SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
HeartWare Limited
Level 57, MLC Centre, 00-00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Level 57, MLC Centre, 00-00 Xxxxxx Xxxxx
Xxxxxx XXX 0000
Xxxxxxxxx
Ladies & Gentlemen:
The undersigned (the “Investor”), hereby confirms its agreement with you as follows:
1. This Securities Purchase Agreement is made as of May 21, 2008 between HeartWare Limited, a
company organized under the laws of the Commonwealth of Australia (the “Company”), and the
Investor.
2. The Company will seek shareholder authorization for the sale and issuance of up to 72,500,000
ordinary shares in the capital of the Company (the “Shares”) to certain investors in a
private placement (the “Offering”).
3. The Company and the Investor agree that, subject to the shareholder approval and the other
conditions referred to in the Confidential U.S. Private Placement Memorandum, the Investor will
purchase from the Company and the Company will issue and sell to the Investor
_____
Shares for
a purchase price of AUD $0.50 per Share, or an aggregate purchase price of AUD $
_____
, pursuant
to the Terms and Conditions for Purchase of Shares attached hereto as Annex I and
incorporated herein by reference as if fully set forth herein (the “Terms and Conditions”).
This Securities Purchase Agreement, together with the Terms and Conditions, may hereinafter be
referred to as the “Agreement.” Shares purchased outside the United States will be made
pursuant to a form of Australian Subscription Agreement in accordance with the requirements of
Australian corporate and securities laws. Unless otherwise requested by the Investor, the Shares
purchased by the Investor will be registered in the Investor’s name and address as set forth below.
Please confirm that the foregoing correctly sets forth the agreement between us by signing in
the space provided below for that purpose. This Agreement may be executed in separate
counterparts, each of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
| AGREED AND ACCEPTED: | ||||||
| HeartWare Limited | Investor: | |||||
By: |
By: | |||||
| Name: | Name: | |||||
| Title: | Title: | |||||
| Address: | ||||||
| Tax ID No.: | ||||||
| Contact name: | ||||||
| Telephone: | ||||||
| Name in which shares should be registered (if different): |
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ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the Shares. Subject to these Terms and Conditions, the
Company will seek shareholder authorization for the issue of up to 72,500,000 Shares.
2. Agreement to Sell and Purchase the Shares; Subscription Date.
2.1 At the Closing (as defined in Section 4), the Company will sell to the Investor, and the
Investor will purchase from the Company, upon the terms and conditions hereinafter set forth, the
number of Shares as set forth in Section 3 of the Securities Purchase Agreement to which these
Terms and Conditions are attached at the purchase price set forth thereon.
2.2 The Company may enter into (i) the same form of Securities Purchase Agreement, including
these Terms and Conditions, with certain other investors in the United States, and (ii) a form of
subscription agreement in accordance with the requirements of Australian corporate and securities
laws, with certain other investors outside the United States (collectively, the “Other
Investors”) and expects to complete sales of Shares to them at the same time as the sale of
Shares to US Investors. The Investor and the Other Investors are hereinafter sometimes collectively
referred to as the “Investors,” and the Securities Purchase Agreement to which these Terms
and Conditions are attached (the “Agreement”) (including attached Terms and Conditions) and
the Australian form of subscription agreement, as applicable, executed by the Other Investors are
hereinafter sometimes collectively referred to as the “Agreements.” The Company may accept
executed Agreements from Investors for the purchase of Shares commencing upon the date on which the
Company provides the Investors with the proposed purchase price per Share and concluding upon the
date (the “Subscription Date”) on which the Company is no longer accepting additional
Agreements from Investors for the purchase of Shares. The Company may not enter into any
Agreements after the Subscription Date.
2.3 The obligations of each Investor under any Agreement are several and not joint with the
obligations of any Other Investor, and no Investor shall be responsible in any way for the
performance of the obligations of any other Investor under any Agreement. Nothing contained
herein, and no action taken by any Investor hereto, shall be deemed to constitute the Investors as
a partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Investors are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated hereby, provided that such obligations or the transactions
contemplated hereby may be modified, amended or waived in accordance with Section 9 below. Each
Investor shall be entitled to independently protect and enforce its rights, including without
limitation the rights arising out of this Agreement (provided, that such rights may be modified,
amended or waived in accordance with Section 9 below), and it shall not be necessary for any Other
Investor to be joined as an additional party in any proceeding for such purpose.
3. Holding of subscription monies
3.1 The business day after the Subscription Date, the Company shall transfer the subscription
monies into the escrow account established and operated in accordance with this clause 3 and the
attached Escrow Agreement.
3.2 In the event that (a) the Conditions are satisfied on or before August 31, 2008, the
Company shall direct the Escrow Agent to release the subscription monies to the Company promptly
upon becoming aware that the Conditions have been satisfied; or (b) stockholder approval is not
obtained at the General Meeting to be held on or around July 11, 2008 (or at any deferral of that
meeting) or the Conditions are not satisfied on or before August 31, 2008, the Company shall direct
the Escrow Agent to release the subscription monies to the Company for refund to Investors on the
earlier of the business day after (i) the General Meeting (if the resolution approving the offering
was not passed); or (ii) the Company becomes aware that the Conditions are not capable of being
satisfied; or (iii) August 31, 2008.
3.3 Upon receipt of the subscription monies from the Escrow Agent in accordance with section
3.2(b), the Company shall promptly refund the subscription monies to the Investors.
