(b) of the Corporations Act,
with respect to all securities to be offered, issued or sold by US Holdco under the Option
Scheme; |
| (f) | such
other conditions made or required by the Court under section 411(6) of the Corporations Act
in relation to this Option Scheme and agreed to by Incannex and US Holdco as having been
satisfied or waived; |
| (g) | lodgement
with ASIC of an office copy of the order of the Court approving the Option Scheme pursuant
to section 411(10) of the Corporations Act; |
| (h) | the
Option Scheme Order comes into effect, pursuant to section 411(10) of the Corporations Act;
and |
| (i) | the
Share Scheme Order comes into effect, pursuant to section 411(10) of the Corporations Act. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| 3.2 | Effect
of Conditions Precedent |
The
satisfaction of each condition in clauses 3.1(a) to 3.1(i) (inclusive) of this Option Scheme (Condition) is a condition precedent
to the operation of this Option Scheme.
| (a) | Incannex
and US Holdco will provide to the Court on the Second Court Date a certificate signed by
US Holdco and Incannex (or such other evidence as the Court requests): |
| (i) | stating
whether or not the Conditions Precedent have been satisfied or waived (other than the Conditions
Precedent in clauses 3.2(c), 3.2(e) and 3.2(f) of the Scheme Implementation Deed) as at 8:00am
on the Second Court Date; and |
| (ii) | confirming
(in respect of matters within their knowledge) whether or not the conditions precedent in
clauses 3.1(b) and 3.1(c) of this Option Scheme have been satisfied or waived as at 8:00am
on the Second Court Date. |
| (b) | The
certificate referred to in clause 3.3(a) will constitute conclusive evidence of whether such
Conditions Precedent have been satisfied or waived as at 8:00am on the Second Court Date. |
Subject
to clause 4.2, this Option Scheme will come into effect pursuant to section 411(10) of the Corporations Act on and from the Effective
Date.
Without
limiting any rights under the Scheme Implementation Deed, this Option Scheme will lapse and be of no further force or effect (and US
Holdco is released from any obligations and any liability in connection with this Option Scheme and the Option Scheme Deed Poll) if:
| (a) | the
Effective Date has not occurred on or before the End Date; or |
| (b) | the
Scheme Implementation Deed or the Option Scheme Deed Poll is terminated in accordance with
its terms, |
unless
Incannex or US Holdco otherwise agree in writing (and, if required, as approved by the Court).
| 5 | Implementation
of the Option Scheme |
| 5.1 | Lodgement
of Option Scheme Order with ASIC |
Incannex
will lodge with ASIC in accordance with section 411(10) of the Corporations Act an office copy of the Option Scheme Order as soon as
practicable, and in any event by no later than 5:00pm on the first Business Day after the date on which the Court makes that Option Scheme
Order (or on such other Business Day as Incannex and US Holdco agree).
| 5.2 | Cancellation
of Scheme Options |
Subject
to the Option Scheme becoming Effective and the issue of Option Scheme Consideration in accordance with clause 6, on the Implementation
Date immediately following the issue of Option Scheme Consideration to Option Scheme Participants that are not Ineligible Foreign Optionholders:
| (a) | the
Scheme Options, together with all rights and entitlements attaching to them as at the Implementation
Date, will be cancelled without the need for any further act by any Incannex Optionholder;
and |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (b) | Incannex
must update the Incannex Option Register to reflect the cancellation. |
| 5.3 | Entitlement
to Option Scheme Consideration |
Subject
to this Option Scheme becoming Effective, in consideration of the cancellation of the Scheme Options, and subject to the other terms
and conditions of this Option Scheme, on the Implementation Date each Option Scheme Participant (other than Ineligible Foreign Optionholders)
will be issued the Option Scheme Consideration in respect of the Scheme Options held by them on the Record Date in accordance with clause
6 of this Option Scheme.
| 6 | Option Scheme Consideration |
| 6.1 | Option
Scheme Consideration |
On
the Implementation Date, Incannex must procure US Holdco to issue the Option Scheme Consideration to the Option Scheme Participants in
accordance with clause 6.3 of this Option Scheme.
Where
the calculation of the number of US Holdco Options to be issued to a particular Option Scheme Participant would result in the issue of
a fraction of a US Holdco Option, then any such fractional entitlement will be rounded up to the nearest whole number of US Holdco Options.
| 6.3 | Issue
of Option Scheme Consideration |
| (a) | Not
later than one Business Day after the Record Date, Incannex will give to US Holdco a notice
specifying the persons to whom US Holdco Options are to be issued pursuant to clause 5.3
and the number of US Holdco Options to which they are entitled. |
| (b) | On
the Implementation Date, in consideration for the Option Scheme Participants agreeing to
cancel their respective Scheme Options under the terms of this Option Scheme, Incannex will
procure the issue of one US Holdco Option to each Option Scheme Participant for every 100
Scheme Options held by that Option Scheme Participant on the Record Date (Option Scheme
Consideration). |
In
the case of Scheme Options held in joint names:
| (a) | US
Holdco Options to be issued under this Option Scheme will be issued to and registered in
the names of the joint holders; and |
| (b) | any
other document required to be sent under this Option Scheme will be forwarded to the registered
address recorded in the Incannex Option Register. |
| 6.5 | Ineligible
Foreign Optionholders |
US
Holdco has no obligation under this Option Scheme to issue any Option Scheme Consideration to Ineligible Foreign Optionholders, and will
not issue any Option Scheme Consideration (in the form of US Holdco Options) in the name of any Ineligible Foreign Optionholder and,
instead, any Scheme Options held by Ineligible Foreign Optionholders on the Record Date will be cancelled for nil consideration.
| 6.6 | Terms
of US Holdco Options |
Each
US Holdco Option issued as Option Scheme Consideration in accordance with the Option Scheme and the Option Scheme Deed Poll will:
| (a) | have
an exercise price per US Holdco Share equal to 100 times the exercise price per Incannex
Share of the relevant Scheme Option it replaces, converted from Australian dollars to US
dollars at the prevailing currency exchange rate on the Implementation Date, as reasonably
determined by Incannex; |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (b) | have
an exercise period equal to the unexpired exercise period of the relevant Scheme Option it
replaces; |
| (c) | have
the same terms as to vesting as the relevant Scheme Option it replaces; and |
| (d) | otherwise
be on the same terms as the Scheme Option it replaces, with necessary changes due to US Holdco
being the issuer in place of Incannex. |
| 6.7 | Option
Scheme Participants’ agreement |
If
the Option Scheme becomes Effective:
| (a) | each
Option Scheme Participant that is not an Ineligible Foreign Optionholder will be deemed to
have agreed: |
| (i) | to
become a US Holdco Optionholder and to have accepted the US Holdco Options issued to that
Option Scheme Participant under this Option Scheme; |
| (ii) | to
the cancellation of their Scheme Options in consideration for receiving that Option Scheme
Participant receiving the Option Scheme Consideration, in accordance with the terms of this
Option Scheme; |
| (iii) | to
have their name and address entered into the US Holdco Option Register; and |
| (iv) | to
be bound by the certificate of incorporation and bylaws of US Holdco as in force from time
to time in respect of US Holdco Options; and |
| (b) | each
Option Scheme Participant that is an Ineligible Foreign Optionholder will be deemed to have
agreed to the cancellation of their Scheme Options for nil consideration in accordance with
the terms of this Option Scheme. |
| 6.8 | Warranty
by Option Scheme Participants |
Each
Option Scheme Participant warrants to US Holdco and is deemed to have authorised Incannex to warrant to US Holdco as agent and attorney
for the Option Scheme Participant by virtue of this clause 6.8, that:
| (a) | all
their Scheme Options (including any rights and entitlements attaching to those options) cancelled
under the Option Scheme will, as at the date of the cancellation, be free from all Encumbrances;
and |
| (b) | they
have full power and capacity to deal with their Scheme Options (including any rights and
entitlements attaching to those Scheme Options). |
| 7 | Dealings
in Incannex Options |
| 7.1 | Determination
of Option Scheme Participants |
Each
Option Scheme Participant will be entitled to participate in the Option Scheme.
| 7.2 | Exercise
of Incannex Options |
| (a) | Incannex
must issue, and register the relevant Incannex Optionholder as the holder of, Incannex Shares
resulting from the valid exercise of an Incannex Option which is received on or before 5.00pm
on the Business Day immediately prior to the Record Date. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (b) | Incannex
will not accept for registration or recognise for any purpose any exercise of an Incannex
Option receive after 5.00pm on the Business Day immediately prior to the Record Date and,
after such time, the Incannex Options will not be capable of exercise notwithstanding the
terms on which the Incannex Options were granted. |
| 7.3 | No
disposals after Record Date |
If
this Option Scheme becomes Effective, each Option Scheme Participant, and any person claiming through that Option Scheme Participant,
must not dispose of or purport or agree to dispose of any Scheme Options or any interest in them after the Record Date.
| 7.4 | Maintenance
of Incannex Option Register |
For
the purpose of determining entitlements to the Option Scheme Consideration, Incannex will, until the Option Scheme Consideration has
been paid to Option Scheme Participants, maintain the Incannex Option Register in accordance with this clause 7. The Incannex Option
Register in this form will solely determine the entitlements to the Option Scheme Consideration.
| 7.5 | Effect
of Incannex Option Register |
Each
entry on the Incannex Option Register as at the Record Date will cease to have any effect other than as evidence of an entitlement of
Option Scheme Participants to the Option Scheme Consideration.
| 8.1 | Option
Scheme Participant agreements and consents |
Each
Option Scheme Participant:
| (a) | irrevocably
agrees to the cancellation of its Scheme Options together with all rights and entitlements
attaching to those Scheme Options in accordance with the terms of this Option Scheme; |
| (b) | irrevocably
agrees to the variation, cancellation or modification (if any) of the rights attached to
its Scheme Options constituted by or resulting from this Option Scheme. |
| (c) | irrevocably
consents to Incannex and US Holdco doing all things and executing all deeds, instruments,
transfers or other documents as may be necessary or desirable to give full effect to the
terms of the Option Scheme and the transactions contemplated by it, |
without
the need for any further act by that Option Scheme Participant.
| 8.2 | Authority
given to Incannex |
On
this Option Scheme becoming Effective, each Option Scheme Participant, without the need for any further act, is deemed to have irrevocably
appointed Incannex (and all of its directors and officers (jointly and severally)) as its attorney and agent for the purposes of:
| (a) | enforcing
the Option Scheme Deed Poll against US Holdco; and |
| (b) | executing
any document or doing any other act necessary or desirable to give full effect to this Option
Scheme and the transactions contemplated by it, |
and
Incannex accepts such appointment. Incannex as attorney and agent of each Option Scheme Participant, may sub delegate its functions,
authorities or powers under this clause 8.2 to all or any of its directors and officers (jointly, severally or jointly and severally).
Each
Option Scheme Participant and Incannex will execute documents and do all things and acts necessary or expedient in order to implement
this Option Scheme.
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
This
Option Scheme binds Incannex and all Option Scheme Participants (including those who do not attend the Option Scheme Meeting, those who
do not vote at that meeting or vote against this Option Scheme) and, to the extent of any inconsistency, overrides the constitution of
Incannex.
| (a) | Where
a notice, transfer, transmission application or other communication referred to in this Option
Scheme is sent by post to Incannex, it will not be deemed to be received in the ordinary
course of post or on a date other than the date (if any) on which it is actually received
at Incannex’s registered office or at the office of the Incannex share registry. |
| (b) | The
accidental omission to give notice of the Option Scheme Meeting to any Incannex Optionholder,
or the non-receipt of such a notice by any Incannex Optionholder, will not, unless ordered
by the Court, invalidate this Option Scheme or the proceedings at the Option Scheme Meeting. |
| 8.6 | Alterations
and conditions |
If
the Court proposes to approve this Option Scheme subject to any conditions or alterations under section 411(6) of the Corporations Act,
Incannex may, by its counsel on behalf of all persons concerned, consent to only such of those conditions or alterations to this Option
Scheme to which US Holdco has consented, such consent not to be unreasonably withheld or delayed.
| 8.7 | Enforcement
of Option Scheme Deed Poll |
Incannex
undertakes in favour of each Option Scheme Participant that it will enforce the Option Scheme Deed Poll against US Holdco on behalf of
and as agent and attorney for the Option Scheme Participants.
All
duty (including stamp duty), and any related fines, penalties and interest, payable in connection with the cancellation of the Scheme
Options by the Option Scheme Participants pursuant to the Option Scheme will be payable by US Holdco.
| 8.9 | Limitation
of liability |
None
of Incannex or US Holdco nor any of their respective Representatives are liable for anything done or omitted to be done in the performance
of this Option Scheme or the Option Scheme Deed Poll in good faith.
| (a) | This
Option Scheme is governed by and will be construed according to the laws of Victoria. |
| (b) | Each
party irrevocably: |
| (i) | submits
to the non exclusive jurisdiction of the courts of Victoria and of the courts competent to
determine appeals from those courts, with respect to any proceedings that may be brought
at any time relating to this Scheme; and |
| (i) | waives
any objection it may now or in the future have to the venue of any proceedings, and any claim
it may now or in the future have that any proceedings have been brought in an inconvenient
forum, if the venue of those proceedings fall within clause 8.10(b)(i). |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Schedule
4 – Option Scheme Deed Poll
DEED POLL
IN FAVOUR OF OPTION SCHEME PARTICIPANTS
Incannex
Healthcare Limited – Options
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
DETAILS
Date |
13 September 2023 |
|
|
|
By |
US Holdco |
|
|
NAME |
Incannex Healthcare Inc. |
|
ADDRESS |
18 East 50th Street, 5th Floor,
New York, NY 10022 |
|
EMAIL |
|
|
ATTENTION |
Joel Latham, Chief Executive
Officer |
|
|
|
IN FAVOUR OF |
Each registered
holder of options to acquire fully paid ordinary shares in Incannex Healthcare Limited ACN 096 635 246 of Level 23, Rialto South
Tower, 525 Collins Street, Melbourne VIC 3000 (Incannex) on the Record Date (Option Scheme Participants). |
BACKGROUND
| A | Incannex
and US Holdco have entered into a scheme implementation deed dated on or about 10 July 2023
(as amended and restated on 13 September 2023) (Scheme Implementation Deed). |
| B | Under
the Scheme Implementation Deed, Incannex has agreed that it will propose and implement the
Option Scheme in accordance with the Scheme Implementation Deed, pursuant to which US Holdco
will acquire all of the Scheme Options. |
| C | Under
the Scheme Implementation Deed, US Holdco has agreed to take all steps reasonably necessary
to assist Incannex in proposing and implementing the Option Scheme in accordance with the
Scheme Implementation Deed, the Option Scheme and this deed poll (being the Option Scheme
Deed Poll). |
| D | US
Holdco is entering into this Option Scheme Deed Poll for the purposes of: |
| i) | covenanting
in favour of the Option Scheme Participants to perform certain of its obligations under the
Scheme Implementation Deed; |
| ii) | covenanting
in favour of the Option Scheme Participants to perform the steps attributed to it under the
Option Scheme; and |
| iii) | ensuring
that the Option Scheme Consideration is provided to the Option Scheme Participants (other
than Ineligible Foreign Optionholders). |
| E | The
effect of the Option Scheme will be that the Scheme Options, together with all rights and
entitlements attaching to them, will be cancelled in exchange for the Option Scheme Consideration
or, in relation to Option Scheme Participants that are Ineligible Foreign Optionholders,
for nil consideration. |
AGREED
TERMS
| 1 | Definitions
and interpretation |
In
this deed poll:
Option
Scheme means the scheme of arrangement pursuant to Part 5.1 of the Corporations Act proposed between Incannex and Incannex Optionholders
together with any alterations or conditions made or required by the Court under section 411(6) of the Corporations Act and approved in
writing by Incannex and US Holdco.
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| 1.2 | Terms
defined in Scheme Implementation Deed |
Words
and phrases defined in the Scheme Implementation Deed have the same meanings in this Option Scheme Deed Poll unless the context requires
otherwise.
| (a) | Clause
1.2 of the Option Scheme applies to the interpretation of this Option Scheme Deed Poll, except
that references to “this Option Scheme” in that clause are to be read as references
to “this Option Scheme Deed Poll”. |
| (b) | Clause
headings in this Option Scheme Deed Poll do not affect the interpretation of this Option
Scheme Deed Poll. |
| (a) | If
the day on or by which a payment or an act is to be done under this Option Scheme Deed Poll
is not a Business Day, that act must be done on the next Business Day. |
| (b) | In
this Option Scheme Deed Poll, if a period occurs from, after or before a day or the day of
an act or event, it excludes that day. |
| (c) | In
this Option Scheme Deed Poll, a reference to a day is to be interpreted as the period of
time commencing at midnight and ending 24 hours later. |
| (d) | In
this Option Scheme Deed Poll a reference to time is a reference to Melbourne, Australia time. |
| 2 | Nature
of this Option Scheme Deed Poll |
US
Holdco acknowledges that:
| (a) | this
Option Scheme Deed Poll may be relied on and enforced by any Option Scheme Participant in
accordance with its terms, even though the Option Scheme Participants are not party to it;
and |
| (b) | under
the Option Scheme, each Option Scheme Participant irrevocably appoints Incannex and each
of its directors, officers and secretaries (jointly and each of them severally) as its agent
and attorney to enforce this Option Scheme Deed Poll against US Holdco. |
The
obligations of US Holdco under this Option Scheme Deed Poll are subject to the Option Scheme becoming Effective.
The
obligations of US Holdco under this Option Scheme Deed Poll to Option Scheme Participants will automatically terminate and the terms
of this Option Scheme Deed Poll will be of no further force or effect, if and only if the Scheme Implementation Deed is terminated in
accordance with its terms or the Option Scheme does not become Effective on or before the End Date, unless US Holdco and Incannex otherwise
agree in writing.
| 3.3 | Consequences
of termination |
If
this Option Scheme Deed Poll is terminated under clause 3.2, then in addition and without prejudice to any other rights, powers or remedies
available to it:
| (a) | US
Holdco is released from its obligations to further perform this Option Scheme Deed Poll except
for any obligations which by their nature survive termination; and |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (b) | each
Option Scheme Participant retains the powers and remedies they have against US Holdco in
respect of any breach of this Option Scheme Deed Poll which occurs before it is terminated. |
| 4 | Option
Scheme obligations |
Subject
to clause 3, US Holdco undertakes in favour of each Option Scheme Participant to:
| (a) | unless
the Option Scheme Participant is an Ineligible Foreign Optionholder, issue and provide to
the Option Scheme Participant the Option Scheme Consideration for each Scheme Option held
by each Option Scheme Participant; and |
| (b) | undertake
all other actions attributed to it under the Option Scheme and do all acts and things necessary
or desirable on its part to give full effect to the Option Scheme, |
all
in accordance with the terms of the Option Scheme and the Scheme Implementation Deed.
US
Holdco represents and warrants to each Option Scheme Participant that:
| (a) | it
is a corporation validly existing under the laws of its place of incorporation; |
| (b) | it
has the corporate power to enter into and perform its obligations under this Option Scheme
Deed Poll and to carry out the transactions contemplated by this Option Scheme Deed Poll; |
| (c) | it
has taken all necessary corporate action to authorise its entry into this Option Scheme Deed
Poll and has taken or will take all necessary corporate action to authorise the performance
of this Option Scheme Deed Poll and to carry out the transactions contemplated by this Option
Scheme Deed Poll; |
| (d) | this
Option Scheme Deed Poll has been duly and validly executed and delivered by it and is valid
and binding upon it; and |
| (e) | the
execution and performance by it of this Option Scheme Deed Poll and each transaction contemplated
by this Option Scheme Deed Poll did not and will not violate in any respect a provision of: |
| (i) | a
law, judgement, ruling, order or decree being on it; or |
| (ii) | its
constitution or other constituent documents. |
This
Option Scheme Deed Poll is irrevocable and, subject to clause 3, remains in full force and effect until the earlier of:
| (a) | US
Holdco having fully performed its obligations under this Option Scheme Deed Poll; or |
| (b) | termination
of this Deed Poll under clause 3.2. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (a) | The
rights and obligations of US Holdco and each Option Scheme Participant under this Option
Scheme Deed Poll are personal. They cannot be assigned, charged or otherwise dealt with without
the prior written consent of US Holdco and Incannex. |
| (b) | Any
purported dealing in contravention of clause 7.1(a) is invalid. |
The
rights, powers and remedies of US Holdco and the Option Scheme Participant under this Option Scheme Deed Poll are cumulative with the
rights, powers or remedies provided by law independently of this Option Scheme Deed Poll.
US
Holdco will, at its own expense, do all things reasonably required of it by law to give full effect to this Option Scheme Deed Poll and
the transactions contemplated by it.
| (a) | This
Option Scheme Deed Poll is governed by and will be construed according to the laws of Victoria,
Australia. |
| (b) | US
Holdco irrevocably: |
| (i) | submits
to the non-exclusive jurisdiction of the courts of Victoria and of the courts competent to
determine appeals from those courts, with respect to any proceedings that may be brought
at any time relating to this Option Scheme Deed Poll; and |
| (ii) | waives
any objection it may now or in the future have to the venue of any proceedings, and any claim
it may now or in the future have that any proceedings have been brought in an inconvenient
forum, if the venue of those proceedings fall within clause 7.4(b)(i). |
Any
notice or other communication to US Holdco under or in connection with this Option Scheme Deed Poll must be in writing and:
Address:
18 East 50th Street, 5th Floor, New York, NY 10022
E-mail:
For
the attention of: Joel Latham, Chief Executive Officer
(or
at any such other address or email address notified for this purpose by US Holdco to Incannex from time to time);
| (b) | must
be signed by the party making the communication or by a person duly authorised by that party
or, in the case of email, set out the full name and position or title of the duly authorised
sender; |
| (c) | must
be delivered or posted by prepaid post to the address or emailed to the email address of
the addressee in accordance with clause 7.5(a); and |
| (d) | will
be deemed to have been given: |
| (i) | if
delivered, on the date of delivery; or |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
| (i) | if
sent by post, on the third day after it was put into the post (for post within the same country)
or on the fifth day after it was put into the post (for post sent from one country to another);
or |
| (ii) | if
sent by email, on the earlier of the sender receiving an automated message confirming delivery
or, provided no automated message is received stating that the email has not been delivered,
three hours after the time the email was sent by the sender, such time to be determined by
reference to the device from which the email was sent, |
but
if the notice or other communication would otherwise be taken to be received after 5:00pm or on a Saturday, Sunday or public holiday
in the place of receipt then the notice or communication is taken to be received at 9:00am on the next day that is not a Saturday, Sunday
or public holiday in the place of receipt.
| (a) | US
Holdco must bear its own costs arising out of the negotiation, preparation and execution
of this Option Scheme Deed Poll. |
| (i) | must
pay all duty (including stamp duty) and any related fines, penalties and interest in respect
of the Option Scheme and this Option Scheme Deed Poll (including without limitation the cancellation
of Scheme Options pursuant to the Option Scheme), the performance of this Option Scheme Deed
Poll and each transaction effected by or made under or pursuant to the Option Scheme and
this Option Scheme Deed Poll; and |
| (ii) | indemnifies
each Option Scheme Participant against any liability arising from failure to comply with
clause 7.6(b)(i). |
| (a) | A
provision of this Option Scheme Deed Poll may not be varied, altered or otherwise amended
unless: |
| (i) | before
the Second Court Date, the variation, alteration or amendment is agreed to in writing by
Incannex (which such agreement may be given or withheld without reference to or approval
by any Incannex Optionholder); or |
| (ii) | on
or after the Second Court Date, the variation, alteration or amendment is agreed to in writing
by Incannex and is approved by the Court (which such agreement may be given or withheld without
reference to or approval by any Incannex Optionholder), |
in
which event US Holdco will enter into a further deed poll in favour of each Option Scheme Participant giving effect to the variation,
alteration or amendment.
| (a) | A
provision of or right under this Option Scheme Deed Poll may not be waived except in writing
signed by the person granting the waiver. |
| (b) | A
failure or delay in exercise, or partial exercise, of: |
| (i) | a
right arising from a breach of this Option Scheme Deed Poll; or |
| (ii) | a
right, power, authority, discretion or remedy created or arising upon default under this
Option Scheme Deed Poll, |
does
not result in a waiver of that right, power, authority, discretion or remedy.
| (c) | US
Holdco is not entitled to rely on a delay in the exercise or non-exercise of a right, power,
authority, discretion or remedy arising from a breach of this Option Scheme Deed Poll or
on a default under this Option Scheme Deed Poll as constituting a waiver of that right, power,
authority, discretion or remedy. |
| (d) | US
Holdco may not rely on any conduct of another person as a defence to the exercise of a right,
power, authority, discretion or remedy by that other person. |
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Executed
as a deed poll |
|
|
|
Executed
by an authorised signatory of |
|
Incannex
Healthcare Inc. |
|
|
|
/s/
Joel Latham |
|
Signature
of authorised person |
|
|
|
Joel
Latham |
|
Name of
authorised person |
|
|
|
Chief
Executive Officer |
|
Title
of authorised person |
|
| Scheme Implementation Deed | DMS:YXG: 5412447 Legal/83374955_3 |
Exhibit 3.1
Amended and Restated Certificate
of Incorporation
of
Incannex Healthcare Inc.
Incannex Healthcare Inc., a corporation organized and existing
under the laws of the State of Delaware (the “Corporation”), hereby certifies as follows:
| 1. | The name of the Corporation is “Incannex Healthcare Inc.” The original certificate of incorporation
of the Corporation was filed with the Secretary of State of the State of Delaware on July 5, 2023 (the “Original Certificate”). |
| 2. | The Corporation has not received any payment for any of its stock. |
| 3. | This Amended and Restated Certificate of Incorporation amends, restates and integrates provisions of
the Original Certificate that was duly adopted in accordance with the provisions of Sections 241 and 245 of the General Corporation Law
of the State of Delaware (the “DGCL”). |
| 4. | The text of the Original Certificate is hereby amended and restated in its entirety to provide
as herein set forth in full. |
ARTICLE I
NAME
The name of the Corporation is Incannex Healthcare Inc.
ARTICLE II
AGENT
The address of the Corporation’s
registered office in the State of Delaware is address is 850 New Burton Road, Suite 201, Dover, DE 19904, and the name of the Corporation’s
registered agent at such address is Cogency Global Inc.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage
in any lawful act or activity for which corporations may be organized under the DGCL.
ARTICLE IV
STOCK
Section 4.1 Authorized Stock.
The total number of shares that the Corporation shall have authority to issue is 110,000,000 shares, of which 100,000,000 shares shall
be designated as common stock, par value $0.0001 per share (the “Common Stock”), and 10,000,000 shares shall be designated
as preferred stock, par value $0.0001 per share (the “Preferred Stock”).
Section 4.2 Common Stock.
(a) Voting
Rights. Each holder of Common Stock shall be entitled to one vote for each share of Common Stock held of record by such holder on
all matters on which stockholders generally are entitled to vote; provided, however, that, except as otherwise required
by law, holders of Common Stock shall not be entitled to vote on any amendment to this Certificate of Incorporation, including any certificate
of designations relating to any series of Preferred Stock (each hereinafter referred to as a “Preferred Stock Designation”),
that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled,
either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation
(including any Preferred Stock Designation).
(b) Dividends.
Subject to the rights of the holders of any outstanding series of Preferred Stock, the holders of shares of Common Stock shall be entitled
to receive any dividends to the extent permitted by law when, as and if declared by the board of directors of the Corporation (the “Board”).
(c) Liquidation.
Upon the dissolution, liquidation or winding up of the Corporation, subject to the rights of the holders of any outstanding series of
Preferred Stock, the holders of shares of Common Stock shall be entitled to receive the assets of the Corporation available for distribution
to its stockholders ratably in proportion to the number of shares held by them.
Section 4.3 Preferred Stock.
The Preferred Stock may be issued from time to time in one or more series. Subject to limitations prescribed by law and the provisions
of this Article (including any Preferred Stock Designation), the Board is authorized to provide by resolution and by causing the filing
of a Preferred Stock Designation for the issuance of the shares of Preferred Stock in one or more series, and to establish from time to
time the number of shares to be included in each such series, and to fix the designations, powers, preferences, and relative, participating,
optional or other rights, if any, and the qualifications, limitations or restrictions, if any, of the shares of each such series.
