AMENDED AND RESTATED SECOND AMENDMENT AGREEMENT
EXHIBIT
99.2
AMENDED
AND RESTATED
AMENDED
AND RESTATED SECOND AMENDMENT AGREEMENT
(the
"Agreement"),
dated
as of May 15, 2007, by and among pSivida Limited, an Australian corporation,
with headquarters located at Xxxxx 00, XXX Centre, 00 Xxx Xxxxxxxxx, Xxxxx,
XX
0000 Xxxxxxxxx (the "Company"),
and
Castlerigg Master Investments Ltd. (the "Investor").
WHEREAS:
A.
The
Company and the Investor are parties to that certain Securities Purchase
Agreement, dated as of October 5, 2005 (as amended prior to the date hereof,
the
"Existing
Securities Purchase Agreement"),
pursuant to which, among other things, the Investor purchased from the Company
(i) subordinated convertible notes, dated November 16, 2005 (the
"Original
Notes"),
which
are convertible in accordance with their terms into American Depositary Shares
of the Company ("ADSs")
each
of which represents 10 ordinary shares of the Company (the "Ordinary
Shares")
and is
evidenced by an American Depository Receipt ("ADR")
and
(ii) warrants (the "Original
Warrants"),
which
are exercisable to purchase 633,803 ADSs (the "Original
Warrant Shares").
B.
On
November 16, 2005, the Company and the Investor entered into a Registration
Rights Agreement (the "Original
Registration Rights Agreement"),
pursuant to which the Company agreed to provide certain registration rights
with
respect to the Registrable Securities (as defined in the Original Registration
Rights Agreement) under the Securities Act of 1933, as amended (the
"1933
Act"),
and
the rules and regulations promulgated thereunder, and applicable state
securities laws.
C.
The
Company and the Investor are also parties to that certain Amendment Agreement,
dated as of July 28, 2006 (the "Amendment
Agreement"),
pursuant to which, among other things, on September 14, 2006, (i) the Company
paid to the Investor the Amendment Payment Amount (as defined in the Amendment
Agreement); (ii) the Company issued to the Investor amended and restated notes
(the "Existing
Notes"),
convertible into ADSs, in accordance with the terms thereof; (iii) the Company
issued to the Investor Series A Warrants (the "Series
A Warrants")
exercisable to purchase 5,700,000 ADSs (the "Series
A Warrant Shares"),
in
accordance with the terms thereof; (iv) the Company agreed to issue to the
Investor warrants exercisable to purchase ADSs (the "Series
B Warrants")
from
time to time in accordance with the terms of the Existing Notes; (v) the Company
and the Investor entered into the Amended and Restated Registration Rights
Agreement (the "Existing
Registration Rights Agreement"),
pursuant to which the Company has agreed to provide certain registration rights
with respect to the Registrable Securities (as defined in the Existing
Registration Rights Agreement) under the 1933 Act, and the rules and regulations
promulgated thereunder, and applicable state securities laws; (vi) the Company
redeemed $2.5 million in principal amount of the Original
Notes.
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D.
In
connection with that certain Letter Agreement, by and between the Company and
the Investor, dated October 17, 2006 (the "Letter
Agreement"),
the
Company agreed to make certain payments to the Investor, and the Company and
the
Investor agreed (i) to amend certain of the provisions of the Existing
Registration Rights Agreement in connection with the Registration Statement
on
Form F-3 (SEC File No. 333 132777) registering 12,737,139 ADSs issuable to
the
Investor
and (ii)
to pay the Investor US$800,000 pursuant to Section 3(a) of the Letter Agreement
(the "Letter
Agreement Payment Amount");
E.