3.4 Any interest which accrues on the Subscription Amounts while in the Escrow Account shall
follow the principal amount and shall be paid to the Company or refunded to Investors (as the case
may be) at the same time as payment of the corresponding principal.
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4. Delivery of the Shares at Closing. It is expected that the completion of the
purchase and sale of the Shares (the “Closing”) shall occur electronically on or about July 11,
2008 (the “Closing Date”). At the Closing, the Company shall deliver to the Investor the number of
Shares, in each case as is set forth in Section 3 of the Securities Purchase Agreement.
The Company shall not proceed with the sale of Shares hereunder unless it (a) has received the
approval of the requisite number of Company shareholders for the offer and sale of the Shares under
ASX Listing Rule 7.1; and (b) all other requirements of the ASX Listing Rules have been satisfied
in relation to the offering. The Company’s obligation to issue the Shares to the Investor shall be
subject to the following additional conditions, any one or more of which may be waived by the
Company: (a) receipt by the Company of a certified or official bank check or wire transfer of funds
in the full amount of the purchase price for the Shares being purchased hereunder as set forth in
Section 3 of the Securities Purchase Agreement; (b) completion of the purchases and sales under the
Agreements with the Other Investors; and (c) the accuracy of the representations and warranties
made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled
prior to the Closing.
The Investor’s obligation to purchase the Shares shall be subject to the following conditions,
any one or more of which may be waived by the Investor: (a) the representations and warranties of
the Company set forth herein shall be true and correct as of the Closing Date (except for
representations and warranties that speak as of a specific date, which representations and
warranties shall be true and correct as of such date) in all material respects and the fulfillment
in all material respects of those undertakings of the Company in this Agreement to be fulfilled on
or prior to the Closing Date and (b) the Investor shall have received such documents as such
Investor shall reasonably have requested in connection with the Offering.
5. Representations, Warranties and Covenants of the Company. The Company hereby
represents and warrants to, and covenants with, the Investor, as follows:
5.1 Organization. The Company is a limited company duly organized and validly
existing in good standing under the laws of Australia, and has the requisite power to own or lease
its properties and to conduct its business as presently conducted. The Company is duly registered
or qualified as a foreign corporation to do business and is in good standing in every jurisdiction
in which the nature of the business conducted by it or the location of the properties owned or
leased by it requires such registration or qualification and where the failure to be so registered
or so qualified would have a material adverse effect upon the condition (financial or otherwise),
earnings, business or business prospects, properties or operations of the Company taken as a whole
(a “Material Adverse Effect”), and no proceeding has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such power
and authority, registration or qualification.
5.2 Due Authorization and Valid Issuance. The Company has all requisite power and
authority to execute, deliver and, subject to the approval referred to at clause 5.4 below, perform
its obligations under each Agreement, and each Agreement has been duly authorized and validly
executed and delivered by the Company and constitutes a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its terms, except as rights to indemnity
and contribution may be limited by applicable securities laws or the public policy underlying such
laws, 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). The Shares being purchased by
the Investor hereunder will, upon issuance and payment there for pursuant to the terms hereof and
subject to the approval referred to at clause 5.4 below, be duly authorized, validly issued,
fully-paid and non-assessable.
5.3 Non-Contravention. The execution and delivery of each Agreement, the issuance and
sale of the Shares under each Agreement, the fulfillment of the terms of each Agreement and the
consummation of the transactions contemplated thereby will not (A) conflict with or constitute a
violation of, or default (with the passage of time or otherwise) under, (i) any bond, debenture,
note or other evidence of indebtedness, lease, contract, indenture, mortgage, deed of trust, loan
agreement, joint venture or other agreement or instrument to which the Company is a party or by
which it or its properties are bound, (ii) the charter, articles of association, by-laws,
constitution or other organizational documents of the Company, or (iii) any law, administrative
regulation, ordinance or order of any court or governmental agency, arbitration panel or authority
applicable to the Company, or its properties, except in the case of clauses (i) and (iii) for any
such conflicts, violations or defaults that are not reasonably likely to have a Material Adverse
Effect, or (B) result in the creation or imposition of any lien, encumbrance, claim, security
interest or restriction whatsoever upon any of the properties or assets of the Company or an
acceleration of indebtedness pursuant to any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or any indenture, mortgage, deed of
trust or any other agreement or instrument to which the Company is a party or by which it is bound
or to which any of the material property or assets of the Company is subject, except for such
liens, encumbrances, claims, security interests or restrictions upon any of the properties or
assets of the Company or accelerations of indebtedness that are not reasonably likely to have a
Material Adverse Effect. No consent, approval, authorization or other order of, or registration,
qualification or filing with, any regulatory body, administrative agency, or other governmental body or any other person is required for the execution and
delivery of the Agreements, and the valid issuance and sale of the Shares to be sold pursuant to
the Agreements, other than the stockholder approval referred to in section 4 or such as have been
made or obtained, and except for any post-closing securities filings or notifications required to
be made under applicable securities laws.
