SUBSCRIPTION AGREEMENT (Pfizer)
(Pfizer)
pSivida
Limited
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Gentlemen:
The
undersigned (the “Investor”)
hereby
confirms its agreement with you as follows:
1. This
Subscription Agreement, including the Terms and Conditions For Purchase of
Units
attached hereto as Annex
I
(collectively, this “Agreement”)
is
made as of the date set forth below between pSivida Limited, an Australian
company existing pursuant to the Australian Corporations ▇▇▇ ▇▇▇▇ (the
“Company”),
and
the Investor.
2. The
Company has authorized the sale and issuance to certain investors of up to
an
aggregate of 14,402,000 units (the “Units”),
each
Unit consisting of (i) one American Depositary Share (an “ADS”,
collectively the “ADSs”),
with
each ADS representing ten (10) ordinary shares, no par value, of the Company
(the “Ordinary
Shares”)
and
(ii) one warrant (the “Warrant”,
collectively the “Warrants”)
to
purchase 0.4 ADSs, subject to adjustment by the Company’s Board of Directors, or
a committee thereof, for a purchase price of $1.25 per Unit (the “Purchase
Price”).
The
ADSs will be evidenced by American Depositary Receipts (“ADRs”)
to be
issued pursuant to the Deposit Agreement, dated January 24, 2005 (the
“Deposit
Agreement”)
among
the Company, Citibank, N.A., as depositary (the “Depositary”)
and
the holders and beneficial owners from time to time of the ADRs. The ADSs
issuable upon the exercise of the Warrants are referred to herein as the
“Warrant
ADSs.”
The
Warrant ADSs, together with the ADSs and the Warrants, are referred to herein
as
the “Securities.”
3. The
offering and sale of the Units (the “Offering”)
are
being made pursuant to (1) an effective Registration Statement on Form F-3
(File
No. 333-141091) (including the Prospectus, dated March 6, 2007 contained therein
(the “Base
Prospectus”),
the
“Registration
Statement”)
filed
by the Company with the Securities and Exchange Commission (the “Commission”),
(2)
if applicable, certain “free writing prospectuses” (as that term is defined in
Rule 405 under the Securities Act of 1933, as amended), that have been or will
be filed with the Commission and delivered to the Investor on or prior to the
date hereof, (3) the Preliminary Prospectus Supplement, dated the date hereof
(the “Preliminary
Prospectus”),
that
has been delivered to the Investor and (4) the Final Prospectus Supplement
(the
“Final
Prospectus”
and
together with the Preliminary Prospectus, the “Prospectus
Supplement”;
the
Base Prospectus and the Prospectus Supplement are hereinafter referred to
together as the “Prospectus”),
containing certain supplemental information regarding the Securities and terms
of the Offering that will be filed with the Commission and delivered to the
Investor (or made available to the Investor by the filing by the Company of
an
electronic version thereof with the Commission).
4. The
Investor will purchase from the Company, and the Company will issue and sell
to
the Investor, the number of Units set forth below for the aggregate purchase
price set forth below. The Units shall be purchased pursuant to the Terms and
Conditions for Purchase of Units attached hereto as Annex
I
and
incorporated herein by this reference as if fully set forth herein. The Investor
acknowledges that the Offering is not being underwritten by the placement agents
named in the Prospectus Supplement (the “Placement
Agents”)
and
that there is no minimum offering amount.
5. The
manner of settlement of the ADSs purchased by the Investor shall be determined
by such Investor as follows (check
one):
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[____]
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A.