As
of
December 29, 2006, the Company and the Investor entered into the Second
Amendment Agreement, pursuant to which, among other things (i) the Company
and
the Investor agreed to amend and restate the Existing Notes; (ii) the
Company issued Series C Warrants in the form attached hereto as Exhibit
B
(the
"Series
C Warrants"
and
together with the Original Warrants and the Series A Warrants, the "Existing
Warrants")
exercisable to purchase One Million and Five Hundred Thousand (1,500,000) ADSs
(the "Series
C Warrant Shares",
and
collectively with the Original Warrant Shares and the Series A Warrant Shares,
the "Existing
Warrant Shares"),
in
accordance with the terms thereof; (iii) the Company agreed to issue Series
D
Warrants in the form attached hereto as Exhibit
C
(the
"Series
D Warrants")
exercisable to purchase Four Million (4,000,000) ADSs (the "Series
D Warrant Shares")
for
US$2.00 per ADS; (iv) the parties agreed to further amend and restate the
Existing Registration Rights Agreement and (v) the Company agreed to increase
the principal amount of the Existing Notes by $306,391 (the "Note
Increase Amount"),
which
shall constitute payment in full to the Investor of any accrued and unpaid
interest on the Existing Notes of the Investor, which was payable on or prior
to
January 2, 2007 under the terms of the Existing Notes to the Investor (the
"Interest
Payment Amount").
F.
The
Company and the Investor now desire to amend and restate in its entirety the
Second Amendment Agreement to reflect the terms of the parties binding letter
of
intent, dated April 2, 2007 and other agreements between them, pursuant to
which, among other things, (i) the Company shall redeem the Existing Notes
as
set forth herein; (ii) the Company shall issue, upon the terms and
conditions stated in this Agreement, the Series D Warrants which shall be
exercisable to purchase the Series D Warrant Shares, (iii) the Company
shall issue, upon the terms and conditions stated in this Agreement, the Series
E Warrants (the "Series E
Warrants")
which
shall be exercisable to purchase Four Million (4,000,000) ADSs (the
"Series E
Warrant Shares")
for
US$1.57 per ADS, the Series F Warrants (the "Series
F Warrants")
which
shall be exercisable to purchase One Million (1,000,000) ADSs (the "Series
F Warrant Shares")
for
US$1.95 per ADS and the Series G Warrants (the "Series
G Warrants"
and
together with the Series D Warrants, the Series E Warrants and the Series F
Warrants, the "New
Warrants")
which
shall be exercisable to purchase Two Million Three Hundred Forty One Thousand
Three Hundred Forty Seven (2,341,347) ADSs (the "Series
G Warrant Shares"
and
together with the Series D Warrant Shares, the Series E Warrant Shares and
the
Series F Warrant Shares, the "New
Warrant Shares")
for
US$1.21 per ADS, in each case, in the form attached hereto as Exhibit C
in
accordance with the terms thereof; (iv) the parties hereto will further
amend and restate the Existing Registration Rights Agreement in the form
attached hereto as Exhibit
D
(the
"Second Amended
and Restated Registration Rights Agreement");
and
(v) the Investor shall waive all prior and existing defaults and Event of
Default and other rights.
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G.
The
issuance of the Series C Warrants was, and the issuance of the Series D
Warrants, the Series E Warrants, the Series F Warrants and the Series G Warrants
is being, made in reliance upon an exemption from registration under the 1933
Act.
H.
Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings ascribed to them in the Amended Securities Purchase Agreement (as
defined below) and, if not defined therein, the Existing Notes.
NOW,
THEREFORE,
in
consideration of the foregoing recitals and the mutual promises hereinafter
set
forth, the Company and the Investor hereby agree as follows:
1.
CLOSING.
At
the
closing contemplated by this Agreement (the "Closing"):
(a)
Warrants.
The
Company shall issue and deliver to the Investor the Series D Warrants, the
Series E Warrants,
the Series F Warrants and the Series G Warrants;
(b)
Redemption
of the Existing Notes.
Notwithstanding
Section 10 of the Existing Notes and the Company Optional Redemption Date
specified in the Company’s Company Optional Redemption Notice issued to the
Investor on April 3, 2007 or any other provision in the Existing Notes or the
Transaction Documents to the contrary, the Company shall, and the Investor
shall
permit the Company to, redeem all of the Existing Notes by making the following
payment to the Investor in satisfaction of the Company Optional Redemption
Price
(collectively, the “Redemption
Payment”):
(i) the
Company Optional Redemption Price, computed in accordance with the terms of
the
Existing Notes;
(ii) the
Note
Increase Amount; and
(iii) the
difference between (A) US$13,750,000 and (B) the sum of (i) and
(ii).