Section 4.4 No Class Vote on
Changes in Authorized Number of Shares of Stock. Subject to the rights of the holders of any outstanding series of Preferred Stock,
the number of authorized shares of Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of at least a majority of the voting power of the stock outstanding and entitled to vote thereon
irrespective of the provisions of Section 242(b)(2) of the DGCL.
ARTICLE
V
BOARD OF DIRECTORS
Section 5.1 Number. Except
as otherwise provided for or fixed pursuant to the provisions of Article IV hereof (including any Preferred Stock Designation), the Board
of Directors shall consist of such number of directors as shall be determined from time to time solely by resolution adopted by the affirmative
vote of a majority of the total number of directors then authorized.
The name and mailing address of each
person who is to serve as a director of the Corporation until the first annual meeting of the stockholders or until their successors are
elected and qualified are as follows:
Name |
|
Mailing
Address |
|
|
|
Joel Latham |
|
Suite 105, 8 Century Circuit Norwest, NSW 2153, Australia |
|
|
|
Troy Valentine |
|
Suite 105, 8 Century Circuit Norwest, NSW 2153, Australia |
|
|
|
Peter Widdows |
|
Suite 105, 8 Century Circuit Norwest, NSW 2153, Australia |
|
|
|
George Anastassov |
|
Suite 105, 8 Century Circuit Norwest, NSW 2153, Australia |
|
|
|
Robert Clark |
|
Suite 105, 8 Century Circuit Norwest, NSW 2153, Australia |
Section 5.2 Classification.
(a) Except
as may be otherwise provided with respect to directors elected by the holders of any series of Preferred Stock provided for or fixed pursuant
to the provisions of Article IV hereof (including any Preferred Stock Designation) (the “Preferred Stock Directors”),
the Board shall be divided into three classes designated Class I, Class II and Class III. Class I directors shall initially serve until
the first annual meeting of stockholders following the initial effectiveness of this Section; Class II directors shall initially serve
until the second annual meeting of stockholders following the initial effectiveness of this Section; and Class III directors shall initially
serve until the third annual meeting of stockholders following the initial effectiveness of this Section. Commencing with the first annual
meeting of stockholders following the initial effectiveness of this Section, directors of each class the term of which shall then expire
shall be elected to hold office for a three-year term and until the election and qualification of their respective successors in office.
The Board is authorized to assign members of the Board already in office to Class I, Class II or Class III, with such assignment becoming
effective as of the initial effectiveness of this Section.
(b) Subject
to the rights of the holders of any outstanding series of Preferred Stock, and unless otherwise required by law, newly created directorships
resulting from any increase in the authorized number of directors and any vacancies in the Board resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors
then in office, even though less than a quorum of the Board, or by the sole remaining director. Any director so chosen shall hold office
until the next election of the class for which such director shall have been chosen and until his or her successor shall have been duly
elected and qualified. No decrease in the authorized number of directors shall shorten the term of any incumbent director.
(c) Any
director, or the entire Board, may be removed from office at any time, but only for cause and only by the affirmative vote of at least
66⅔% of the voting power of the stock outstanding and entitled to vote thereon.
(d) During
any period when the holders of any series of Preferred Stock have the right to elect additional directors as provided for or fixed pursuant
to the provisions of Article IV hereof (including any Preferred Stock Designation), and upon commencement and for the duration of the
period during which such right continues: (i) the then otherwise total authorized number of directors of the Corporation shall automatically
be increased by such number of directors that the holders of any series of Preferred Stock have a right to elect, and the holders of such
Preferred Stock shall be entitled to elect the additional directors so provided for or fixed pursuant to said provisions; and (ii) each
Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified,
or until such director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to
his or her earlier death, disqualification, resignation or removal. Except as otherwise provided for or fixed pursuant to the provisions
of Article IV hereof (including any Preferred Stock Designation), whenever the holders of any series of Preferred Stock having such right
to elect additional directors are divested of such right pursuant to said provisions, the terms of office of all Preferred Stock Directors
elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification
or removal of such additional directors, shall forthwith terminate (in which case each such Preferred Stock Director shall cease to be
qualified as a director and shall cease to be a director) and the total authorized number of directors of the Corporation shall be automatically
reduced accordingly.
Section 5.3 Powers. Except
as otherwise required by the DGCL or as provided in this Certificate of Incorporation (including any Preferred Stock Designation), the
business and affairs of the Corporation shall be managed by or under the direction of the Board.
Section 5.4 Election; Notice of Nominations and
Business.
(a) Ballot
Not Required. The directors of the Corporation need not be elected by written ballot unless the Bylaws of the Corporation (the “Bylaws”)
so provide.
(b) Notice.
Advance notice of nominations for the election of directors, and of business other than nominations, to be proposed by stockholders for
consideration at a meeting of stockholders of the Corporation shall be given in the manner and to the extent provided in or contemplated
by the Bylaws.
(c) Annual
Meeting. The annual meeting of stockholders, for the election of directors to succeed those whose terms expire and for the transaction
of such other business as may properly come before the meeting, shall be held at such place, if any, either within or without the State
of Delaware, on such date, and at such time as the Board shall fix.
ARTICLE
VI
STOCKHOLDER ACTION
Section 6.1 No Action Without
Meeting. Except as otherwise provided for or fixed with respect to actions required or permitted to be taken solely by holders of
Preferred Stock pursuant to the provisions of Article IV hereof (including any Preferred Stock Designation), no action that is required
or permitted to be taken by the stockholders of the Corporation may be effected by consent of stockholders in lieu of a meeting of stockholders.
Section 6.2 Special Meetings.
Except as otherwise required by law, and except as otherwise provided for or fixed pursuant to the provisions of Article IV hereof (including
any Preferred Stock Designation), a special meeting of the stockholders of the Corporation may be called at any time only by the Board.
Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting by or at the
direction of the Board.
ARTICLE VII
EXISTENCE
The Corporation shall have perpetual existence.
ARTICLE VIII
BUSINESS COMBINATIONS WITH INTERESTED
STOCKHOLDERS
The Corporation hereby expressly elects
that it shall not be governed by, or otherwise subject to, Section 203 of the DGCL.
ARTICLE IX
AMENDMENT
Section 9.1 Amendment of Certificate
of Incorporation. The Corporation reserves the right, at any time and from time to time, to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation (including any Preferred Stock Designation), and to add or insert other provisions authorized
by the laws of the State of Delaware at the time in force, in the manner now or hereafter prescribed by the laws of the State of Delaware.
All powers, preferences and rights of any nature conferred upon stockholders, directors or any other persons by and pursuant to this Certificate
of Incorporation (including any Preferred Stock Designation) in its present form or as hereafter amended are granted subject to this reservation;
provided, however, that, except as otherwise provided in this Certificate of Incorporation (including any provision of a
Preferred Stock Designation that provides for a greater or lesser vote) and in addition to any other vote required by law, the affirmative
vote of at least 66⅔% of the voting power of the stock outstanding and entitled to vote thereon, voting together as a single class,
shall be required to amend or repeal, or adopt any provision inconsistent with, Section 5.2 of Article V, Article VI, Article IX or Article
X.
Section 9.2 Amendment of Bylaws.
In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, but subject to the terms of any series
of Preferred Stock then outstanding, the Board is expressly authorized to adopt, amend or repeal the Bylaws. Except as otherwise provided
in this Certificate of Incorporation (including the terms of any Preferred Stock Designation that require an additional vote) or the Bylaws,
and in addition to any requirements of law, the affirmative vote of at least 66⅔% of the voting power of the stock outstanding
and entitled to vote thereon, voting together as a single class, shall be required for the stockholders to adopt, amend or repeal any
provision of the Bylaws.
ARTICLE
X
LIABILITY OF DIRECTORS
Section 10.1 No Personal Liability.
To the fullest extent permitted by the DGCL as the same exists or as may hereafter be amended, no director of the Corporation shall be
personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.
Section 10.2 Amendment or Repeal.
Any amendment, repeal or elimination of this Article X, or the adoption of any provision of the Certificate of Incorporation inconsistent
with this Article X, shall not affect its application with respect to an act or omission by a director occurring before such amendment,
adoption, repeal or elimination.
ARTICLE XI
FORUM FOR ADJUDICATION OF DISPUTES
Section 11.1 Forum. Unless
the Corporation, in writing, selects or consents to the selection of an alternative forum: (a) the sole and exclusive forum for any complaint
asserting any internal corporate claims (as defined below), to the fullest extent permitted by law, and subject to applicable jurisdictional
requirements, shall be the Court of Chancery of the State of Delaware (or, if the Court of Chancery does not have, or declines to accept,
jurisdiction, another state court or a federal court located within the State of Delaware); and (b) the sole and exclusive forum for any
complaint asserting a cause of action arising under the Securities Act of 1933, to the fullest extent permitted by law, shall be the federal
district courts of the United States of America. Notwithstanding anything herein to the contrary, and for the avoidance of doubt: (y)
this Article shall not apply to suits brought to enforce a duty or liability created by the Securities Exchange Act of 1934. For purposes
of this Article, the term “internal corporate claims” means claims, including claims in the right of the Corporation that
are based upon a violation of a duty by a current or former director, officer, employee or stockholder in such capacity, or as to which
the DGCL confers jurisdiction upon the Court of Chancery. Any person or entity purchasing or otherwise acquiring or holding any interest
in shares of stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article.
Section 11.2 Enforceability. If any
provision of this Article shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance
for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provision
in any other circumstance and of the remaining provisions of this Article (including, without limitation, each portion of any
sentence of this Article containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be
invalid, illegal or unenforceable), and the application of such provision to other persons or entities or circumstances shall not in
any way be affected or impaired thereby.
IN WITNESS WHEREOF, this Amended
and Restated Certificate of Incorporation has been executed by a duly authorized officer of this corporation on this 31st July
2023.
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By: |
/s/ Joel Latham |
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Joel Latham |
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Chief Executive Officer |
7
Exhibit 3.2
Amended and Restated Bylaws
of
Incannex Healthcare Inc.
(a Delaware corporation)
Article
I
CORPORATE OFFICES
Section
1.1 Registered Office. The registered office of Incannex Healthcare Inc. (the “Corporation”) shall
be fixed in the Certificate of Incorporation of the Corporation.
Section
1.2 Other Offices. The Corporation may also have an office or offices, and keep the books and records of the Corporation,
except as otherwise required by law, at such other place or places, either within or without the State of Delaware, as the Corporation
may from time to time determine or the business of the Corporation may require.
Article
II
MEETINGS OF STOCKHOLDERS
Section
2.1 Annual Meeting. The annual meeting of stockholders, for the election of directors to succeed those whose terms expire
and for the transaction of such other business as may properly come before the meeting, shall be held at such place, if any, either within
or without the State of Delaware, on such date, and at such time as the Board of Directors shall fix. The Board of Directors may postpone,
reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors.
Section
2.2 Special Meeting. Except as otherwise required by law, and except as otherwise provided for or fixed pursuant to the
Certificate of Incorporation, including any certificate of designations relating to any series of Preferred Stock (each hereinafter referred
to as a “Preferred Stock Designation”), a special meeting of the stockholders of the Corporation may be called at any
time only by the Board of Directors. The Board of Directors may postpone, reschedule or cancel any special meeting of stockholders previously
scheduled by the Board of Directors. Only such business shall be conducted at a special meeting of stockholders as shall have been brought
before the meeting by or at the direction of the Board of Directors.
Section
2.3 Notice of Stockholders’ Meetings.
(a) Whenever
stockholders are required or permitted to take any action at a meeting, notice of the place, if any, date, and time of the meeting of
stockholders, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record
date for determining the stockholders entitled to notice of the meeting), the means of remote communications, if any, by which stockholders
and proxyholders may be deemed to be present in person and vote at such meeting and, if the meeting is to be held solely by means of remote
communications, the means for accessing the list of stockholders contemplated by Section 2.5 of these Bylaws, shall be given. The notice
shall be given not less than 10 nor more than 60 days before the date on which the meeting is to be held, to each stockholder entitled
to vote at such meeting as of the record date for determining the stockholders entitled to notice of the meeting, except as otherwise
provided by law, the Certificate of Incorporation (including any Preferred Stock Designation) or these Bylaws. In the case of a special
meeting, the purpose or purposes for which the meeting is called also shall be set forth in the notice.
(b) Except
as otherwise required by law, notice may be given in writing directed to a stockholder’s mailing address as it appears on the records
of the Corporation and shall be given: (i) if mailed, when notice is deposited in the U.S. mail, postage prepaid; and (ii) if delivered
by courier service, the earlier of when the notice is received or left at such stockholder’s address.
(c) So
long as the Corporation is subject to the Securities and Exchange Commission’s proxy rules set forth in Regulation 14A under
the Securities Exchange Act of 1934 (the “Exchange Act”), notice shall be given in the manner required by such rules.
To the extent permitted by such rules, notice may be given by electronic transmission directed to the stockholder’s electronic mail
address, and if so given, shall be given when directed to such stockholder’s electronic mail address unless the stockholder has
notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice
is prohibited by Section 232(e) of the General Corporation Law of the State of Delaware (the “DGCL”). If notice
is given by electronic mail, such notice shall comply with the applicable provisions of Sections 232(a) and 232(d) of the DGCL.
(d) Notice
may be given by other forms of electronic transmission with the consent of a stockholder in the manner permitted by Section 232(b) of
the DGCL and shall be deemed given as provided therein.
(e) An
affidavit that notice has been given, executed by the Secretary of the Corporation, Assistant Secretary or any transfer agent or other
agent of the Corporation, shall be prima facie evidence of the facts stated in the notice in the absence of fraud. Notice shall
be deemed to have been given to all stockholders who share an address if notice is given in accordance with the “householding”
rules set forth in Rule 14a-3(e) under the Exchange Act and Section 233 of the DGCL.
(f) When
a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the place, if any, date and time
thereof, and the means of remote communications, if any, by which stockholders and proxyholders may be deemed to be present in person
and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided, however, that
if the adjournment is for more than 30 days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting,
the Board of Directors shall fix a new record date for notice of such adjourned meeting in accordance with Section 7.6(a), and shall
give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed
for notice of such adjourned meeting.
Section
2.4 Organization.
(a) Unless
otherwise determined by the Board of Directors, meetings of stockholders shall be presided over by the Chairman of the Board of Directors,
or in his or her absence, by the Chief Executive Officer or, in his or her absence, by another person designated by the Board of Directors.
The Secretary of the Corporation, or in his or her absence, an Assistant Secretary, or in the absence of the Secretary and all Assistant
Secretaries, a person whom the chairman of the meeting shall appoint, shall act as secretary of the meeting and keep a record of the proceedings
thereof.
(b) The
date and time of the opening and the closing of the polls for each matter upon which the stockholders shall vote at a meeting of stockholders
shall be announced at the meeting. The Board of Directors may adopt such rules and regulations for the conduct of any meeting of stockholders
as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board of Directors,
the chairman of the meeting shall have the authority to adopt and enforce such rules and regulations for the conduct of any meeting of
stockholders and the safety of those in attendance as, in the judgment of the chairman, are necessary, appropriate or convenient for the
conduct of the meeting. Rules and regulations for the conduct of meetings of stockholders, whether adopted by the Board of Directors or
by the chairman of the meeting, may include, without limitation, establishing: (i) an agenda or order of business for the meeting;
(ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance
at or participation in the meeting to stockholders entitled to vote at the meeting, their duly authorized and constituted proxies and
such other persons as the chairman of the meeting shall permit; (iv) restrictions on entry to the meeting after the time fixed for
the commencement thereof; (v) limitations on the time allotted for consideration of each agenda item and for questions and comments
by participants; (vi) regulations for the opening and closing of the polls for balloting and matters which are to be voted on by
ballot (if any); and (vii) procedures (if any) requiring attendees to provide the Corporation advance notice of their intent to attend
the meeting. Subject to any rules and regulations adopted by the Board of Directors, the chairman of the meeting may convene and, for
any or no reason, from time to time, adjourn and/or recess any meeting of stockholders pursuant to Section 2.7. The chairman of the
meeting, in addition to making any other determinations that may be appropriate to the conduct of the meeting, shall have the power to
declare that a nomination or other business was not properly brought before the meeting if the facts warrant (including if a determination
is made, pursuant to Section 2.10(c)(i) of these Bylaws, that a nomination or other business was not made or proposed, as the case may
be, in accordance with Section 2.10 of these Bylaws), and if such chairman should so declare, such nomination shall be disregarded or
such other business shall not be transacted.
Section
2.5 List of Stockholders. The Corporation shall prepare, at least 10 days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting; provided, however, that if the record date for determining the
stockholders entitled to vote is less than 10 days before the date of the meeting, the list shall reflect the stockholders entitled to
vote as of the 10th day before the meeting date. Such list shall be arranged in alphabetical order and shall show the address of each
stockholder and the number of shares registered in the name of each stockholder. Nothing in this Section 2.5 shall require the Corporation
to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination
of any stockholder, for any purpose germane to the meeting at least 10 days prior to the meeting: (a) on a reasonably accessible
electronic network, provided that the information required to gain access to such list is provided with the notice of meeting;
or (b) during ordinary business hours at the principal place of business of the Corporation. In the event that the Corporation determines
to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available
only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the
meeting shall be produced and kept at the time and place of the meeting during the whole time thereof and may be examined by any stockholder
who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination
of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to
access such list shall be provided with the notice of the meeting. Except as otherwise required by law, the stock ledger shall be the
only evidence as to who are the stockholders entitled to examine the list of stockholders required by this Section 2.5 or to vote
in person or by proxy at any meeting of stockholders.
Section
2.6 Quorum. Except as otherwise required by law, the Certificate of Incorporation (including any Preferred Stock Designation)
or these Bylaws, at any meeting of stockholders, one-third of the voting power of the stock outstanding and entitled to vote at the meeting,
present in person or represented by proxy, shall constitute a quorum for the transaction of business; provided, however,
that where a separate vote by a class or series or classes or series is required, a majority of the voting power of the stock of such
class or series or classes or series outstanding and entitled to vote on that matter, present in person or represented by proxy, shall
constitute a quorum entitled to take action with respect to such matter. If a quorum is not present or represented at any meeting of stockholders,
then the chairman of the meeting, or a majority of the voting power of the stock present in person or represented by proxy at the meeting
and entitled to vote thereon, shall have power to adjourn or recess the meeting from time to time in accordance with Section 2.7,
until a quorum is present or represented. Subject to applicable law, if a quorum initially is present at any meeting of stockholders,
the stockholders may continue to transact business until adjournment or recess, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum, but if a quorum is not present at least initially, no business other than adjournment or recess may be transacted.
Section
2.7 Adjourned or Recessed Meeting. Any annual or special meeting of stockholders, whether or not a quorum is present,
may be adjourned or recessed for any or no reason from time to time by the chairman of the meeting, subject to any rules and regulations
adopted by the Board of Directors pursuant to Section 2.4(b). Any such meeting may be adjourned for any or no reason (and may be
recessed if a quorum is not present or represented) from time to time by a majority of the voting power of the stock present in person
or represented by proxy at the meeting and entitled to vote thereon. At any such adjourned or recessed meeting at which a quorum is present,
any business may be transacted that might have been transacted at the meeting as originally called.
Section
2.8 Voting.
(a) Except
as otherwise required by law or the Certificate of Incorporation (including any Preferred Stock Designation), each holder of stock of
the Corporation entitled to vote at any meeting of stockholders shall be entitled to one vote for each share of such stock held of
record by such holder that has voting power upon the subject matter in question.
(b) Except
as otherwise required by law, the Certificate of Incorporation (including any Preferred Stock Designation), these Bylaws or any law, rule
or regulation applicable to the Corporation or its securities, at each meeting of stockholders at which a quorum is present, all corporate
actions to be taken by vote of the stockholders shall be authorized by the affirmative vote of at least a majority of the voting power
of the stock present in person or represented by proxy and entitled to vote on the subject matter, and where a separate vote by a class
or series or classes or series is required, if a quorum of such class or series or classes or series is present, such act shall be authorized
by the affirmative vote of at least a majority of the voting power of the stock of such class or series or classes or series present in
person or represented by proxy and entitled to vote on the subject matter. Voting at meetings of stockholders need not be by written ballot.
Section
2.9 Proxies. Every stockholder entitled to vote for directors, or on any other matter, shall have the right to do so
either in person or by one or more persons authorized to act for such stockholder by proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for a longer period. A proxy shall be irrevocable if it states that it
is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A proxy
may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest
in the Corporation generally. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person
or by delivering to the Secretary of the Corporation a revocation of the proxy or an executed new proxy bearing a later date.
Section
2.10 Notice of Stockholder Business and Nominations.
(a) Annual
Meeting.
(i) Nominations
of persons for election to the Board of Directors and the proposal of business other than nominations to be considered by the stockholders
may be made at an annual meeting of stockholders only: (A) pursuant to the Corporation’s notice of meeting (or any supplement
thereto); (B) by or at the direction of the Board of Directors (or any authorized committee thereof); or (C) by any stockholder
of the Corporation who is a stockholder of record at the time the notice provided for in this Section 2.10(a) is delivered to the Secretary
of the Corporation, who is entitled to vote at the meeting and who complies with the notice procedures set forth in this Section 2.10(a).
For the avoidance of doubt, the foregoing clause (C) shall be the exclusive means for a stockholder to make nominations or propose
other business at an annual meeting of stockholders (other than a proposal included in the Corporation’s proxy statement pursuant
to and in compliance with Rule 14a-8 under the Exchange Act).
(ii) For
nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of the foregoing
paragraph, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and, in the case of business
other than nominations, such business must be a proper subject for stockholder action. To be timely, a stockholder’s notice must
be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business (as defined in
Section 2.10(c)(ii) below) on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the
preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is more
than 30 days before or more than 60 days after such anniversary date, or if no annual meeting was held in the preceding year, notice by
the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day prior to such annual meeting
and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the date
on which public announcement (as defined in Section 2.10(c)(ii) below) of the date of such meeting is first made by the Corporation. In
no event shall an adjournment or recess of an annual meeting, or a postponement of an annual meeting for which notice of the meeting has
already been given to stockholders or a public announcement of the meeting date has already been made, commence a new time period (or
extend any time period) for the giving of a stockholder’s notice as described above. The number of nominees a stockholder may nominate
for election at the annual meeting (or in the case of a stockholder giving the notice on behalf of a beneficial owner, the number of nominees
a stockholder may nominate for election at the annual meeting on behalf of the beneficial owner) shall not exceed the number of directors
to be elected at such annual meeting. Such stockholder’s notice shall set forth:
(A) as
to each person whom the stockholder proposes to nominate for election or re-election as a director: (1) all information relating
to such person that is required to be disclosed in solicitations of proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to and in accordance with Regulation 14A under the Exchange Act; and (2) such person’s
written consent to serving as a director, if elected, for the full term for which such person is
standing for election; provided, however, that, in addition to the information required in the stockholder’s
notice pursuant to this Section 2.10(a)(ii)(A), such person shall also provide the Corporation such other information that the Corporation
may reasonably request and that is necessary to permit the Corporation to determine the eligibility of such person to serve as a director
of the Corporation, including information relevant to a determination whether such person can be considered an independent director;
(B) as
to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought
before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the
event that such business includes a proposal to amend the Bylaws of the Corporation, the language of the proposed amendment), the reasons
for conducting such business at the meeting and any substantial interest (within the meaning of Item 5 of Schedule 14A under
the Exchange Act) in such business of such stockholder and the beneficial owner (within the meaning of Section 13(d) of the Exchange
Act), if any, on whose behalf the proposal is made;
(C) as
to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination is made or the other business is
proposed:
(1) the
name and address of such stockholder, as they appear on the Corporation’s books, and the name and address of such beneficial owner;
(2) the
class or series and number of shares of stock of the Corporation which are owned of record by such stockholder and such beneficial owner
as of the date of the notice, and a representation that the stockholder will notify the Corporation in writing within five business days
after the record date for such meeting of the class or series and number of shares of stock of the Corporation owned of record by the
stockholder and such beneficial owner as of the record date for the meeting; and
(3) a
representation that the stockholder (or a qualified representative of the stockholder) intends to appear at the meeting to make such nomination
or propose such business;
(D) as
to the stockholder giving the notice or, if the notice is given on behalf of a beneficial owner on whose behalf the nomination is made
or the other business is proposed, as to such beneficial owner, and if such stockholder or beneficial owner is an entity, as to each director,
executive, managing member or control person of such entity (any such individual or control person, a “control person”):
(1) the
class or series and number of shares of stock of the Corporation which are beneficially owned (as defined in Section 2.10(c)(ii) below)
by such stockholder or beneficial owner and by any control person as of the date of the notice, and a representation that the stockholder
will notify the Corporation in writing within five business days after the record date for such meeting of the class or series and number
of shares of stock of the Corporation beneficially owned by such stockholder or beneficial owner and by any control person as of the record
date for the meeting;
(2) a
description of any agreement, arrangement or understanding with respect to the nomination or other business between or among such stockholder,
beneficial owner or control person and any other person, including, without limitation any agreements that would be required to be disclosed
pursuant to Item 5 or Item 6 of Exchange Act Schedule 13D (regardless of whether the requirement to file a Schedule 13D
is applicable) and a representation that the stockholder will notify the Corporation in writing within five business days after the record
date for such meeting of any such agreement, arrangement or understanding in effect as of the record date for the meeting;
(3) a
description of any agreement, arrangement or understanding (including, without limitation, any derivative or short positions, profit interests,
options, hedging transactions, and borrowed or loaned shares) that has been entered into as of the date of the stockholder’s notice
by, or on behalf of, such stockholder, beneficial owner or control person, the effect or intent of which is to mitigate loss, manage risk
or benefit from changes in the share price of any class or series of the Corporation’s stock, or maintain, increase or decrease
the voting power of the stockholder, beneficial owner or control person with respect to securities of the Corporation, and a representation
that the stockholder will notify the Corporation in writing within five business days after the record date for such meeting of any such
agreement, arrangement or understanding in effect as of the record date for the meeting; and
(4) a
representation whether the stockholder or the beneficial owner, if any, will engage in a solicitation with respect to the nomination or
other business and, if so, the name of each participant in such solicitation (as defined in Item 4 of Schedule 14A under the
Exchange Act) and whether such person intends or is part of a group which intends to deliver a proxy statement and/or form of proxy to
holders of shares representing at least 50% of the voting power of the stock entitled to vote generally in the election of directors in
the case of a nomination, or holders of at least the percentage of the Corporation’s stock required to approve or adopt the business
to be proposed in the case of other business.
(iii) Notwithstanding
anything in Section 2.10(a)(ii) above or Section 2.10(b) below to the contrary, if the record date for determining the stockholders entitled
to vote at any meeting of stockholders is different from the record date for determining the stockholders entitled to notice of the meeting,
a stockholder’s notice required by this Section 2.10 shall set forth a representation that the stockholder will notify the Corporation
in writing within five business days after the record date for determining the stockholders entitled to vote at the meeting, or by the
opening of business on the date of the meeting (whichever is earlier), of the information required under clauses (ii)(C)(2) and (ii)(D)(1)-(3)
of this Section 2.10(a), and such information when provided to the Corporation shall be current as of the record date for determining
the stockholders entitled to vote at the meeting.
(iv) This
Section 2.10(a) shall not apply to a proposal proposed to be made by a stockholder if the stockholder has notified the Corporation of
his or her intention to present the proposal at an annual or special meeting only pursuant to and in compliance with Rule 14a-8 under
the Exchange Act and such proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies
for such meeting.
(v) Notwithstanding
anything in this Section 2.10(a) to the contrary, in the event that the number of directors to be elected to the Board of Directors at
an annual meeting is increased and there is no public announcement by the Corporation naming all of the nominees for director or specifying
the size of the increased Board of Directors made by the Corporation at least 10 days prior to the last day a stockholder may deliver
a notice in accordance with Section 2.10(a)(ii) above, a stockholder’s notice required by this Section 2.10(a) shall also be considered
timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary of
the Corporation at the principal executive offices of the Corporation not later than the close of business on the 10th day following
the day on which such public announcement is first made by the Corporation.