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Delivery
by crediting the account of the Investor's prime broker (as specified
by
the Investor on Exhibit
A
annexed hereto) with the Depository Trust Company (“DTC”)
through its Deposit/Withdrawal At Custodian ("DWAC")
system, whereby the Investor's prime broker shall initiate a DWAC
transaction on the Closing Date using its DTC participant identification
number and released by Citibank, N.A., the Company’s Depositary (the
“Depositary”)
upon confirmation by the Custodian to the Depositary that a deposit
of
Ordinary Shares has been made pursuant to the Deposit Agreement,
at the
Company's direction. NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT
BY
THE INVESTOR AND THE COMPANY, THE INVESTOR
SHALL:
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(I)
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DIRECT
THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE CREDITED
WITH THE
ADSs
ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE DEPOSITARY TO CREDIT
SUCH
ACCOUNT OR ACCOUNTS WITH THE ADSs,
AND
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(II)
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REMIT
BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE AGGREGATE PURCHASE
PRICE
FOR THE UNITS BEING PURCHASED BY THE INVESTOR TO THE FOLLOWING
ACCOUNT:
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JPMorgan
Chase Bank, N.A.
ABA
#
▇▇▇▇▇▇▇▇▇
Account
Name: pSivida Limited
Account
Number: 304950661
-
OR
-
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[____]
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B.
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Delivery
versus payment (“DVP”)
through DTC (i.e.,
the Company shall deliver ADSs registered in the Investor’s name and
address as set forth below and released by the Depositary to the
Investor
through DTC at the Closing directly to the account(s) at ▇▇▇▇▇ and
Company, LLC, as representative of the Placement Agents (“Cowen”),
identified by the Investor and simultaneously therewith payment shall
be
made by Cowen by wire transfer to the Company). NO
LATER THAN ONE (1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT
BY
THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
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-2-
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(I)
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NOTIFY
COWEN OF THE ACCOUNT OR ACCOUNTS AT COWEN TO BE CREDITED WITH THE
ADSs
BEING PURCHASED BY SUCH INVESTOR, AND
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(II)
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CONFIRM
THAT THE ACCOUNT OR ACCOUNTS AT COWEN TO BE CREDITED WITH THE
ADSs
BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE
AGGREGATE PURCHASE PRICE FOR THE UNITS BEING PURCHASED BY THE INVESTOR.
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IT
IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR
CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR
SETTLEMENT BY WAY OF DWAC OR DVP IN A TIMELY MANNER. IF THE INVESTOR DOES NOT
DELIVER THE AGGREGATE PURCHASE PRICE FOR THE UNITS OR DOES NOT MAKE PROPER
ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE ADSs
AND WARRANTS
MAY NOT BE DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED
FROM THE CLOSING ALTOGETHER.
6. The
executed Warrant shall be delivered in accordance with the terms
thereof.
7. The
Investor represents that, except as set forth below, (a) it has had no position,
office or other material relationship within the past three years with the
Company or persons known to it to be affiliates of the Company, (b) it is not
a
NASD member or an Associated Person (as such term is defined under the NASD
Membership and Registration Rules Section 1011) as of the Closing, and (c)
neither the Investor nor any group of Investors (as identified in a public
filing made with the Commission) of which the Investor is a part in connection
with the Offering, acquired, or obtained the right to acquire, 20% or more
of
the Ordinary Shares (or securities convertible into or exercisable for Ordinary
Shares) or the voting power of the Company on a post-transaction basis.
Exceptions:
______________________________________________________________________________________________________
(If
no
exceptions, write “none.” If left blank, response will be deemed to be
“none.”)
8. The
Investor represents that it has received (or otherwise had made available to
it
by the filing by the Company of an electronic version thereof with the
Commission) the Base Prospectus, the documents incorporated by reference
therein, the Preliminary Prospectus and any free writing prospectus
(collectively, the “Disclosure
Package”),
prior
to or in connection with the receipt of this Agreement. The Investor
acknowledges that, prior to the delivery of this Agreement to the Company,
the
Investor will receive certain additional information regarding the Offering,
including pricing information (collectively, the “Offering
Information”).
The
Offering Information may be provided to the Investor by any means permitted
under the Act, including in the Final Prospectus, a free writing prospectus
or
oral communications.