(c)
Surrender
of Existing Notes.
The
Investor shall surrender the Existing Notes to the Company;
(d)
Waivers
and Release.
Effective upon the Closing and payment of the Redemption Payment:
(1) (A) The
security interest granted by the Company on the Collateral for the benefit
of
the holders of the Existing Notes in accordance with the terms of the Security
Documents, (B) the Guaranty by pSivida Inc. in favor of the Investor (the
“Guaranty”),
and
(C) the Subordination Agreements by and among the Investor, the Company and
the
holders of the Company’s
subordinated convertible notes issued on September 26, 2006 (the
“Subordination
Agreements”)
shall
each be terminated; the Investor hereby waives any and all rights pursuant
to
each of them; and the Investor shall take any action required pursuant to the
terms of the Security Documents, the Guaranty and the Subordination Agreements
to release any and all
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security
interests on the Collateral and terminate the Guaranty and the Subordination
Agreements;
(2) The
Interest Payment Amount shall be deemed paid in full to the Investor; and
(3) (A) The
Existing Notes shall be deemed fully redeemed; (B) the Investor shall be
deemed to have permanently and irrevocably waived all defaults and Events of
Default (including any conditions with respect to which the giving of notice
or
passage of time would lead to a default of an Event of Default) under:
(I) the Existing Notes and (II) the Transaction Documents (including,
without limitation, the waivers described in Section 2 hereof), in each
case, up to and including the Closing Date; and (C) the Company shall have
no further obligations under the Existing Notes (including, without limitation,
any obligation to issue Series B Warrants in connection with the redemption
of
the Existing Notes or otherwise).
(e)
Ratifications.
Except
as otherwise expressly provided herein, (i) the Existing Securities
Purchase Agreement as amended hereby (the "Amended
Securities Purchase Agreement"),
the
Existing Warrants and the Irrevocable Transfer Agent Instructions are, and
shall
continue to be, in full force and effect and are hereby ratified and confirmed
in all respects, except that on and after the Closing Date (A) all references
in
the Existing Securities Purchase Agreement to "this Agreement", "hereto",
"hereof", "hereunder" or words of like import referring to the Existing
Securities Purchase Agreement shall mean the Amended Securities Purchase
Agreement, (B) all references in the Transaction Documents to "this Agreement",
"hereto", "hereof", "hereunder" or words of like import referring to the
Existing Registration Rights Agreement or the Original Registration Rights
Agreement shall mean the Second Amended and Restated Registration Rights
Agreement, (C) all references in the other Transaction Documents to the
"Registration Rights Agreement", "Amended and Restated Registration Rights
Agreement", "thereto", "thereof", "thereunder" or words of like import referring
to the Existing Registration Rights Agreement or Original Registration Rights
Agreement shall mean the Second Amended and Restated Registration Rights
Agreement, (D) all references in the Securities Purchase Agreement and the
other Transaction Documents to "Transaction Documents" shall also include this
Agreement and the New Warrants, (E) all references in the Securities Purchase
Agreement and the other Transaction Documents to "Notes" or "Amended and
Restated Notes" shall continue to mean the Existing Notes, (F) all
references in the existing Securities Purchase Agreement and the other
Transaction Documents to "Warrants" shall be amended to include the New
Warrants, and (G) all references in the Securities Purchase Agreement and the
other Transaction Documents to "Warrant Shares" shall be amended to include
the
New Warrant Shares in addition to the Existing Warrant Shares, and (ii) except
as expressly stated herein or as is otherwise necessary in the context of the
terms and conditions hereof, the execution, delivery and effectiveness of this
Agreement shall not operate as an amendment of any right, power or remedy of
the
Investor under any Transaction Document, nor constitute an amendment of any
provision of any Transaction Document.
(f)
Closing
Date.
The
date and time of the Closing (the "Closing
Date")
shall
be as of 1:00 p.m., New York Time, on the date of this Agreement, or as of
such
time and date as otherwise mutually agreed by the parties. The Closing shall
be
deemed to have
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occurred
at the offices of Xxxxxxx Xxxx & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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2.
