Washington,
D.C. 20549
FORM
6-K
REPORT
OF
FOREIGN ISSUER
Pursuant
to Rule 13a-16 or 15d-16 of
the
Securities Exchange Act of 1934
For
the month of May 2006
Commission
File Number 000-51122
pSivida
Limited
(Translation
of registrant’s name into English)
Level
12
BGC Centre
28
The
Esplanade
Perth
WA
6000
(Address
of principal executive offices)
(Indicate
by check mark whether the registrant files or will file annual reports under
cover Form 20-F or Form 40-F).
Form
20-F
ý Form
40-F o
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(1):
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted
by Regulation S-T Rule 101(b)(7):
Indicate
by check mark whether the registrant by furnishing the information contained
in
this Form is also thereby furnishing the information to the Commission pursuant
to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes
o No
ý
If
"Yes"
is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b): 82- ___.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant,
pSivida Limited, has duly caused this report to be signed on its behalf by
the
undersigned, thereunto duly authorized.
| Date: May 23, 2006 | ||
| pSivida Limited | ||
| |
|
|
| By: | /s/ Michael J. Soja | |
|
Michael J. Soja |
||
| Vice President, Finance and Chief Financial Officer | ||
EXHIBIT
INDEX
|
EXHIBIT
99.1:
|
pSivida
appoints Boston based Chief Financial Officer and General
Counsel
|
|
EXHIBIT
99.2:
|
Employment letter between pSivida Limited and Michael Soja, dated as of May 16, 2006 |
|
EXHIBIT
99.3:
|
Employment letter between pSivida Limited and Lori Freeman, dated as of May 16, 2006 |
| ASX/MEDIA RELEASE |
23
May 2006
|
pSivida
appoints Boston based Chief Financial Officer and General
Counsel
US
Growth Strategy Builds
Boston,
MA. and Perth, Australia -Global bio-nanotech company pSivida Limited
(ASX:PSD,
NASDAQ:PSDV, Xetra:PSI)
is
pleased to announce that Mr.
Michael J. Soja has been appointed Vice President, Finance and Chief Financial
Officer, and Ms. Lori H. Freedman has been appointed Vice President, Corporate
Affairs, General Counsel and Secretary. Both Mr. Soja and Ms .Freedman are
based
at pSivida’s Boston facility in the United States.
As
Vice
President, Finance and Chief Financial Officer, Mr. Soja will be responsible
for
all financial and accounting functions of the Company, reporting directly to
the
Chief Executive Officer. Mr. Soja brings to pSivida a substantial and varied
financial background, including 20 years of experience as Chief Financial
Officer of XTRA Corporation (New York Stock Exchange). He is the former Vice
President, Finance and Chief Financial Officer of Control Delivery Systems
Inc.
(CDS), which was acquired by pSivida in December 2005. Mr. Soja earned a Masters
in Business Administration from Babson College (Wellesley MA), a Masters in
Accounting from Northeastern University (Boston MA) and a Bachelor of Arts
degree in Mathematics from the College of the Holy Cross (Worcester MA). Mr.
Aaron Finlay, who has served as pSivida’s Chief Financial Officer and Company
Secretary will remain in Australia and continue as the Company Secretary while
pSivida is still an Australian company and Chief Financial Officer of AION
Diagnostics and pSiNutria, both wholly owned subsidiaries.
As
Vice
President, Corporate Affairs, General Counsel and Secretary, Ms. Freedman will
be responsible for overseeing all legal affairs of the Company. Reporting
directly to the Chief Executive Officer, Ms Freeman will also be assisting
in
the development of corporate strategies and serving as a Company Secretary
to
the Board of Directors. Ms. Freedman brings 14 years of legal experience and
corporate law, intellectual property protection and corporate strategy
development skills to pSivida. She is the former Vice President of Corporate
Affairs, General Counsel, and Secretary of Control Delivery Systems. Prior
to
her tenure at CDS, Ms. Freedman served as Vice President, General Counsel and
Secretary of Allaire Corporation (NASDAQ) and following their acquisition of
Allaire, as Vice President, Business Development, and Counsel of Macromedia
Inc.
(NASDAQ). Ms. Freedman earned her Law degree from Boston University School
of
Law and her Bachelor of Arts degree in Economics and Psychology from Brandeis
University (Waltham MA).