(b) Special
Meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of stockholders at which directors
are to be elected pursuant to the Corporation’s notice of meeting: (i) by or at the direction of the Board of Directors (or
any authorized committee thereof); or (ii) provided that one or more directors are to be elected at such meeting, by any stockholder
of the Corporation who is a stockholder of record at the time the notice provided for in this Section 2.10(b) is delivered to the Secretary
of the Corporation, who is entitled to vote at the meeting and upon such election and who delivers notice thereof in writing setting forth
the information required by Section 2.10(a) above. In the event the Corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the Board of Directors, any stockholder entitled to vote in such election of directors may nominate
a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting, if
the notice required by this Section 2.10(b) shall be delivered to the Secretary at the principal executive offices of the Corporation
not earlier than the close of business on the 120th day prior to such special meeting and not later than the close of business on
the later of the 90th day prior to such special meeting or the 10th day following the date on which public announcement of the date
of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting is first made by the Corporation.
The number of nominees a stockholder may nominate for election at the special meeting (or in the case of a stockholder giving the notice
on behalf of a beneficial owner, the number of nominees a stockholder may nominate for election at the annual meeting on behalf of such
beneficial owner) shall not exceed the number of directors to be elected at such special meeting. In no event shall an adjournment, recess
or postponement of a special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice
as described above.
(c) General.
(i) Except
as otherwise required by law, only such persons who are nominated in accordance with the procedures set forth in this Section 2.10 shall
be eligible to be elected at any meeting of stockholders of the Corporation to serve as directors and only such other business shall be
conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this
Section 2.10. Except as otherwise required by law, each of the Chairman of the Board of Directors or the chairman of the meeting shall
have the power to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed,
as the case may be, in accordance with the procedures set forth in this Section 2.10 (including whether a stockholder or beneficial owner
solicited (or is part of a group which solicited) or did not so solicit, as the case may be, proxies in compliance with such stockholder’s
representation as required by clause (a)(ii)(D)(4) of this Section 2.10). If any proposed nomination or other business is not in compliance
with this Section 2.10, then except as otherwise required by law, the chairman of the meeting shall have the power to declare that such
nomination shall be disregarded or that such other business shall not be transacted. Notwithstanding the foregoing provisions of this
Section 2.10, unless otherwise required by law, or otherwise determined by the Chairman of the Board of Directors or the chairman of the
meeting, if the stockholder does not provide the information required under clauses (a)(ii)(C)(2) and (a)(ii)(D)(1)-(3) of this Section
2.10 to the Corporation within the time frames specified herein, any such nomination shall be disregarded and any such other business
shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. Notwithstanding
the foregoing provisions of this Section 2.10, unless otherwise required by law, or otherwise determined by the Chairman of the Board
of Directors or the chairman of the meeting, if the stockholder (or a qualified representative of the stockholder) does not appear at
the annual or special meeting of stockholders of the Corporation to present a nomination or other business (whether pursuant to the requirements
of these Bylaws or in accordance with Rule 14a-8 under the Exchange Act), such nomination shall be disregarded and such other business
shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. To be considered
a qualified representative of a stockholder pursuant to the preceding sentence, a person must be a duly authorized officer, manager or
partner of such stockholder or authorized by a writing executed by such stockholder (or a reliable reproduction of the writing) delivered
to the Corporation prior to the making of such nomination or proposal at such meeting (and in any event not fewer than five days before
the meeting) stating that such person is authorized to act for such stockholder as proxy at the meeting of stockholders.
(ii) For
purposes of this Section 2.10, the “close of business” shall mean 6:00 p.m. New York time on any calendar day,
whether or not the day is a business day, and a “public announcement” shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press or a comparable national news service or in a document publicly filed by the Corporation
with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act. For purposes of clause (a)(ii)(D)(1)
of this Section 2.10, shares shall be treated as “beneficially owned” by a person if the person beneficially owns such
shares, directly or indirectly, for purposes of Section 13(d) of the Exchange Act and Regulations 13D and 13G thereunder or
has or shares pursuant to any agreement, arrangement or understanding (whether or not in writing): (A) the right to acquire such
shares (whether such right is exercisable immediately or only after the passage of time or the fulfillment of a condition or both); (B) the
right to vote such shares, alone or in concert with others; and/or (C) investment power with respect to such shares, including the
power to dispose of, or to direct the disposition of, such shares.
(iii) Nothing
in this Section 2.10 shall be deemed to affect any rights of the holders of any series of Preferred Stock to elect directors pursuant
to any applicable provisions of the Certificate of Incorporation (including any Preferred Stock Designation).
Section
2.11 No Action by Written Consent.
Except as otherwise provided for or fixed pursuant
to the Certificate of Incorporation (including any Preferred Stock Designation), no action that is required or permitted to be taken by
the stockholders of the Corporation may be effected by consent of stockholders in lieu of a meeting of stockholders.
Section
2.12 Inspectors of Election. Before any meeting of stockholders, the Corporation may, and shall if required by law, appoint
one or more inspectors of election to act at the meeting and make a written report thereof. Inspectors may be employees of the Corporation.
The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or
alternate is able to act at a meeting of stockholders, the chairman of the meeting may, and shall if required by law, appoint one or more
inspectors to act at the meeting. Each inspector, before entering upon the discharge of his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. Inspectors need
not be stockholders. No director or nominee for the office of director at an election shall be appointed as an inspector at such election.
Such inspectors shall:
(a) determine
the number of shares outstanding and the voting power of each, the number of shares represented at the meeting, the existence of a quorum,
and the validity of proxies and ballots;
(b) determine
and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors;
(c) count
and tabulate all votes and ballots; and
(d) certify
their determination of the number of shares represented at the meeting, and their count of all votes and ballots.
Section
2.13 Meetings by Remote Communications. The Board of Directors may, in its sole discretion, determine that a meeting
of stockholders shall not be held at any place, but may instead be held solely by means of remote communication in accordance with Section 211(a)(2)
of the DGCL. If authorized by the Board of Directors in its sole discretion, and subject to such guidelines and procedures as the Board
of Directors may adopt, stockholders and proxyholders not physically present at a meeting of stockholders may, by means of remote communication:
(a) participate in a meeting of stockholders; and (b) be deemed present in person and vote at a meeting of stockholders whether
such meeting is to be held at a designated place or solely by means of remote communication, provided that: (i) the Corporation
shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote
communication is a stockholder or proxyholder; (ii) the Corporation shall implement reasonable measures to provide such stockholders
and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including
an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings; and (iii) if any
stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other
action shall be maintained by the Corporation.
Section
2.14 Delivery to the Corporation. Whenever this Article II requires one or more persons (including a record or beneficial
owner of stock) to deliver a document or information to the Corporation or any officer, employee or agent thereof (including any notice,
request, questionnaire, revocation, representation or other document or agreement), the Corporation shall not be required to accept delivery
of such document or information unless the document or information is in writing exclusively (and not in an electronic transmission) and
delivered exclusively by hand (including, without limitation, overnight courier service) or by certified or registered mail, return receipt
requested.
Article
III
DIRECTORS
Section
3.1 Powers. Except as otherwise required by the DGCL or as provided in the Certificate of Incorporation (including any
Preferred Stock Designation), the business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors.
In addition to the powers and authorities these Bylaws expressly confer upon it, the Board of Directors may exercise all such powers of
the Corporation and do all such lawful acts and things as are not by law, the Certificate of Incorporation (including any Preferred Stock
Designation) or these Bylaws required to be exercised or done by the stockholders.
Section
3.2 Number and Election. The number of directors of the Corporation shall be fixed solely by resolution adopted from
time to time by a majority of the total number of directors then authorized in office (hereinafter referred to as the “Whole Board”).
The directors shall hold office in the manner provided in the Certificate of Incorporation. At any meeting of stockholders at which directors
are to be elected, directors shall be elected by a plurality of the votes cast. Directors need not be stockholders unless so required
by the Certificate of Incorporation (including any Preferred Stock Designation) or these Bylaws, wherein other qualifications for directors
may be prescribed.
Section
3.3 Vacancies and Newly Created Directorships. Subject to the rights of the holders of any outstanding series of Preferred
Stock, and unless otherwise required by law newly created directorships resulting from any increase in the authorized number of directors
and any vacancies in the Board of Directors resulting from death, resignation, retirement, disqualification, removal from office or other
cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a
quorum, or by the sole remaining director, and any director so chosen shall hold office until the next election of the class for which
such director shall have been chosen and until his or her successor shall have been duly elected and qualified. No decrease in the authorized
number of directors shall shorten the term of any incumbent director.
Section
3.4 Resignations and Removal.
(a) Any
director may resign at any time upon notice given in writing or by electronic transmission to the Board of Directors, the Chairman of
the Board of Directors or the Secretary of the Corporation. Such resignation shall take effect upon delivery, unless the resignation specifies
a later effective date or time or an effective date or time determined upon the happening of an event or events. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it effective.
(b) Except
for such additional directors, if any, as are elected by the holders of any series of Preferred Stock as provided for or fixed pursuant
to the Certificate of Incorporation (including any Preferred Stock Designation), any director, or the entire Board of Directors, may be
removed from office at any time, but only for cause and only by the affirmative vote of at least 66⅔% of the voting power of the
stock outstanding and entitled to vote thereon.
Section
3.5 Regular Meetings. Regular meetings of the Board of Directors shall be held at such place or places, within or without
the State of Delaware, on such date or dates and at such time or times, as shall have been established by the Board of Directors and publicized
among all directors. A notice of each regular meeting shall not be required.
Section
3.6 Special Meetings. Special meetings of the Board of Directors for any purpose or purposes may be called at any time
by the Chairman of the Board of Directors, the Chief Executive Officer or a majority of the directors then in office. The person or persons
authorized to call special meetings of the Board of Directors may fix the place, within or without the State of Delaware, date and time
of such meetings. Notice of each such meeting shall be given to each director, if by mail, addressed to such director at his or her residence
or usual place of business, at least five days before the day on which such meeting is to be held, or shall be sent to such director by
electronic transmission, or be delivered personally or by telephone, in each case at least 24 hours prior to the time set for such meeting.
A notice of special meeting need not state the purpose of such meeting, and, unless indicated in the notice thereof, any and all business
may be transacted at a special meeting.
Section
3.7 Participation in Meetings by Conference Telephone. Members of the Board of Directors, or of any committee thereof,
may participate in a meeting of such Board of Directors or committee by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person
at such meeting.
Section
3.8 Quorum and Voting. Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, a majority
of the Whole Board shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, and the vote of
a majority of the directors present at a duly held meeting at which a quorum is present shall be the act of the Board of Directors. The
chairman of the meeting or a majority of the directors present may adjourn the meeting to another time and place whether or not a quorum
is present. At any adjourned meeting at which a quorum is present, any business may be transacted which might have been transacted at
the meeting as originally called.
Section
3.9 Board of Directors Action by Written Consent Without a Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors, or any committee
thereof, may be taken without a meeting, provided that all members of the Board of Directors or committee, as the case may be,
consent in writing or by electronic transmission to such action. After an action is taken, the consent or consents relating thereto shall
be filed with the minutes or proceedings of the Board of Directors or committee in the same paper or electronic form as the minutes are
maintained. Any person (whether or not then a director) may provide, whether through instruction to an agent or otherwise, that a consent
to action shall be effective at a future time (including a time determined upon the happening of an event), no later than 60 days after
such instruction is given or such provision is made and such consent shall be deemed to have been given at such effective time so long
as such person is then a director and did not revoke the consent prior to such time. Any such consent shall be revocable prior to its
becoming effective.
Section
3.10 Chairman of the Board. The Chairman of the Board shall preside at meetings of stockholders (unless otherwise determined
by the Board of Directors) and at meetings of directors and shall perform such other duties as the Board of Directors may from time to
time determine. If the Chairman of the Board is not present at a meeting of the Board of Directors, another director chosen by the Board
of Directors shall preside.
Section
3.11 Rules and Regulations. The Board of Directors may adopt such rules and regulations not inconsistent with the provisions
of law, the Certificate of Incorporation or these Bylaws for the conduct of its meetings and management of the affairs of the Corporation
as the Board of Directors shall deem proper.
Section
3.12 Fees and Compensation of Directors. Unless otherwise restricted by the Certificate of Incorporation, directors may
receive such compensation, if any, for their services on the Board of Directors and its committees, and such reimbursement of expenses,
as may be fixed or determined by resolution of the Board of Directors.
Section
3.13 Emergency Bylaws. This Section 3.13 shall be operative during any emergency condition as contemplated by Section
110 of the DGCL (an “Emergency”), notwithstanding any different or conflicting provisions in these Bylaws, the Certificate
of Incorporation or the DGCL. In the event of any Emergency, or other similar emergency condition, the director or directors in attendance
at a meeting of the Board of Directors or a standing committee thereof shall constitute a quorum. Such director or directors in attendance
may further take action to appoint one or more of themselves or other directors to membership on any standing or temporary committees
of the Board of Directors as they shall deem necessary and appropriate. Except as the Board may otherwise determine, during any Emergency,
the Corporation and its directors and officers, may exercise any authority and take any action or measure contemplated by Section 110
of the DGCL.
Article
IV
COMMITTEES
Section
4.1 Committees of the Board of Directors. The Board of Directors may designate one or more committees, each such committee
to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate
members of any committee to replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification
of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not he, she or they
constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent
or disqualified member. Any such committee, to the extent permitted by law and provided in the resolution of the Board of Directors establishing
such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such
committee shall have the power or authority in reference to the following matters: (a) approving or adopting, or recommending to
the stockholders, any action or matter (other than the election or removal of directors) expressly required by the DGCL to be submitted
to stockholders for approval; or (b) adopting, amending or repealing any bylaw of the Corporation. All committees of the Board of
Directors shall keep minutes of their meetings and shall report their proceedings to the Board of Directors when requested or required
by the Board of Directors.
Section
4.2 Meetings and Action of Committees. Unless the Board of Directors provides otherwise by resolution, any committee
of the Board of Directors may adopt, alter and repeal such rules and regulations not inconsistent with the provisions of law, the Certificate
of Incorporation or these Bylaws for the conduct of its meetings as such committee may deem proper. A majority of the directors then serving
on a committee shall constitute a quorum for the transaction of business by the committee except as otherwise required by law, the Certificate
of Incorporation or these Bylaws, and except as otherwise provided in a resolution of the Board of Directors; provided, however,
that in no case shall a quorum be less than one-third of the directors then serving on the committee. Unless the Certificate of Incorporation,
these Bylaws or a resolution of the Board of Directors requires a greater number, the vote of a majority of the members of a committee
present at a meeting at which a quorum is present shall be the act of the committee.
Article
V
OFFICERS
Section
5.1 Officers. The officers of the Corporation shall consist of a Chief Executive Officer, a President, a Chief Financial
Officer, one or more Vice Presidents, a Secretary, a Treasurer, a Controller and such other officers as the Board of Directors may from
time to time determine, each of whom shall be elected by the Board of Directors, each to have such authority, functions or duties as set
forth in these Bylaws or as determined by the Board of Directors. Each officer shall be elected by the Board of Directors and shall hold
office for such term as may be prescribed by the Board of Directors and until such person’s successor shall have been duly elected
and qualified, or until such person’s earlier death, disqualification, resignation or removal. Any number of offices may be held
by the same person; provided, however, that no officer shall execute, acknowledge or verify any instrument in more than
one capacity if such instrument is required by law, the Certificate of Incorporation or these Bylaws to be executed, acknowledged or verified
by two or more officers. The Board of Directors may require any officer, agent or employee to give security for the faithful performance
of his or her duties.
Section
5.2 Compensation. The salaries of the officers of the Corporation and the manner and time of the payment of such salaries
shall be fixed and determined by the Board of Directors or by a duly authorized officer and may be altered by the Board of Directors from
time to time as it deems appropriate, subject to the rights, if any, of such officers under any contract of employment.
Section
5.3 Removal, Resignation and Vacancies. Any officer of the Corporation may be removed, with or without cause, by the
Board of Directors or by a duly authorized officer, without prejudice to the rights, if any, of such officer under any contract to which
it is a party. Any officer may resign at any time upon notice given in writing or by electronic transmission to the Corporation, without
prejudice to the rights, if any, of the Corporation under any contract to which such officer is a party. If any vacancy occurs in any
office of the Corporation, the Board of Directors may elect a successor to fill such vacancy for the remainder of the unexpired term and
until a successor shall have been duly elected and qualified.
Section
5.4 Chief Executive Officer. The Chief Executive Officer shall have general supervision and direction of the business
and affairs of the Corporation, shall be responsible for corporate policy and strategy, and shall report directly to the Board of Directors.
Unless otherwise provided in these Bylaws or determined by the Board of Directors, all other officers of the Corporation shall report
directly to the Chief Executive Officer or as otherwise determined by the Chief Executive Officer. The Chief Executive Officer shall,
if present and in the absence of the Chairman of the Board of Directors, preside at meetings of the stockholders.
Section
5.5 President. The President shall be the chief operating officer of the Corporation, with general responsibility for
the management and control of the operations of the Corporation. The President shall, when requested, counsel with and advise the other
officers of the Corporation and shall perform such other duties as the Board of Directors or the Chief Executive Officer may from time
to time determine.
Section
5.6 Chief Financial Officer. The Chief Financial Officer shall exercise all the powers and perform the duties of the
office of the chief financial officer and in general have overall supervision of the financial operations of the Corporation. The Chief
Financial Officer shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such other duties
as the Board of Directors or the Chief Executive Officer may from time to time determine.
Section 5.7 Vice Presidents. Each Vice
President shall have such powers and duties as shall be prescribed by his or her superior officer, the Chief Executive Officer or the
President. A Vice President shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such
other duties as the Board of Directors, the Chief Executive Officer, the President or another duly authorized officer may from time to
time determine.
Section
5.7 Treasurer. The Treasurer shall supervise and be responsible for all the funds and securities of the Corporation,
the deposit of all monies and other valuables to the credit of the Corporation in depositories of the Corporation, borrowings and compliance
with the provisions of all indentures, agreements and instruments governing such borrowings to which the Corporation is a party, the disbursement
of funds of the Corporation and the investment of its funds, and in general shall perform all of the duties incident to the office of
the Treasurer. The Treasurer shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such
other duties as the Board of Directors, the Chief Executive Officer or the Chief Financial Officer may from time to time determine.
Section
5.8 Controller. The Controller shall have responsibility for the Corporation’s accounting policies and practices.
The Controller shall, when requested, counsel with and advise the other officers of the Corporation and shall perform such other duties
as the Board of Directors, the Chief Executive Officer or the Chief Financial Officer may from time to time determine.
Section
5.9 Secretary. The powers and duties of the Secretary are: (i) to act as Secretary at all meetings of the Board
of Directors, of the committees of the Board of Directors and of the stockholders and to record the proceedings of such meetings in a
book or books to be kept for that purpose; (ii) to see that all notices required to be given by the Corporation are duly given and
served; (iii) to act as custodian of the seal of the Corporation and affix the seal or cause it to be affixed to all certificates
of stock of the Corporation and to all documents, the execution of which on behalf of the Corporation under its seal is duly authorized
in accordance with the provisions of these Bylaws; (iv) to have charge of the books, records and papers of the Corporation and see
that the reports, statements and other documents required by law to be kept and filed are properly kept and filed; and (v) to perform
all of the duties incident to the office of Secretary. The Secretary shall, when requested, counsel with and advise the other officers
of the Corporation and shall perform such other duties as the Board of Directors or the Chief Executive Officer may from time to time
determine.
Section
5.10 Additional Matters. The Chief Executive Officer and the Chief Financial Officer of the Corporation shall have the
authority to designate employees of the Corporation to have the title of Vice President, Assistant Vice President, Assistant Treasurer
or Assistant Secretary. Any employee so designated shall have the powers and duties determined by the officer making such designation.
The persons upon whom such titles are conferred shall not be deemed officers of the Corporation unless elected by the Board of Directors.
Section
5.11 Checks; Drafts; Evidences of Indebtedness. From time to time, the Board of Directors shall determine the method,
and designate (or authorize officers of the Corporation to designate) the person or persons who shall have authority, to sign or endorse
all checks, drafts, other orders for payment of money and notes, bonds, debentures or other evidences of indebtedness that are issued
in the name of or payable by the Corporation, and only the persons so authorized shall sign or endorse such instruments.
Section
5.12 Corporate Contracts and Instruments; How Executed. Except as otherwise provided in these Bylaws, the Board of Directors
may determine the method, and designate (or authorize officers of the Corporation to designate) the person or persons who shall have authority
to enter into any contract or execute any instrument in the name of and on behalf of the Corporation. Such authority may be general or
confined to specific instances. Unless so authorized, or within the power incident to a person’s office or other position with the
Corporation, no person shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit
or to render it liable for any purpose or for any amount.
Section
5.13 Signature Authority. Unless otherwise determined by the Board of Directors or otherwise provided by law or these
Bylaws, contracts, evidences of indebtedness and other instruments or documents of the Corporation may be executed, signed or endorsed:
(i) by the Chief Executive or the President; or (ii) by the Chief Financial Officer, any Vice President, Treasurer, Secretary
or Controller, in each case only with regard to such instruments or documents that pertain to or relate to such person’s duties
or business functions.
Section
5.14 Action with Respect to Securities of Other Corporations or Entities. The Chief Executive Officer or any other officer
of the Corporation authorized by the Board of Directors or the Chief Executive Officer is authorized to vote, represent, and exercise
on behalf of the Corporation all rights incident to any and all shares or other equity interests of any other corporation or entity or
corporations or entities, standing in the name of the Corporation. The authority herein granted may be exercised either by such person
directly or by any other person authorized to do so by proxy or power of attorney duly executed by the person having such authority.
Section
5.15 Delegation. The Board of Directors may from time to time delegate the powers or duties of any officer to any other
officers or agents, notwithstanding the foregoing provisions of this Article V.
Article
VI
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES
Section 6.1
(a) Right
to Indemnification. Each person who was or is a party or is threatened to be made a party to, or was or is otherwise involved in,
any action, suit, arbitration, alternative dispute resolution mechanism, investigation, inquiry, judicial, administrative or legislative
hearing, or any other threatened, pending or completed proceeding, whether brought by or in the right of the Corporation or otherwise,
including any and all appeals, whether of a civil, criminal, administrative, legislative, investigative or other nature (hereinafter a
“proceeding”), by reason of the fact that he or she is or was a director or an officer of the Corporation or while
a director or officer of the Corporation is or was serving at the request of the Corporation as a director, officer, employee, agent or
trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee
benefit plan (hereinafter an “indemnitee”), or by reason of anything done or not done by him or her in any such capacity,
shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the DGCL, as the same exists or may hereafter
be amended, against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes, penalties
and amounts paid in settlement by or on behalf of the indemnitee) actually and reasonably incurred by such indemnitee in connection therewith,
all on the terms and conditions set forth in these Bylaws; provided, however, that, except as otherwise required by law
or provided in Section 6.3 with respect to suits to enforce rights under this Article VI, the Corporation shall indemnify any
such indemnitee in connection with a proceeding, or part thereof, voluntarily initiated by such indemnitee (including claims and counterclaims,
whether such counterclaims are asserted by: (i) such indemnitee; or (ii) the Corporation in a proceeding initiated by such indemnitee)
only if such proceeding, or part thereof, was authorized or ratified by the Board of Directors or the Board of Directors otherwise determines
that indemnification or advancement of expenses is appropriate.
(b) To
receive indemnification under this Section 6.1Article VI, an indemnitee shall submit a written request to the Secretary of the Corporation.
Such request shall include documentation or information that is necessary to determine the entitlement of the indemnitee to indemnification
and that is reasonably available to the indemnitee. Upon receipt by the Secretary of the Corporation of such a written request, unless
indemnification is required by Section 6.3, the entitlement of the indemnitee to indemnification shall be determined by the following
person or persons who shall be empowered to make such determination, as selected by the Board of Directors (except with respect to clause
(v) of this Section 6.1(b)): (i) the Board of Directors by a majority vote of the directors who are not parties to such proceeding, whether
or not such majority constitutes a quorum; (ii) a committee of such directors designated by a majority vote of such directors, whether
or not such majority constitutes a quorum; (iii) if there are no such directors, or if such directors so direct, by independent legal
counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the indemnitee; (iv) the stockholders of
the Corporation; or (v) in the event that a change of control (as defined below) has occurred, by independent legal counsel in a written
opinion to the Board of Directors, a copy of which shall be delivered to the indemnitee. The determination of entitlement to indemnification
shall be made and, unless a contrary determination is made, such indemnification shall be paid in full by the Corporation not later than
60 days after receipt by the Secretary of the Corporation of a written request for indemnification. For purposes of this Section 6.1(b),
a “change of control” will be deemed to have occurred if, with respect to any particular 24-month period, the individuals
who, at the beginning of such 24-month period, constituted the Board of Directors (the “incumbent board”), cease for any reason
to constitute at least a majority of the Board of Directors; provided, however, that any individual becoming a director subsequent to
the beginning of such 24-month period whose election, or nomination for election by the stockholders of the Corporation, was approved
by a vote of at least a majority of the directors then comprising the incumbent board shall be considered as though such individual were
a member of the incumbent board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation
of proxies or consents by or on behalf of a person other than the Board of Directors.
Section
6.2 Right to Advancement of Expenses.
(a) In
addition to the right to indemnification conferred in Section 6.1, an indemnitee shall, to the fullest extent permitted by law, also
have the right to be paid by the Corporation the expenses (including attorneys’ fees) incurred in defending any proceeding in advance
of its final disposition (hereinafter an “advancement of expenses”); provided, however, that an advancement
of expenses shall be made only upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a
court of competent jurisdiction from which there is no further right to appeal (hereinafter a “final adjudication”)
that such indemnitee is not entitled to be indemnified for such expenses under this Article VI or otherwise.
(b) To
receive an advancement of expenses under this Section 6.2, an indemnitee shall submit a written request to the Secretary of the Corporation.
Such request shall reasonably evidence the expenses incurred by the indemnitee and shall include or be accompanied by the undertaking
required by Section 6.2(a). Each such advancement of expenses shall be made within 20 days after the receipt by the Secretary of the Corporation
of a written request for advancement of expenses.
(c) Notwithstanding
the foregoing Section 6.2(a), the Corporation shall not make or continue to make advancements of expenses to an indemnitee if a determination
is reasonably made that the facts known at the time such determination is made demonstrate clearly and convincingly that the indemnitee
acted in bad faith or in a manner that the indemnitee did not reasonably believe to be in or not opposed to the best interests of the
Corporation, or, with respect to any criminal proceeding, that the indemnitee had reasonable cause to believe his or her conduct was unlawful.
Such determination shall be made: (i) by the Board of Directors by a majority vote of directors who are not parties to such proceeding,
whether or not such majority constitutes a quorum; (ii) by a committee of such directors designated by a majority vote of such directors,
whether or not such majority constitutes a quorum; or (iii) if there are no such directors, or if such directors so direct, by independent
legal counsel in a written opinion to the Board of Directors, a copy of which shall be delivered to the indemnitee.
Section
6.3 Indemnification for Successful Defense. To the extent that an indemnitee has been successful on the merits or otherwise
in defense of any proceeding (or in defense of any claim, issue or matter therein), such indemnitee shall be indemnified under this Section
6.3 against expenses (including attorneys’ fees) actually and reasonably incurred in connection with such defense. Indemnification
under this Section 6.3 shall not be subject to satisfaction of a standard of conduct, and the Corporation may not assert the failure to
satisfy a standard of conduct as a basis to deny indemnification or recover amounts advanced, including in a suit brought pursuant to
Section 6.4 (notwithstanding anything to the contrary therein); provided, however, that, any indemnitee who is not a current or former
director or officer (as such term is defined in the final sentence of Section 145(c)(1) of the DGCL) shall be entitled to indemnification
under Section 6.1 and this Section 6.3 only if such indemnitee has satisfied the standard of conduct required for indemnification under
Section 145(a) or Section 145(b) of the DGCL.