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WAIVERS.
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(a)
Registration
Delay Waivers.
(i) Effective
as of the Closing Date, the Investor hereby agrees to permanently waive its
right to receive the unpaid Registration Delay Payments (as defined in the
Existing Registration Rights Agreement) and all other remedies and rights
accrued as a result of (A) the Company's failure to file the Additional
Registration Statement (as defined in the Existing Registration Rights
Agreement) on or prior to the Additional Filing Deadline (as defined in the
Existing Registration Rights Agreement) or (B) the Company's failure to
achieve effectiveness of the Additional Registration Statement (as defined
in
the Existing Registration Rights Agreement) on or prior to the Additional
Effectiveness Deadline (as defined in the Existing Registration Rights
Agreement), respectively; provided, however, that nothing in this Section 2(a)
shall be deemed to waive or amend the Company's obligation, effective as of
the
Closing Date, to (X) file the Additional Registration Statement (as defined
in
the Second Amended and Restated Registration Rights Agreement) on or prior
to
the Additional Filing Deadline (as defined in the Second Amended and Restated
Registration Rights Agreement) or (Y) achieve effectiveness of the
Additional Registration Statement as defined in the Second Amended and Restated
Registration Rights Agreement) on or prior to the Additional Effectiveness
Deadline (as defined in the Second Amended and Restated Registration Rights
Agreement), respectively.
(ii) Effective
as of the Closing Date, the Investor hereby agrees to permanently waive any
default relating to the Company's failure to pay the Investor the Letter
Agreement Payment Amount in a timely manner.
(b)
[deleted]
(c)
[deleted]
(d)
Waiver
re: Participation.
The
Investor hereby waives its rights, if any, pursuant to Section
4(n) of the Existing Securities Purchase Agreement and Section 2(c) of the
Amendment Agreement for purposes of the approximately $5 million purchase by
Pfizer Inc. or one of its affiliates ("Pfizer")
of the
Company's equity securities in connection with the Company's recently completed
transaction with Pfizer (the "Pfizer
Transaction")
and
the recently completed approximately $7 million financing (the "Contemplated
Financing")
and
any investment that the Company offers to the Investor and the Investor desires
to make in respect of the Company on terms similar to or the same as the
Contemplated Transaction.
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3.
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REPRESENTATIONS
AND WARRANTIES
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(a)
Investor
Bring Down.
The
Investor hereby represents and warrants to the Company as set forth in Section
2
of the Existing Securities Purchase Agreement as to this Agreement as if such
representations and warranties were made as of the date hereof and
set
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forth
in
their entirety in this Agreement. The Investor further represents and warrants
to the Company that: (a) it is the sole holder of the Existing Notes;
(b) that it has not transferred beneficial ownership thereof; and (c) this
agreement shall constitute written consent of the Required Holders pursuant
to
Section 17 of the Existing Notes.
(b)
Company
Bring Down.
The
Company represents and warrants to the Investor as set forth in Section 3
of the Existing Securities Purchase Agreement as if such representations and
warranties were made as of the date hereof and set forth in their entirety
in
this Agreement; provided that the Schedules to the Amended Securities Purchase
Agreement are replaced in their entirety by the Schedules attached to this
Agreement. Such representations and warranties in the Amended Securities
Purchase Agreement to the transactions thereunder and the securities issued
thereby are hereby deemed for purposes of this Agreement to be references to
the
transactions hereunder and the issuance of the securities hereby, and references
therein to "Closing
Date"
being
deemed references to the Closing Date as defined in Section 1(c) above. The
Company further represents and warrants to the Investor that this Agreement,
the
redemption of the Existing Notes, the terms of the Series C Warrants, the issue
of the Series C Warrants, the terms of the Series D Warrants, the issue of
the
Series D Warrants, the terms of the Series E Warrants, the issue of the Series
E
Warrants, the terms of the Series F Warrants, the issue of the Series F
Warrants, the terms of the Series G Warrants, the issue of the Series G Warrants
and the agreement to issue shares or ADRs on conversion or exercise, as
applicable, of the Existing Notes or Series C Warrants, Series D Warrants,
Series E Warrants, Series F Warrants or Series G Warrants: (i) comply in all
respects with the Corporations Xxx 0000 (Cwth) and the Listing Rules of the
Australian Stock Exchange Limited; and, (ii) do not require any approval from
the Australian Stock Exchange Limited or shareholders of the Company.