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5.4 Capitalization. As of the date hereof, the capital of the Company is as set out
in the “Summary of Terms and Conditions”. All of the Company’s shares have been duly and validly
issued and are fully paid and non-assessable, have been issued in compliance with all applicable
securities laws, and were not issued in violation of any preemptive rights or similar rights to
subscribe for or purchase securities. The Shares to be sold pursuant to the Agreements, when they
are issued and paid for in accordance with the terms of the Agreements, will be duly and validly
issued, fully paid and non-assessable. Without limiting the foregoing, no preemptive right, co-sale
right, right of first refusal or other similar right exists with respect to the Shares or the
issuance and sale thereof. Except as stated above, no further approval or authorization of any
stockholder, the Board of Directors of the Company or others is required for the issuance and sale
of the Shares. There are no stockholders agreements, voting agreements or other similar agreements
with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders. The issuance and sale of the
Shares will not result in a right of any current holder of Company securities to adjust the
exercise, conversion, exchange or reset price under such securities. Except for options issued to
officers, directors and employees of the Company under its employee benefit plans or as otherwise
set forth in the ASX Documents (as defined in Section 5.5 hereof, there are no outstanding rights
(including, without limitation, preemptive rights), warrants or options to acquire, or instruments
convertible into or exchangeable for, any unissued shares of capital stock or other equity interest
in the Company, or any contract, commitment, agreement, understanding or arrangement of any kind to
which the Company is a party or of which the Company has knowledge and relating to the issuance or
sale of any capital stock of the Company, any such convertible or exchangeable securities or any
such rights, warrants or options. Subject to the filing of the notification with the ASX, the
issuance and sale of the Shares under the Agreements do not contravene the rules and regulations of
the ASX, and, in furtherance of the foregoing sentence, other than the approval of the stockholders
which will be sought at or around July 11, 2008, no approval of the stockholders of the Company
thereunder is required for the Company to issue and deliver to the Investor the maximum number of
Shares contemplated by this Agreement.
5.5 Reporting Status. The Company has made or lodged all required disclosures with
the Australian Securities and Investments Commission (the “ASIC”) and the Australian Securities
Exchange Limited (“ASX”) (the “ASX Documents”). All of the Company’s continuous disclosures,
periodic disclosures, and particular disclosures complied in all material respects with the ASX’s
requirements as of their respective dates, and the information contained therein as of the date
thereof did not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein in light of the
circumstances under which they were made not misleading.
The Company has filed all forms, documents and reports required to be filed prior to the date
hereof by it with the Securities and Exchange Commission (the “Company SEC Documents”). As of
their respective dates, or if amended, as of the date of the last such amendment, the Company SEC
Documents complied in all material respects with the requirements of the Securities Exchange Act of
1934 and the Securities Act of 1933, as the case may be, and the applicable rules and regulations
promulgated thereunder, and none of the Company SEC Documents contained any untrue statement of a
material fact or omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading.
5.6 Legal Proceedings; Disagreements with Advisors. There is no material legal or
governmental investigations, actions, suits or proceeding pending or, to the knowledge of the
Company, threatened to which the Company is or may be a party or of which the business or property
of the Company is subject that is not disclosed in the ASX Documents. There are no material
disagreements presently existing, or reasonably anticipated by the Company to arise, between the
accountants formerly or presently employed by the Company.
5.7 No Violations. The Company is not (i) in violation of its charter, bylaws, or
other organizational document; (ii) in violation of any applicable law, administrative regulation,
ordinance or order of any court or governmental agency, arbitration panel or authority applicable
to the Company, which violation, individually or in the aggregate, would be reasonably likely to
have a Material Adverse Effect; or (iii) in default (and there exists no condition which, with the
passage of time or otherwise, would constitute a default) in the performance of any bond,
debenture, note or any other evidence of indebtedness in any indenture, mortgage, deed of trust or
any other agreement or instrument to which the Company is a party or by which the Company is bound
or by which the properties of the Company are bound, which would be reasonably likely to have a
Material Adverse Effect.
5.8 Governmental Permits, Etc. The Company has all necessary franchises, licenses,
certificates and other authorizations from any applicable government or governmental agency,
department, or body that are currently necessary for the operation of the business of the Company as currently conducted and as
described in the ASX Documents except where the failure to currently possess would not have a
Material Adverse Effect.
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5.9 Intellectual Property. Except as specifically disclosed in the ASX Documents (i)
the Company owns or possesses sufficient rights to use all patents, patent rights, trademarks,
copyrights, licenses, inventions, trade secrets, trade names and know-how (including trade secrets
and other unpatented and/or unpatentable property or confidential information, systems, processes
or procedures) (collectively, “Intellectual Property”) described or referred to in the ASX
Documents as owned or possessed by them or that are necessary for the conduct of its business as
now conducted as described in the ASX Documents except where the failure to currently own or
possess would not have a Material Adverse Effect, (ii) to its knowledge, the Company is not
infringing, and have not received any notice of any asserted infringement by the Company of any
rights of a third party with respect to any Intellectual Property that, individually or in the
aggregate, would have a Material Adverse Effect and (iii) the Company has not received any notice
of, and has no knowledge of, infringement by a third party with respect to any Intellectual
Property rights of the Company, individually or in the aggregate, would have a Material Adverse
Effect.