Section
6.4 Right of Indemnitee to Bring Suit. In the event that a determination is made that the indemnitee is not entitled
to indemnification or if payment is not timely made following a determination of entitlement to indemnification pursuant to Section 6.1(b),
if a request for indemnification under Section 6.3 is not paid in full by the Corporation within 60 days after a written request has been
received by the Secretary of the Corporation, or if an advancement of expenses is not timely made under Section 6.2(b), the indemnitee
may at any time thereafter bring suit against the Corporation in a court of competent jurisdiction in the State of Delaware seeking an
adjudication of entitlement to such indemnification or advancement of expenses. If successful in whole or in part in any such suit, or
in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall
be entitled to be paid also the expense of prosecuting or defending such suit to the fullest extent permitted by law. In any suit brought
by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that the indemnitee has not met any applicable standard of conduct for indemnification
set forth in Section 145(a) or Section 145(b) of the DGCL. Further, in any suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication
that the indemnitee has not met any applicable standard of conduct for indemnification set forth in Section 145(a) or Section 145(b) of
the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors,
independent legal counsel or its stockholders) to have made a determination prior to the commencement of such suit that indemnification
of the indemnitee is proper in the circumstances because the indemnitee has met the such applicable standard of conduct set forth in the
DGCL, nor an actual determination by the Corporation (including its directors who are not parties to such action, a committee of such
directors, independent legal counsel or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create
a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee,
be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of
proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under applicable law, this Article
VI or otherwise shall be on the Corporation.
Section
6.5 Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in this Article VI
shall not be exclusive of any other right which any person may have or hereafter acquire under any law, agreement, vote of stockholders
or disinterested directors, provisions of a certificate of incorporation or bylaws, or otherwise.
Section
6.6 Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability
or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the
DGCL.
Section
6.7 Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent and in the manner
permitted by law, and to the extent authorized from time to time, grant rights to indemnification and to the advancement of expenses to
any employee or agent of the Corporation.
Section
6.8 Nature of Rights. The rights conferred upon indemnitees in this Article VI shall be contract rights and such
rights shall continue as to an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s
heirs, executors and administrators. Any amendment, alteration or repeal of this Article VI that adversely affects any right of an
indemnitee or its successors shall be prospective only and shall not limit or eliminate any such right with respect to any proceeding
involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment, alteration or
repeal.
Section
6.9 Settlement of Claims. Notwithstanding anything in this Article VI to the contrary, the Corporation shall not
be liable to indemnify any indemnitee under this Article VI for any amounts paid in settlement of any proceeding effected without
the Corporation’s written consent, which consent shall not be unreasonably withheld.
Section
6.10 Subrogation. In the event of payment under this Article VI, the Corporation shall be subrogated to the extent
of such payment to all of the rights of recovery of the indemnitee (excluding insurance obtained on the indemnitee’s own behalf),
and the indemnitee shall execute all papers required and shall do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable the Corporation effectively to bring suit to enforce such rights.
Section
6.11 Severability. If any provision or provisions of this Article VI shall be held to be invalid, illegal or unenforceable
as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law: (a) the
validity, legality and enforceability of such provision in any other circumstance and of the remaining provisions of this Article VI
(including, without limitation, all portions of any paragraph of this Article VI containing any such provision held to be invalid,
illegal or unenforceable, that are not by themselves invalid, illegal or unenforceable) and the application of such provision to other
persons or entities or circumstances shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible,
the provisions of this Article VI (including, without limitation, all portions of any paragraph of this Article VI containing
any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent of the parties that the Corporation provide protection to the indemnitee to the fullest extent set
forth in this Article VI.
Article
VII
CAPITAL STOCK
Section
7.1 Certificates of Stock. The shares of the Corporation shall be represented by certificates; provided, however,
that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered
to the Corporation. Every holder of stock represented by certificates shall be entitled to have a certificate signed by or in the name
of the Corporation by any two authorized officers of the Corporation, including, without limitation, the Chief Executive Officer, the
Chief Financial Officer, the Treasurer, the Controller, the Secretary, or an Assistant Treasurer or Assistant Secretary, of the Corporation
certifying the number of shares owned by such holder in the Corporation. Any or all such signatures may be facsimiles. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer,
transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person
were such officer, transfer agent or registrar at the date of issue.
Section
7.2 Special Designation on Certificates. If the Corporation is authorized to issue more than one class of stock or more
than one series of any class, then the powers, the designations, the preferences, and the relative, participating, optional or other special
rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights
shall be set forth in full or summarized on the face or back of the certificate that the Corporation shall issue to represent such class
or series of stock; provided, however, that, except as otherwise provided in Section 202 of the DGCL, in lieu of the
foregoing requirements there may be set forth on the face or back of the certificate that the Corporation shall issue to represent such
class or series of stock a statement that the Corporation will furnish without charge to each stockholder who so requests the powers,
the designations, the preferences, and the relative, participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences and/or rights. Within a reasonable time after the issuance
or transfer of uncertificated stock, the registered owner thereof shall be given a notice, in writing or by electronic transmission, containing
the information required to be set forth or stated on certificates pursuant to this Section 7.2 or Sections 151, 156, 202(a)
or 218(a) of the DGCL or with respect to this Section 7.2 and Section 151 of the DGCL a statement that the Corporation will
furnish without charge to each stockholder who so requests the powers, the designations, the preferences, and the relative, participating,
optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights. Except as otherwise expressly provided by law, the rights and obligations of the holders of uncertificated
stock and the rights and obligations of the holders of certificates representing stock of the same class and series shall be identical.
Section
7.3 Transfers of Stock. Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation
upon authorization by the registered holder thereof or by such holder’s attorney thereunto authorized by a power of attorney duly
executed and filed with the Secretary of the Corporation or a transfer agent for such stock, and if such shares are represented by a certificate,
upon surrender of the certificate or certificates for such shares properly endorsed or accompanied by a duly executed stock transfer power
and the payment of any taxes thereon; provided, however, that the Corporation shall be entitled to recognize and enforce
any lawful restriction on transfer. Transfers may also be made in any manner authorized by the Corporation (or its authorized transfer
agent) and permitted by Section 224 of the DGCL.
Section
7.4 Lost Certificates. The Corporation may issue a new share certificate or uncertificated shares in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the
lost, stolen or destroyed certificate or the owner’s legal representative to give the Corporation a bond (or other adequate security)
sufficient to indemnify it against any claim that may be made against it (including any expense or liability) on account of the alleged
loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares. The Board of Directors
may adopt such other provisions and restrictions with reference to lost certificates, not inconsistent with applicable law, as it shall
in its discretion deem appropriate.
Section
7.5 Registered Stockholders. The Corporation shall be entitled to recognize the exclusive right of a person registered
on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable
or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice
thereof, except as otherwise required by law.
Section
7.6 Record Date for Determining Stockholders.
(a) In
order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjourned meeting,
the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record
date is adopted by the Board of Directors, and which record date shall, unless otherwise required by law, not be more than 60 nor less
than 10 days before the date of such meeting. If the Board of Directors so fixes a date, such date shall also be the record date for determining
the stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time it fixes such record date, that
a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board
of Directors, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at
the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on
the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjourned meeting; provided, however, that the Board of Directors may fix
a new record date for the determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as
the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination
of stockholders entitled to vote in accordance herewith at the adjourned meeting.
(b) In
order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which record date shall not be more than 60 days prior to such action.
If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on
the day on which the Board of Directors adopts the resolution relating thereto.
Section
7.7 Regulations. To the extent permitted by applicable law, the Board of Directors may make such additional rules and
regulations as it may deem expedient concerning the issue, transfer and registration of shares of stock of the Corporation.
Section
7.8 Waiver of Notice. Whenever notice is required to be given under any provision of the DGCL or the Certificate of Incorporation
or these Bylaws, a written waiver, signed by the person entitled to notice, or a waiver by electronic transmission by the person entitled
to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting
shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at
the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business
to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, the Board of Directors or a committee of
the Board of Directors need be specified in any written waiver of notice or any waiver by electronic transmission unless so required by
the Certificate of Incorporation or these Bylaws.
Article
VIII
GENERAL MATTERS
Section
8.1 Fiscal Year. The fiscal year of the Corporation shall be as the Board of Directors may designate.
Section
8.2 Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which
seal shall be in the charge of the Secretary of the Corporation. If and when so directed by the Board of Directors or a committee thereof,
duplicates of the seal may be kept and used by the Treasurer or by an Assistant Secretary or Assistant Treasurer.
Section
8.3 Reliance Upon Books, Reports and Records. Each director and each member of any committee designated by the Board
of Directors shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or
other records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of its
officers or employees, or committees of the Board of Directors so designated, or by any other person as to matters which such director
or committee member reasonably believes are within such other person’s professional or expert competence and who has been selected
with reasonable care by or on behalf of the Corporation.
Section
8.4 Subject to Law and Certificate of Incorporation. All powers, duties and responsibilities provided for in these Bylaws,
whether or not explicitly so qualified, are qualified by the Certificate of Incorporation (including any Preferred Stock Designation)
and applicable law.
Section
8.5 Electronic Signatures, etc. Except as otherwise required by the Certificate of Incorporation (including as otherwise
required by any Preferred Stock Designation) or these Bylaws (including, without limitation, as otherwise required by Section 2.14),
any document, including, without limitation, any consent, agreement, certificate or instrument, required by the DGCL, the Certificate
of Incorporation (including any Preferred Stock Designation) or these Bylaws to be executed by any officer, director, stockholder, employee
or agent of the Corporation may be executed using a facsimile or other form of electronic signature to the fullest extent permitted by
applicable law. All other contracts, agreements, certificates or instruments to be executed on behalf of the Corporation may be executed
using a facsimile or other form of electronic signature to the fullest extent permitted by applicable law. The terms “electronic
mail,” “electronic mail address,” “electronic signature” and “electronic transmission” as used
herein shall have the meanings ascribed thereto in the DGCL.
Article
IX
AMENDMENTS
Section
9.1 Amendments. In furtherance and not in limitation of the powers conferred by the laws of the State of Delaware, the
Board of Directors is expressly authorized to adopt, amend or repeal these Bylaws. Except as otherwise provided in the Certificate of
Incorporation (including the terms of any Preferred Stock Designation that provides for a greater or lesser vote) or these Bylaws, and
in addition to any other vote required by law, the affirmative vote of at least 66⅔% of the voting power of the stock outstanding
and entitled to vote thereon, voting together as a single class, shall be required for the stockholders to adopt, amend or repeal, or
adopt any provision inconsistent with, any provision of these Bylaws.
The foregoing Bylaws were adopted by the Board
of Directors on November 20, 2023.
25
Exhibit 10.1
Incannex Healthcare Inc.
Indemnification Agreement
This Indemnification
Agreement (this “Agreement”) is dated as of ,
and is between Incannex Healthcare Inc., a Delaware corporation (the “Company”), and
(“Indemnitee”).
RECITALS
A. Indemnitee’s
service to the Company substantially benefits the Company.
B. Individuals
are reluctant to serve as directors or officers of corporations or in certain other capacities unless they are provided with adequate
protection through insurance or indemnification against the risks of claims and actions against them arising out of such service.
C. Indemnitee
does not regard the protection currently provided by applicable law, the Company’s governing documents and any insurance as adequate
under the present circumstances, and Indemnitee may not be willing to serve as a director or officer without additional protection.
D. In
order to induce Indemnitee to continue to provide services to the Company, it is reasonable, prudent and necessary for the Company to
contractually obligate itself to indemnify, and to advance expenses on behalf of, Indemnitee as permitted by applicable law.
E. This
Agreement is a supplement to and in furtherance of the indemnification provided in the Company’s certificate of incorporation and
bylaws, and any resolutions adopted pursuant thereto, and this Agreement shall not be deemed a substitute therefor, nor shall this Agreement
be deemed to limit, diminish or abrogate any rights of Indemnitee thereunder.
The parties therefore agree
as follows:
1. Definitions.
(a) A
“Change in Control” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of
the following events:
(i) Acquisition
of Stock by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner (as defined below), directly or indirectly,
of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding
securities;
(ii) Change
in Board Composition. During any period of two consecutive years (not including any period prior to the execution of this Agreement),
individuals who at the beginning of such period constitute the Company’s board of directors, and any new directors (other than a
director designated by a person who has entered into an agreement with the Company to effect a transaction described in Sections 1(a)(i),
1(a)(iii) or (1)(a)(iv) whose election by the board of directors or nomination for election by the Company’s stockholders was approved
by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members
of the Company’s board of directors;
Indemnification Agreement | -1- |
(iii) Corporate
Transactions. The effective date of a merger or consolidation of the Company with any other entity, other than a merger or consolidation
which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of the surviving entity outstanding immediately after such merger or consolidation and
with the power to elect at least a majority of the board of directors or other governing body of such surviving entity;
(iv) Liquidation.
The approval by the stockholders of the Company of a complete liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company’s assets; and
(v) Other
Events. Any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
(or in response to any similar item on any similar schedule or form) promulgated under the Securities Exchange Act of 1934, as amended,
whether or not the Company is then subject to such reporting requirement.
For purposes of this Section 1(a),
the following terms shall have the following meanings:
(1) “Person”
shall have the meaning as set forth in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended; provided,
however, that “Person” shall exclude (i) the Company, (ii) any trustee or other fiduciary holding securities
under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the Company.
(2) “Beneficial
Owner” shall have the meaning given to such term in Rule 13d-3 under the Securities Exchange Act of 1934, as amended; provided,
however, that “Beneficial Owner” shall exclude any Person otherwise becoming a Beneficial Owner by reason of (i) the
stockholders of the Company approving a merger of the Company with another entity or (ii) the Company’s board of directors
approving a sale of securities by the Company to such Person.
(b) “Corporate
Status” describes the status of a person who is or was a director, trustee, general partner, managing member, officer, employee,
agent or fiduciary of the Company or any other Enterprise.
(c) “DGCL”
means the General Corporation Law of the State of Delaware.
(d) “Disinterested
Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification
is sought by Indemnitee.
(e) “Enterprise”
means the Company and any other corporation, partnership, limited liability company, joint venture, trust, employee benefit plan or other
enterprise of which Indemnitee is or was serving at the request of the Company as a director, trustee, general partner, managing member,
officer, employee, agent or fiduciary.
Indemnification Agreement | -2- |
(f) “Expenses”
include all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees and costs of experts, witness fees, travel
expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, and all other disbursements
or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating,
being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in
connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating
to any cost bond, supersedeas bond or other appeal bond or their equivalent, and (ii) for purposes of Section 12(d), Expenses
incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement
or under any directors’ and officers’ liability insurance policies maintained by the Company. Expenses, however, shall not
include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(g) “Independent
Counsel” means a law firm, or a partner or member of a law firm, that is experienced in matters of corporation law and neither
presently is, nor in the past five years has been, retained to represent (i) the Company or Indemnitee in any matter material to
either such party (other than as Independent Counsel with respect to matters concerning Indemnitee under this Agreement, or other indemnitees
under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable
standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee
in an action to determine Indemnitee’s rights under this Agreement.
(h) “Proceeding”
means any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation,
inquiry, administrative hearing or proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal,
administrative or investigative nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, a
potential party, a non-party witness or otherwise by reason of (i) the fact that Indemnitee is or was a director or officer of the
Company, (ii) any action taken by Indemnitee or any action or inaction on Indemnitee’s part while acting as a director or officer
of the Company, or (iii) the fact that he or she is or was serving at the request of the Company as a director, trustee, general
partner, managing member, officer, employee, agent or fiduciary of the Company or any other Enterprise, in each case whether or not serving
in such capacity at the time any liability or Expense is incurred for which indemnification or advancement of expenses can be provided
under this Agreement.
(i) Reference
to “other enterprises” shall include employee benefit plans; references to “fines” shall include
any excise taxes assessed on a person with respect to any employee benefit plan; references to “serving at the request of the
Company” shall include any service as a director, officer, employee or agent of the Company which imposes duties on, or involves
services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and
a person who acted in good faith and in a manner he or she reasonably believed to be in the best interests of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Company”
as referred to in this Agreement.
2. Indemnity
in Third-Party Proceedings. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 2 if Indemnitee
is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company
to procure a judgment in its favor. Pursuant to this Section 2, Indemnitee shall be indemnified to the fullest extent permitted by
applicable law against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or
on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in
a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
Indemnification Agreement | -3- |
3. Indemnity
in Proceedings by or in the Right of the Company. The Company shall indemnify Indemnitee in accordance with the provisions of this
Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the
Company to procure a judgment in its favor. Pursuant to this Section 3, Indemnitee shall be indemnified to the fullest extent permitted
by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with
such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the Company. No indemnification for Expenses shall be made under this Section 3
in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged by a court of competent jurisdiction to be liable
to the Company, unless and only to the extent that the Delaware Court of Chancery or any court in which the Proceeding was brought shall
determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnification for such expenses as the Delaware Court of Chancery or such other court shall deem proper.
4. Indemnification
for Expenses of a Party Who is Wholly or Partly Successful. To the extent that Indemnitee is a party to or a participant in and is
successful (on the merits or otherwise) in defense of any Proceeding or any claim, issue or matter therein, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
To the extent permitted by applicable law, if Indemnitee is not wholly successful in such Proceeding but is successful, on the merits
or otherwise, in defense of one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee
against all Expenses actually and reasonably incurred by Indemnitee or
on Indemnitee’s behalf in connection with (a) each successfully resolved claim, issue or matter and (b) any claim, issue
or matter related to any such successfully resolved claim, issuer or matter. For purposes of this section, the termination of any claim,
issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim,
issue or matter.
5. Indemnification
for Expenses of a Witness. To the extent that Indemnitee is, by reason of his or her Corporate Status, a witness in any Proceeding
to which Indemnitee is not a party, Indemnitee shall be indemnified to the extent permitted by applicable law against all Expenses actually
and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
6. Additional
Indemnification.
(a) Notwithstanding
any limitation in Sections 2, 3 or 4, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law if
Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding (including a Proceeding by or in the right of
the Company to procure a judgment in its favor) against all Expenses, judgments, fines and amounts paid in settlement actually and reasonably
incurred by Indemnitee or on his or her behalf in connection with the Proceeding or any claim, issue or matter therein.
Indemnification Agreement | -4- |
(b) For
purposes of Section 6(a), the meaning of the phrase “to the fullest extent permitted by applicable law” shall
include, but not be limited to:
(i) the
fullest extent permitted by the provision of the DGCL that authorizes or contemplates additional indemnification by agreement, or the
corresponding provision of any amendment to or replacement of the DGCL; and
(ii) the
fullest extent authorized or permitted by any amendments to or replacements of the DGCL adopted after the date of this Agreement that
increase the extent to which a corporation may indemnify its officers and directors.
7. Exclusions.
Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in
connection with any Proceeding (or any part of any Proceeding):
(a) for
which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise,
except with respect to any excess beyond the amount paid;
(b) for
an accounting or disgorgement of profits pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar
provisions of federal, state or local statutory law or common law, if Indemnitee is held liable therefor (including pursuant to any settlement
arrangements);
(c) for
any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized
by Indemnitee from the sale of securities of the Company, as required in each case under the Securities Exchange Act of 1934, as amended
(including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley
Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale
by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act), if Indemnitee is held liable therefor (including
pursuant to any settlement arrangements);
(d) initiated
by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors,
officers, employees, agents or other indemnitees, unless (i) the Company’s board of directors authorized the Proceeding (or
the relevant part of the Proceeding) prior to its initiation, (ii) the Company provides the indemnification, in its sole discretion,
pursuant to the powers vested in the Company under applicable law, (iii) otherwise authorized in Section 12(d) or (iv) otherwise
required by applicable law; or
(e) if
prohibited by applicable law.
8. Advances
of Expenses. The Company shall advance the Expenses incurred by Indemnitee in connection with any Proceeding, and such advancement
shall be made as soon as reasonably practicable, but in any event no later than 60 days, after the receipt by the Company of a written
statement or statements requesting such advances from time to time (which shall include invoices received by Indemnitee in connection
with such Expenses but, in the case of invoices in connection with legal services, any references to legal work performed or to expenditure
made that would cause Indemnitee to waive any privilege accorded by applicable law shall not be included with the invoice). Advances shall
be unsecured and interest free and made without regard to Indemnitee’s ability to repay such advances. Indemnitee hereby undertakes
to repay any advance to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company.
This Section 8 shall not apply to the extent advancement is prohibited by law and shall not apply to any Proceeding for which indemnity
is not permitted under this Agreement, but shall apply to any Proceeding referenced in Section 7(b) or 7(c) prior to a determination
that Indemnitee is not entitled to be indemnified by the Company.
Indemnification Agreement | -5- |
9. Procedures
for Notification and Defense of Claim.
(a) Indemnitee
shall notify the Company in writing of any matter with respect to which Indemnitee intends to seek indemnification or advancement of Expenses
as soon as reasonably practicable following the receipt by Indemnitee of notice thereof. The written notification to the Company shall
include, in reasonable detail, a description of the nature of the Proceeding and the facts underlying the Proceeding. The failure by Indemnitee
to notify the Company will not relieve the Company from any liability which it may have to Indemnitee hereunder or otherwise than under
this Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights.
(b) If,
at the time of the receipt of a notice of a Proceeding pursuant to the terms hereof, the Company has directors’ and officers’
liability insurance in effect, the Company shall give prompt notice of the commencement of the Proceeding to the insurers in accordance
with the procedures set forth in the applicable policies. The Company shall thereafter take all commercially reasonable action to cause
such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such
policies.
(c) In
the event the Company may be obligated to make any indemnity in connection with a Proceeding, the Company shall be entitled to assume
the defense of such Proceeding with counsel approved by Indemnitee, which approval shall not be unreasonably withheld, upon the
delivery to Indemnitee of written notice of its election to do so. After delivery of such notice, approval of such counsel by Indemnitee
and the retention of such counsel by the Company, the Company will not be liable to Indemnitee for any fees or expenses of counsel subsequently
incurred by Indemnitee with respect to the same Proceeding. Notwithstanding the Company’s assumption of the defense of any such
Proceeding, the Company shall be obligated to pay the fees and expenses of Indemnitee’s counsel to the extent (i) the employment
of counsel by Indemnitee is authorized by the Company, (ii) counsel for the Company or Indemnitee shall have reasonably concluded
that there is a conflict of interest between the Company and Indemnitee in the conduct of any such defense such that Indemnitee needs
to be separately represented, (iii) the fees and expenses are non-duplicative and reasonably incurred in connection with Indemnitee’s
role in the Proceeding despite the Company’s assumption of the defense, (iv) the Company is not financially or legally able
to perform its indemnification obligations or (v) the Company shall not have retained, or shall not continue to retain, such counsel
to defend such Proceeding. The Company shall have the right to conduct such defense as it sees fit in its sole discretion. Regardless
of any provision in this Agreement, Indemnitee shall have the right to employ counsel in any Proceeding at Indemnitee’s personal
expense. The Company shall not be entitled, without the consent of Indemnitee, to assume the defense of any claim brought by or in the
right of the Company.
(d) Indemnitee
shall give the Company such information and cooperation in connection with the Proceeding as may be reasonably appropriate.
(e) Indemnitee
shall not enter into any settlement in connection with a Proceeding (or any part thereof) without ten days prior written notice to the
Company.
(f) The
Company shall not settle any Proceeding (or any part thereof) without Indemnitee’s prior written consent, which shall not be unreasonably
withheld.
Indemnification Agreement | -6- |
10. Procedures
upon Application for Indemnification.
(a) To
obtain indemnification, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and
information as is reasonably available to Indemnitee and as is reasonably necessary to determine whether and to what extent Indemnitee
is entitled to indemnification following the final disposition of the Proceeding. The Company shall, as soon as reasonably practicable
after receipt of such a request for indemnification, advise the board of directors that Indemnitee has requested indemnification. Any
delay in providing the request will not relieve the Company from its obligations under this Agreement, except to the extent such failure
is prejudicial.
(b) Upon
written request by Indemnitee for indemnification pursuant to Section 10(a),
a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in the specific case
(i) if a Change in Control shall have occurred, by Independent Counsel in a written opinion to the Company’s board of directors,
a copy of which shall be delivered to Indemnitee or (ii) if a Change in Control shall not have occurred, (A) by a majority vote
of the Disinterested Directors, even though less than a quorum of the Company’s board of directors, (B) by a committee of Disinterested
Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Company’s board of
directors, (C) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel
in a written opinion to the Company’s board of directors, a copy of which shall be delivered to Indemnitee or (D) if so directed
by the Company’s board of directors, by the stockholders of the Company. If it is so determined that Indemnitee is entitled to indemnification,
payment to Indemnitee shall be made within ten days after such determination.
Indemnitee shall cooperate with the person, persons or entity making the determination with respect to Indemnitee’s entitlement
to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information
that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary
to such determination. Any costs or expenses (including attorneys’ fees and disbursements) reasonably incurred by Indemnitee in
so cooperating with the person, persons or entity making such determination shall be borne by the Company, to the extent permitted by
applicable law.
(c) In
the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 10(b), the
Independent Counsel shall be selected as provided in this Section 10(c). If a Change in Control shall not have occurred, the Independent
Counsel shall be selected by the Company’s board of directors, and the Company shall give written notice to Indemnitee advising
him or her of the identity of the Independent Counsel so selected. If a Change in Control shall have occurred, the Independent Counsel
shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Company’s board of directors,
in which event the preceding sentence shall apply), and Indemnitee shall give written notice to the Company advising it of the identity
of the Independent Counsel so selected. In either event, Indemnitee or the Company, as the case may be, may, within ten days after such
written notice of selection shall have been given, deliver to the Company or to Indemnitee, as the case may be, a written objection to
such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so
selected does not meet the requirements of “Independent Counsel” as defined in Section 1 of this Agreement, and the objection
shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall
act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve
as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit. If,
within 20 days after the later of (i) submission by Indemnitee of a written request for indemnification pursuant to Section 10(a)
hereof and (ii) the final disposition of the Proceeding, the parties have not agreed upon an Independent Counsel, either the Company
or Indemnitee may petition a court of competent jurisdiction for resolution of any objection which shall have been made by the Company
or Indemnitee to the other’s selection of Independent Counsel and for the appointment as Independent Counsel of a person selected
by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved
or the person so appointed shall act as Independent Counsel under Section 10(b) hereof. Upon the due commencement of any judicial
proceeding or arbitration pursuant to Section 12(a) of this Agreement, the Independent Counsel shall be discharged and relieved of
any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
Indemnification Agreement | -7- |
(d) The
Company agrees to pay the reasonable fees and expenses of any Independent Counsel and to fully indemnify such counsel against any and
all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
11. Presumptions
and Effect of Certain Proceedings.
(a) In
making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination
shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee
has submitted a request for indemnification in accordance with Section 10(a) of this Agreement, and the Company shall, to the fullest
extent not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by such person, persons
or entity of any determination contrary to that presumption.
(b) The
termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of
nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect
the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that
Indemnitee had reasonable cause to believe that his or her conduct was unlawful.
(c) For
purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith to the extent Indemnitee relied in
good faith on (i) the records or books of account of the Enterprise, including financial statements, (ii) information supplied
to Indemnitee by the officers of the Enterprise in the course of their duties, (iii) the advice of legal counsel for the Enterprise
or its board of directors or counsel selected by any committee of the board of directors or (iv) information or records given or
reports made to the Enterprise by an independent certified public accountant, an appraiser, investment banker or other expert selected
with reasonable care by the Enterprise or its board of directors or any committee of the board of directors. The provisions of this Section 11(c)
shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement.
(d) Neither
the knowledge, actions nor failure to act of any other director, officer, agent or employee of the Enterprise shall be imputed to Indemnitee
for purposes of determining the right to indemnification under this Agreement.
Indemnification Agreement | -8- |
12. Remedies
of Indemnitee.