“We
are
very pleased to appoint Mike and Lori to these key positions. Their appointments
are an integral part of pSivida’s ongoing U.S. growth strategy as we build our
Boston base and their wealth of experience and expertise are a valuable asset
to
us as we continue to grow. The strength and experience of pSivida’s corporate
management team are enhanced by their appointments,” said Mr. Gavin Rezos, CEO
and Managing Director of pSivida.
-ENDS-
|
pSivida
Limited
Brian
Leedman
Investor
Relations
pSivida
Limited
Tel:
+ 61 8 9226 5099
brianl@psivida.com
|
US
Public Relations
Beverly
Jedynak
President
Martin
E. Janis & Company, Inc
Tel:
+1 (312) 943 1100 ext. 12
bjedynak@janispr.com
|
UK
& Europe Public Relations
Mark
Swallow / Helena Podd
Citigate
Dewe Rogerson
Tel:
+44 (0)20 7638 9571
mark.swallow@citigatedr.co.uk
|
NOTES
TO EDITORS:
pSivida
is a global bio-nanotech company committed to the biomedical sector and the
development of drug delivery products. Retisert™ is FDA approved for the
treatment of uveitis. Vitrasert® is FDA approved for the treatment of
AIDS-related CMV Retinitis. Bausch & Lomb own the trademarks; Vitrasert® and
Retisert™. pSivida has licensed the technologies underlying both of these
products to Bausch & Lomb. The technology underlying Medidur™, a treatment
for diabetic macular edema, is licensed to Alimera Sciences and is in Phase
III
clinical trials.
pSivida
owns the rights to develop and commercialise a modified form of silicon
(porosified or nano-structured silicon) known as BioSilicon™, which has
applications in drug delivery, wound healing, orthopaedics, and tissue
engineering. pSivida’s subsidiary, AION Diagnostics Limited is developing
diagnostic products and the subsidiary pSiNutria is developing food technology
products both using BioSilicon™.
pSivida’s
intellectual property portfolio consists of 70 patent families, 74 granted
patents and over 290 patent applications.
pSivida
conducts its operations from offices and facilities near Boston in the United
States, Malvern in the United Kingdom, Perth in Western Australia and Singapore.
pSivida
is listed on NASDAQ (PSDV),
the
Australian Stock Exchange (PSD)
and in
Germany on the Frankfurt Stock Exchange on the XETRA system (German Symbol:
PSI. Securities Code (WKN) 358705).
pSivida is a founding member of the NASDAQ Health Care Index and the Merrill
Lynch Nanotechnology Index.
The
Company's largest shareholder and a strategic partner is QinetiQ, a leading
international defence, security and technology company, formed in 2001 from
the
UK Government's Defence Evaluation & Research Agency (DERA). QinetiQ was
instrumental in discovering BioSilicon(TM)
and
pSivida enjoys a strong relationship with it having access to its cutting edge
research and development facilities. For more information visit www.QinetiQ.com
For
more
information, visit www.psivida.com
This
document contains forward-looking statements that involve risks and
uncertainties. The statements are indicated by the use of words such as
"believes", "expects", "anticipates" and similar words and phrases. Although
we
believe that the expectations reflected in such forward-looking statements
are
reasonable at this time, we can give no assurance that such expectations will
prove to be correct. Given these uncertainties, readers are cautioned not to
place undue reliance on such forward-looking statements. Actual results could
differ materially from those anticipated in these forward-looking statements
due
to many important factors including: the failure of the results of the Retisert
for DME trial to be a good indicator of the results of pSivida’s ongoing Phase
III Medidur™ for DME trial; failure of the
Medidur™
trials
in DME to show a very similar improvement in visual acuity and diabetic
retinopathy severity score as Retisert™
for
DME;
inability to recruit patients for the Phase III Medidur™ for DME trial; our
failure to develop applications for BioSiliconTM
due to
regulatory, scientific or other issues, our inability to successfully integrate
pSivida Inc’s operations and employees; the failure of the pSivida Inc’s
products to achieve expected revenues and the combined entity’s inability to
develop existing or proposed products; the failure of the Bausch &
Lomb/Novartis co-promotion arrangement to provide faster royalty growth; failure
of the slower progression or reduction of diabetic retinopathy resulting from
the Retisert™ implant to have significant implications for Retisert™ and
Medidur; failure of our evaluation agreements to result in license agreements;
failure of Medidur™ to release the same drug as Retisert™ at the same rate;
failure of the
Medidur™
trials
in DME to show a very similar stabilization or improvement diabetic retinopathy
as Retisert™
for
DME;
failure
to achieve cost savings; failure
to execute on US growth strategy.