5.10 Financial Statements; Obligations to Related Parties. (a) The financial
statements of the Company and the related notes contained in the ASX Documents present fairly, in
accordance with Australian International Financial Reporting Standards, the financial position of
the Company as of the dates indicated, and the results of its operations and cash flows for the
periods therein specified consistent with the books and records of the Company except that the
unaudited interim financial statements were or are subject to normal and recurring year-end
adjustments that are not expected to be material in amount. Such financial statements (including
the related notes) have been prepared in accordance with Australian International Financial
Reporting Standards applied on a consistent basis throughout the periods therein specified, except
as may be disclosed in the notes to such financial statements and except as disclosed in the ASX
Documents. The other financial information contained in the ASX Documents has been prepared on a
basis consistent with the financial statements of the Company. As of their respective dates, the
financial statements of the Company included in the ASX Documents complied as to form in all
material respects with applicable accounting requirements and published rules and regulations of
the ASX and/or ASIC with respect thereto.
(b) Except as set forth in any ASX Documents, there are no obligations of the Company to
officers, directors, stockholders or employees of the Company or its subsidiaries other than (i)
for payment of salary for services rendered and for bonus payments; (ii) reimbursements for
reasonable expenses incurred on behalf of the Company; (iii) for other standard employee benefits
made generally available to all employees (including stock option agreements outstanding under any
stock option plan approved by the Board of Directors of the Company); and (iv) obligations listed
in the Company’s financial statements.
5.11 No Material Adverse Change. Except as disclosed in the ASX Documents, since
December 31, 2007, there has not been (i) any material adverse change in the financial condition or
earnings of the Company, (ii) any material adverse event affecting the Company, (iii) any
obligation, direct or contingent, that is material to the Company, incurred by the Company, except
obligations incurred in the ordinary course of business, (iv) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company, or (v) any loss or damage (whether
or not insured) to the physical property of the Company which has been sustained which has a
Material Adverse Effect.
5.12 Disclosure. The representations and warranties of the Company contained in this
Section 4 as of the date hereof and as of the Closing Date, do not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading.
Except with respect to the material terms and conditions of the transaction contemplated by the
Agreements and the anticipated use of the proceeds therefrom, which shall be publicly disclosed by
the Company pursuant to the ASX rules and regulations, the Company confirms that neither it nor any
person acting on its behalf has provided the Investors with any information that the Company
believes constitutes material, non-public information. Subject to section 6.6 below, the Company
understands and confirms that the Investors will rely on the foregoing representations in effecting
transactions in the securities of the Company.
5.13 Listing; Resale of Shares in Australia. The Company shall use reasonable
commercial efforts to comply with all requirements of the ASX with respect to the issuance of the
Shares and the listing of the Shares on the ASX. The Shares issued hereunder will be readily and
immediately saleable on the ASX to non-US persons, by the Investor pursuant to the terms and
conditions of Regulation S under the Securities Act without the need to be held for any period or
length of time prior to said sale. There is nothing in the laws of the Commonwealth of Australia
that will prevent the Investors from selling the Shares in the Commonwealth of Australia on the ASX
immediately following listing of the Shares thereon.
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5.14 No Manipulation of Stock. The Company has not taken and will not, in violation
of applicable law, take, any action designed to or that might reasonably be expected to cause or
result in stabilization or manipulation of the price of its stock to facilitate the sale or resale
of the Shares.
5.15 Company not an “Investment Company”. The Company has been advised of the rules
and requirements under the Investment Company Act of 1940 of the United States, as amended (the
“Investment Company Act”). The Company is not, and immediately after receipt of payment for the
Shares will not be, an “investment company” or an entity “controlled” by an “investment company”
within the meaning of the Investment Company Act and shall conduct its business in a manner so that
it will not become subject to the Investment Company Act.
5.16 Contracts. The contracts described in the ASX Documents that are material to the
Company are in full force and effect on the date hereof, and neither the Company nor, to the
Company’s knowledge, any other party to such contracts is in breach of or default, or received a
notice of termination under any of such contracts which would have a Material Adverse Effect.
5.17 Taxes. The Company and its subsidiaries have filed (or has obtained an extension
of time within which to file) all necessary tax returns and have paid all taxes shown as due on
such tax returns, except where the failure to so file or the failure to so pay would not have a
Material Adverse Effect. The Company and its subsidiaries are not aware of any tax deficiency that
has been or might be asserted or threatened against them that would have a Material Adverse Effect.
5.18 Private Offering. Assuming the correctness of the representations and warranties
of the Investor set forth in Section 6 hereof and assuming that the Company has not offered or sold
any of the Shares by any form of general solicitation or advertising in the United States, the
offer and sale of the Shares hereunder is exempt from registration under the Securities Act. The
Company has not distributed and will not distribute prior to the Closing Date any offering material
in connection with this Offering and sale of the Shares other than the documents of which this
Agreement is a part the Australian Subscription Agreements and the ASX Documents. The Company has
not in the past nor will it hereafter take any action independent of the Company’s Australian
placement agent to sell, offer for sale or solicit offers to buy any securities of the Company that
would bring the offer, issuance or sale of the Shares as contemplated by this Agreement within the
registration provisions of Section 5 of the Securities Act, unless such offer, issuance or sale was
or shall be within the exemptions from registration available under the Securities Act. Neither
the Company nor any person acting on behalf of the Company has offered or sold any of the Shares by
any form of general solicitation or general advertising in the United States. The Company has
offered the Shares on a private placement basis in the United States for sale only to the Investors
and certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
5.20 Transactions With Affiliates. There are no business relationships or
related-party transactions involving the Company or any other person required to be described in
the ASX Documents that have not been described as required.
5.21 ASX Compliance. The issue of the Shares will not violate the Listing Rules of
the ASX. The Company has taken no action designed to, or likely to have the effect of, terminating
the listing of the Company’s ordinary shares from the ASX, nor has the Company received any
notification that the ASX is contemplating terminating such listing.