(a) Subject
to Section 12(e), in the event that (i) a determination is made pursuant to Section 10 of this Agreement that Indemnitee
is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely
made pursuant to Section 8 or 12(d) of this Agreement, (iii) no determination of entitlement to indemnification shall
have been made pursuant to Section 10 of this Agreement within 90 days after the later of the receipt by the Company of the request
for indemnification or the final disposition of the Proceeding, (iv) payment of indemnification pursuant to this Agreement is not
made (A) within ten days after a determination has been made that
Indemnitee is entitled to indemnification or (B) with respect to indemnification pursuant to Sections 4, 5 and 12(d) of this
Agreement, within 30 days after receipt by the Company of a written request therefor, or (v) the Company or any other person or entity
takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or
proceeding designed to deny, or to recover from, Indemnitee the benefits
provided or intended to be provided to Indemnitee hereunder, Indemnitee shall be entitled to an adjudication by a court of competent jurisdiction
of his or her entitlement to such indemnification or advancement of Expenses. Alternatively, Indemnitee, at his or her option, may seek
an award in arbitration with respect to his or her entitlement to such indemnification or advancement of Expenses, to be conducted by
a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The Company shall not oppose
Indemnitee’s right to seek any such adjudication or award in arbitration in accordance with this Agreement.
(b) Neither
(i) the failure of the Company, its board of directors, any committee or subgroup of the board of directors, Independent Counsel
or stockholders to have made a determination that indemnification of Indemnitee is proper in the circumstances because Indemnitee has
met the applicable standard of conduct, nor (ii) an actual determination by the Company, its board of directors, any committee or
subgroup of the board of directors, Independent Counsel or stockholders that Indemnitee has not met the applicable standard of conduct,
shall be a defense to the action or create a presumption that Indemnitee has or has not met the applicable standard of conduct. In the
event that a determination shall have been made pursuant to Section 10 of this Agreement that Indemnitee is not entitled to indemnification,
any judicial proceeding or arbitration commenced pursuant to this Section 12 shall be conducted in all respects as a de novo
trial, or arbitration, on the merits, and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial
proceeding or arbitration commenced pursuant to this Section 12, the Company shall, to the fullest extent not prohibited by law,
have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be.
(c) To
the fullest extent not prohibited by law, the Company shall be precluded from asserting in any judicial proceeding or arbitration commenced
pursuant to this Section 12 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. If a determination
shall have been made pursuant to Section 10 of this Agreement that Indemnitee is entitled to indemnification, the Company shall be
bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 12, absent (i) a misstatement
by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statements not materially misleading,
in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) To
the extent not prohibited by law, the Company shall indemnify Indemnitee against all Expenses that are incurred by Indemnitee in connection
with any action for indemnification or advancement of Expenses from the Company under this Agreement or under any directors’ and
officers’ liability insurance policies maintained by the Company to the extent Indemnitee is successful in such action, and, if
requested by Indemnitee, shall (as soon as reasonably practicable, but in any event no later than 60 days, after receipt by the Company
of a written request therefor) advance such Expenses to Indemnitee, subject to the provisions of Section 8.
Indemnification Agreement | -9- |
(e) Notwithstanding
anything in this Agreement to the contrary, no determination as to entitlement to indemnification shall be required to be made prior to
the final disposition of the Proceeding.
13. Contribution.
To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee,
the Company, in lieu of indemnifying Indemnitee, shall contribute to the amounts incurred by Indemnitee, whether for Expenses, judgments,
fines or amounts paid or to be paid in settlement, in connection with any claim relating to an indemnifiable event under this Agreement,
in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the
relative benefits received by the Company and Indemnitee as a result of the events and transactions giving rise to such Proceeding; and
(ii) the relative fault of Indemnitee and the Company (and its other directors, officers, employees and agents) in connection with
such events and transactions.
14. Non-exclusivity.
The rights of indemnification and to receive advancement of Expenses as provided by this Agreement shall not be deemed exclusive of
any other rights to which Indemnitee may at any time be entitled under applicable law, the Company’s certificate of incorporation
or bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. To the extent that a change in Delaware law,
whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under
the Company’s certificate of incorporation and bylaws and this Agreement, it is the intent of the parties hereto that Indemnitee
shall enjoy by this Agreement the greater benefits so afforded by such change, subject to the restrictions expressly set forth herein
or therein. Except as expressly set forth herein, no right or remedy herein conferred is intended to be exclusive of any other right or
remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. Except as expressly set forth herein, the assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
15. No
Duplication of Payments. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable
hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received payment
for such amounts under any insurance policy, contract, agreement or otherwise.
16. Insurance.
To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, trustees, general
partners, managing members, officers, employees, agents or fiduciaries of the Company or any other Enterprise, Indemnitee shall be covered
by such policy or policies to the same extent as the most favorably-insured persons under such policy or policies in a comparable position.
17. Subrogation.
In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution
of such documents as are necessary to enable the Company to bring suit to enforce such rights.
18. Services
to the Company. Indemnitee agrees to serve as a director or officer of the Company or, at the request of the Company, as a director,
trustee, general partner, managing member, officer, employee, agent or fiduciary of another Enterprise, for so long as Indemnitee is duly
elected or appointed or until Indemnitee tenders his or her resignation or is removed from such position. Indemnitee may at any time and
for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law),
in which event the Company shall have no obligation under this Agreement to continue Indemnitee in such position. This Agreement shall
not be deemed an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically
acknowledges that any employment with the Company (or any of its subsidiaries or any Enterprise) is at will, and Indemnitee may be discharged
at any time for any reason, with or without cause, with or without notice, except as may be otherwise expressly provided in any executed,
written employment contract between Indemnitee and the Company (or any of its subsidiaries or any Enterprise), any existing formal severance
policies adopted by the Company’s board of directors or, with respect to service as a director or officer of the Company, the Company’s
certificate of incorporation or bylaws or the DGCL. No such document shall be subject to any oral modification thereof.
Indemnification Agreement | -10- |
19. Duration.
This Agreement shall continue until and terminate upon the later of (a) ten years after the date that Indemnitee shall have ceased
to serve as a director or officer of the Company or as a director, trustee, general partner, managing member, officer, employee, agent
or fiduciary of any other Enterprise, as applicable; or (b) one year after the final termination of any Proceeding, including any
appeal, then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any
proceeding commenced by Indemnitee pursuant to Section 12 of this Agreement relating thereto.
20. Successors.
This Agreement shall be binding upon the Company and its successors and assigns, including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or substantially all of the business or assets of the Company, and shall inure to the benefit
of Indemnitee and Indemnitee’s heirs, executors and administrators. The Company shall require and cause any successor (whether direct
or indirect by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company, by
written agreement, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company
would be required to perform if no such succession had taken place.
21. Severability.
Nothing in this Agreement is intended to require or shall be construed as requiring the Company to do or fail to do any act in violation
of applicable law. The Company’s inability, pursuant to court order or other applicable law, to perform its obligations under this
Agreement shall not constitute a breach of this Agreement. If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (i) the validity, legality and enforceability of the remaining provisions of
this Agreement (including without limitation, each portion of any section of this Agreement containing any such provision held to be invalid,
illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and
shall remain enforceable to the fullest extent permitted by law; (ii) such provision or provisions shall be deemed reformed to the
extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (iii) to the
fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any section of this Agreement
containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall
be construed so as to give effect to the intent manifested thereby.
22. Enforcement.
The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby
in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying
upon this Agreement in serving as a director or officer of the Company.
23. Entire
Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject
matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Company’s certificate
of incorporation and bylaws and applicable law.
Indemnification Agreement | -11- |
24. Modification
and Waiver. No supplement, modification or amendment to this Agreement shall be binding unless executed in writing by the parties
hereto. No amendment, alteration or repeal of this Agreement shall adversely affect any right of Indemnitee under this Agreement in respect
of any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. No waiver
of any of the provisions of this Agreement shall constitute or be deemed a waiver of any other provision of this Agreement nor shall any
waiver constitute a continuing waiver.
25. Notices.
All notices and other communications required or permitted hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, sent by facsimile or electronic mail or otherwise delivered by hand, messenger or courier service addressed:
(a) if
to Indemnitee, to Indemnitee’s address, facsimile number or electronic mail address as shown on the signature page of this Agreement
or in the Company’s records, as may be updated in accordance with the provisions hereof; or
(b) if
to the Company, to the attention of the Chief Executive Officer or Chief Financial Officer of the Company at the current address as the
Company shall have furnished to Indemnitee.
Each such notice or other
communication shall for all purposes of this Agreement be treated as effective or having been given (i) if delivered by hand, messenger
or courier service, when delivered (or if sent via a nationally-recognized overnight courier service, freight prepaid, specifying
next-business-day delivery, one business day after deposit with the courier), (ii) if sent via mail, at the earlier of its
receipt or five days after the same has been deposited in a regularly-maintained receptacle for the deposit of the United States mail,
addressed and mailed as aforesaid, or (iii) if sent via facsimile, upon confirmation of facsimile transfer or, if sent via
electronic mail, upon confirmation of delivery when directed to the relevant electronic mail address, if sent during normal business hours
of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day.
26. Applicable
Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any
arbitration commenced by Indemnitee pursuant to Section 12(a) of this Agreement, the Company and Indemnitee hereby irrevocably and
unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only
in the Delaware Court of Chancery, and not in any other state or federal court in the United States of America or any court in any other
country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court of Chancery for purposes of any action or proceeding
arising out of or in connection with this Agreement, (iii) appoint, to the extent such party is not otherwise subject to service
of process in the State of Delaware, Cogency Global Inc. as its agent in the State of Delaware as such party’s agent for acceptance
of legal process in connection with any such action or proceeding against such party with the same legal force and validity as if served
upon such party personally within the State of Delaware, (iv) waive any objection to the laying of venue of any such action or proceeding
in the Delaware Court of Chancery, and (v) waive, and agree not to plead or to make, any claim that any such action or proceeding
brought in the Delaware Court of Chancery has been brought in an improper or inconvenient forum.
27. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all
of which together shall constitute one and the same Agreement. This Agreement may also be executed and delivered by facsimile signature
and in counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and
the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence
the existence of this Agreement.
28. Captions.
The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this
Agreement or to affect the construction thereof.
(signature page follows)
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The parties are signing this
Indemnification Agreement as of the date stated in the introductory sentence.
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Exhibit
10.2
Incannex
Healthcare Inc.
2023 EQUITY INCENTIVE PLAN
1. Purpose.
The purpose of the Incannex Healthcare Inc. 2023 Equity Incentive Plan is to provide a means through which the Company and its Affiliates
may attract and retain key personnel and whereby Directors, Employees, and Consultants of the Company and its Affiliates can acquire and
maintain an equity interest in the Company, or be paid incentive compensation, which may be measured by reference to the value of Common
Shares, thereby strengthening their commitment to the welfare of the Company and its Affiliates and aligning their interests with the
Company’s shareholders.
2. Definitions.
The following definitions shall be applicable throughout the Plan:
(a) “Affiliate”
means (i) any person or entity that directly or indirectly controls, is controlled by or is under common control with the Company and/or
(ii) to the extent provided by the Committee, any person or entity in which the Company has a significant interest. The term “control”
(including, with correlative meaning, the terms “controlled by” and “under common control with”), as applied to
any person or entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and
policies of such person or entity, whether through the ownership of voting or other securities, by contract or otherwise.
(b) “Award”
means, individually or collectively, any Incentive Stock Option, Nonqualified Stock Option, Stock Appreciation Right, Restricted Stock,
Restricted Stock Unit, Stock Bonus Award, and Performance Award granted under the Plan.
(c) “Award
Agreement” means a written or electronic agreement between the Company and a Participant setting forth the terms, conditions
and restrictions of the Award granted to a Participant.
(d) “Board”
means the Board of Directors of the Company.
(e) “Business
Combination” has the meaning given such term in the definition of “Change in Control.”
(f) “Cause”
means, in the case of a particular Award, unless the applicable Award Agreement or the Participant’s employment or service agreement
with the Company states otherwise, the Company’s termination of the Participant’s Service with the Company as a result of:
(i) fraud, embezzlement or other willful act of material dishonesty by the Participant in connection with or relating to the Participant’s
Service with the Company; (ii) theft or misappropriation of property, information, or other assets by the Participant in connection with
the Participant’s Service with the Company which results in or could reasonably be expected to result in material loss, damage or
injury to the Company, its goodwill, business or reputation; (iii) the Participant’s commission, guilty plea, no contest plea or
similar plea for any felony or crime involving moral turpitude; (iv) the Participant’s use of alcohol or drugs while working that
materially interferes with the Participant’s duties to the Company or an Affiliate; (v) the Participant’s breach of a Company
policy and the Participant’s failure to cure such condition within 30 days after receiving written notice thereof; (vi) the Participant’s
material breach of any material written agreement between Participant and the Company and Participant’s failure to cure such breach
within 30 days after receiving written notice thereof; or (vii) the Participant’s repeated insubordination, or refusal (other than
as a result of a Disability or physical or mental illness) to carry out or follow specific reasonable and lawful instructions, duties,
or assignments given by the Board or the Participant’s supervisor that are consistent with the Participant’s position with
the Company and the Participant’s failure to cure such condition within 30 days after receiving written notice thereof. Additionally,
if the basis for Cause is, in the good faith determination of the Company not reasonably subject to cure, then such 30 days’ prior
notice of termination for Cause shall not be required, and such termination shall be effective on the date the Company delivers notice
of termination for Cause.
The determination as to whether
a Participant’s Continuous Service Status has been terminated for Cause shall be made in good faith by the Company and shall be
final and binding on the Participant. The foregoing definition does not in any way limit the Company’s ability to terminate a Participant’s
Service relationship at any time, and the term “Company” will be interpreted to include any Subsidiary, Parent, Affiliate,
or any successor thereto, if appropriate
(g) “Change
in Control” shall, in the case of a particular Award, unless the applicable Award Agreement states otherwise or contains
a different definition of “Change in Control,” be deemed to occur upon:
(i) Any
sale, lease, exchange, or other transfer (in one or a series of related transactions) of all or substantially all of the assets of the
Company;
(ii) Any
“Person” as such term is used in Section 13(d) and Section 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) becomes, directly or indirectly, the “beneficial owner” as defined in Rule 13d-3 under the Exchange Act of
securities of the Company that represent more than 50% of the combined voting power of the Company’s then outstanding voting securities
(the “Outstanding Company Voting Securities”); provided, however, that for purposes of this
Section 2(g)(ii), the following acquisitions shall not constitute a Change in Control: (A) any acquisition directly from the Company
principally for bona fide equity financing purposes, (B) any acquisition by the Company, (C) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any Affiliate, (D) any acquisition by any corporation pursuant to a transaction
that complies with Sections 2(g)(iv)(A) and 2(g)(iv)(B), and (E) any acquisition involving beneficial ownership of less
than 50% of the then-outstanding Common Shares (the “Outstanding Company Common Shares”) or the Outstanding Company
Voting Securities that is determined by the Board, based on review of public disclosure by the acquiring Person with respect to its passive
investment intent, not to have a purpose or effect of changing or influencing the control of the Company; provided, however,
that for purposes of this clause (V), any such acquisition in connection with (x) an actual or threatened election contest with respect
to the election or removal of directors or other actual or threatened solicitation of proxies or consents or (y) any “Business Combination”
(as defined below) shall be presumed to be for the purpose or with the effect of changing or influencing the control of the Company;
(iii) During
any period of not more than two (2) consecutive years, individuals who constitute the Board as of the beginning of the period (the “Incumbent
Directors”) cease for any reason to constitute at least a majority of the Board, provided that any person becoming
a director subsequent to the beginning of such period, whose election or nomination for election was approved by a vote of at least two-thirds
of the Incumbent Directors then on the Board (either by a specific vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without written objection to such nomination) will be an Incumbent Director; provided, however,
that no individual initially elected or nominated as a director of the Company as a result of an actual or threatened election contest
with respect to directors or as a result of any other actual or threatened solicitation of proxies by or on behalf of any person other
than the Board will be deemed to be an Incumbent Director;
(iv) Consummation
of a merger, amalgamation or consolidation (a “Business Combination”) of the Company with any other corporation, unless,
following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the
Outstanding Company Common Shares and the Outstanding Company Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 50% of the then-outstanding shares of common stock (or, for a non-corporate entity, equivalent
securities) and the combined voting power of the then-outstanding voting securities entitled to vote generally in the election of directors
(or, for a non-corporate entity, equivalent governing body), as the case may be, of the entity resulting from such Business Combination
(including, without limitation, an entity that, as a result of such transaction, owns the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries) in substantially the same proportions as their ownership immediately prior
to such Business Combination of the Outstanding Company Common Shares and the Outstanding Company Voting Securities, as the case may be,
and (B) at least a majority of the members of the board of directors (or, for a non-corporate entity, equivalent governing body) of the
entity resulting from such Business Combination were Incumbent Directors at the time of the execution of the initial agreement or of the
action of the Board providing for such Business Combination;
(v) Shareholder
approval of a plan of complete liquidation of the Company.
A
transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or
to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities
immediately before such transactions. In addition, if any Person (as defined above) is in effective control of the Company, the acquisition
of additional control of the Company by the same Person will not be considered to cause a Change in Control. If required for compliance
with Code Section 409A, in no event will a Change in Control be deemed to have occurred if such transaction is not also a “change
in the ownership or effective control of” the Company or “a change in the ownership of a substantial portion of the assets
of” the Company as determined under Treasury Regulation Section 1.409A-3(i)(5) (without regard to any alternative
definition thereunder).
(h) “Code”
means the Internal Revenue Code of 1986, as amended, and any successor thereto. Reference in the Plan to any section of the Code shall
be deemed to include any regulations or other interpretative guidance under such section, and any amendments or successor provisions to
such section, regulations or guidance.
(i) “Committee”
means a committee of at least two people as the Board may appoint to administer the Plan or, if no such committee has been appointed by
the Board, the Board.
(j) “Common
Shares” means shares of the Company’s common stock (and any stock or other securities into which such ordinary shares
may be converted or into which they may be exchanged).
(k) “Company”
means Incannex Healthcare Inc., a Delaware corporation.
(l) “Consultant”
means any person, including an advisor, consultant, or agent, engaged by the Company or a Parent or Subsidiary to render services to such
entity or who renders, or has rendered, services to the Company, or any Parent, Subsidiary or affiliate and is compensated for such services.
(m) “Date
of Grant” means the date on which the granting of an Award is authorized, or such other date as may be specified in such
authorization.
(n) “Director”
means a member of the Board.
(o) “Disability”
means, for the purpose of Incentive Stock Options, total and permanent disability as defined in
Code Section 22(e)(3); and for the purpose of Awards other than Incentive Stock Options, means the inability of the Participant
to perform the Participant’s material duties hereunder with a reasonable accommodation due to a physical or mental injury, infirmity
or incapacity for 120 days (including weekends and holidays) in any 365 day period. The Participant shall reasonably cooperate with
the Company if a question arises as to whether the Participant has become disabled (including, without limitation, submitting to reasonable
examinations by one or more medical doctors and other health care specialists reasonably selected by the Company and authorizing such
medical doctors and other health care specialists to discuss the Participant’s condition with the Company).
(p) “Effective
Date” means the date the Plan is approved by the shareholders of the Company.
(q) “Eligible
Director” means a person who is a “non-employee director” within the meaning of Rule 16b-3 under the Exchange
Act.
(r) “Eligible
Person” with respect to an Award denominated in Common Shares, means any (i) Employee; provided, however,
that no such employee covered by a collective bargaining agreement shall be an Eligible Person unless and to the extent that such eligibility
is set forth in such collective bargaining agreement which includes rules regarding equity entitlement or in an agreement or instrument
relating thereto; (ii) Director of the Company or an Affiliate; (iii) Consultant to the Company or an Affiliate; provided that
if the Securities Act applies such persons must be eligible to be offered securities registrable on Form S-8 under the Securities Act;
or (iv) prospective employees, directors, officers, consultants or advisors who have accepted offers of employment or consultancy from
the Company or its Affiliates (and would satisfy the provisions of clauses (i) through (iii) above once he or she begins employment with
or begins providing Services to the Company or its Affiliates).
(s) “Employee” means
any person, including officers and Directors, employed by the Company or any Affiliate or Subsidiary of the Company. Neither service as
a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment” by the Company
(t) “Exchange
Act” has the meaning given such term in the definition of “Change in Control,” and any reference in the Plan
to any section of (or rule promulgated under) the Exchange Act shall be deemed to include any rules, regulations or other interpretative
guidance under such section or rule, and any amendments or successor provisions to such section, rules, regulations, or guidance.
(u) “Exchange
Program” means a program under which outstanding Awards are amended to provide for a lower Exercise Price or surrendered
or cancelled in exchange for (i) Awards with a lower Exercise Price, (ii) a different type of Award or awards under a different
equity incentive plan, (iii) cash, or (iv) a combination of (i), (ii) and/or (iii). Notwithstanding the preceding, the
term Exchange Program does not include (A) any action taken in connection with Section 13 or with a Change in Control transaction
nor (B) any transfer or other disposition permitted under Section 15(a). For the purpose of clarity, each of the actions
described in the prior sentence, none of which constitute an Exchange Program, may be undertaken (or authorized) by the Committee in its
sole discretion without approval by the Company’s shareholders.
(v) “Exercise
Price” has the meaning given such term in Section 7(b).
(w) “Fair
Market Value” means, as of any date, the value of Common Shares determined as follows:
(i) If
the Common Shares are listed on any established stock exchange or a national market system will be the closing sales price for such shares
(or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in The
Wall Street Journal or such other source as the Committee deems reliable;
(ii) If
the Common Shares are regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of
a Common Share will be the mean between the high bid and low asked prices for the Common Shares on the day of determination, as reported
in The Wall Street Journal or such other source as the Committee deems reliable; or
(iii) In
the absence of an established market for the Common Shares, the Fair Market Value will be determined in good faith by the Committee.
(x) “Immediate
Family Members” shall have the meaning set forth in Section 16(b).
(y) “Incentive
Stock Option” means an Option that is designated by the Committee as an incentive stock option as described in Code Section
422 and otherwise meets the requirements set forth in the Plan.
(z) “Indemnifiable
Person” shall have the meaning set forth in Section 4(e) .
(aa) “Mature
Shares” means Common Shares owned by a Participant that are not subject to any pledge or security interest and that have
been either previously acquired by the Participant on the open market or meet such other requirements, if any, as the Committee may determine
are necessary in order to avoid an accounting earnings charge on account of the use of such shares to pay the Exercise Price or satisfy
a tax or deduction obligation of the Participant.
(bb) “Nonqualified
Stock Option” means an Option that is not designated by the Committee as an Incentive Stock Option.
(cc) “Option”
means an Award granted under Section 7.
(dd) “Option
Period” has the meaning given such term in Section 7(c).
(ee) “Other
Cash-Based Award” shall mean a right or other interest granted to a Participant pursuant to Section 11 of the
Plan other than an Other Stock-Based Award.
(ff) “Other
Stock-Based Award” shall mean a right or other interest granted to a Participant, valued in whole or in part by reference
to, or otherwise based on, or related to, Common Shares pursuant to Section 11 of the Plan including but not limited to (i) unrestricted
Common Shares awarded as a bonus or upon the attainment of performance goals or otherwise as permitted under the Plan, and (ii) a
right granted to a Participant to acquire Common Shares from the Company containing terms and conditions prescribed by the Committee.
(gg) “Outstanding
Company Common Shares” has the meaning given such term in the definition of “Change in Control.”
(hh) “Outstanding
Company Voting Securities” has the meaning given such term in the definition of “Change in Control.”
(ii) “Parent”
means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if, at the time of grant of
the Award, each of the corporations other than the Company owns stock possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the
adoption of the Plan shall be considered a Parent commencing as of such date.
(jj) “Participant”
means an Eligible Person who has been selected by the Committee to participate in the Plan and to receive an Award pursuant to Section
6.
(kk) “Performance
Award” shall mean any Award designated by the Committee as a Performance Award pursuant to Section 11.
(ll) “Performance
Criteria” shall mean the criterion or criteria that the Committee shall select for purposes of establishing the Performance
Goal(s) for a Performance Period with respect to any Performance Award under the Plan.
(mm) “Performance
Formula” shall mean, for a Performance Period, the one or more formulae applied against the relevant Performance Goal to
determine, with regard to the Performance Award of a particular Participant, whether all, some portion but less than all, or none of the
Performance Award has been earned for the Performance Period.
(nn) “Performance
Goals” shall mean, for a Performance Period, the one or more goals established by the Committee for the Performance Period
based upon the Performance Criteria.
(oo) “Performance
Period” shall mean the one or more periods of time, as the Committee may select, over which the attainment of one or more
Performance Goals will be measured for the purpose of determining a Participant’s right to, and the payment of, a Performance Award.
(pp) “Permitted
Transferee” shall have the meaning set forth in Section 15(a).
(qq) “Person”
has the meaning given such term in the definition of “Change in Control.”
(rr) “Plan”
means this Incannex Healthcare Inc. 2023 Equity Incentive Plan, as amended from time to time.
(ss) “Qualifying
Termination” means, except as otherwise provided by the Committee as set forth in the Award Agreement, termination of a
Participant’s employment by the Company without Cause occurring on or within the 12-month period (or such other period specified
in the applicable Award Agreement) following the consummation of a Change in Control.
(tt) “Restricted
Period” means the period determined by the Committee during which an Award is subject to restrictions or, as applicable,
the period of time within which performance is measured for purposes of determining whether an Award has been earned.
(uu) “Restricted
Stock Unit” means an unfunded and unsecured promise to deliver Common Shares, cash, other securities or other property,
subject to certain performance or time-based restrictions (including, without limitation, a requirement that the Participant remain continuously
employed or provide continuous Services for a specified period of time), granted under Section 9.
(vv) “Restricted
Stock” means Common Shares, subject to certain specified performance or time-based restrictions (including, without limitation,
a requirement that the Participant remain continuously employed or provide continuous Services for a specified period of time), granted
under Section 9.
(ww) “SAR Period”
has the meaning given such term in Section 8(b).
(xx) “Securities
Act” means the Securities Act of 1933, as amended, and any successor thereto. Reference in the Plan to any section of the
Securities Act shall be deemed to include any rules, regulations or other interpretative guidance under such section, and any amendments
or successor provisions to such section, rules, regulations or guidance.
(yy) “Service”
means a Participant’s employment or Service with the Company or Subsidiary, whether in the capacity of an Employee, a Director,
or a Consultant. Unless otherwise provided by the Board, a Participant’s Service shall not be deemed to have terminated merely because
of a change in the capacity in which the Participant renders such Service or a change in the Company or Subsidiary for which the Participant
renders such Service, provided that there is no interruption or termination of the Participant’s Service. Furthermore, a Participant’s
Service shall not be deemed to have terminated if the Participant takes any military leave, sick leave, or other bona fide leave of absence
approved by the Company. However, unless otherwise provided by the Board, if any such leave taken by a Participant exceeds 90 days, then
on the 91st day following the commencement of such leave the Participant’s Service shall be deemed to have terminated, unless the
Participant’s right to return to Service is guaranteed by statute or contract. Notwithstanding the foregoing, unless otherwise designated
by the Company or required by law, an unpaid leave of absence shall not be treated as Service for purposes of determining vesting under
the Participant’s Award Agreement. Except as otherwise provided by the Board, in its discretion, the Participant’s Service
shall be deemed to have terminated either upon an actual termination of Service or upon the business entity for which the Participant
performs Service ceasing to be a Subsidiary. Subject to the foregoing, the Company, in its discretion, shall determine whether the Participant’s
Service has terminated and the effective date of and reason for such termination.
(zz) “Stock
Appreciation Right” or “SAR” means an Award granted under Section 8.
(aaa) “Stock
Bonus Award” means an Award granted under Section 10.
(bbb) “Strike
Price” means, except as otherwise provided by the Committee in the case of Substitute Awards, (i) in the case of a
SAR granted in tandem with an Option, the Exercise Price of the related Option, or (ii) in the case of a SAR granted independent of an
Option, the Fair Market Value on the Date of Grant.