9. No
offer
by the Investor to buy Units will be accepted and no part of the Purchase Price
will be delivered to the Company until the Investor has received the Offering
Information and the Company has accepted such offer by countersigning a copy
of
this Agreement, and any such offer may be withdrawn or revoked, without
obligation or commitment of any kind, at any time prior to the Company’s (or the
Placement Agents’ on behalf of the Company) sending (orally, in writing or by
electronic mail) notice of its acceptance of such offer. An indication of
interest will involve no obligation or commitment of any kind until the Investor
has been delivered the Offering Information and this Agreement has been accepted
and countersigned by or on behalf of the Company.
[Signature
page follows]
-3-
Number
of
Units:5,200,000
Purchase
Price Per Unit: $1.25
Aggregate
Purchase Price: $6,500,000
Please
confirm that the foregoing correctly sets forth the agreement between us by
signing in the space provided below for that purpose.
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Dated
as of: June 30, 2007
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Pfizer
Inc.
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INVESTOR
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By:
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/s/▇▇▇▇ ▇. ▇▇▇▇▇▇ | |
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Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ |
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Title:
Attorney-in-Fact
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Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇
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Agreed
and Accepted
this
30th
day of June, 2007:
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PSIVIDA
LIMITED
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By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice
President, Corporate Affairs, General
Counsel
and
Secretary
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ANNEX
I
TERMS
AND CONDITIONS FOR PURCHASE OF UNITS
1. Authorization
and Sale of the Units. Subject
to the terms and conditions of these Terms and Conditions for Purchase of Units
and the Agreement (this “Agreement”)
to
which these Terms and Conditions for Purchase of Units are attached as
Annex
I,
the
Company has authorized the sale of the Units.
2. Agreement
to Sell and Purchase the ADSs; Placement Agents.
2.1 At
the
Closing (as defined in Section
3.1),
the
Company will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions set forth herein, the number of
Units
set
forth on the last page of this Agreement (the “Signature
Page”)
for
the aggregate purchase price therefor set forth on the Signature Page.
Capitalized terms not otherwise defined in this Annex
I
have the
respective meanings ascribed to them in this Agreement.
2.2 The
Investor acknowledges that the Company has agreed to pay ▇▇▇▇▇ and Company,
LLC
(“Cowen”)
and
JMP Securities, LLC (“JMP”,
and
together with Cowen, the “Placement
Agents”)
a fee
(the “Placement
Fee”)
in
respect of the sale of Units to the investors. Cowen is acting as representative
of the Placement Agents, and in such capacity is hereinafter referred to as
the
“Representative.”
2.3 The
Company proposes to enter into substantially this same form of Subscription
Agreement with certain other investors (the “Other
Investors”)
and
expects to complete sales of Units to them; provided,
however,
that
the Other Investors shall close their purchases prior to the Investor. The
Investor and the Other Investors are hereinafter sometimes collectively referred
to as the “Investors,”
and
this Agreement and the Subscription Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the “Agreements.”
2.4 The
Company has entered into a Placement Agent Agreement, dated as of June 29,
2007 (the “Placement
Agreement”),
with
the Placement Agents that contains certain representations, warranties,
covenants and agreements of the Company that may be relied upon by the Investor,
which the Company agrees shall be a third party beneficiary
thereof.
3. Closings
and Delivery of the Units and Funds.
3.1 Closing.
The
completion of the purchase and sale of the Units (the “Closing”)
shall
occur at a place and time (the “Closing
Date”)
to be
specified by the Company and the Representative, and of which the Investors
will
be notified in advance by the Representative, in accordance with Rule 15c6-1
promulgated under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”).