Other
reasons are contained in cautionary statements in the Annual Report on Form
20-F
filed with the U.S. Securities and Exchange Commission, including, without
limitation, under Item 3.D, "Risk Factors" therein. We do not undertake to
update any oral or written forward-looking statements that may be made by or
on
behalf of pSivida.
Level
12, BGC Centre
28
The esplanade, Perth
WA
6000 Australia
May
16,
2006
Michael
J. Soja
34
Musket
Lane
Sudbury,
MA 01776
Dear
Mr.
Soja:
On
behalf
of the Board of Directors of pSivida Limited, an Australian corporation, I
am
pleased to offer you, Michael Soja (referred to herein as “you”
or
“Executive”),
the
following employment agreement pursuant to this letter (the “Agreement”):
1. Employment:
The
Company (as defined in Section 8(d)
below)
agrees to employ you, and you agree to serve in the Company’s employ, on and
subject to the terms and conditions hereinafter set forth.
2. Duties
and Responsibilities: You
will
hold the title of and will serve as Vice President, Finance and Chief Financial
Officer of the Company and, in such capacities, will be an Executive Officer
(as
defined in Section 8(d)
below)
of the Company and shall report directly and solely to the Company’s Principal
Executive Officer (as defined in Section 8(d) below). You agree to work
full-time at your positions with the Company and to devote your entire working
time, skill and attention to the discharge of your duties and responsibilities
and to promoting the best interests of the Company. Your duties and
responsibilities shall include all accounting and financial matters of the
company and those duties and responsibilities typically undertaken by such
offices as may be assigned to you from time to time by the Principal Executive
Officer or Board of Directors of the Company. Participation
in charitable and professional organizations is allowed so long as such
activities do not interfere with your duties and responsibilities or compete
with the business and activities of the Company. In the same manner as above,
you will also hold the title of and serve as Vice President, Finance and Chief
Financial Officer of pSivida Inc. (the “Subsidiary”).
You
will also serve as a member of the board of directors of the Subsidiary.
3. Term:
The
term
of your employment will be from the date hereof until such time as your
employment is terminated in accordance with, and subject to the obligations
set
forth in, Section 8
and
elsewhere in this Agreement.
4. Compensation:
You
shall
receive compensation commensurate with that received by the other Executive
Officers of the Company, including without limitation the following initial
terms:
(a) Base
Salary: Your
base
salary as of the date hereof will be Two Hundred Seventy-Two Thousand, Four
Hundred and Ninety-Seven Dollars ($272,497) per year (the “Base
Salary”),
payable semi-monthly or in accordance with the policies and procedures of the
Company as in effect from time to time, provided that in the event the Company
in its sole discretion increases Executive’s Base Salary above $272,497, the
Base Salary as so increased will be referred to as “Base
Salary”.
Notwithstanding anything contrary in this Agreement, the Company will review
your Base Salary on an annual basis and may elect to increase (but not decrease
without your agreement) it pursuant to such review.
(b) Bonus:
In
addition to your base salary, you will be eligible to receive an annual cash
bonus in an amount to be determined by the Company or the Company’s Board of
Directors, as the case may be (the “Bonus”).
(c)
Stock
Options: You
will
be eligible to participate in the Company’s Employee Share Option Plan in
accordance with the terms and guidelines thereof. The issuance of options and
shares thereunder shall be subject to the approval of the Board of Directors
or
shareholders of the Company. Notwithstanding the foregoing, the Company agrees
that you will receive grants of stock options commensurate with those received
by other Executive Officers of the Company. In addition, as soon as practicable
after the execution of this Agreement, you will be granted options to purchase
250,000 of the Company’s ordinary shares at an exercise price and subject to
vesting and expiration as determined by the Company or the Company’s Board of
Directors, as the case may be.
The
initial terms set forth above in this Section 4
shall be
subject to review and adjustment on an annual basis to ensure that your overall
compensation package is commensurate with the compensation package, including
base salary, bonus and stock options grants, of other Executive Officers of
the
Company.
5. Expenses:
You
shall
be reimbursed for reasonable business-related expenses in accordance with
applicable policies and procedures of the Company as in effect from time to
time.