(ccc) “Subsidiary”
means, with respect to any specified Person:
(i) any
corporation, association, or other business entity of which more than 50% of the total voting power of shares (without regard to the occurrence
of any contingency and after giving effect to any voting agreement or shareholders’ agreement that effectively transfers voting
power) is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person
(or a combination thereof); and
(ii) any
partnership (or any comparable foreign entity (a) the sole general partner (or functional equivalent thereof) or the managing general
partner of which is such Person or Subsidiary of such Person or (b) the only general partners (or functional equivalents thereof) of which
are that Person or one or more Subsidiaries of that Person (or any combination thereof).
(ddd) “Substitute
Award” has the meaning given such term in Section 5(e).
3. Effective
Date; Duration. The Plan shall be effective as of the Effective Date. The expiration date of the Plan, on and after which date
no Awards may be granted hereunder, shall be the tenth anniversary of the Effective Date; provided, however, that
such expiration shall not affect Awards then outstanding, and the terms and conditions of the Plan shall continue to apply to such Awards.
4. Administration.
(a) Administration
by Committee. The Committee shall administer the Plan. To the extent required to comply with the applicable provisions of Rule
16b-3 promulgated under the Exchange Act (if the Board is not acting as the Committee under the Plan), it is intended that each member
of the Committee shall, at the time he or she takes any action with respect to an Award under the Plan, be an Eligible Director. However,
the fact that a Committee member shall fail to qualify as an Eligible Director shall not invalidate any Award granted by the Committee
that is otherwise validly granted under the Plan.
(b) Committee
Authority. Subject to the provisions of the Plan and applicable law, the Committee shall have the sole and plenary authority,
in addition to other express powers and authorizations conferred on the Committee by the Plan or by the Board, to: (i) designate Participants;
(ii) determine the type or types of Awards to be granted to a Participant; (iii) determine the number of Common Shares to be covered by,
or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards; (iv) determine the form of
Award Agreement and the terms and conditions of any Award; (v) determine whether, to what extent, and under what circumstances Awards
may be settled or exercised in cash, Common Shares, other securities, other Awards or other property, or canceled, forfeited, or suspended
and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended; (vi) determine whether, to what
extent, and under what circumstances the delivery of cash, Common Shares, other securities, other Awards or other property and other amounts
payable with respect to an Award shall be deferred either automatically or at the election of the Participant or of the Committee; (vii)
interpret, administer, reconcile any inconsistency in, correct any defect in and/or supply any omission in the Plan and any instrument
or agreement relating to, or Award granted under, the Plan; (viii) establish, amend, suspend, or waive any rules and regulations and appoint
such agents as the Committee shall deem appropriate for the proper administration of the Plan; (ix) accelerate the vesting or exercisability
of, payment for or lapse of restrictions on, Awards, including, but not limited to, upon a Qualifying Termination; (x) to
institute and determine the terms and conditions of an Exchange Program; provided, however, that the Committee shall not implement an
Exchange Program without the approval of the holders of a majority of the Shares that are present in person or by proxy and entitled to
vote at any annual or special meeting of Company’s shareholders; and (xi) make any other determination and take any other
action that the Committee deems necessary or desirable for the administration.
(c) Delegation
of Authority. The Committee may delegate to one or more officers of the Company or any Affiliate the authority to act on behalf
of the Committee with respect to any matter, right, obligation, or election that is the responsibility of or that is allocated to the
Committee herein, and that may be so delegated as a matter of law, except for grants of Awards to persons subject to Section 16 of the
Exchange Act.
(d) Conclusive
and Binding. Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions
under or with respect to the Plan or any Award or any documents evidencing Awards granted pursuant to the Plan shall be within the sole
discretion of the Committee, may be made at any time and shall be final, conclusive and binding upon all persons or entities, including,
without limitation, the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, and any shareholder of the Company.
(e) Indemnification.
No member of the Board, the Committee, delegate of the Committee or any employee or agent of the Company (each such person, an “Indemnifiable
Person”) shall be liable for any action taken or omitted to be taken or any determination made in good faith with respect to
the Plan or any Award hereunder. Each Indemnifiable Person shall be indemnified and held harmless by the Company against and from any
loss, cost, liability, or expense (including attorneys’ fees) that may be imposed upon or incurred by such Indemnifiable Person
in connection with or resulting from any action, suit or proceeding to which such Indemnifiable Person may be a party or in which such
Indemnifiable Person may be involved by reason of any action taken or omitted to be taken under the Plan or any Award Agreement and against
and from any and all amounts paid by such Indemnifiable Person with the Company’s approval, in settlement thereof, or paid by such
Indemnifiable Person in satisfaction of any judgment in any such action, suit or proceeding against such Indemnifiable Person, provided that
the Company shall have the right, at its own expense, to assume and defend any such action, suit or proceeding and once the Company gives
notice of its intent to assume the defense, the Company shall have sole control over such defense with counsel of the Company’s
choice. The foregoing right of indemnification shall not be available to an Indemnifiable Person to the extent that a final judgment or
other final adjudication (in either case not subject to further appeal) binding upon such Indemnifiable Person determines that the acts
or omissions of such Indemnifiable Person giving rise to the indemnification claim resulted from such Indemnifiable Person’s bad
faith, fraud or willful criminal act or omission or that such right of indemnification is otherwise prohibited by law or by the Company’s
Articles of Incorporation or Bylaws. The foregoing right of indemnification shall not be exclusive of any other rights of indemnification
to which such Indemnifiable Persons may be entitled under the Company’s Articles of Incorporation or Bylaws, as a matter of law,
or otherwise, or any other power that the Company may have to indemnify such Indemnifiable Persons or hold them harmless.
(f) Board
Authority. Notwithstanding anything to the contrary contained in the Plan, the Board may, in its sole discretion, at any time
and from time to time, grant Awards and administer the Plan with respect to such Awards. In any such case, the Board shall have all the
authority granted to the Committee under the Plan.
5. Grant
of Awards; Shares Subject to the Plan; Limitations.
(a) Type
of Awards. The Committee may, from time to time, grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock
Units, Stock Bonus Awards and/or Performance Awards to one or more Eligible Persons.
(b) Authorized Common Shares.
Subject to Section 13 of the Plan, Awards granted under the Plan shall be subject to the following limitations: (i) the Committee
is authorized to deliver under the Plan an aggregate of [__]1
Common Shares; (ii) in no event shall the maximum aggregate number of Common Shares
that may be issued under the Plan pursuant to Incentive Stock Options exceed the aggregate number of Common Shares set forth in Section
5(b)(i) of the Plan plus, to the extent allowable under Code Section 422 and the regulations promulgated thereunder, any Common
Shares that again become available for issuance pursuant to Section 5(c) of the Plan and (iii) the maximum number of Common
Shares that may be granted under the Plan during any single fiscal year to any Participant who is a non-employee director, when taken
together with any cash fees paid to such non-employee director during such year in respect of his or her Service as a non-employee director
(including Service as a member or chair of any committee of the Board), shall not exceed $750,000 in total value (calculating the value
of any such Awards based on the grant date fair value of such Awards for financial reporting purposes); provided that
the non-employee directors who are considered independent (under the rules of The NASDAQ Stock Market or other securities exchange on
which the Common Shares are traded) may make exceptions to this limit for a non-executive chair of the Board, if any, in which case the
non-employee Director receiving such additional compensation may not participate in the decision to award such compensation. Notwithstanding
the automatic annual increase set forth in (i) above, the Board may act prior to January 1st of a given year to provide that there will
be no such increase in the share reserve for such year or that the increase in the share reserve for such year will be a lesser number
of Common Shares than would otherwise occur pursuant to the stipulated percentage.
| 1 | To equal [ ]% of Common Shares outstanding. |
(c) Availability
of Shares. In the event that (i) any Option or other Award granted hereunder is exercised through the tendering of Common Shares
(either actually or by attestation) or by the withholding of Common Shares by the Company, or (ii) tax or deduction liabilities arising
from such Option or other Award are satisfied by the tendering of Common Shares (either actually or by attestation) or by the withholding
of Common Shares by the Company, then in each such case the Common Shares so tendered or withheld shall be added to the Common Shares
available for grant under the Plan on a one-for-one basis. Common Shares underlying Awards under this Plan that are forfeited, cancelled,
expire unexercised, or are settled in cash are available again for Awards under the Plan.
(d) Sources
of Shares. Common Shares delivered by the Company in settlement of Awards may be authorized and unissued shares, shares held in
the treasury of the Company, shares purchased on the open market or by private purchase, or a combination of the foregoing.
(e) Substitute
Awards. Awards may, in the sole discretion of the Committee, be granted under the Plan in assumption of, or in substitution for,
outstanding awards previously granted by an entity acquired by the Company or with which the Company combines (“Substitute Awards”).
The number of Common Shares underlying any Substitute Awards shall not be counted against the aggregate number of Common Shares available
for Awards under the Plan.
6. Eligibility.
Participation shall be limited to Eligible Persons who have entered into an Award Agreement or who have received written notification
from the Committee, or from a person designated by the Committee, that they have been selected to participate in the Plan.
7. Options.
(a) Generally.
Each Option shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email or the posting on a web site
maintained by the Company or a third party under contract with the Company)). Each Option so granted shall be subject to the conditions
set forth in this Section 7, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable
Award Agreement. All Options granted under the Plan shall be Nonqualified Stock Options unless the applicable Award Agreement expressly
states that the Option is intended to be an Incentive Stock Option. Incentive Stock Options shall be granted only to Eligible Persons
who are employees of the Company and its Affiliates, and no Incentive Stock Option shall be granted to any Eligible Person who is ineligible
to receive an Incentive Stock Option under the Code. No Option shall be treated as an Incentive Stock Option unless the Plan has been
approved by the shareholders of the Company in a manner intended to comply with the shareholder approval requirements of Code Section
422(b)(1); provided that any Option intended to be an Incentive Stock Option shall not fail to be effective solely on
account of a failure to obtain such approval, but rather such Option shall be treated as a Nonqualified Stock Option unless and until
such approval is obtained. In the case of an Incentive Stock Option, the terms and conditions of such grant shall be subject to and comply
with such rules as may be prescribed by Code Section 422. If for any reason an Option intended to be an Incentive Stock Option (or any
portion thereof) shall not qualify as an Incentive Stock Option, then, to the extent of such non-qualification, such Option or portion
thereof shall be regarded as a Nonqualified Stock Option appropriately granted under the Plan.
(b) Exercise
Price. Except as set forth in this Section 7(b), the exercise price (“Exercise Price”) per Common Share
for each Option shall not be less than 100% of the Fair Market Value of such share determined as of the Date of Grant. Notwithstanding
the foregoing, (i) an Option may be granted with an Exercise Price lower than the minimum Exercise Price set forth above if such Option
is (A) granted pursuant to an assumption or substitution for another option in a manner qualifying under the provisions of Code Section 424(a),
(B) granted in compliance with Code Section 409A or in a manner that is not subject to Code Section 409A, and (ii) in the case of an Incentive
Stock Option granted to an employee who, at the time of the grant of such Option, owns shares representing more than 10% of the total
combined voting power of all classes of shares of the Company or any related corporation (as determined in accordance with Treasury Regulation
Section 1.422-2(f)), the Exercise Price per share shall not be less than 110% of the Fair Market Value per share on the Date of Grant.
(c) Vesting
and Expiration. Options shall vest and become exercisable in such manner and on such date or dates determined by the Committee
and shall expire after such period, not to exceed ten years, as may be determined by the Committee (the “Option Period”); provided, however,
that the Option Period shall not exceed five years from the Date of Grant in the case of an Incentive Stock Option granted to a Participant
who on the Date of Grant owns shares representing more than 10% of the total combined voting power of all classes of shares of the Company
or any related corporation (as determined in accordance with Treasury Regulation Section 1.422-2(f)); provided, further,
that notwithstanding any vesting dates set by the Committee, the Committee may, in its sole discretion, accelerate the exercisability
of any Option, which acceleration shall not affect the terms and conditions of such Option other than with respect to exercisability.
Unless otherwise provided by the Committee in an Award Agreement: (i) the unvested portion of an Option shall expire upon termination
of employment or Service of the Participant granted the Option, and the vested portion of such Option shall remain exercisable for (A)
one year following termination of employment or Service by reason of such Participant’s death or disability (as determined by the
Committee), but not later than the expiration of the Option Period or (B) ninety (90) days following termination of employment or Service
for any reason other than such Participant’s death or disability, and other than such Participant’s termination of employment
or Service for Cause, but not later than the expiration of the Option Period; and (ii) both the unvested and the vested portion of an
Option shall expire upon the termination of the Participant’s employment or Service by the Company for Cause. If the Option would
expire at a time when the exercise of the Option would violate applicable securities laws, the expiration date applicable to the Option
will be automatically extended to a date that is thirty (30) calendar days following the date such exercise would no longer violate applicable
securities laws (so long as such extension shall not violate Code Section 409A); provided, that in no event shall such expiration
date be extended beyond the expiration of the Option Period.
(d) Method
of Exercise and Form of Payment. No Common Shares shall be delivered pursuant to any exercise of an Option until payment in full
of the Exercise Price therefor is received by the Company and the Participant has paid to the Company an amount equal to any taxes required
to be withheld or paid. Options that have become exercisable may be exercised by delivery of written or electronic notice of exercise
to the Company in accordance with the terms of the Option accompanied by payment of the Exercise Price. The Exercise Price shall be payable
(i) in cash, check, cash equivalent and/or Common Shares valued at the Fair Market Value at the time the Option is exercised (including,
pursuant to procedures approved by the Committee, by means of attestation of ownership of a sufficient number of Common Shares in lieu
of actual delivery of such shares to the Company); provided that such Common Shares are not subject to any pledge or other security interest
and are Mature Shares and; (ii) by such other method as the Committee may permit in accordance with applicable law, in its sole discretion,
on a case by case basis, including without limitation: (A) in other property having a Fair Market Value on the date of exercise equal
to the Exercise Price or (B) if there is a public market for the Common Shares at such time, by means of a broker-assisted “cashless
exercise” pursuant to which the Company is delivered a copy of irrevocable instructions to a stockbroker to sell the Common Shares
otherwise deliverable upon the exercise of the Option and to deliver promptly to the Company an amount equal to the Exercise Price or
(C) by a “net exercise” method whereby the Company withholds from the delivery of the Common Shares for which the Option was
exercised that number of Common Shares having a Fair Market Value equal to the aggregate Exercise Price for the Common Shares for which
the Option was exercised. No fractional Common Shares shall be issued or delivered pursuant to the Plan or any Award, and the Committee
shall determine whether cash, other securities or other property shall be paid or transferred in lieu of any fractional Common Shares,
or whether such fractional Common Shares or any rights thereto shall be canceled, terminated or otherwise eliminated.
(e) Notification
upon Disqualifying Disposition of an Incentive Stock Option. Each Participant awarded an Incentive Stock Option shall notify the
Company in writing immediately after the date said Participant makes a disqualifying disposition of any Common Shares acquired pursuant
to the exercise of such Incentive Stock Option. A disqualifying disposition is any disposition (including, without limitation, any sale)
of such Common Shares before the later of (A) two (2) years after the Date of Grant of the Incentive Stock Option or (B) one (1) year
after the date of exercise of the Incentive Stock Option. The Company may, if determined by the Committee and in accordance with procedures
established by the Committee, retain possession of any Common Shares acquired pursuant to the exercise of an Incentive Stock Option as
agent for the applicable Participant until the end of the period described in the preceding sentence.
(f) Compliance
with Laws, etc. Notwithstanding the foregoing, in no event shall a Participant be permitted to exercise an Option in a manner
that the Committee determines would violate the Sarbanes-Oxley Act of 2002, if applicable, or any other applicable law or the applicable
rules and regulations of the Securities and Exchange Commission or the applicable rules and regulations of any securities exchange or
inter-dealer quotation system on which the securities of the Company are listed or traded.
8.
Stock Appreciation Rights.
(a) Generally.
Each SAR shall be evidenced by an Award Agreement (whether in paper or electronic medium (including email or the posting on a web site
maintained by the Company or a third party under contract with the Company)). Each SAR so granted shall be subject to the conditions set
forth in this Section 8, and to such other conditions not inconsistent with the Plan as may be reflected in the applicable Award
Agreement. Any Option granted under the Plan may include tandem SARs. The Committee also may award SARs to Eligible Persons independent
of any Option.
(b) Strike
Price. The Strike Price for each SAR shall not be less than 100% of the Fair Market Value of such share determined as of the Date
of Grant. Notwithstanding the foregoing, SAR may be granted with a Strike Price lower than the minimum Strike Price set forth above if
such SAR is granted in compliance with Code Section 409Ae,
(c) Vesting
and Expiration. A SAR granted in connection with an Option shall become exercisable and shall expire according to the same vesting
schedule and expiration provisions as the corresponding Option. A SAR granted independent of an Option shall vest and become exercisable
and shall expire in such manner and on such date or dates determined by the Committee and shall expire after such period, not to exceed
10 years, as may be determined by the Committee (the “SAR Period”); provided, however, that
notwithstanding any vesting dates set by the Committee, the Committee may, in its sole discretion, accelerate the exercisability of any
SAR, which acceleration shall not affect the terms and conditions of such SAR other than with respect to exercisability. Unless otherwise
provided by the Committee in an Award Agreement: (i) the unvested portion of a SAR shall expire upon termination of employment or Service
of the Participant granted the SAR, and the vested portion of such SAR shall remain exercisable for (A) one year following termination
of employment or Service by reason of such Participant’s death or disability (as determined by the Committee), but not later than
the expiration of the SAR Period or (B) 90 days following termination of employment or Service for any reason other than such Participant’s
death or disability, and other than such Participant’s termination of employment or Service for Cause, but not later than the expiration
of the SAR Period; and (ii) both the unvested and the vested portion of a SAR shall expire upon the termination of the Participant’s
employment or Service by the Company for Cause. If the SAR would expire at a time when the exercise of the SAR would violate applicable
securities laws, the expiration date applicable to the SAR will be automatically extended to a date that is 30 calendar days following
the date such exercise would no longer violate applicable securities laws (so long as such extension shall not violate Code Section 409A); provided,
that in no event shall such expiration date be extended beyond the expiration of the SAR Period.
(d) Method
of Exercise. SARs that have become exercisable may be exercised by delivery of written or electronic notice of exercise to the
Company in accordance with the terms of the Award, specifying the number of SARs to be exercised and the date on which such SARs were
awarded. Notwithstanding the foregoing, if on the last day of the Option Period (or in the case of a SAR independent of an option, the
SAR Period), the Fair Market Value exceeds the Strike Price, the Participant has not exercised the SAR or the corresponding Option (if
applicable), and neither the SAR nor the corresponding Option (if applicable) has expired, such SAR shall be deemed to have been exercised
by the Participant on such last day and the Company shall make the appropriate payment therefor.
(e) Payment.
Upon the exercise of a SAR, the Company shall pay to the Participant an amount equal to the number of shares subject to the SAR that are
being exercised multiplied by the excess, if any, of the Fair Market Value of one Common Share on the exercise date over the Strike Price,
less an amount equal to any taxes required to be withheld or paid. The Company shall pay such amount in cash, in Common Shares valued
at Fair Market Value, or any combination thereof, as determined by the Committee. No fractional Common Shares shall be issued or delivered
pursuant to the Plan or any Award, and the Committee shall determine whether cash, other securities or other property shall be paid or
transferred in lieu of any fractional Common Shares, or whether such fractional Common Shares or any rights thereto shall be canceled,
terminated, or otherwise eliminated.
9. Restricted
Stock and Restricted Stock Units.
(a) Generally.
Each grant of Restricted Stock and Restricted Stock Units shall be evidenced by an Award Agreement (whether in paper or electronic medium
(including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each such
grant shall be subject to the conditions set forth in this Section 9, and to such other conditions not inconsistent with the Plan
as may be reflected in the applicable Award Agreement.
(b) Restricted
Accounts; Escrow or Similar Arrangement. Upon the grant of Restricted Stock, a book entry in a restricted account shall be established
in the Participant’s name at the Company’s transfer agent and, if the Committee determines that the Restricted Stock shall
be held by the Company or in escrow rather than held in such restricted account pending the release of the applicable restrictions, the
Committee may require the Participant to additionally execute and deliver to the Company (i) an escrow agreement satisfactory to the Committee,
if applicable, and (ii) the appropriate share power (endorsed in blank) with respect to the Restricted Stock covered by such agreement.
If a Participant fails to execute Restricted Stock Award Agreement and, if applicable, an escrow agreement and blank share power within
the amount of time specified by the Committee, the Award shall be null and void. Subject to the restrictions set forth in this Section
9 and the applicable Award Agreement, the Participant generally shall have the rights and privileges of a shareholder as to such Restricted
Stock, including without limitation the right to vote such Restricted Stock and the right to receive dividends, if applicable. To the
extent shares of Restricted Stock are forfeited, any share certificates issued to the Participant evidencing such shares shall be returned
to the Company, and all rights of the Participant to such shares and as a shareholder with respect thereto shall terminate without further
obligation on the part of the Company.
(c) Vesting;
Acceleration of Lapse of Restrictions. Unless otherwise provided by the Committee in an Award Agreement the unvested portion of
Restricted Stock and Restricted Stock Units shall terminate and be forfeited upon termination of employment or Service of the Participant
granted the applicable Award.
(d) Delivery
of Restricted Stock and Settlement of Restricted Stock Units.
(i) Upon
the expiration of the Restricted Period with respect to any shares of Restricted Stock, the restrictions set forth in the applicable Award
Agreement shall be of no further force or effect with respect to such shares, except as set forth in the applicable Award Agreement. If
an escrow arrangement is used, upon such expiration, the Company shall deliver to the Participant, or his beneficiary, without charge,
the share certificate evidencing the shares of Restricted Stock that have not then been forfeited and with respect to which the Restricted
Period has expired (rounded down to the nearest full share). Dividends, if any, that may have been withheld by the Committee and attributable
to any particular share of Restricted Stock shall be distributed to the Committee and attributable to any particular share of Restricted
Stock shall be distributed to the Participant in cash or, at the sole discretion of the Committee, in Common Shares having a Fair Market
Value equal to the amount of such dividends, upon the release of restrictions on such share and, if such share is forfeited, the Participant
shall have no right to such dividends (except as otherwise set forth by the Committee in the applicable Award Agreement).
(ii) Unless
otherwise provided by the Committee in an Award Agreement, upon the expiration of the Restricted Period with respect to any outstanding
Restricted Stock Units, the Company shall deliver to the Participant, or his beneficiary, without charge, one Common Share for each such
outstanding Restricted Stock Unit; provided, however, that the Committee may, in its sole discretion, elect to
(A) pay cash or part cash and part Common Share in lieu of delivering only Common Shares in respect of such Restricted Stock Units or
(B) defer the delivery of Common Shares (or cash or part Common Shares and part cash, as the case may be) beyond the expiration of the
Restricted Period if such delivery would result in a violation of applicable law until such time as is no longer the case. If a cash payment
is made in lieu of delivering Common Shares, the amount of such payment shall be equal to the Fair Market Value of the Common Shares as
of the date on which the Restricted Period lapsed with respect to such Restricted Stock Units, less an amount equal to any taxes required
to be withheld or paid.
10. Stock
Bonus Awards. The Committee may issue unrestricted Common Shares, or other Awards denominated in Common Shares, under the Plan
to Eligible Persons, either alone or in tandem with other awards, in such amounts as the Committee shall from time to time in its sole
discretion determine. Each Stock Bonus Award granted under the Plan shall be evidenced by an Award Agreement (whether in paper or electronic
medium (including email or the posting on a web site maintained by the Company or a third party under contract with the Company)). Each
Stock Bonus Award so granted shall be subject to such conditions not inconsistent with the Plan as may be reflected in the applicable
Award Agreement.
11. Performance
Awards.
(a) Generally.
The Committee shall have the authority, at the time of grant of any Award described in Sections 7 through 10 of the Plan,
to designate such Award as a Performance Award. The Committee shall have the authority to make an award of a cash bonus to any Participant
and designate such Award as a Performance Award. Unless otherwise determined by the Committee, an Award Agreement shall evidence all Performance
Awards.
(b) Discretion
of Committee with Respect to Performance Awards. The Committee shall have the discretion to establish the terms, conditions, and
restrictions of any Performance Award. With regard to a particular Performance Period, the Committee shall have sole discretion to select
the length of such Performance Period, the type(s) of Performance Awards to be issued, the Performance Criteria that will be used to establish
the Performance Goal (s), the kind(s) and/or level(s) of the Performance Goals(s) that is (are) to apply and the Performance Formula.
(c) Performance
Criteria. The Committee may establish Performance Criteria that will be used to establish the Performance Goal(s) for Performance
Awards which may be based on the attainment of specific levels of performance of the Company (and/or one or more Affiliates, divisions,
business segments or operational units, or any combination of the foregoing) and may include, without limitation, any of the following:
(i) net earnings or net income (before or after taxes); (ii) basic or diluted earnings per share (before or after taxes); (iii)
revenue or revenue growth (measured on a net or gross basis); (iv) gross profit or gross profit growth; (v) operating profit
(before or after taxes); (vi) return measures (including, but not limited to, return on assets, capital, invested capital, equity,
or sales); (vii) cash flow (including, but not limited to, operating cash flow, free cash flow, net cash provided by operations and
cash flow return on capital); (viii) financing and other capital raising transactions (including, but not limited to, sales of the
Company’s equity or debt securities); (ix) earnings before or after taxes, interest, depreciation and/or amortization; (x) gross
or operating margins; (xi) productivity ratios; (xii) share price (including, but not limited to, growth measures and total
shareholder return); (xiii) expense targets; (xiv) margins; (xv) productivity and operating efficiencies; (xvi) customer
satisfaction; (xvii) customer growth; (xviii) working capital targets; (xix) measures of economic value added; (xx) inventory
control; (xxi) enterprise value; (xxii) sales; (xxiii) debt levels and net debt; (xxiv) combined ratio; (xxv) timely
launch of new facilities; (xxvi) client retention; (xxvii) employee retention; (xxviii) timely completion of rollouts of
new products and services; (xxix) cost targets; (xxx) reductions and savings; (xxxi) productivity and efficiencies; (xxxii) strategic
partnerships or transactions; and (xxxiii) personal targets, goals or completion of projects. Any one or more of the Performance
Criteria may be used on an absolute or relative basis to measure the performance of the Company and/or one or more Affiliates as a whole
or any business unit(s) of the Company and/or one or more Affiliates or any combination thereof, as the Committee may deem appropriate,
or any of the above Performance Criteria may be compared to the performance of a selected group of comparison or peer companies, or a
published or special index that the Committee, in its sole discretion, deems appropriate, or as compared to various stock market indices.
The Committee also has the authority to provide for accelerated vesting of any Award based on the achievement of Performance Goals pursuant
to the Performance Criteria specified in this paragraph. Any Performance Criteria that are financial metrics, may be determined in accordance
with United States Generally Accepted Accounting Principles (“GAAP”) or may be adjusted when established to include
or exclude any items otherwise includable or excludable under GAAP.
(d) Modification
of Performance Goal(s). The Committee is authorized at any time to adjust or modify the calculation of a Performance Goal for
such Performance Period, based on and in order to appropriately reflect any specified circumstance or event that occurs during a Performance
Period, including but not limited to the following: (i) asset write-downs; (ii) litigation or claim judgments or settlements; (iii) the
effect of changes in tax laws, accounting principles, or other laws or regulatory rules affecting reported results; (iv) any reorganization
and restructuring programs; (v) unusual and/or infrequently occurring items as described in Accounting Principles Board Opinion No. 30
(or any successor pronouncement thereto) and/or in management’s discussion and analysis of financial condition and results of operations
appearing in the Company’s annual report to shareholders for the applicable year; (vi) acquisitions or divestitures; (vii) discontinued
operations; (viii) any other specific unusual or infrequently occurring or non-recurring events, or objectively determinable category
thereof; (ix) foreign exchange gains and losses; and (x) a change in the Company’s fiscal year.