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4.
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CERTAIN
COVENANTS AND AGREEMENTS; RELEASE
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(a)
Disclosure
of Transactions and Other Material Information.
On or
before 10:30 a.m., New York Time, on the
first
Business Day following the Closing Date, the Company shall publicly disclose
and
shall file a Form 6-K describing the terms of the transactions contemplated
by
this Agreement in the form required by the 1934 Act and attaching any material
transaction documents not previously filed as exhibits to such a filing
(including, without limitation, this Agreement (other than the schedules to
this
Agreement), the Second Amended and Restated Registration Rights Agreement,
the
Series C Warrants, the Series D Warrants, the Series E Warrants, the Series
F
Warrants and the Series G Warrants) as exhibits to such submission (such
submission including all attachments, the "Closing
6-K Filing").
From
and after the submission of the Closing 6-K Filing with the SEC, no Investor
shall be in possession of any material, nonpublic information received from
the
Company, any of its Subsidiaries or any of its respective officers, directors,
employees or agents, that is not disclosed in the Closing 6-K Filing or in
some
other public filing or public disclosure. The Company shall not, and shall
cause
each of its Subsidiaries and its and each of their respective officers,
directors, employees and agents, not to, provide the Investor with any material,
nonpublic information regarding the Company or any of its Subsidiaries from
and
after the filing of the Closing 6-K Filing with the SEC without the express
written consent of the Investor. In the event of a breach of the foregoing
covenant by the Company, any of its Subsidiaries, or any of its or their
respective officers, directors, employees and agents, in addition to any other
remedy provided herein or in the Transaction Documents, the Investor shall
have
the right to require the
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Company
to make promptly a public disclosure, in the form of a press release, public
advertisement or otherwise, of such material, nonpublic information. Subject
to
the foregoing, neither the Company, its Subsidiaries nor the Investor shall
issue any press releases or any other public statements with respect to the
transactions contemplated hereby; provided,
however,
that
the Company shall be entitled, without the prior approval of the Investor,
to
make any press release or other public disclosure with respect to such
transactions (i) in substantial conformity with the Closing 6-K Filing and
contemporaneously therewith and (ii) as is required by applicable law and
regulations (provided that in the case of clause (i) the Investor shall be
consulted by the Company in connection with any such press release or other
public disclosure prior to its release).
(b)
Fees
and Expenses.
To the
extent that the Company has not already paid such amounts or the Investor has
not already otherwise offset such amounts, the Company shall reimburse the
Investor for its legal fees and expenses in connection with the preparation
and
negotiation of this Agreement by paying such amount to (i) Xxxxxxx Xxxx &
Xxxxx LLP as set forth in such firm's written invoice therefore (the
"SRZ
Expense")
and
(ii) Xxxxx & XxXxxxxx as set forth in such firm's written invoice
therefore (the "Xxxxx
Expense",
and
together with the SRZ Expense, the "Investor
Counsel Expense").
Investor acknowledges and agrees that the Company has previously paid (or had
offset) One Hundred Thousand U.S. Dollars (US$100,000), which such amount may
be
deducted from the SRZ Expense. Except as otherwise set forth in this Agreement,
each party shall pay the fees and expenses of its advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance
of
this Agreement. The Company shall pay all stamp and other taxes and duties
levied in connection with the issuance of the New Warrants.
(c)
Schedules.
The
Company hereby agrees that the Schedules referred to in Section 3(b) and 4(a)
shall be delivered to the Investor no later than the fifth (5th) Business Day
after the date hereof.
(d)
Other
Notes.