6. Vacation
and Fringe Benefits: You
will
be entitled to four (4) weeks’ paid vacation per calendar year. In addition you
will be entitled to fringe benefits in accordance with the policies of the
Company, but in any event at a level not less than that provided to the
Company’s other Executive Officers, which benefits shall include, without
limitation, (i) participation in any employee pension benefit plan within
the meaning of Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”),
including any 401(k) savings plan adopted or maintained by the Company made
generally available to U.S. executives of the Company and (ii) participation
in
any health insurance, disability insurance, group life insurance or any other
employee welfare benefit plan within the meaning of Section 3(1) of ERISA
made generally available to Executive Officers of the Company.
7. Taxes:
All
payments made to you pursuant to this Agreement or otherwise in connection
with
your employment shall be subject to the usual withholding practices of the
Company and will be made in compliance with existing federal and state
requirements regarding the withholding of tax.
Moreover, should any benefit payment that is described in this Agreement be
subject to Section 409A of the Internal Revenue Code of 1986 as amended,
the Company agrees that, subject to your instruction, it is authorized to,
and
agrees to, make payments in a manner that complies with the requirements of
Section 409A to the fullest extent possible. However, in the event that one
or more provisions of Section 409A is violated, the Company shall not be
responsible for the payment of any tax liability, penalties or interest that
are
imposed upon you as a result of said violation, nor shall the Company be under
any obligation to make you whole or otherwise compensate you for such additional
liability, unless such violation results from any action or failure to act
by
the Company, contrary to its obligations under this Paragraph.
-2-
8. Termination
and Severance Benefits: Either
you or the Company may at any time terminate your employment with the Company
after giving two weeks’ notice to the other party, in which case the obligations
of the parties and the termination and severance benefits and payments payable
upon termination will be as described in this Section 8.
(a) Termination
Upon Death or Disability: If
you
cease to be an employee of the Company as a result of death or Disability,
the
Company will have no further obligation or liability to you hereunder other
than
for payment in cash within five calendar days after the date of termination
of
(i) Base Salary earned and unpaid at the date of termination, (ii) Bonus
earned but unpaid at the date of termination, if any, and
(iii) compensation for accrued vacation, if any (collectively, the
“Accrued
Obligations”).
However, nothing in this Agreement shall adversely affect your rights or those
of your family or beneficiaries under any applicable plans, policies or
arrangements of the Company or any other agreement in effect between you and
the
Company or any subsidiary thereof.
(b) Termination
by the Company for Cause or by You Without Good Cause: If
the
Company terminates your employment for Cause (as defined in Section 8(d)) or
if
you terminate your employment other than for Good Cause (as defined in Section
8(d)), the Company shall have no further obligation or liability to you
hereunder other than for payment of Accrued Obligations.
(c) Termination
by the Company Without Cause or by You for Good Cause: If
the
Company terminates your employment other than for Cause, or you terminate your
employment for Good Cause, then, in addition to payment of the Accrued
Obligations, you shall receive the following:
(i) Lump
Sum
Severance Payment:
(A) If
such
termination occurs on or before December 31, 2007, then the Company will pay
you, within thirty (30) days following the later of (a) the termination of
employment, or (b) the date you deliver to the Company a release of claims
in
the form attached hereto as Exhibit
A
(the
“Payment Date”), a lump-sum cash amount equal to 200% of the sum of (x) your
annual Base Salary, plus (y) the greater of (1) 100 percent of your bonus for
the completed year immediately preceding the year in which your employment
is
terminated, and (2) 100 percent of your bonus for the immediately preceding
employment year. The Company will also pay you on the Payment Date a pro rata
portion of your Maximum Bonus for the year of termination.
-3-
(B) If
such
termination occurs after December 31, 2007, then the Company will pay you on
the
Payment Date in the manner set forth below in this Section 8(c)(i)(B), a lump
sum amount equal to 100% of the sum of (x) your annual Base Salary, plus
(y) the greater of (1) 100 percent of your bonus for the completed year
immediately preceding the year in which your employment is terminated, and
(2)
100 percent of your bonus for the immediately preceding employment year. The
Company will also pay you on the Payment Date a pro rata portion of your Maximum
Bonus for the year of termination. If such termination occurs after December
31,
2007, the total amount due under this Section 8(c)(i)(B) shall be paid on
the Payment Date in the following manner: (a) you will be paid a lump-sum
cash payment equal to 50% of the total amount due under this
Section 8(c)(i)(B), and (b) at the Company’s option (I) you will be granted
that number of shares of the common equity or ADRs, as the case may be, of
the
Company traded in the U.S. equal to 50% of the total amount due under this
Section 8(c)(i)(B) divided by the Fair Market Value Per Share (as defined
in Section 8(d) below), or (II) you will be paid a lump-sum cash payment equal
to the remaining fifty percent (50%) of the total amount due under this
Section 8(c)(i)(B).