5.22 Rule 144A Information. Until a Trading Market exists with respect to the Shares,
the Company shall furnish to holders of the Shares, and to prospective purchasers of the Shares,
the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. A
“Trading Market” shall be deemed to exist at such time as the Shares are (i) registered under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), and (ii) listed on the
New York Stock Exchange or traded on the NASDAQ Marketplace or to any other approved exchange.
5.23 Company Acknowledgement of Investor Representation. The Company acknowledges and
agrees that the Investor does not make or has not made any representations or warranties with
respect to the transactions contemplated hereby other than those specifically set forth in Sections
6 and 16(a) of this Agreement, or in the Investor Questionnaire.
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6. Representations, Warranties and Covenants of the Investor.
6.1 The Investor represents and warrants to, and covenants with, the Company that: (i) the
Investor is an “accredited investor” as defined in Regulation D under the Securities Act and the
Investor is also knowledgeable, sophisticated and experienced in making, and is qualified to make
decisions with respect to investments in shares presenting an investment decision like that
involved in the purchase of the Shares, 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 Shares; (ii) the
Investor is acquiring the Shares set forth in Section 3 of this Agreement in the ordinary course of its business and for its own account for
investment only and with no present intention of distributing any of such Shares; (iii) the
Investor is not acquiring the Shares for the purpose of selling or transferring the Shares or
granting, issuing or transferring interests in, or options over the Shares within 12 months of
their date of issue; (iv) the Investor has not entered into any arrangement or understanding with
any other persons regarding the distribution of such Shares; (v) the Investor will not, directly or
indirectly, offer, sell, pledge, transfer or otherwise dispose of (or solicit any offers to buy,
purchase or otherwise acquire or take a pledge of) any of the Shares except in compliance with the
Securities Act, applicable securities laws and the respective rules and regulations promulgated
thereunder; (vi) the Investor shall furnish to the Company such information regarding such Investor
and the distribution proposed by such Investor as the Company may reasonably request in writing and
as shall be reasonably required in connection with any U.S. Registration; and (vii) the Investor
has, in connection with its decision to purchase the number of Shares set forth in Section 3 of
this Agreement relied only upon the ASX Documents and the representations and warranties of the
Company contained herein. The Investor understands that its acquisition of the Shares has not been
registered under the Securities Act or registered or qualified under any applicable securities law
in reliance on specific exemptions therefrom, which exemptions may depend upon, among other things,
the bona fide nature of the Investor’s investment intent as expressed herein. Subject to
compliance with the Securities Act, applicable securities laws and the respective rules and
regulations promulgated thereunder, nothing contained herein shall be deemed a representation or
warranty by such Investor to hold the Shares for any period of time and the confirmation in (iii)
above is understood to be a statement by the Investor of present intention and not an undertaking
not to sell, particularly where the Investor’s investment objectives or market conditions change .
The Investor has completed or caused to be completed and delivered to the Company the Investor
Questionnaire, which questionnaire is true, correct and complete in all material respects.
6.2 The Investor shall not offer, sell, contract to sell or otherwise dispose of or deliver
any of the Shares unless: (i) the Shares are sold on the ASX in compliance with Regulation S of the
Securities Act; or (ii) the Shares are sold in a transaction that does not require registration
under the Securities Act or any applicable laws and regulations of the states of the United States
governing the offer and sale of securities and, (iii) prior to and as a condition to the execution
of the offer, sale or delivery described in subclauses (i) and (ii) above, such Investor has
furnished to the Company an opinion of counsel satisfactory to the Company to such effect, unless
the Company waives receipt of such opinion.
6.3 The Investor further represents and warrants to, and covenants with, the Company that (i)
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 (ii) 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 the
indemnification agreements of the Investors herein may be legally unenforceable.
6.4 The Investor has not engaged in any short sales or similar transactions with respect to
the Company’s capital stock, nor has the Investor, directly or indirectly, caused any person to
engage in any short sales or similar transactions with respect to the Company’s capital stock.
Without limiting the foregoing, Investor will not use any of the Shares acquired pursuant to the
Agreements to cover any short position in the capital stock of the Company if doing so would be in
violation of applicable securities laws and Investor will otherwise comply with federal securities
laws of the United States in the holding and resale of the Shares.
6.5 The Investor understands that nothing in the ASX Documents, the Agreements, or any other
materials presented to the Investor in connection with the purchase and sale of the Shares
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 Shares.
6.6 The Investor acknowledges that, if it has material non-public information regarding the
Company, xxxxxxx xxxxxxx restrictions may apply to it. The Investor agrees not to, and not to
cause any other person to, acquire (as that term is defined in the Xxxxxxxxxx Xxxxxxxxxxxx Xxx 0000
(Cth)) any of the Company’s securities after it has had access to material non-public information
if doing so would be a breach of xxxxxxx xxxxxxx restrictions.
7. Survival of Representations, Warranties and Agreements. Notwithstanding any
investigation made by any party to this Agreement, all covenants, agreements, representations and
warranties made by the Company and the Investor herein shall survive the execution of this
Agreement, the delivery to the Investor of the Shares being purchased and the payment therefor,
provided that the representations and warranties contained herein shall expire on the one-year
anniversary of the Closing Date.
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8. Registration of the Shares in the United States; Compliance with the Securities
Act.