The
Investor agrees that notwithstanding any provisions in the Existing Notes or
any
other agreements to which the Investor is a party (including without limitation,
the Subordination Agreements between the Investor and the holders of the New
Notes) to the contrary, at any time from and after the Closing, the Company
may
repay part or all of the principal amount of the New Notes.
(e)
Participation
Rights.
From
and after the Closing Date, the Investor shall no longer have any rights
pursuant to Section 4(n) of the Existing Securities Purchase Agreement or
Section 2(c) of the Amendment Agreement, or otherwise, to notice of or to
participate in any Subsequent Placement or any other offering or sale of
securities conducted by the Company.
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5.
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CONDITIONS
TO COMPANY'S OBLIGATIONS HEREUNDER.
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The
obligations of the Company to the Investor hereunder are subject to the
satisfaction or waiver of each of the following conditions, provided that these
conditions are
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for
the
Company's sole benefit and may be waived by the Company at any time in its
sole
discretion by providing the Investor with prior written notice
thereof:
(a)
The
Investor shall have executed this Agreement and delivered the same to the
Company.
(b)
The
representations and warranties of the Investor shall be true and correct in
all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all respects) as of the date when made and as of the Closing Date
as
though made at that time (except for representations and warranties that speak
as of a specific date, which shall remain true and correct as of such specific
date).
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6.
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CONDITIONS
TO INVESTOR'S OBLIGATIONS
HEREUNDER.
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The
obligations of the Investor hereunder are subject to the satisfaction or waiver
of each of the following conditions, provided that these conditions are for
the
Investor's sole benefit and may be waived by the Investor at any time in its
sole discretion by providing the Company with prior written notice
thereof:
(a)
The
Company shall have executed this Agreement and delivered the same to the
Investor.
(b)
The
Company shall have executed and delivered to the Investor the Series D Warrants,
the Series E Warrants, the Series F Warrants and the Series G Warrants being
issued to such Investor at the Closing.
(c)
The
Company shall have delivered to the Company's transfer agent, with a copy to
the
Investor, a letter stating that the
Irrevocable Transfer Agent Instructions dated October 5, 2005 shall apply to
the
Existing
Warrant Shares, the New Warrant Shares and the Second Amended and Restated
Registration Rights Agreement.
(d)
Such
Investor shall have received the opinion of Xxxxxx, Xxxxxx-Xxxxxxx, Colt &
Mosle LLP, the Company's outside U.S. counsel, and Xxxxx Xxxxxx Xxxxxxx, the
Company's outside Australian counsel, each dated as of the Closing Date, similar
in all material respects to the opinions delivered pursuant to the Amendment
Agreement.
(e)
The
Company shall have delivered to the Investor a certificate, executed by the
Secretary of the Company and dated as of the Closing Date, as to (i) the
resolutions approving the transactions contemplated hereby as adopted by the
Board in a form reasonably acceptable to the Investor, and (ii) the
Constitution, each as in effect as of the Closing, similar in all material
respects to the certificate executed by the Secretary of the Company delivered
pursuant to the Amendment Agreement.
(f)
The
representations and warranties of the Company shall be true and correct in
all
material respects (except for those representations and warranties that are
qualified by materiality or Material Adverse Effect, which shall be true and
correct in all respects) as of the date when made and (if different) as of
the
Closing Date as though made at
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that
time
(except for representations and warranties that speak as of a specific date,
which shall remain true and correct as of such specific date). The Investor
shall have received a certificate, executed by the Chief Executive Officer
of
the Company, dated as of the Closing Date, to the foregoing effect and as to
such other matters as may be reasonably requested by the Investor, similar
in
all material respects (except as set forth above) to the certificate executed
by
the Chief Executive Officer of the Company delivered pursuant to the Amendment
Agreement.
(g)
The
ADRs
(I) shall be designated for quotation or listed on the Principal Market and
(II)
shall not have been suspended, as of the Closing Date, by the SEC or the
Principal Market from trading on the Principal Market nor shall suspension
by
the SEC or the Principal Market have been threatened, as of the Closing Date,
either (A) in writing by the SEC or the Principal Market or (B) by falling
below
the minimum listing maintenance requirements of the Principal
Market.