The
Company will use commercially reasonable efforts to provide for the registration
of any shares granted pursuant to clause 8(c)(i)(B)(b)(I), and you agree to
cooperate with the Company in effecting any such registration. In no event
shall
the Company be required to file a separate registration statement to register
such shares.
(ii) If
such
termination occurs on or before December 31, 2007, the Company will continue,
for a period of two (2) years from the date of termination, to provide you
with
medical benefits under (as the case may be) the Company’s group medical, dental
and vision plan provided to Executive Officers of the Company. If such
termination occurs after December 31, 2007, the Company will continue, for
a
period of one (1) year from the date of termination, to provide you with medical
benefits under (as the case may be) the Company’s group medical, dental and
vision plan provided to Executive Officers of the Company. To the extent that
the Company is unable to provide such benefits to you under its existing plans,
the Company will pay you cash amounts equal to your costs of obtaining medical,
dental and vision coverage comparable to the coverage previously provided under
the Company’s plans.
(iii) If
such
termination occurs on or before December 31, 2007, the Company will continue,
for a period of two (2) years from the date of termination, to provide you
with
benefits under (as the case may be) the Company’s life insurance arrangements
and disability arrangements provided to Executive Officers of the Company.
If
such termination occurs after December 31, 2007, the Company will continue,
for
a period of one (1) year from the date of termination, to provide you with
benefits under (as the case may be) the Company’s life insurance arrangements
and disability arrangements provided to Executive Officers of the Company.
To
the extent that the Company is unable to provide such benefits to you under
its
existing plans, including any conversion rights provided under such plans,
the
Company will pay you cash amounts equal to the cost the Company would have
incurred to provide those benefits to you had you continued to be employed
by
the Company.
-4-
(iv) Notwithstanding
the terms of any awards of stock options or restricted stock, all options to
purchase Company stock held by you will automatically and immediately vest
and
become exercisable upon such termination and remain exercisable for a period
of
one (1) year following the date of termination (except that incentive stock
options shall be exercisable for only three (3) months thereafter), and all
restricted stock held by you pursuant to any restricted stock plans or
arrangements of the Company shall automatically and immediately vest and no
longer be subject to forfeiture. The Company agrees that it will not exercise
any right that the Company has to purchase, repurchase or reacquire all or
any
part of such vested stock.
(v) Payments
under this Agreement shall be made without regard to whether the deductibility
of such payments (or any other payments to or for the benefit of Executive)
would be limited or precluded by Internal Revenue Code Section 280G and without
regard to whether such payments (or any other payments) would subject Executive
to the federal excise tax levied on certain "excess parachute payments" under
Internal Revenue Code Section 4999; provided, that if the total of all
payments to or for the benefit of Executive, after reduction for all federal
taxes (including the tax described in Internal Revenue Code Section 4999, if
applicable) with respect to such payments ("Executive's total after-tax
payments"), would be increased by the limitation or elimination of any payment
under this Agreement, amounts payable under this Agreement (whether in
the form or cash, stock or otherwise) shall be reduced to the extent, and only
to the extent, necessary to maximize Executive's total after-tax payments.
The
determination as to whether and to what extent payments under this
Agreement are required to be reduced in accordance with the preceding sentence
shall be made at the Company's expense by such accounting, legal or consulting
firm as the Company and the Executive may agree. In the event payments
under this Agreement are required to be limited or eliminated pursuant to this
Section 8(c)(v),
the
Executive, in his or her sole discretion, shall determine which payments (e.g.,
cash payments or stock payments) shall be limited or eliminated. In the event
of
any underpayment or overpayment under this Agreement, as determined under
this Section 8(c)(v), the amount of such underpayment or overpayment shall
forthwith be paid to Executive or refunded to the Company, as the case may
be.