Prior
to and not later than 9:00 a.m., Melbourne, Australia time, on the Closing,
(a)
the Company shall deliver to A.N.Z. Nominees Ltd., having its principal office
at 25, 530 ▇▇▇▇▇▇▇ Street, GPO Box 2842, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
as
the custodian for the purposes of the Deposit Agreement (the “Custodian”),
the
Ordinary Shares to be represented by the ADSs comprising the Units in accordance
with the Deposit Agreement, as well as confirmation by the Custodian to the
Depositary of such delivery, (b) the Company shall pay by wire transfer to
the
Depositary’s account the ADS issuance fee of $0.04 per ADS to be issued,
together with all applicable taxes and expenses otherwise payable under the
terms of the Deposit Agreement for the deposit of Ordinary Shares and issuance
of ADSs (including, without limitation, confirmation that any Australian stock
transfer taxes in respect of such deposit (if any) have been paid by the
Company), (c) the Company shall instruct the Depositary to issue to the Investor
the number of ADSs
set
forth on the Signature Page registered in the name of the Investor or, if so
indicated on the Investor Questionnaire attached hereto as Exhibit
A,
in the
name of a nominee designated by the Investor, (d) the Company shall cause to
be
delivered to the Investor a Warrant to purchase a number of whole Warrant ADSs
determined by multiplying the number of ADSs (and Units) set forth on the
signature page by 0.40 and rounding down to the nearest whole number and deliver
to the Investor the ADR evidencing the aggregate number of Units purchased
by
such Investor and (e) the aggregate purchase price for the Units being purchased
by the Investor will be delivered by or on behalf of the Investor to the
Company.
3.2 Conditions
to the Company’s Obligations.
(a)
The
Company’s obligation to issue and sell the Units to the Investor shall be
subject to: (i) the receipt by the Company of the purchase price for the Units
being purchased hereunder as set forth on the Signature Page and (ii) the
accuracy of the representations and warranties made by the Investor and the
fulfillment of those undertakings of the Investor to be fulfilled prior to
the
Closing Date.
(b) Conditions
to the Investor’s Obligations.
Capitalized
terms used in this Section 3.2(b) but not otherwise defined in this Annex I
or
the Agreement have the respective meanings ascribed to them in the Collaborative
Research and License Agreement (the “Investor
Agreement”)
dated
as of April 3, 2007 among the Company, pSivida, Inc. and the Investor. For
purposes of clauses (iv) through (x) below, “Company”
includes pSivida, Inc. The Investor’s obligation to purchase the Units is
subject to the following conditions precedent:
(i) the
representations and warranties made by the Company in the Placement Agreement
shall have been accurate as of the Closing Date;
(ii) the
undertakings of the Company to be fulfilled prior to the Closing Date, including
without limitation those contained in the Placement Agreement, shall have been
fulfilled;
(iii) the
Placement Agents shall not have terminated the Placement Agreement pursuant
to
the terms thereof or determined that the conditions to the closing in the
Placement Agreement have not been satisfied;
(iv) the
Company has received funding after the date of the Investor Agreement from
Third
Party Investors in an amount equal to at least US$15 million in aggregate gross
proceeds; provided that amounts actually received by the Company pursuant to
other subscription agreements entered into on or about the date hereof shall
be
included in calculating such threshhold amount;
(v) the
Company and the Investor shall have each executed and delivered the Security
Agreement, and such Security Agreement shall be in full force and effect as
of
the Closing Date, and a UCC-1 with respect to the Collateral has been duly
filed
with the Secretary of State of the State of Delaware;
(vi) the
representations and warranties of the Company contained in the Investor
Agreement shall be true and correct in all material respects as of the dates
as
of which they are made;
(vii) the
Company shall have performed or complied in all material respects with all
agreements and covenants required by the Investor Agreement to be performed
or
complied with by it on or prior to the Closing Date;
(viii) the
Company shall have substantially fulfilled its obligations under Section 5.8
of
the Investor Agreement; and
(ix) the
Investor shall have received a certificate from Dr. ▇▇▇▇ ▇▇▇▇▇▇ on the Closing
Date certifying compliance with the foregoing clauses (i)-(viii) (in the event
that Dr. ▇▇▇▇ ▇▇▇▇▇▇ is unavailable, the General Counsel or Chief Financial
Officer shall certify as to the Company’s compliance with clauses (i)-(viii)
above).