(e) Terms
and Conditions for Receipt of Payment. Unless otherwise provided in the applicable Award Agreement, a Participant must be employed
by the Company on the last day of a Performance Period to be eligible for payment in respect of a Performance Award for such Performance
Period. A Participant shall be eligible to receive payment in respect of a Performance Award only to the extent that: (i) the Performance
Goals for such period are achieved; and (ii) all or some of the portion of such Participant’s Performance Award has been earned
for the Performance Period based on the application of the Performance Formula to such achieved Performance Goals. Following the completion
of a Performance Period, the Committee shall determine whether, and to what extent, the Performance Goals for the Performance Period have
been achieved and, if so, calculate the amount of the Performance Awards earned for the period based upon the Performance Formula. The
Committee shall then determine the amount of each Participant’s Performance Award actually payable for the Performance Period.
(f) Timing
of Award Payments. Except as provided in an Award Agreement, Performance Awards granted for a Performance Period shall be paid
to Participants as soon as administratively practicable following the Committee’s determination in accordance with Section 11(e).
12. Other Stock-or Cash-Based
Awards. The Committee is authorized to grant Awards to Participants in the form of Other Stock-Based Awards or Other Cash-Based
Awards, as deemed by the Committee to be consistent with the purposes of the Plan. To the extent necessary to satisfy the short-term deferral
exception to Code Section 409A, unless the Committee shall determine otherwise, the Awards shall provide that payment shall be made
within two and one-half (2½) months after the end of the year in which the Participant has a legally binding vested right to such
Award. The Committee may establish such other rules applicable to the Other Stock- or Cash-Based Awards as it deems appropriate, to the
extent consistent with the Plan.
13. Changes
in Capital Structure and Similar Events. In the event of (i) any dividend (other than ordinary cash dividends) or other distribution
(whether in the form of cash, Common Shares, other securities or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, amalgamation, consolidation, spin-off, split-up, split-off, combination, repurchase or exchange of Common Shares
or other securities of the Company, issuance of warrants or other rights to acquire Common Shares or other securities of the Company,
or other similar corporate transaction or event (including, without limitation, a Change in Control) that affects the Common Shares, or
(ii) unusual or infrequently occurring events (including, without limitation, a Change in Control) affecting the Company, any Affiliate,
or the financial statements of the Company or any Affiliate, or changes in applicable rules, rulings, regulations or other requirements
of any governmental body or securities exchange or inter-dealer quotation system, accounting principles or law, such that in either case
an adjustment is determined by the Committee in its sole discretion to be necessary or appropriate, then the Committee shall make any
such adjustments in such manner as it may deem equitable, including without limitation any or all of the following:
(a) adjusting
any or all of (i) the number of Common Shares or other securities of the Company (or number and kind of other securities or other
property) that may be delivered in respect of Awards or with respect to which Awards may be granted under the Plan (including, without
limitation, adjusting any or all of the limitations under Section 5 of the Plan) and (ii) the terms of any outstanding Award,
including, without limitation, (A) the number of Common Shares or other securities of the Company (or number and kind of other securities
or other property) subject to outstanding Awards or to which outstanding Awards relate, (B) the Exercise Price or Strike Price with
respect to any Award, or (C) any applicable performance measures (including, without limitation, Performance Criteria and Performance
Goals);
(b) providing
for a substitution or assumption of Awards in a manner that substantially preserves the applicable terms of such Awards;
(c) accelerating
the exercisability or vesting of, lapse of restrictions on, or termination of, Awards or providing for a period of time for exercise prior
to the occurrence of such event;
(d) modifying
the terms of Awards to add events, conditions or circumstances (including termination of employment within a specified period after a
Change in Control) upon which the exercisability or vesting of or lapse of restrictions thereon will accelerate;
(e) deeming
any performance measures (including, without limitation, Performance Criteria and Performance Goals) satisfied at target, maximum or actual
performance through closing or such other level determined by the Committee in its sole discretion, or providing for the performance measures
to continue (as is or as adjusted by the Committee) after closing;
(f) providing
that for a period prior to the Change in Control determined by the Committee in its sole discretion, any Options or SARs that would not
otherwise become exercisable prior to the Change in Control will be exercisable as to all Common Shares subject thereto (but any such
exercise will be contingent upon and subject to the occurrence of the Change in Control and if the Change in Control does not take place
after giving such notice for any reason whatsoever, the exercise will be null and void) and that any Options or SARs not exercised prior
to the consummation of the Change in Control will terminate and be of no further force and effect as of the consummation of the Change
in Control; and
(g) canceling
any one or more outstanding Awards and causing to be paid to the holders thereof, in cash, Common Shares, other securities or other property,
or any combination thereof, the value of such Awards, if any, as determined by the Committee (which if applicable may be based upon the
price per Common Share received or to be received by other shareholders of the Company in such event), including without limitation, in
the case of an outstanding Option or SAR, a cash payment in an amount equal to the excess, if any, of the Fair Market Value (as of a date
specified by the Committee) of the Common Shares subject to such Option or SAR over the aggregate Exercise Price or Strike Price of such
Option or SAR, respectively (it being understood that, in such event, any Option or SAR having a per share Exercise Price or Strike Price
equal to, or in excess of, the Fair Market Value of a Common Share subject thereto may be canceled and terminated without any payment
or consideration therefor); provided, however, that in the case of any “equity restructuring” (within the meaning of the Financial
Accounting Standards Board Accounting Standards Codification Topic 718), the Committee shall make an equitable or proportionate adjustment
to outstanding Awards to reflect such equity restructuring. The Company shall give each Participant notice of an adjustment hereunder
and, upon notice, such adjustment shall be conclusive and binding for all purposes.
14. Amendments
and Termination.
(a) Amendment
and Termination of the Plan. The Board may amend, alter, suspend, discontinue, or terminate the Plan or any portion thereof at
any time; provided that (i) no amendment to Section 14(b) (to the extent required by the proviso in such Section
14(b)) shall be made without shareholder approval and (ii) no such amendment, alteration, suspension, discontinuation or termination
shall be made without shareholder approval if such approval is necessary to comply with any tax or regulatory requirement applicable to
the Plan (including, without limitation, as necessary to comply with any rules or requirements of any securities exchange or inter-dealer
quotation system on which the Common Shares may be listed or quoted); provided, further, that any such amendment,
alteration, suspension, discontinuance or termination that would materially and adversely affect the rights of any Participant or any
holder or beneficiary of any Award theretofore granted shall not to that extent be effective without the consent of the affected Participant,
holder or beneficiary.
(b) Amendment
of Award Agreements. The Committee may, to the extent consistent with the terms of any applicable Award Agreement, waive any conditions
or rights under, amend any terms of, or alter, suspend, discontinue, cancel or terminate, any Award theretofore granted or the associated
Award Agreement, prospectively or retroactively; provided that any such waiver, amendment, alteration, suspension, discontinuance,
cancellation, or termination that would materially and adversely affect the rights of any Participant with respect to any Award theretofore
granted shall not to that extent be effective without the consent of the affected Participant; provided, further,
that without shareholder approval, except as otherwise permitted under Section 13, (i) no amendment or modification may reduce
the Exercise Price of any Option or the Strike Price of any SAR, (ii) the Committee may not cancel any outstanding Option or SAR where
the Fair Market Value of the Common Shares underlying such Option or SAR is less than its Exercise Price and replace it with a new Option
or SAR, another Award or cash and (iii) the Committee may not take any other action that is considered a “repricing” for purposes
of the shareholder approval rules of the applicable securities exchange or inter-dealer quotation system on which the Common Shares are
listed or quoted.
15. General.
(a) Nonsectionability.
(i) Each
Award shall be exercisable only by a Participant during the Participant’s lifetime, or, if permissible under applicable law, by
the Participant’s legal guardian or representative. No Award may be assigned, alienated, pledged, attached, sold or otherwise transferred
or encumbered by a Participant other than by will or by the laws of descent and distribution and any such purported assignment, alienation,
pledge, attachment, sale, transfer or encumbrance shall be void and unenforceable against the Company or an Affiliate; provided that
the designation of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer or encumbrance.
(ii) Notwithstanding the
foregoing, the Committee may, in its sole discretion, permit Awards (other than Incentive Stock Options) to be transferred by a
Participant, without consideration, subject to such rules as the Committee may adopt consistent with any applicable Award Agreement
to preserve the purposes of the Plan, to: (A) any person who is a “family member” of the Participant, as such term
is used in the instructions to Form S-8 under the Securities Act (collectively, the “Immediate Family Members”);
(B) a trust solely for the benefit of the Participant and his or her Immediate Family Members; (C) a partnership or
limited liability company whose only partners or shareholders are the Participant and his or her Immediate Family Members; or
(D) any other transferee as may be approved either (I) by the Board or the Committee in its sole discretion, or
(II) as provided in the applicable Award Agreement (each transferee described in clauses (A), (B), (C) and (D) above is
hereinafter referred to as a “Permitted Transferee”); provided that the Participant gives the
Committee advance written notice describing the terms and conditions of the proposed transfer and the Committee notifies the
Participant in writing that such a transfer would comply with the requirements of the Plan.
(iii) The
terms of any Award transferred in accordance with the immediately preceding sentence shall apply to the Permitted Transferee and any reference
in the Plan, or in any applicable Award Agreement, to a Participant shall be deemed to refer to the Permitted Transferee, except that
(A) Permitted Transferees shall not be entitled to transfer any Award, other than by will or the laws of descent and distribution; (B)
Permitted Transferees shall not be entitled to exercise any transferred Option unless there shall be in effect a registration statement
on an appropriate form covering the Common Shares to be acquired pursuant to the exercise of such Option if the Committee determines,
consistent with any applicable Award Agreement, that such a registration statement is necessary or appropriate; (C) the Committee or the
Company shall not be required to provide any notice to a Permitted Transferee, whether or not such notice is or would otherwise have been
required to be given to the Participant under the Plan or otherwise; and (D) the consequences of the termination of the Participant’s
employment by, or Services to, the Company or an Affiliate under the terms of the Plan and the applicable Award Agreement shall continue
to be applied with respect to the Participant, including, without limitation, that an Option shall be exercisable by the Permitted Transferee
only to the extent, and for the periods, specified in the Plan and the applicable Award Agreement.
(b) Tax
Withholding and Deductions.
(i) A
Participant shall be required to pay to the Company or any Affiliate, and the Company or any Affiliate shall have the right and is hereby
authorized to deduct and withhold, from any cash, Common Shares, other securities or other property deliverable under any Award or from
any compensation or other amounts owing to a Participant, the amount (in cash, Common Shares, other securities or other property) of any
required taxes (up to the maximum statutory rate under applicable law as in effect from time to time as determined by the Committee) and
deduction in respect of an Award, its grant, vesting or exercise, or any payment or transfer under an Award or under the Plan and to take
such other action as may be necessary in the opinion of the Committee or the Company to satisfy all obligations for the payment of such
taxes.
(ii) Without
limiting the generality of clause (i) above, the Committee may, in its sole discretion, determined on a case by case basis, permit a Participant
to satisfy, in whole or in part, the foregoing tax and deduction liability by (A) the delivery of Common Shares (which are not subject
to any pledge or other security interest and are Mature Shares, except as otherwise determined by the Committee) owned by the Participant
having a Fair Market Value equal to such liability or (B) having the Company withhold from the number of Common Shares otherwise issuable
or deliverable pursuant to the exercise or settlement of the Award a number of shares with a Fair Market Value equal to such liability.
(c) No
Claim to Awards; No Rights to Continued Employment; Waiver. No person shall have any claim or right to be granted an Award under
the Plan or, having been selected for the grant of an Award, to be selected for a grant of any other Award. There is no obligation for
uniformity of treatment of Participants or holders or beneficiaries of Awards. The terms and conditions of Awards and the Committee’s
determinations and interpretations with respect thereto need not be the same with respect to each Participant and may be made selectively
among Participants, whether or not such Participants are similarly situated. Neither the Plan nor any action taken hereunder shall be
construed as giving any Participant any right to be retained in the employ or Service of the Company or an Affiliate, nor shall it be
construed as giving any Participant any rights to continued service on the Board. The Company or any of its Affiliates may at any time
dismiss a Participant from employment or discontinue any consulting relationship, free from any liability or any claim under the Plan,
unless otherwise expressly provided in the Plan or any Award Agreement. By accepting an Award, a Participant shall thereby be deemed to
have waived any claim to continued exercise or vesting of an Award or to damages or severance entitlement related to non-continuation
of the Award beyond the period provided under the Plan or any Award Agreement, notwithstanding any provision to the contrary in any written
employment contract or other agreement between the Company and its Affiliates and the Participant, whether any such agreement is executed
before, on or after the Date of Grant.
(d) Addenda/International
Participants. The Committee may adopt such addenda to the Plan as it may consider necessary or appropriate for the purpose of
granting Awards, which Awards may contain such terms and conditions as the Committee deems necessary or appropriate to accommodate differences
in local law, tax policy or custom, which may deviate from the terms and conditions set forth in this Plan The terms of any such addenda
shall supersede the terms of the Plan to the extent necessary to accommodate such differences but shall not otherwise affect the terms
of the Plan as in effect for any other purpose. With respect to Participants who reside or work outside of the United States of America,
the Committee may in its sole discretion amend the terms of the Plan or outstanding Awards with respect to such Participants in order
to conform such terms with the requirements of local law or to obtain more favorable tax or other treatment for a Participant, the Company,
or its Affiliates.
(e) Designation
and Change of Beneficiary. Each Participant may file with the Committee a written designation of one or more persons as the beneficiary(ies)
who shall be entitled to receive the amounts payable with respect to an Award, if any, due under the Plan upon his death. A Participant
may, from time to time, revoke or change his beneficiary designation without the consent of any prior beneficiary by filing a new designation
with the Committee. The last such designation received by the Committee shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Participant’s
death, and in no event shall it be effective as of a date prior to such receipt. If no beneficiary designation is filed by a Participant,
the beneficiary shall be deemed to be his or her spouse or, if the Participant is unmarried at the time of death, his or her estate.
(f) Termination
of Employment/Service. Unless determined otherwise by the Committee at any point following such event: (i) neither a temporary
absence from employment or Service due to illness, vacation or leave of absence nor a transfer from employment or Service with the Company
to employment or Service with an Affiliate (or vice-versa) shall be considered a termination of employment or Service with the Company
or an Affiliate; and (ii) if a Participant’s employment with the Company and its Affiliates terminates, but such Participant continues
to provide services to the Company and its Affiliates in a non-employee capacity (or vice-versa), such change in status shall not be considered
a termination of employment with the Company or an Affiliate.
(g) Leaves
of Absence/Transfer Between Locations. The Committee shall have the discretion to determine at any time whether and to what extent
the vesting of Awards shall be suspended during any leave of absence; provided, however, that in the absence of such determination, vesting
of Awards shall continue during any paid leave and during any unpaid leave (unless otherwise required by applicable Laws). A Participant
will not cease to be an Employee in the case of (i) any leave of absence approved by the Participant’s employer or (ii) transfers
between locations of the Company or between the Company or any Subsidiary. If an Employee is holding an Incentive Stock Option and such
leave exceeds three (3) months then, for purposes of Incentive Stock Option status only, such Employee’s Service as an Employee
shall be deemed terminated on the first (1st) day following such three (3) month period and the Incentive Stock Option
shall thereafter automatically treated for tax purposes as a Nonstatutory Stock Option in accordance with applicable laws, unless reemployment
upon the expiration of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to a written Company policy.
(h) No
Rights as a Shareholder. Except as otherwise specifically provided in the Plan or any Award Agreement, no person shall be entitled
to the privileges of ownership in respect of Common Shares or other securities that are subject to Awards hereunder until such shares
have been issued or delivered to that person.
(i) Government
and Other Regulations.
(i) The
obligation of the Company to settle Awards in Common Shares or other consideration shall be subject to all applicable laws, rules, and
regulations, and to such approvals by governmental agencies as may be required. Notwithstanding any terms or conditions of any Award to
the contrary, the Company shall be under no obligation to offer to sell or to sell, and shall be prohibited from offering to sell or selling,
any Common Shares or other securities pursuant to an Award unless such shares have been properly registered for sale pursuant to the Securities
Act with the Securities and Exchange Commission or unless the Company has received an opinion of counsel, satisfactory to the Company,
that such shares may be offered or sold without such registration pursuant to an available exemption therefrom and the terms and conditions
of such exemption have been fully complied with. The Company shall be under no obligation to register for sale under the Securities Act
any of the Common Shares or other securities to be offered or sold under the Plan. The Committee shall have the authority to provide that
all certificates for Common Shares or other securities of the Company or any Affiliate delivered under the Plan shall be subject to such
stop transfer orders and other restrictions as the Committee may deem advisable under the Plan, the applicable Award Agreement, the federal
securities laws, or the rules, regulations and other requirements of the Securities and Exchange Commission, any securities exchange or
inter-dealer quotation system upon which such shares or other securities are then listed or quoted and any other applicable federal, state,
local or non-U.S. laws, and the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference
to such restrictions. Notwithstanding any provision in the Plan to the contrary, the Committee reserves the right to add any additional
terms or provisions to any Award granted under the Plan that it in its sole discretion deems necessary or advisable in order that such
Award complies with the legal requirements of any governmental entity to whose jurisdiction the Award is subject.
(ii) The
Committee may cancel an Award or any portion thereof if it determines, in its sole discretion, that legal or contractual restrictions
and/or blockage and/or other market considerations would make the Company’s acquisition of Common Shares from the public markets,
the Company’s issuance of Common Shares or other securities to the Participant, the Participant’s acquisition of Common Shares
or other securities from the Company and/or the Participant’s sale of Common Shares to the public markets, illegal, impracticable
or inadvisable. If the Committee determines to cancel all or any portion of an Award denominated in Common Shares in accordance with the
foregoing, the Company shall pay to the Participant an amount equal to the excess of (A) the aggregate Fair Market Value of the Common
Shares subject to such Award or portion thereof canceled (determined as of the applicable exercise date, or the date that the shares would
have been vested or delivered, as applicable), over (B) the aggregate Exercise Price or Strike Price (in the case of an Option or SAR,
respectively) or any amount payable as a condition of delivery of Common Shares (in the case of any other Award). Such amount shall be
delivered to the Participant as soon as practicable following the cancellation of such Award or portion thereof.
(j) Payments
to Persons Other Than Participants. If the Committee shall find that any person to whom any amount is payable under the Plan is
unable to care for his affairs because of illness or accident, or is a minor, or has died, then any payment due to such person or his
estate (unless a prior claim therefor has been made by a duly appointed legal representative) may, if the Committee so directs the Company,
be paid to his spouse, child, relative, an institution maintaining or having custody of such person, or any other person deemed by the
Committee to be a proper recipient on behalf of such person otherwise entitled to payment. Any such payment shall be a complete discharge
of the liability of the Committee and the Company therefor.
(k) Nonexclusivity
of the Plan. Neither the adoption of this Plan by the Board nor the submission of this Plan to the shareholders of the Company
for approval shall be construed as creating any limitations on the power of the Board to adopt such other incentive arrangements as it
may deem desirable, including, without limitation, the granting of stock options or other equity-based awards otherwise than under this
Plan, and such arrangements may be either applicable generally or only in specific cases.
(l) No
Trust or Fund Created. Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind
or a fiduciary relationship between the Company or any Affiliate, on the one hand, and a Participant or other person or entity, on the
other hand. No provision of the Plan or any Award shall require the Company, for the purpose of satisfying any obligations under the Plan,
to purchase assets or place any assets in a trust or other entity to which contributions are made or otherwise to segregate any assets,
nor shall the Company maintain separate bank accounts, books, records or other evidence of the existence of a segregated or separately
maintained or administered fund for such purposes. Participants shall have no rights under the Plan other than as unsecured general creditors
of the Company, except that insofar as they may have become entitled to payment of additional compensation by performance of services,
they shall have the same rights as other employees under general law.
(m) Reliance
on Reports. Each member of the Committee and each member of the Board shall be fully justified in acting or failing to act, as
the case may be, and shall not be liable for having so acted or failed to act in good faith, in reliance upon any report made by the independent
public accountant of the Company and its Affiliates and/or any other information furnished in connection with the Plan by any agent of
the Company or the Committee or the Board, other than himself.
(n) Relationship
to Other Benefits. No payment under the Plan shall be considered in determining any benefits under any pension, retirement, profit
sharing, group insurance or other benefit plan of the Company except as otherwise specifically provided in such other plan.
(o) Governing
Law. The Plan shall be governed by and construed in accordance with the internal laws of the State of Delaware applicable to contracts
made and performed wholly within the State of Delaware, without giving effect to the conflict of laws provisions thereof. Each party hereby
irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the state and federal courts seated
in Wilmington, Delaware (and any appellate courts thereof) in any action or proceeding arising out of or relating to this Plan, and each
of the parties hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding except in such courts,
(ii) agrees that any claim in respect of any such action or proceeding may be heard and determined in such court, (iii) waives, to the
fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such
action or proceeding in any such court, and (iv) waives, to the fullest extent permitted by law, the defense of an inconvenient forum
to the maintenance of such action or proceeding in any such court. Each party agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party
hereby knowingly, voluntarily, and intentionally irrevocably waives the right to a trial by jury in respect to any litigation, dispute,
claim, legal action or other legal proceeding based hereon, or arising out of, under, or in connection with, this Plan.
(p) Severability.
If any provision of the Plan or any Award or Award Agreement is or becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any person or entity or Award, or would disqualify the Plan or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed
amended without, in the determination of the Committee, materially altering the intent of the Plan or the Award, such provision shall
be construed or deemed stricken as to such jurisdiction, person or entity or Award and the remainder of the Plan and any such Award shall
remain in full force and effect.
(q) Obligations
Binding on Successors. The obligations of the Company under the Plan shall be binding upon any successor corporation or organization
resulting from the merger, amalgamation, consolidation, or other reorganization of the Company, or upon any successor corporation or organization
succeeding to substantially all of the assets and business of the Company.
(r) Status
under ERISA. It is the intent of the Company that the Plan shall not constitute an “employee benefit plan” for purposes
of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.
(s) Code
Section 409A.
(i) Notwithstanding
any provision of this Plan to the contrary, all Awards made under this Plan are intended to be exempt from or, in the alternative, comply
with Code Section 409A and the interpretive guidance thereunder, including the exceptions for stock rights and short-term deferrals. The
Plan shall be construed and interpreted in accordance with such intent. Each payment under an Award shall be treated as a separate payment
for purpose of Code Section 409A.
(ii) If
a Participant is a “specified employee” (as such term is defined for purposes of Code Section 409A) at the time of his or
her termination of Service, no amount that is nonqualified deferred compensation subject to Code Section 409A and that becomes payable
by reason of such termination of Service shall be paid to the Participant (or in the event of the Participant’s death, the Participant’s
representative or estate) before the earlier of (x) the first business day after the date that is six months following the date of the
Participant’s termination of Service, and (y) within 30 days following the date of the Participant’s death. For purposes of
Code Section 409A, a termination of Service shall be deemed to occur only if it is a “separation from service” within the
meaning of Code Section 409A, and references in the Plan and any Award Agreement to “termination of service” or similar terms
shall mean a “separation from service.” If any Award is or becomes subject to Code Section 409A, unless the applicable Award
Agreement provides otherwise, such Award shall be payable upon the Participant’s “separation from service” within the
meaning of Code Section 409A. If any Award is or becomes subject to Code Section 409A and if payment of such Award would be accelerated
or otherwise triggered under a Change in Control, then the definition of Change in Control shall be deemed modified, only to the extent
necessary to avoid the imposition of an excise tax under Code Section 409A, to mean a “change in control event” as such term
is defined for purposes of Code Section 409A.
(iii) Any
adjustments made pursuant to Section 13 to Awards that are subject to Code Section 409A shall be made in compliance with the requirements
of Code Section 409A, and any adjustments made pursuant to Section 13 to Awards that are not subject to Code Section 409A shall
be made in such a manner as to ensure that after such adjustment, the Awards either (x) continue not to be subject to Code Section 409A
or (y) comply with the requirements of Code Section 409A.
(t) Expenses;
Gender; Titles and Headings. The expenses of administering the Plan shall be borne by the Company. Masculine pronouns and other
words of masculine gender shall refer to both men and women. The titles and headings of the sections in the Plan are for convenience of
reference only, and in the event of any conflict, the text of the Plan, rather than such titles or headings shall control.
(u) Other
Agreements. Notwithstanding the above, the Committee may require, as a condition to the grant of and/or the receipt of Common
Shares or other securities under an Award, that the Participant execute lock-up, shareholder, or other agreements, as it may determine
in its sole and absolute discretion.
(v) Erroneously
Awarded Compensation. All Awards shall be subject (including on a retroactive basis) to (i) any clawback, forfeiture or similar
incentive compensation recoupment policy established from time to time by the Company, including, without limitation, any such policy
established to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act, (ii) applicable law (including, without limitation,
Section 304 of the Sarbanes-Oxley Act and Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act), and/or (iii)
the rules and regulations of the applicable securities exchange or inter-dealer quotation system on which the Common Shares or other securities
are listed or quoted, and such requirements shall be deemed incorporated by reference into all outstanding Award Agreements.
(w) Investment
Representations. As a condition to the exercise of an Award, the Company may require the person exercising such Award to represent
and warrant at the time of any such exercise that the Shares are being purchased only for investment and without any present intention
to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required.
(x) Corporate
Records Control. In the event that the corporate records (e.g., Board consents, resolutions or minutes) documenting the corporate
action constituting the grant contain terms (e.g., exercise price, vesting schedule or number of shares) that are inconsistent
with those in the Award Agreement or related grant documents as a result of a clerical error in the papering of the Award Agreement or
related grant documents, the corporate records will control and the Participant will have no legally binding right to the incorrect term
in the Award Agreement or related grant documents.
24
Exhibit 14.1
Incannex Healthcare Inc.
Code of Conduct
The reputation and
integrity of Incannex Healthcare Inc. and its subsidiaries (collectively, the “Company”) are valuable assets that are vital
to the Company’s success. Each employee of the Company, including each of the Company’s officers and Directors, is responsible
for conducting the Company’s business in a manner that demonstrates a commitment to the highest standards of ethics and integrity.
The purposes of
this Code of Conduct (this “Code”) are to focus Directors and employees on areas of ethical risk, provide guidance to help
them recognize and deal with ethical issues, provide mechanisms to report unethical conduct and foster a culture of honesty and accountability.
No code of conduct can replace the thoughtful behaviour of an ethical Director or employee. Accordingly, dishonest or unethical conduct
or conduct that is illegal will constitute a violation of this Code, regardless of whether this Code specifically addresses such conduct.
All provisions of
this Code which impose a standard of conduct on employees shall be equally applicable to officers of the Company without regard to whether
or not such officers are employees of the Company.
In all the Company’s
relationships, including those with the public, shareholders, customers, suppliers, regulators and business partners, each Director and
employee must demonstrate a steadfast commitment to the following core values:
| ● | honest and ethical conduct; |
| ● | compliance with laws, rules and regulations; |
| ● | avoidance of conflicts of interest and the appearance of such conflicts; |
| ● | full, fair, accurate and timely disclosure by the Company to the public; |
| ● | proper delegation, guidance and oversight; |
| ● | prompt internal reporting of violations of this Code; and |
| ● | accountability for complying with this Code. |
| 3. | Implementation and oversight of this Code |
The
Company’s Board of Directors (the “Board”) is ultimately responsible for the implementation of this Code. The
Board has designated the Audit Committee (the “Committee”) to oversee the administration of this Code. In addition to
overseeing the administration of this Code, the Committee will review and approve, consistent with the requirements of the Nasdaq
listing rules (“Listing Rules”), related party transactions that must be disclosed in proxy statements or other filings
pursuant to the Listing Rules, or the rules adopted by the Securities and Exchange Commission (“SEC”). One or more
compliance officers (the “Compliance Officer”) will assist the Committee with the administration of this Code. The
Chairman of the Committee will serve as the Compliance Officer for executive officers and Directors. The Corporate Secretary will be
the Compliance Officer for employees and officers, other than executive officers.
Questions regarding
the application or interpretation of this Code are inevitable. Directors, officers and employees should feel free to direct questions
to their respective Compliance Officer.