(h)
The
Company shall have obtained all governmental, regulatory or third party consents
and approvals, if any, necessary for the issue and sale of the Securities,
including, without limitation, any approvals or notifications required by the
Principal Market.
(i)
The
Company shall have delivered to Xxxxxxx Xxxx & Xxxxx LLP a cash amount equal
to the SRZ Expense (reduced as set forth herein), by wire transfer of
immediately available funds pursuant to the wire instructions provided by
Xxxxxxx Xxxx & Xxxxx LLP.
(j)
The
Company shall have delivered to Xxxxx & XxXxxxxx a cash amount equal to the
Xxxxx Expense, by wire transfer of immediately available funds pursuant to
the
wire instructions provided by Xxxxx & XxXxxxxx.
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7.
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[DELETED]
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8.
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TERMINATION.
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In
the
event that the Closing does not occur by May 21, 2007 (the "Termination
Date"),
due
to the Company's or the Investor's failure to satisfy the conditions set forth
in Sections 5 or 6 hereof (and the satisfying party's failure to waive such
unsatisfied conditions(s)), either party shall have the option to terminate
this
Agreement at the close of business on such date without liability of any party
to the other party; provided,
however,
that if
this Agreement is terminated by the Investor pursuant to this Section 8, the
Company shall remain obligated to reimburse the Investor for the expenses
described in Section 4(b) above. Upon such termination, the terms hereof shall
be null and void and the parties shall continue to comply with all terms and
conditions of the Transaction Documents, as in effect prior to the execution
of
this Agreement.
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9.
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MISCELLANEOUS.
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(a)
Counterparts.
This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the
other
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party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if
the
signature were an original, not a facsimile signature.
(b)
Headings.
The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(c)
Severability.
If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(d)
Governing
Law; Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New
York, without giving effect to any choice of law or conflict of law provision
or
rule (whether of the State of New York or any other jurisdictions) that would
cause the application of the laws of any jurisdictions other than the State
of
New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of
the state and federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
(e)
No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.
(f)
Further
Assurances.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated
hereby.
-10-
(g)
No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rules of strict construction
will
be applied against any party.
(h)
Entire
Agreement; Effect on Prior Agreements; Amendments.
Except
for the Transaction Documents (to the extent any such Transaction Document
is
not amended by this Agreement), this Agreement supersedes all other prior oral
or written agreements between the Investor, the Company, their affiliates and
Persons acting on their behalf with respect to the matters discussed herein,
and
this Agreement and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, neither the
Company nor the Investor makes any representation, warranty, covenant or
undertaking with respect to such matters. No provision of this Agreement may
be
amended other than by an instrument in writing signed by the Company and the
Investor. No provision hereof may be waived other than by an instrument in
writing signed by the party against whom enforcement is sought. No consideration
shall be offered or paid to any Person to amend or consent to a waiver or
modification of any provision of any of the Transaction Documents unless the
same consideration also is offered to all of the parties to the Transaction
Documents, holders of Existing Notes or holders of the Existing Warrants and
the
New Warrants, as the case may be. The Company has not, directly or indirectly,
made any agreements with the Investor relating to the terms or conditions of
the
transactions contemplated by the Transaction Documents except as set forth
in
the Transaction Documents.
(i)
Notices.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one Business Day after deposit with an overnight courier service,
in
each case properly addressed to the party to receive the same. The addresses
and
facsimile numbers for such communications shall be:
If
to the
Company:
pSivida
Limited
000
Xxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Telephone:
x0
000
000 0000
Facsimile:
x0
000
000 0000
Attention:
General
Counsel
-11-
with
a
copy (for informational purposes only) to:
Xxxxxx,
Xxxxxx-Xxxxxxx, Colt & Mosle LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Telephone:
000-000-0000
Facsimile:
000-000-0000
Attention:
Xxxxxxxx
Xxxxxxx, Esq.
If
to the
Investor, to its address and facsimile number set forth in the Amended
Securities Purchase Agreement, with copies to the Investor's representatives
as
set forth on the Amended Securities Purchase Agreement or on the signature
page
to this Agreement,
with
a
copy (for informational purposes only) to:
Xxxxxxx
Xxxx & Xxxxx LLP
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
X.X.X.