Except
as
specifically set forth above in this Section 3.2(b), the Investor’s obligations
are expressly not conditioned on the purchase by any or all of the Other
Investors of the Units that they have agreed to purchase from the
Company.
3.3 Delivery
of Funds.
(a) DWAC
Delivery.
If the
Investor elects to settle the ADSs
purchased by such Investor through DTC’s Deposit/Withdrawal at Custodian
(“DWAC”)
delivery system, no
later than one (1) business day prior to the Investor's Closing Date,
the
Investor shall remit by wire transfer the amount of funds equal to the aggregate
purchase price for the Units being purchased by the Investor to the following
account designated by the Company and the Representative pursuant to the terms
of that certain Escrow Agreement (the “Escrow
Agreement”),
dated
as of June 29,
2007,
by and among the Company, the Placement Agents and JPMorgan Chase Bank, N.A.
(the “Escrow
Agent”):
JPMorgan
Chase Bank, N.A.
ABA
#
▇▇▇▇▇▇▇▇▇
Account
Name: pSivida Limited
Account
Number: 304950661
Such
funds shall be held in escrow until the Closing and delivered by the Escrow
Agent on behalf of the Investors to the Company upon the satisfaction, in the
sole judgment of the Representative, of the conditions set forth in Section
3.2(b)
hereof.
The Placement Agents shall have no rights in or to any of the escrowed funds,
unless the Placement Agents and the Escrow Agent are notified in writing by
the
Company in connection with the Closing that a portion of the escrowed funds
shall be applied to the Placement Fee. The
Company and the Investor agree to indemnify and hold the Escrow Agent harmless
from and against any and all losses, costs, damages, expenses and claims
(including, without limitation, court costs and reasonable attorneys fees)
(“Losses”)
arising under this Section
3.3
or
otherwise with respect to the funds held in escrow pursuant hereto or arising
under the Escrow Agreement, unless it is finally determined that such Losses
resulted directly from the willful misconduct or gross negligence of the Escrow
Agent. Anything in this Agreement to the contrary notwithstanding, in no event
shall the Escrow Agent be liable for any special, indirect or consequential
loss
or damage of any kind whatsoever (including but not limited to lost profits),
even if the Escrow Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(b) Delivery
Versus Payment through The Depository Trust Company.
If the
Investor elects to settle the ADSs
purchased by such Investor by delivery versus payment through DTC, no
later than one (1) business day prior to the Investor's Closing
Date,
the
Investor shall confirm that the account or accounts at the Representative to
be
credited with the ADSs
being
purchased by the Investor have a minimum balance equal to the aggregate purchase
price for the Units being purchased by the Investor.
3.4 Delivery
of ADSs.
(a) DWAC
Delivery.
If the
Investor elects to settle the ADSs
purchased by such Investor through DTC’s Deposit/Withdrawal at Custodian
(“DWAC”)
delivery system, no
later than one (1) business day prior to the Investor's Closing
Date,
the
Investor shall direct the broker-dealer at which the account or accounts to
be
credited with the ADSs
being
purchased by such Investor are maintained, which broker/dealer shall be a DTC
participant, to set up a DWAC instructing Citibank, N.A., the Company’s
Depositary, to credit such account or accounts with the ADSs. Such DWAC
instruction shall indicate the settlement date for the deposit of the
ADSs,
which
date shall be provided to the Investor by the Placement Agents. Simultaneously
with the delivery to the Company by the Escrow Agent of the funds held in escrow
pursuant to Section
3.3
above,
the Company shall direct its Depositary to credit the Investor’s account or
accounts with the ADSs
pursuant
to the information contained in the DWAC.
(b) Delivery
Versus Payment through The Depository Trust Company.