8.1 Registration Eligibility. In the event the Company or its successor entity shall
determine to (i) register directly in the United States its ordinary shares, or in the case of a
successor entity, the class of its securities equivalent to the ordinary shares of the Company
prior to the succession; (ii) effect the listing of American Depositary Receipts in the United
States representing the Company’s ordinary shares, or in the case of a successor entity, the class
of its securities equivalent to the ordinary shares of the Company prior to the succession; or
(iii) otherwise engage in an initial public offering of its securities in the United States, the
Company shall:
(a) promptly give written notice of the proposed registration to the Investor;
(b) use its best efforts to include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein, all of the Shares
(the “Registrable Securities”) as are specified in a written request or requests made by
any Investor received by the Company within ten (10) days after such written notice from the
Company is mailed or delivered. Such written request may specify all or a part of the Investor’s
Registrable Securities. In the event the U.S. registration involves an underwritten offering, the
Company shall so advise the Investor. In such event, the right of any Investor to registration
pursuant to this section shall be conditioned upon such Investor’s participation in such
underwriting and the inclusion of such Investor’s Registrable Securities in the underwriting to the
extent provided herein. All Investors proposing to distribute their Registrable Securities through
such underwriting shall (together with the Company and the other holders of securities of the
Company with registration rights to participate therein distributing their securities through such
underwriting) enter into an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company. If the underwriters advise the Company in
writing that the success of the offering requires a limitation on the number of shares to be
underwritten, the underwriters may (subject to the limitations set forth below) limit or eliminate
the number of Registrable Securities to be included in the registration and underwriting. The
Company shall so advise all holders of securities requesting registration, and the number of shares
of securities that are entitled to be included in the registration and underwriting shall be
allocated, as follows: (i) first, to the Company for securities being sold for its own account,
(ii) second, to the Investor requesting to include Registrable Securities in such registration
statement based on the pro rata percentage of Registrable Securities held by such Investor,
assuming conversion and (iii) third, to others requesting to include their securities in such
registration statement.
8.2 Registration Procedures. Should a U.S. registration be effected by the Company or
its successor entity that includes an Investor’s Registrable Securities, the Company shall:
(a) keep such registration effective for a period of time ending on the earlier of the date
that is sixty (60) days from the effective date of the registration statement or such time as the
Investor or Investors have completed the distribution described in the registration statement
relating thereto;
(b) prepare and file with the Commission such amendments and supplements to such registration
statement and the prospectus used in connection with such registration statement as may be
necessary to comply with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement for the period set forth in subsection (a)
above;
(c) furnish such number of prospectuses, including any preliminary prospectuses, and other
documents incident thereto, including any amendment of or supplement to the prospectus, as an
Investor from time to time may reasonably request;
(d) use its reasonable best efforts to register and qualify the securities covered by such
registration statement under such other securities laws of such jurisdiction within the U.S. as
shall be reasonably requested by the Investor; provided, that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to file a general
consent to service of process in any such states or jurisdictions;
(e) notify each seller of Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein not misleading or
incomplete in light of the circumstances then existing, and following such notification promptly
prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of such
shares, such prospectus shall not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading or incomplete in light of the circumstances then existing;
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(f) provide a transfer agent and registrar for all Registrable Securities registered pursuant
to such registration statement and a CUSIP number for all such Registrable Securities, in each case
not later than the effective date of such registration;
(g) cause all such Registrable Securities registered pursuant to this Section 8.2 to be listed
on each U.S. securities exchange on which similar securities issued by the Company are then listed;
(h) make and keep public information regarding the Company or its successor available as those
terms are understood and defined in Rule 144 under the Securities Act; and
(i) file with the SEC in a timely manner all reports and other documents required of the
Company or its successor under the Securities Act and the Exchange Act.
8.3 Indemnification. For the purpose of this Section 8.3:
(i) the term “Selling Stockholder” means the Investor and any affiliate of such Investor;
(ii) the term “Registration Statement” shall include the Prospectus in the form first filed
with the SEC pursuant to Rule 424(b) of the Securities Act or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) filing is required, and any exhibit,
supplement or amendment included in or relating to the Registration Statement referred to in
Section 7.1; and
(iii) the term “untrue statement” for purposes of Section 8.3(d) hereof shall include any
untrue statement or alleged untrue statement, or any omission or alleged omission to state in the
Registration Statement a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were made, not misleading.
(a) The Company agrees to indemnify and hold harmless each Selling Stockholder from and
against any losses, claims, damages or liabilities to which such Selling Stockholder may become
subject (under the Securities Act or otherwise) insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon (i) any
breach of the representations or warranties of the Company contained herein or failure to comply
with the covenants and agreements of the Company contained herein, (ii) any untrue statement of a
material fact contained in the Registration Statement as amended at the time of effectiveness or
any omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) any failure by the Company to fulfill any undertaking included in
the Registration Statement as amended at the time of effectiveness, and the Company will reimburse
such Selling Stockholder for any reasonable legal or other expenses reasonably incurred in
investigating, defending or preparing to defend any such action, proceeding or claim, or preparing
to defend any such action, proceeding or claim, provided, however, that the Company
shall not be liable in any such case to the extent that such loss, claim, damage or liability
arises out of, or is based upon, an untrue statement made in such Registration Statement or any
omission of a material fact required to be stated therein or necessary to make the statements
therein not misleading in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Selling Stockholder specifically for use in preparation of the
Registration Statement, or the failure of such Selling Stockholder to comply with its covenants and
agreements contained in Section 8.2 hereof respecting sale of the Shares or any statement or
omission in any Prospectus that is corrected in any subsequent Prospectus that was delivered to the
Selling Stockholder prior to the pertinent sale or sales by the Selling Stockholder. The Company
shall reimburse each Selling Stockholder for the amounts provided for herein on demand as such
expenses are incurred as reasonably documented by the Selling Stockholder.