Telephone:
(000)
000-0000
Facsimile:
(000)
000-0000
Attention:
Xxxxxxx
X. Xxxxx, Esq.
or
to
such other address and/or facsimile number and/or to the attention of such
other
Person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent,
waiver or other communication, (B) mechanically or electronically generated
by
the sender's facsimile machine containing the time, date, recipient facsimile
number and an image of the first page of such transmission or (C) provided
by an
overnight courier service shall be rebuttable evidence of personal service,
receipt by facsimile or receipt from an overnight courier service in accordance
with clause (i), (ii) or (iii) above, respectively.
The
Company hereby irrevocably appoints pSivida Inc., of 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX, X.X.X. ("pSivida
Inc.")
as its
agent for the receipt of service of process in the United States. The Company
agrees that any document may be effectively served on it in connection with
any
action, suit or proceeding in the United States by service on its agents. The
Investor consents and agrees that the Company may, in its reasonable discretion,
irrevocably appoint a substitute agent for the receipt of service of process
located within the United States, and that upon such appointment, the
appointment of pSivida Inc. may be revoked.
Any
document shall be deemed to have been duly served if marked for the attention
of
the agent at its address as set forth in Section 9(i) or such other address
in
the United States as may be notified to the party wishing to serve the document
and (a) left at the specified address if its receipt is acknowledged in writing;
or (b) sent to the specified address by post, registered mail return receipt
requested. In the case of (a), the document will be deemed to have been duly
served when it is left and signed for. In the case of (b), the document shall
be
deemed to have been duly served when received and acknowledged.
-12-
If
the
Company's agent at any time ceases for any reason to act as such, the Company
shall appoint a replacement agent having an address for service in the United
States and shall notify the Investor of the name and address of the replacement
agent. Failing such appointment and notification, the holders of the Existing
Warrants and the New Warrants representing not less than a majority of the
aggregate New Warrant Shares and Existing Warrant Shares shall be entitled
by
notice to the Company to appoint a replacement agent to act on the Company's
behalf. The provisions of this Section 9(i) applying to service on an agent
apply equally to service on a replacement agent.
(j)
Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns in accordance with the terms of the
Amended Securities Purchase Agreement.
(k)
Survival.
Unless
this Agreement is terminated under Section 8, the representations and warranties
of the Company and the Investor contained herein and the agreements and
covenants set forth herein shall survive the Closing.
(l)
Remedies.
The
Investor and each holder of the Securities shall have all rights and remedies
set forth in the Transaction Documents and all rights and remedies which such
holders have been granted at any time under any other agreement or contract
and
all of the rights which such holders have under any law. Any Person having
any
rights under any provision of this Agreement shall be entitled to enforce such
rights specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. Furthermore, the Company recognizes
that in the event that it fails to perform, observe, or discharge any or all
of
its obligations under this Agreement, any remedy at law may prove to be
inadequate relief to the Investor. The Company therefore agrees that the
Investor shall be entitled to seek temporary and permanent injunctive relief
in
any such case without the necessity of proving actual damages and without
posting a bond or other security.
[Signature
Page Follows.]
-13-
IN
WITNESS WHEREOF,
the
Investor and the Company have caused their respective signature page to this
Agreement to be duly executed as of the date first written above.
|
COMPANY:
|
|
PSIVIDA
LIMITED
By:
/s/
Xxxxxxx X. Xxxx
Name:
Xxxxxxx X. Xxxx
Title:
Vice President of Finance and Chief Financial
Officer
|
IN
WITNESS WHEREOF,
the
Investor and the Company have caused their respective signature page to this
Agreement to be duly executed as of the date first written above.
|
INVESTOR:
CASTLERIGG MASTER INVESTMENTS LTD.
|
|
BY:
XXXXXXX ASSET MANAGEMENT CORP
By:
/s/
Xxxxxxx X’Xxxxx
Name:
Xxxxxxx X’Xxxxx
Title:
Chief Financial Officer
|