If the
Investor elects to settle the ADSs
purchased by such Investor by delivery versus payment through DTC, no
later than one (1) business day prior to the Investor's Closing
Date,
the
Investor shall notify the Representative of the account or accounts at the
Representative to be credited with the ADSs
being
purchased by such Investor. On the Closing Date, the Company shall deliver
the
ADSs
to the
Investor through DTC directly to the account or accounts at the Representative
identified by Investor and simultaneously therewith payment shall be made by
the
Representative by wire transfer to the Company.
4. Representations,
Warranties and Covenants of the Investor; Waiver.
The
Investor acknowledges, represents and warrants to, and agrees with, the Company
and the Placement Agents that:
4.1 The
Investor (a) is knowledgeable, sophisticated and experienced in making, and
is
qualified to make decisions with respect to, investments in securities
presenting an investment decision like that involved in the purchase of the
Units, including investments in securities issued by the Company and investments
in comparable companies, and has requested, received, reviewed and considered
all information it deemed relevant in making an informed decision to purchase
the Units, (b) has answered all questions on the Signature Page and the Investor
Questionnaire attached hereto as Exhibit
A
for use
in preparation of the Final Prospectus and the answers thereto are true and
correct as of the date hereof and will be true and correct as of the Closing
Date and (c) in connection with its decision to purchase the number of Units
set
forth on the Signature Page, has received and is relying solely upon (i) the
Disclosure Package and the documents incorporated by reference therein and
(ii)
the Offering Information.
4.2 (a)
No
action has been or will be taken in any jurisdiction outside the United States
by the Company or the Placement Agents that would permit an offering of the
Units,
or
possession or distribution of offering materials in connection with the issue
of
the Securities
in any
jurisdiction outside the United States where action for that purpose is
required, (b) if the Investor is outside the United States, it will comply
with
all applicable laws and regulations in each foreign jurisdiction in which it
purchases, offers, sells or delivers Securities or has in its possession or
distributes any offering material, in all cases at its own expense and (c)
the
Placement Agents are not authorized to make and have not made any
representation, disclosure or use of any information in connection with the
issue, placement, purchase and sale of the Units,
except
as set forth or incorporated by reference in the Prospectus or the Offering
Information.
4.3 (a)
The
Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement, and (b) this Agreement constitutes a valid and binding
obligation of the Investor enforceable against the Investor in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except
as
to the enforceability of any rights to indemnification or contribution that
may
be violative of the public policy underlying any law, rule or regulation
(including any U.S. federal or state securities law, rule or
regulation).
4.4 The
Investor understands that nothing in this Agreement, the Disclosure Package,
the
Prospectus or any other materials presented to the Investor in connection with
the purchase and sale of the Units
constitutes legal, tax or investment advice. The Investor has consulted such
legal, tax and investment advisors as it, in its sole discretion, has deemed
necessary or appropriate in connection with its purchase of Units.
4.5 Since
the
date on which either the Company or the Placement Agents first contacted such
Investor about the Offering, the Investor has not engaged in any transactions
in
the securities of the Company (including, without limitation, any Short Sales
(as defined below) involving the Company’s securities). Each Investor covenants
that it will not engage in any transactions in the securities of the Company
(including Short Sales) prior to the time that the transactions contemplated
by
this Agreement are publicly disclosed. Each Investor agrees that it will not
use
any of the Units
acquired
pursuant to this Agreement to cover any short position in the Ordinary Shares
if
doing so would be in violation of applicable securities laws. For purposes
hereof, “Short Sales” include, without limitation, all “short sales” as defined
in Rule 200 promulgated under Regulation SHO under the Exchange Act, whether
or
not against the box, and all types of direct and indirect stock pledges, forward
sales contracts, options, puts, calls, short sales, swaps, “put equivalent
positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar
arrangements (including on a total return basis), and sales and other
transactions through non-U.S. broker dealers or foreign regulated
brokers.