(d) Definitions:
The
following terms shall have the meanings set forth below:
“Cause” shall
mean, in respect of the termination of your employment by the Company, a
termination for one of the following reasons only: (a) willful malfeasance
or
gross negligence in your performance of the duties of your position that has
a
material adverse effect on the Company, (b) the material breach by you while
you
are an employee of the Company of Sections 1, 2, 3, 5 and 7(2) of the
Employee Confidentiality, Proprietary Rights and Noncompetition Agreement,
dated
Februarly 26, 2001, between pSivida Inc. and the Executive (the “ECPRNA”),
(c)
fraud or dishonesty by you with respect to the Company or your employment with
the Company, or (d) your conviction of any felony (including, in each case,
entry of a guilty or nolo
contendere plea
and
excluding traffic violations or similar minor offenses). The Company may treat
a
termination of your employment as termination for Cause only after (i) giving
you written notice of the intention to terminate for Cause, including a
description of the conduct that the Company believes constitutes the basis
for a
Cause termination, and of your right to a hearing by the Company’s Board of
Directors, (ii) in the event of a termination under clause (a), (b) or (c)
above, providing you with a 30-day period in which to cure the conduct giving
rise to the Company’s notice of a Cause termination, (iii) at least 30 days but
not more than 45 days after giving the notice, conducting a hearing by the
Board
at which you may be represented by counsel, and (iv) giving you written notice
of the results of the hearing and the factual basis for the Board’s
determination of Cause, which shall require a vote of a majority of the members
of the Board then in office other than yourself. For purposes of this definition
of Cause, no act or omission shall be considered to have been “willful” unless
it was not in good faith and Executive had knowledge at the time that the act
or
omission was not in the best interest of the Company. Except in connection
with
your opportunity, if any, to cure the conduct giving rise to the Company’s
notice of termination for Cause as set forth in clause (ii) above, nothing
in
the foregoing sentence shall prevent the Company from terminating your
employment pending any determination of Cause as set forth in the foregoing
sentence, any such determination shall be retroactive to the date of termination
and the Company shall not be obligated to compensate you hereunder for the
period from such termination until such time, if any, as the Company’s Board of
Directors determines that such termination was not for Cause. Notwithstanding
the foregoing, Cause shall not include an act or failure to act based on (w)
authority given pursuant to a resolution duly adopted by the Company’s Board of
Directors, (x) the advice of outside counsel of the Company, (y) any
incapacity resulting from Disability or (z) any actual or anticipated act
or failure to act for which notice is provided by the Company after you have
provide written notice of a termination for Good Cause.
-5-
“Company”
shall
mean pSivida Limited and any successor of pSivida Limited (including without
limitation a successor by merger, sale, consolidation, reorganization or other
business combination or by acquisition of assets or equity of pSivida Limited),
provided if any such successor has a parent, then Company shall mean the
ultimate parent corporation.
“Disability” shall
mean physical or mental incapacity of a nature which prevents you, in the
professional judgment of your physician or, at the Company’s election, a
board-certified physician mutually agreed upon by the Company and you, from
performing the essential functions of your position with the Company with or
without a reasonable accommodation for a period of one hundred and twenty
(120) consecutive days or one hundred eighty (180) days during any consecutive
12-month period.
“Executive
Officer”
shall
have the same meaning as the term “officer” under Rule 16a-1(f) of the
Securities Exchange Act of 1934.
“Fair
Market Value Per Share” shall
mean the average of the closing price of the Company’s common stock or ADRs, as
the case may be, on the Nasdaq National Market (or relevant exchange, if not
the
Nasdaq National Market) for each of the ten (10) trading days ending on the
trading day that is four (4) full trading days prior to the Payment Date.
Notwithstanding
the foregoing, in the event the Company elects under Section 8(c)(i)(B) to
grant
shares subject to any restrictions, then for purposes of determining Fair Market
Value per Share, the closing price of the Company’s common stock or ADRs, as the
case may be, on the Nasdaq National Market (or relevant exchange, if not the
Nasdaq National Market) for each of such ten (10) trading days shall be 90%
of
the actual closing price on the Nasdaq or such exchange.