Statements in this
Code to the effect that certain actions may be taken only with the “Company’s approval” mean that the Compliance Officer
or, as appropriate, the Board or the Committee must give prior written approval before the proposed action may be undertaken.
This Code should
be read in conjunction with all the Company’s other policies and compliance procedures.
The Company may
ask its employees or Directors to certify on a periodic basis that they are in full compliance with this Code and, in the discretion of
the Compliance Officer, with related policy statements.
| 4. | Requests for waiver of any provision of this Code |
Executive Officers
and employees must submit any requests for a waiver of a provision of this Code in writing to the Compliance Officer a reasonable period
in advance of the proposed conduct for appropriate review. Any waiver with respect to a Director or executive officer must be approved
by the Board, and, where appropriate, upon prior review and recommendation of the Committee.
In some circumstances,
the Company must publicly disclose a waiver and/or amendment of this Code. In addition, if a waiver is granted, the Company may have to
publicly disclose the nature of the granted waiver, including any implicit waiver, the name of the party or parties benefiting from the
waiver, the date of the waiver, and any other disclosures required under the Listing Rules or SEC rules.
| 5. | Compliance with laws and regulations |
A variety of laws
apply to the Company and its operations, and some carry criminal penalties. These laws include Occupational Health & Safety laws and
its status as a public company.
Examples of criminal
violations of the law include:
| ● | making false or misleading disclosures in documents filed with the SEC; |
| ● | trading on inside information; |
| ● | stealing, embezzling or misapplying the Company’s funds or other assets; |
| ● | using threats, physical force or other unauthorized means to collect money; or |
| ● | making a payment for an expressed purpose on the Company’s behalf to an individual who intends to use it for a different purpose. |
The Company must,
and will, investigate, address and report, as appropriate, all violations, including all suspected criminal violations. It is the
responsibility of each Director and employee to comply with the laws, rules, and regulations applicable to the Company and/or to him
or her personally. No Director or employee may delegate that responsibility to another person or to the Company.
The Company requires
each of its employees and Directors to report promptly his or her outside associations and personal business, financial and other relationships
and activities that may involve a conflict of interest or appearance of a conflict of interest between such employee or Director and the
Company to the Compliance Officer, unless such relationship or activity was already reported, so that the Company can take steps to address
such conflicts of interest. The term “outside association” includes any commercial, familial or other material affiliation,
association or employment of an individual other than with the Company.
It is impractical
to conceive of and set forth rules that cover all situations in which a conflict of interest may arise. The basic factor in all conflict-of-interest
situations is, however, the division of loyalty or the perception of a division of loyalty, between the Company’s best interests
and the interests of the employee or Director that could possibly affect, or appear to affect, the employee’s or Director’s
judgment or actions relating to the Company. Guidelines with respect to some sensitive areas in which potential conflicts of interest
are likely to occur are set forth below. Employees and Director should keep in mind that the following is not an exhaustive list of problem
areas but rather a guide in applying the Company’s basic conflict of interest policy to any situation. The important criterion is
adherence to the spirit of this Code.
Business relationships
An employee or Director
may have a conflict of interest if he or she, a member of his or her family, or his or her business partner or associate owns or has a
substantial direct or indirect interest in, or incurs indebtedness to, an entity with which the Company has or is seeking to have a business
relationship or with which the Company competes or is seeking to compete. Investments in stock or bonds of a publicly-held company should
not necessarily give rise to any conflict of interest. The question of when an investment may become so substantial as to possibly affect,
or appear to affect, an individual’s judgment is largely dependent on the particular circumstances and must be addressed on a case-by-case
basis.
A conflict of interest
may also arise when an employee or Director, a member of his or her family or his or her business partner or associate holds a position
as Director, officer, employee, advisor or partner of, or consultant, broker, finder or intermediary for, an entity with which the Company
has or is seeking to have a business relationship or with which the Company competes or is seeking to compete.
The Company expects
that each Director and employee will not act in a manner that could discredit the Company, unduly cause unfavourable criticism of the
Company or impair public confidence in the Company’s integrity. Thus, such associations, interests and business relationships that
might cause the employee or Director not to act in the best interests of the Company, or that might appear to cause divided loyalties,
will be permitted only after they are first reported, reviewed and addressed in the manner prescribed by this Code, or otherwise established
by the Committee.
Acceptance and giving of gifts
Any form of a gift
that obligates an employee to act in a particular manner with regard to our business is a bribe and is not allowed. In some circumstances,
it may be customary or appropriate to exchange gifts and entertainment with customers, potential customers, suppliers and others with
whom the Company has a business relationship and it similarly may be customary and appropriate to arrange or take part in programs and
events that include meals and lodging. Similarly, ordinary course business meals and entertainment are appropriate and not in violation
of this code. The key is to keep an arm’s length relationship and avoid excessive or lavish gifts, events or personal financial
transactions that may give the appearance of undue influence. An employee should also avoid personal financial transactions with customers,
suppliers and others with whom the Company has a business relationship that may influence the employee’s ability to perform his
or her job.
Equivalent rules
apply to the giving of gifts. Obviously, gifts should not be offered as bribes. Directors and employees should also take care to avoid
giving gifts that are intended to be innocent but may be construed as a bribe. Gifts and entertainment for customers, potential customers,
suppliers and others with whom the Company has a business relationship must support the Company’s legitimate business interests
and should be reasonable and appropriate under the circumstances. Employees and Directors should be sensitive to the rules of those with
whom the Company does business on receiving gifts and entertainment. Consistent with the obligation every employee has to act with integrity
and honesty at all times, each employee should deal fairly with the Company’s customers, suppliers, competitors and employees. Special
care must be taken with gifts to government officials, stricter rules apply. An acceptable gift to the employees of a company might be
perceived as a bribe to a government employee.
The prohibition
on bribes applies to third parties acting on behalf of the Company, including all contractors and consultants.
Outside activities / employment
Any outside association
by employees, including activities with other entities, should not encroach on the time and attention that employees are expected to devote
to their duties and responsibilities to the Company, adversely affect the quality or quantity of the work product or entail the use of
any of the Company’s assets, including its real and personal property, or create the appearance (without the Company’s approval)
of the Company’s sponsorship or support.
Under no circumstances
is any employee or Director permitted to compete with the Company or take for himself or herself or his or her family members or their
business partners or associates any business opportunity that belongs to the Company or that the employee or Director discovers or that
is made available to the employee or Director by virtue of his or her position with the Company.
Civic and political activities
The Company supports
the participation of its employees in civic and charitable so long as such participation does not encroach on the time and attention that
the employee is expected to devote to his or her duties and responsibilities to the Company. Employees are to conduct any such activities
in a manner that does not involve the Company or its assets or create an appearance of Company involvement, endorsement, sponsorship or
support.
Reporting procedure for conflicts
of interest and related party transactions
Each employee and
Director must report promptly to the Compliance Officer or the Committee the existence of any association, interest, relationship or activity,
as it arises, that actually involves or may appear to involve a conflict of interest. In addition, each employee and Director must report
all related party transactions that the Company will have to disclose publicly under the Listing Rules or SEC rules because of the requirement
of an independent committee of the Board to approve all such transactions. Failure to report such relationships, activities, interests
and related party transactions will be a ground for disciplinary action. Where the nature of the association, interest, relationship,
activity or transaction is such that an employee or Director believes that he or she is unable to disclose the details of the matter without
breaching other confidences, the Compliance Officer or Committee as appropriate may, if justified, discuss with the employee or Director
a resolution of the conflict consistent with all of such employee’s or Director’s responsibilities. The Company encourages
Directors and employees to consult with the Compliance Officer as soon as possible upon learning of an association, interest, relationship,
activity or transaction that could result in a conflict of interest or the appearance of a conflict of interest or could require public
disclosure.
The Compliance Officer
or, where appropriate, the Committee or the Board will review employee’s and Director’s disclosures of any conflict of interest
or related party transaction and determine the appropriate manner by which the Company’s approval or disapproval would be provided.
Each employee or Director must cooperate fully in the review process by providing all information that the Compliance Officer, the Committee
or the Board deems necessary to its review. Company actions with respect to the conflict of interest will take into account the spirit
of this Code.
All associations,
interests, relationships, activities or transactions disclosed by any Director or employee in accordance with this policy shall be held
in confidence unless the best interests of the Company dictate otherwise, or as otherwise required by law.
Resolution of conflicts
In all cases, conflicts
of interest must be handled in an ethical manner; they must be fully disclosed and considered prior to being resolved. The Compliance
Officer or, where appropriate, the Committee or the Board will handle all questions of conflicts of interest.
The Compliance Officer
and, as appropriate, the Committee or the Board, may determine, upon review of all relevant facts, that the conduct does not amount to
a conflict of interest, or may provide guidance to avoid a conflict from developing.
An actual or potential
conflict of interest may be resolved in a number of ways, including the following:
| ● | in the case of an offer of a gift, including entertainment or meals, the appropriate resolution may be for the gift to be accepted
or rejected; |
| ● | the Compliance Officer may determine the proper action alone or in consultation with the Committee or the Board; |
| ● | an employee may appeal the determination by the Compliance Officer of a conflict of interest to the Committee; |
| ● | any association, interest, relationship or participation in a transaction that is fully disclosed in writing to, and is approved in
writing by, the Compliance Officer, the Committee or the Board
will not be deemed to involve a conflict of interest for purposes of this Code; |
| ● | if it is concluded that a conflict of interest actually exists, the Committee or the Board may suspend the individual from some or
all of an individual’s duties and responsibilities or require he or she to perform other duties and responsibilities with the Company
for such period of time as deemed appropriate or may request that he or she resigns from his or her position with the Company; |
| ● | in the event that the reported conflict of interest involves an outside association, the Company may permanently cease doing business
with that association; or |
| ● | in the event that the reported conflict of interest involves a Director, the Director may be required to excuse himself from discussions
and any decision by the Board on a matter. |
| 7. | Full, fair, accurate and timely disclosures by the Company to
the public |
All employees who
participate, directly or indirectly, in the preparation of the financial and other disclosures that the Company makes to the public, including
in its filings with the SEC or by press release, must, in addition to complying with all applicable laws, rules and regulations, follow
these guidelines:
| ● | act honestly, ethically and with integrity; |
| ● | endeavour to ensure full, fair, timely, accurate and understandable disclosure; |
| ● | managers should, through leadership and communication, make sure that employees understand the Company’s obligations to the
public under the law with respect to its disclosures, including that results are never more important than compliance with the law; |
| ● | raise questions and concerns regarding the Company’s public disclosures when necessary and ensure that such questions and concerns
are appropriately addressed; |
| ● | provide the Company’s Directors, employees, outside auditors, attorneys, consultants and advisors involved in the preparation
of the Company’s disclosures to the public with information that is accurate, complete, objective, relevant, timely and understandable; |
| ● | act in good faith, responsibly and with due care, competence and diligence, without misrepresenting material
facts or allowing independent judgment to be subordinated by others; |
| ● | proactively promote honest and ethical behaviour among peers in our work environment; |
| ● | achieve proper and responsible use of and control over all Company assets and resources employed by or entrusted to such employees; |
| ● | record or participate in the recording of entries in the Company’s books and records that are full and accurate to the best
of such employee’s knowledge; and |
| ● | comply with the Company’s disclosure controls and procedures and system of internal controls. |
If a Director or
employee has material, non-public information relating to the Company or its business, it is the Company’s policy that the Director
or employee, or any family members or entities controlled by them may not buy or sell securities of the Company or engage in any other
action to take advantage of, or pass on to others, that information. This policy also applies to trading in the securities of any other
company, including our customers, suppliers, vendors or other business partners, if Directors or employees have material, non- public
information about that company which the Director or employee obtained by virtue of his/her position at the Company.
Transactions that
may be necessary or justifiable for independent reasons, including emergency expenditures and transactions planned before the employee
learned the material information, are not exceptions. Even the appearance of an improper transaction must be avoided to prevent any potential
prosecution of the Company or the individual trader.
Besides the obligation
to refrain from trading while in possession of material, nonpublic information, employees are also prohibited from “tipping”
others. The concept of unlawful tipping includes passing on information to friends or family members under circumstances that suggests
that employees were trying to help them make a profit or avoid a loss. Besides being considered a form of insider trading, of course,
tipping is also a serious breach of corporate confidentiality. For this reason, employees should be careful to avoid discussing sensitive
information in any place (for instance, at lunch, on public transportation, in elevators) when others may hear such information.
Research integrity
is fundamental to the scientific process and to the Company’s ability to bring products to market. All Company research and development
must be conducted according to all applicable laws and regulations and to the generally accepted ethical standards of the scientific community.
Scientific misconduct, such as fabrication, falsification, or plagiarism in proposing, conducting, or reporting research, disregards the
intellectual contributions and property of others, impedes the progress of research, and corrupts the scientific record. It is prohibited.
Each Director and
employee should deal fairly and in good faith with the Company’s customers, suppliers, regulators, business partners and others.
No Director or employee may take unfair advantage of anyone through manipulation, misrepresentation, fraud, abuse of confidential information
or other similar unethical or improper conduct.
| 11. | Delegation of authority |
Each employee, and
particularly each of the Company’s officers, must exercise due care to ensure that any delegation of authority is reasonable and
appropriate in scope, and includes appropriate guidance and continuous oversight and monitoring.
| 12. | Handling of confidential information |
Directors and employees
should observe the confidentiality of information that they acquire by virtue of their positions at the Company, including information
concerning the Company’s customers, suppliers, business partners or associates, competitors and other employees, except where disclosure
is approved by the Company or otherwise legally mandated.
| 13. | Social media communication |
Directors and employees
must ensure that all communication through any social media network (including but not limited to Facebook, Twitter, LinkedIn) is controlled
and strictly limited to personal matters. Under no circumstances Directors and employees should discuss Company matters or comment on
the Company’s activity using a social media network, whether or not the information is considered confidential.
| 14. | Prompt internal reporting of violations of this Code |
If an employee or
Director violates or thinks he or she has violated any provision of this Code, or if he or she observes, learns of, or, in good faith,
suspects that another person subject to this Code has violated any of its provisions, such employee or Director must report the actual
or suspected violation to the Compliance Officer or the Chairman of the Committee immediately and must cooperate in any investigation
of any actual or suspected violation of this Code.
If an employee or
Director reports an actual or suspected violation by another in good faith, he or she will not be subject to retaliation of any kind.
| 15. | Accountability for complying with this Code |
Reported violations
of this Code will be investigated, addressed promptly and treated confidentially to the extent possible. The Company strives to impose
discipline for each Code violation that fits the nature and particular facts of the violation. The Company uses a system of progressive
discipline. The Company will issue warnings for less significant, first-time violations. Violations of a more serious nature may result
in other measures, such as suspension without pay, demotion, temporary or permanent change in duties or responsibilities, loss or reduction
of bonus or option awards, or any combination of these or other such disciplinary actions, such as termination of employment.
Certain violations
of this Code that go unaddressed may be treated under the Listing Rules or, where applicable, by the SEC as implicit waivers of this Code.
Accordingly, a violation by a Director or executive officer that is discovered and not addressed may have to be disclosed in accordance
with the listing Rules or, where applicable, under rules and regulations of the SEC or applicable listing standards. In such cases, the
Company will have to disclose the nature of any violation, the date of the violation and the name of the person who committed the violation.
| 16. | Employees of the Company dealing in the Company’s securities |
This
area of conduct is governed by the Company’s Securities Trading Policy.
Adopted:5 October, 2023
Exhibit 99.1
DESCRIPTION OF CAPITAL STOCK
The following description of the capital stock of Incannex Healthcare
Inc., a Delaware corporation (the “Company”) is a summary only. This summary is subject to the General Corporation Law of
the State of Delaware (the “DGCL”) and the complete text of the Company’s Certificate of Incorporation and
the Bylaws, each as amended and restated.
General
Under the Certificate of Incorporation, the Company is authorized
to issue up to 100,000,000 shares of common stock and 10,000,000 shares of preferred stock, par value $0.0001 per share.
Common Stock
Voting Rights. The holders of our common stock are entitled
to one vote per share on all matters on which stockholders are generally entitled to vote; provided, however, that, except as otherwise
required by law, holders of common stock, as such, are not entitled to vote on any amendment to the Certificate of Incorporation that
relates solely to the terms of one or more outstanding series of preferred stock if the holders of such affected series are entitled,
either separately or together with the holders of one or more other such series, to vote thereon pursuant to the Certificate of Incorporation.
Holders of our common stock do not have cumulative voting rights in the election of directors. Accordingly, the holders of a majority
of the combined voting power of our common stock could, if they so choose, elect all the directors.
Dividends. Subject to the rights of the holders of any outstanding
series of preferred stock, holders of common stock are entitled to receive any dividends to the extent permitted by law when, as and if
declared by our board of directors.
Liquidation. Upon our dissolution, liquidation or winding up
of the Company, subject to the rights of the holders of any outstanding series of preferred stock, the holders of shares of common stock
are entitled to receive the assets of the Company available for distribution to its stockholders ratably in proportion to the number of
shares held by them.
Other Matters. The Certificate of Incorporation does
not entitle holders of our common stock to preemptive or conversion rights or other subscription rights. There are no redemption or sinking
fund provisions applicable to our common stock. The common stock may be subdivided or combined in any manner unless the other class is
subdivided or combined in the same proportion. All outstanding shares of our common stock are fully paid and non-assessable.
Authorized but Unissued Preferred Stock
Unless required by law or by any stock exchange on which our common
stock may be listed, the authorized shares of preferred stock will be available for issuance without further action by our stockholders.
Delaware law does not require stockholder approval for any issuance of authorized shares. However, the listing requirements of Nasdaq,
which apply as long as our common stock is listed on Nasdaq, require stockholder approval of certain issuances equal to or exceeding 20%
of the combined voting power of our common stock. These additional shares may be used for a variety of corporate purposes, including future
public offerings to raise additional capital, acquisitions and employee benefit plans.
Our Certificate of Incorporation authorizes our board of directors
to establish from time to time the number of shares to be included in each series of preferred stock, and to fix the designation, powers,
preferences, and relative, participating, optional or other rights, if any, and the qualifications, limitations or restrictions, if any,
of the shares of each series of preferred stock. Our board of directors is also able to increase or decrease the number of authorized
shares of any series of preferred stock (but not below the number of shares of that series of preferred stock then outstanding) without
any further vote or action by the stockholders.
The existence of unissued and unreserved common stock or preferred
stock may enable our board of directors to issue shares to persons friendly to current management, which could render more difficult or
discourage an attempt to obtain control of the Company by means of a merger, tender offer, proxy contest or otherwise, and could thereby
protect the continuity of our management and possibly deprive stockholders of opportunities to sell their shares of common stock at prices
higher than prevailing market prices.
Anti-Takeover Effects of Delaware Law, the Certificate of Incorporation
and the Bylaws
Certain provisions of Delaware law, the Certificate of Incorporation
and the Bylaws could make the acquisition of the Company more difficult and could delay, defer or prevent a tender offer or other takeover
attempt that a stockholder might consider to be in its best interest, including takeover attempts that might result in the payment of
a premium to stockholders over the market price for their shares. These provisions also may promote the continuity of our management by
making it more difficult for a person to remove or change the incumbent members of our board of directors.
Authorized but Unissued Shares; Undesignated Preferred Stock.
The authorized but unissued shares of our common stock are available for future issuance without stockholder approval except as required
by law or by any stock exchange on which our common stock may be listed. These additional shares may be utilized for a variety of corporate
purposes, including future public offerings to raise additional capital, acquisitions and employee benefit plans. In addition, our board
of directors may authorize, without stockholder approval, the issuance of undesignated preferred stock with voting rights or other rights
or preferences designated from time to time by our board of directors. The existence of authorized but unissued shares of common stock
or preferred stock may enable our board of directors to render more difficult or to discourage an attempt to obtain control of us by means
of a merger, tender offer, proxy contest or otherwise.
Board Classification. The Certificate of Incorporation provides
that our board of directors is divided into three classes of directors, with the classes to be as nearly equal in number as possible,
and with the directors serving three-year terms. As a result, approximately one-third of our board of directors is elected each year.
The classification of directors has the effect of making it more difficult for stockholders to change the composition of our board of
directors. The Certificate of Incorporation and the Bylaws provide that, subject to any rights of holders of preferred stock to elect
additional directors under specified circumstances, the number of directors may be fixed from time to time exclusively pursuant to a resolution
adopted by our board of directors.
No Cumulative Voting. Holders of our common stock do not have
cumulative voting rights in the election of directors.
Special Meetings of Stockholders. The Certificate of Incorporation
and the Bylaws provide that special meetings of our stockholders may be called only by our board of directors. Only such business
shall be conducted at a special meeting of stockholders as shall have been brought before the meeting by or at the direction of our board
of directors.
Stockholder Action by Written Consent. Pursuant to Section 228
of the DGCL, any action required to be taken at any annual or special meeting of the stockholders may be taken without a meeting, without
prior notice and without a vote if a consent or consents in writing, setting forth the action so taken, is signed by the holders of outstanding
stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which
all shares of our stock entitled to vote thereon were present and voted, unless our certificate of incorporation provides otherwise. The
Certificate of Incorporation precludes stockholder action by written consent.
Advance Notice Requirements for Stockholder Proposals and Nomination
of Directors. The Bylaws require stockholders seeking to bring business before an annual meeting of stockholders, or to nominate individuals
for election as directors at an annual or special meeting of stockholders, to provide timely notice in writing. To be timely, a stockholder’s
notice must be delivered to the secretary at our principal executive offices not later than the close of business on the 90th day nor
earlier than the close of business on the 120th day, prior to the anniversary of the preceding year’s annual meeting. However, in
the event that the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, such notice
will be timely only if delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than
the close of business on the later of the 90th day prior to such annual meeting or the tenth day following the date on which a public
announcement of the date of such annual meeting is first made by us. The Bylaws also specify requirements as to the form and content of
a stockholder’s notice. These provisions may preclude our stockholders from bringing matters before our annual meeting of stockholders
or from making nominations for directors at our meetings of stockholders. These provisions may also discourage or deter a potential acquiror
from conducting a solicitation of proxies to elect the potential acquiror’s own slate of directors or otherwise attempting to obtain
control of the Company.
Removal of Directors; Vacancies. Under the DGCL, unless otherwise
provided in the Certificate of Incorporation, directors serving on a classified board may be removed by the stockholders only for cause.
The Certificate of Incorporation provides that directors may only be removed for cause and only by the affirmative vote of holders of
at least 66 2/3% in the voting power of the stock outstanding and entitled to vote thereon. In addition, the Certificate of Incorporation
also provides that any newly created directorship on our board of directors resulting from any increase in the authorized number of directors
and any vacancies in our board of directors may be filled solely by the affirmative vote of a majority of the remaining directors then
in office, even though less than a quorum, or by the sole remaining director (and not by the stockholders).
Supermajority Provisions. The Certificate of Incorporation and
the Bylaws provide that our board of directors is expressly authorized to adopt, amend or repeal the Bylaws without a stockholder vote.
Any adoption, amendment or repeal of the Bylaws by our stockholders requires the affirmative vote of the holders of at least 66 2/3% of
the voting power of the stock outstanding and entitled to vote thereon, voting together as a single class.
The DGCL provides generally that the affirmative vote of a majority
of the outstanding shares entitled to vote thereon, voting together as a single class, is required to amend a corporation’s certificate
of incorporation, unless the certificate of incorporation requires a greater percentage. The Certificate of Incorporation provides that
the affirmative vote of at least 66 2/3% of the voting power of the stock outstanding and entitled to vote thereon, voting together as
a single class, is required to amend or repeal, or adopt any provision inconsistent with, the following provisions in the Certificate
of Incorporation, among others:
| ● | the
provisions providing for a classified board of directors (the election and term of our directors); |
| ● | the
provisions regarding removal of directors; |
| ● | the
provisions regarding filling vacancies on our board of directors and newly created directorships; |
| ● | the
provisions precluding stockholder action by written consent; |
| ● | the
provisions regarding calling special meetings of stockholders; |
| ● | the
provision requiring a 66 2/3% supermajority vote for stockholders to amend the Bylaws; |
| ● | the
provisions eliminating monetary damages for breaches of fiduciary duty by a director; and |
| ● | the
amendment provision requiring that the above provisions be amended only with a 66 2/3% supermajority
vote. |
Section 203 of the Delaware General Corporation Law. The Certificate of
Incorporation provides that we are not governed by, or otherwise subject to, Section 203 of the DGCL.
Transfer Agent and Registrar
The transfer agent and registrar for the Company’s common stock
is Computershare Trust Company, N.A. The transfer agent and registrar’s address is 250 Royall St., Canton, Massachusetts 02021.
4
Exhibit 99.2
Incannex Healthcare Announces Completion of
its
Redomiciliation to the United States
Melbourne November 29, 2023 & New York, November 28, 2023. Incannex Healthcare Inc. (NASDAQ: IXHL) is pleased to announce that its previously announced
transaction to redomicile Incannex Healthcare from Australia to the United States has been implemented today, November 28, 2023 New York
time (November 29, 2023 Melbourne time).
The shares of common stock of Incannex
Healthcare Inc. issued today in connection with the redomiciliation are expected to commence trading on The Nasdaq Stock Market LLC (“Nasdaq”)
under the symbol “IXHL” on November 30, 2023 (New York time) or as soon as possible thereafter.
Incannex Healthcare Inc. will become
subject to the reporting requirements of the U.S. Securities and Exchange Commission (“SEC”) and applicable corporate governance
rules of Nasdaq. Further details regarding the implementation of the redomiciliation can be found in a Current Report on Form
8-K that will be filed by Incannex Healthcare Inc. with the SEC.
About Incannex Healthcare Inc.
Incannex Healthcare Inc. (“Incannex”
or the “Company”) is a clinical stage pharmaceutical development company that is developing unique medicinal cannabis pharmaceutical
products and psychedelic medicine therapies for the treatment of obstructive sleep apnoea (OSA), traumatic brain injury (TBI) and concussion,
lung inflammation (ARDS, COPD, asthma, bronchitis), rheumatoid arthritis, inflammatory bowel disease, anxiety disorders, addiction disorders,
and pain, among other indications.
U.S. FDA approval and registration,
subject to ongoing clinical success, is being pursued for each drug and therapy under development. Each indication under investigation
currently has no, or limited, existing registered pharmacotherapy (drug) treatments available to the public and represent major global
economic opportunities to Incannex and its shareholders.
Incannex has a strong patent filing
strategy in place as it develops its products and therapies in conjunction with its medical and scientific advisory board and partners.
Incannex holds 20 granted patents and over 30 pending patent applications.
A comprehensive overview of the Company
can be found on Incannex’s website at www.incannex.com.au
Cautionary Statement Regarding Forward-Looking
Statements
This press release contains certain
forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995.
These statements are identified by the use of the words “believe,” “estimate,” “expect,” “anticipate,”
“intend,” “contemplate,” “foresee,” “would,” “could,” “plan,”
and similar expressions that are intended to identify forward-looking statements, which are generally not historical in nature. These
forward-looking statements are based on management’s current expectations and beliefs concerning future developments and their potential
effect on Incannex. While management believes that these forward-looking statements are reasonable as and when made, there can be no assurance
that future developments affecting Incannex will be those that are anticipated. Incannex’s forward-looking statements involve significant
risks and uncertainties (some of which are beyond Incannex’s control) and assumptions that could cause actual results to differ
materially from Incannex’s historical experience and present expectations or projections.. You are cautioned not to place undue
reliance on forward-looking statements contained in this press release, which speak only as of the date of this press release. Forward-looking
statements also are affected by the risk factors described in Incannex’s Annual Report on Form 20-F for the fiscal year ended
June 30, 2023, and those set forth from time-to-time in other filings with the SEC. Incannex undertakes no obligation to publicly update
or revise any forward-looking statements after the date they are made, whether as a result of new information, future events or otherwise.
For more information, please contact: |
|
Incannex Healthcare Inc.
Mr Joel Latham
Chief Executive Officer
joel@incannex.com.au |
Investor Relations Contact – United States
Alyssa Factor
Edison Group
+1 (860) 573 9637
afactor@edisongroup.com |
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Incannex Healthcare (PK) (USOTC:IHLXF)
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