4.6 The
acquisition of the Units and the acquisition of ADSs following exercise of
the
Warrants will not require the Investor to seek prior approval of the Foreign
Investment Review Board under the Australian Foreign Acquisitions and Takeovers
▇▇▇ ▇▇▇▇ (Cth).
4.7 (a) The
acquisition of the Units and the acquisition of ADSs following exercise of
the
Warrants will not involve the acquisition of a relevant interest in Ordinary
Shares which causes the voting power in the Company of the Investor or an
associate (as defined in the Corporations ▇▇▇ ▇▇▇▇ (Cth)) of the Investor to
exceed 20% or to increase from a starting point that is above 20% and below
90%.
(b) The
Investor understands that if, as a result of any transaction contemplated by
this Agreement, the Investor will acquire a relevant interest in Ordinary Shares
which causes the voting power in the Company of the Investor or an associate
(as
defined in the Corporations ▇▇▇ ▇▇▇▇ (Cth)) of the Investor to exceed 20% or
to
increase from a starting point that is above 20% and below 90%, and there is
no
relevant exception to the acquisition under the Corporations Act, the Investor
may not acquire the relevant ADSs unless permitted under s611 of the
Corporations Act.
4.8 The
Investor and the Company agree that, subject to satisfaction (or waiver in
Investor’s sole discretion) of the conditions herein, the payment of funds and
delivery of the Securities will take place on or about July 13, 2007. This
agreement constitutes an express agreement of the parties at the time of the
transaction within the meaning of Rule 15c6-1 under the Exchange
Act.
5. Survival
of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding
any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company
and the Investor herein will survive the execution of this Agreement, the
delivery to the Investor of the Units being purchased and the payment therefor.
The Placement Agents shall be a third party beneficiary with respect to the
representations, warranties and agreements of the Investor in Section
4
hereof.
6. Notices.
All
notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class
registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile or (b) if delivered from outside
the
United States, by International Federal Express or facsimile, and will be deemed
given (i) if delivered by first-class registered or certified mail domestic,
three business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by
International Federal Express, two business days after so mailed and (iv) if
delivered by facsimile, upon electric confirmation of receipt and will be
delivered and addressed as follows:
(a) if
to
the Company, to:
pSivida
Limited
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., Vice President, Corporate Affairs, General Counsel
and
Secretary
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
with
copy (which shall not constitute notice) to:
Ropes
& ▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
(b) if
to the
Investor, at its address on the Signature Page hereto, or at such other address
or addresses as may have been furnished to the Company in writing.
7. Changes.
This
Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
8. Headings.
The
headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this
Agreement.
9. Severability.
In
case
any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the
remaining provisions contained herein will not in any way be affected or
impaired thereby.
10. Governing
Law. This
Agreement will be governed by, and construed in accordance with, the internal
laws of the State of New York, without giving effect to the principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.
11. Counterparts.
This
Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute
but one instrument, and will become effective when one or more counterparts
have
been signed by each party hereto and delivered to the other parties. The Company
and the Investor acknowledge and agree that the Company shall deliver its
counterpart to the Investor along with the Final Prospectus (or the filing
by
the Company of an electronic version thereof with the Commission).
12. Confirmation
of Sale.
The
Investor acknowledges and agrees that such Investor’s receipt of the Company’s
counterpart to this Agreement, together with the Final Prospectus (or the filing
by the Company of an electronic version thereof with the Commission), shall
constitute written confirmation of the Company’s sale of Units to such
Investor.
13. Press
Release.
The
Company and the Investor agree that the Company shall issue a press release
announcing the Offering prior to the opening of the financial markets in New
York City on the business day immediately after the date hereof.
14. Termination.
In the
event that the Placement Agreement is terminated by the Placement Agents
pursuant to the terms thereof, this Agreement shall terminate without any
further action on the part of the parties hereto.