(b) The Investor agrees to indemnify and hold harmless the Company (and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act, each officer of
the Company who signs the Registration Statement and each director of the Company) from and against
any losses, claims, damages or liabilities to which the Company (or any such officer, director or
controlling person) may become subject (under the Securities Act or otherwise), insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of,
or are based upon, (i) any failure to comply with the covenants and agreements contained in Section
8.2 hereof respecting sale of the Shares, (ii) any untrue statement of a material fact contained in
the Registration Statement or any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading if such untrue statement or omission was
made in reliance upon and in conformity with written information furnished by or on behalf of the
Investor specifically for use in preparation of the Registration Statement, and the Investor will
reimburse the Company (or such officer, director or controlling person), as the case may be, for
any legal or other expenses reasonably incurred in investigating, defending or preparing to defend
any such action, proceeding or claim, or (iii) any breach of the representations and warranties of
the Investor contained in Section 6 of this Agreement; provided that Investor’s obligation to
indemnify the Company shall be limited to the net amount received by the Investor from the sale of
the Shares.
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(c) Promptly after receipt by any indemnified person of a notice of a claim or the beginning
of any action in respect of which indemnity is to be sought against an indemnifying person pursuant
to this Section 8.3, such indemnified person shall notify the indemnifying person in writing of
such claim or of the commencement of such action, but the omission to so notify the indemnifying
person will not relieve it from any liability which it may have to any indemnified person under
this Section 8.3 (except to the extent that such omission materially and adversely affects the
indemnifying person’s ability to defend such action) or from any liability otherwise than under
this Section 8.3. Subject to the provisions hereinafter stated, in case any such action shall be
brought against an indemnified person, the indemnifying person shall be entitled to participate
therein, and, to the extent that it shall elect by written notice delivered to the indemnified
person promptly after receiving the aforesaid notice from such indemnified person, shall be
entitled to assume the defense thereof, with counsel reasonably satisfactory to such indemnified
person. After notice from the indemnifying person to such indemnified person of its election to
assume the defense thereof, such indemnifying person shall not be liable to such indemnified person
for any legal expenses subsequently incurred by such indemnified person in connection with the
defense thereof, provided, however, that if there exists or shall exist a conflict
of interest that would make it inappropriate, in the opinion of counsel to the indemnified person,
for the same counsel to represent both the indemnified person and such indemnifying person or any
affiliate or associate thereof, the indemnified person shall be entitled to retain its own counsel
at the expense of such indemnifying person; provided, however, that no indemnifying
person shall be responsible for the fees and expenses of more than one separate counsel (together
with appropriate local counsel) for all indemnified parties. In no event shall any indemnifying
person be liable in respect of any amounts paid in settlement of any action unless the indemnifying
person shall have approved the terms of such settlement; provided that such consent shall
not be unreasonably withheld. No indemnifying person shall, without the prior written consent of
the indemnified person, effect any settlement of any pending or threatened proceeding in respect of
which any indemnified person is or could have been a party and indemnification could have been
sought hereunder by such indemnified person, unless such settlement includes an unconditional
release of such indemnified person from all liability on claims that are the subject matter of such
proceeding.
(d) If the indemnification provided for in this Section 8.3 is unavailable to or insufficient
to hold harmless an indemnified person under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying person shall contribute to the amount paid or payable by such indemnified
person as a result of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative fault of the Company on the one hand
and the Investor, as well as any other Selling Stockholders under such registration statement on
the other in connection with the statements or omissions or other matters which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault shall be determined by reference to, among
other things, in the case of an untrue statement, whether the untrue statement relates to
information supplied by the Company on the one hand or an Investor or other Selling Stockholder on
the other and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement. The Company and the Investor agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Investor and other Selling Stockholders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account the equitable
considerations referred to above in this subsection (d). The amount paid or payable by an
indemnified person as a result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified person in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this subsection (d), the
Investor shall not be required to contribute any amount in excess of the amount by which the net
amount received by the Investor from the sale of the Shares to which such loss relates exceeds the
amount of any damages which such Investor has otherwise been required to pay by reason of such
untrue statement. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation. The Investor’s obligations in this subsection to contribute
shall be in proportion to its sale of Shares to which such loss relates and shall not be joint with
any other Selling Shareholders.
(e) The parties to this Agreement hereby acknowledge that they are sophisticated business
persons who were represented by counsel during the negotiations regarding the provisions hereof
including, without limitation, the provisions of this Section 8.3, and are fully informed regarding
said provisions. They further acknowledge that the provisions of this Section 8.3 fairly allocate
the risks in light of the ability of the parties to investigate the Company and its business in
order to assure that adequate disclosure is made in the Registration Statement as required by the
Securities Act and the Exchange Act. The parties are advised that federal or state public policy
in the United States as interpreted by the courts in certain jurisdictions may be contrary to
certain of the provisions of this Section 8.3, and the parties hereto hereby expressly waive and
relinquish any right or ability to assert such public policy as a defense to a claim under this
Section 8.3 and further agree not to attempt to assert any such defense.
8.4 Termination of Conditions and Obligations. The conditions precedent imposed by
Section 5 or this Section 8 upon the transferability of the Shares shall cease and terminate as to
any particular number of the Shares when such shares shall have been effectively registered under the Securities Act and sold or
otherwise disposed of in accordance with the intended method of disposition set forth in the
Registration Statement covering such shares, at such time as an opinion of counsel reasonably
satisfactory to the Company shall have been rendered to the effect that such conditions are not
necessary in order to comply with the Securities Act, or at such time when such Shares have been
sold on the ASX.
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8.5 Restrictions on Transfer.
The Investor expressly agrees that any sale by the Investor of Shares pursuant to the
Registration Statement shall be sold in a manner described under the caption “Plan of Distribution”
in such Registration Statement and the Investor will deliver a copy of the Prospectus contained in
the Registration Statement to the purchaser or purchasers, directly or through the Investor’s
broker, in connection with such sale, in each case in compliance with the requirements of the
Securities Act and Exchange Act applicable to such sale. The Investor further agrees that the
Shares will only be sold while the Registration Statement is effective, unless another exemption
from registration is available.
9. Notices. All notices, requests, consents and other communications hereunder shall
be in writing, shall be mailed (A) if within the United States by first-class registered or
certified mail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or electronic mail, or (B) if delivered from outside the United States, by International
Federal Express (or other recognized international express courier) or facsimile, and shall be
deemed given (i) if delivered by first-class registered or certified mail, 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 (or other recognized
international express courier), two business days after so mailed, or (iv) if delivered by
facsimile or electronic mail, upon electronic confirmation of receipt and shall be delivered as
addressed as follows:
| (a) | if to the Company, to: |
HeartWare Limited
00000 XX 00xx Xxxxx
Xxxxx Xxxxx XXXXXXX XXX 00000
Attn: Chief Financial Officer
Phone: x0 000 000 0000
Fax: x0 000 000 0000
00000 XX 00xx Xxxxx
Xxxxx Xxxxx XXXXXXX XXX 00000
Attn: Chief Financial Officer
Phone: x0 000 000 0000
Fax: x0 000 000 0000
| (b) | with copies to: |
Summer Street Research Partners
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000 0000
0 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Phone: (000) 000-0000
Fax: (000) 000 0000
| (c) | if to the Investor, at its address on the Securities Purchase Agreement to which these Terms and Conditions are attached, or at such other address or addresses as may have been furnished to the Company in writing in accordance with this Section 9. |
Notwithstanding anything in this Agreement to the contrary, (a) the Company may deliver any
documents, information or notices required to be delivered to an Investor under this Agreement by
email, in any recognized electronic format, including Portable Document Format (PDF) or Microsoft
Word document format, and (b) with respect to any documents, exhibits, filings, furnishings or
other submissions publicly available on the ASX website (each, an “ASX Filing”), such ASX Filing
shall be deemed furnished by the Company to such Investor, in each case as of the date first
publicly available on the ASX.
10. Changes. This Agreement may be modified, amended or waived only pursuant to a
written instrument signed by the Company and (a) Investors holding a majority of the Shares issued
and sold in the Offering, provided that such modification, amendment or waiver is made with respect
to all Agreements and does not adversely affect the Investor without adversely affecting all
Investors in a similar manner; or (b) the Investor.
11. Headings. The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of this Agreement.
12. 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 shall not in any way be affected or impaired thereby.
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13. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without giving effect to the principles of conflicts of
law.
14. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall constitute but one
instrument, and shall become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties.
15. Entire Agreement. This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior understandings or agreements concerning the purchase and
sale of the Shares and the resale registration of the Shares.
16. Confidential Information.
(a) The Investor represents to the Company that, at all times during the Company’s offering of
the Shares, the Investor has maintained in confidence all non-public information regarding the
Company received by the Investor from the Company or its agents, including without limitation, the
existence of the transactions contemplated therein, and covenants that it will continue to maintain
in confidence such information until such information (a) becomes generally publicly available
other than through a violation of this provision by the Investor or its agents or (b) is required
to be disclosed in legal proceedings (such as by deposition, interrogatory, request for documents,
subpoena, civil investigation demand, filing with any governmental authority or similar process),
provided, however, that before making any use or disclosure in reliance on this
subparagraph (b) the Investor shall give the Company at least fifteen (15) days prior written
notice (or such shorter period as required by law) specifying the circumstances giving rise thereto
and will furnish only that portion of the non-public information which is legally required and will
exercise its best efforts to obtain reliable assurance that confidential treatment will be accorded
any non-public information so furnished.
(b) The Company shall on the Closing Date, or on the following business day of the Closing
Date, issue a press release disclosing the material terms of the transactions contemplated hereby
(including at least the number of Shares sold and proceeds therefrom). The Company shall not
publicly disclose the name of Investor, or include the name of Investor in any filing with any
regulatory agency or stock exchange without the prior written consent of Investor except to the
extent such disclosure is required by law or the regulations of any applicable stock exchange.
17. No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other person.
18. Expenses. The parties shall pay their own legal and other expenses in connection
with the preparation, negotiation and execution of the Agreements and the consummation of the
transactions contemplated herein.
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