-6-
“Good
Cause” shall
mean, in respect of the termination of your employment by you, a termination
for
one of the following reasons only: (i) failure by the Company to maintain you
in
the positions of Vice President, Finance and Chief Financial Officer of the
Company, without your consent, (ii) failure by the Company to maintain you
as an
Executive Officer of the Company, (iii) a material diminution of your
duties and responsibilities in such positions or a material diminution of your
authority with respect to such positions, as described in
Section 2
hereof,
excluding for this purpose an isolated, insubstantial and inadvertent action
not
taken in bad faith and which is remedied by the Company promptly after receipt
of written notice thereof given by you, (iv) any change in your reporting
relationship, as described in Section 2 hereof, such that you no longer report
directly to the Principal Executive Officer; (v) a breach by the Company of
Section 4 or any other material term of this Agreement, or (vi) relocation
of your principal place of work to a location more than thirty (30) miles from
your address as set forth in Section 14 below, without your prior consent.
You
may treat a resignation from employment as termination for Good Cause only
after
(a) giving the Company written notice of the intention to terminate for Good
Cause, (b) providing the Company at least 15 days after receipt of such
notice to cure the conduct or action giving rise to Good Cause, and (c) if
applicable, the Company has failed to cure the action or conduct giving rise
to
Good Cause during the 15 day cure period.
“Maximum
Bonus” payable
in a year will be calculated assuming all bonus targets or formulas for
determining the bonus in such year had been met if Executive and Board had,
prior to the termination of Executive's employment, agreed on such targets
or
formulas. If no such targets or formulas have been set as of such termination
date, then the Maximum Bonus shall be deemed to be the greater of (x) 100
percent of his bonus for the completed year immediately preceding the year
in
which his employment is terminated, and (y) 100 percent of his bonus for
the immediately preceding employment year.
“Principal
Executive Officer”
shall
mean the Company’s highest ranking executive officer, whether such individual
holds the title of Chief Executive Officer, Managing Director, or Managing
Executive Director.
“$” shall
mean US$.
(e) Release:
Notwithstanding anything to the contrary contained in this Agreement, in order
for you to be eligible for any severance benefits under this Section 7, you
must execute and deliver to the Company (and not revoke within seven (7) days
of
executing) the release of claims in the attached as Exhibit
A
hereto.
9. Fees
and Expenses: In
the
event of Executive's termination of employment, the Company will pay any and
all
fees and expenses (including legal fees and other costs of arbitration or
litigation) that may be incurred by Executive in enforcing his rights under
this
Agreement.
10. No
Duty to Mitigate; No Offset:
Benefits
payable under this Agreement as a result of termination of Executive’s
employment will be considered severance pay in consideration of his past service
and his continued service, and his entitlement thereto will neither be governed
by any duty to mitigate his damages by seeking further employment nor offset
by
any compensation that he may receive from other employment following the date
of
termination. Notwithstanding the foregoing, you agree that the Company may
cease
its payment for, or provision of, one or more of the continued benefits under
Section 8(c)(ii) or 8(c)(iii) during the periods set forth therein
following the date of your termination from employment to the extent that you
obtain comparable benefit coverage with another employer. This provision shall
be applied in an ad
seriatim basis
so
that the Company may only cease payment of those comparable benefits that you
obtain with another employer. You agree to notify the Company as soon as
practicable in the event that you obtain comparable coverage or benefits during
the period noted above and you acknowledge that the Company’s obligation to
continue payment for, or provision of, benefits shall cease from and after
the
date you obtain comparable coverage.
-7-
11. Indemnification:
To the
extent permitted by law, the Company will defend, indemnify and hold Executive
harmless from and against any and all losses, liabilities, damages, expenses
(including attorneys' fees and costs), actions, causes of action or proceedings
arising directly or indirectly from Executive's performance of this Agreement
or
services as an employee and/or officer of the Company. Executive may retain
his
own counsel to defend himself in such actions, and the Company will pay for
the
reasonable costs and expense of such counsel. This indemnification is in
addition to any right of indemnification to which Executive may be entitled
under the Company's Articles of Incorporation and By-laws, any separate
indemnification agreements between the Company and Executive, and any insurance
policies that may be maintained by the Company.
12. Rights
of Survivors:
If
Executive dies after becoming entitled to benefits under this Agreement
following termination of employment but before all such benefits have been
provided, (a) all unpaid cash amounts will be paid to the beneficiary that
has
been designated by Executive in writing (the “beneficiary”), or if none, to
Executive's estate, (b) all applicable insurance coverage will be provided
to
Executive's family as though Executive had continued to live, and (c) any stock
options that become exercisable under Section 8 will be exercisable by the
beneficiary, or if none, the estate.
13. Successors:
This
Agreement will inure to and be binding upon the Company's successors. The
Company will require any successor to all or substantially all of the business
and/or assets of the Company by sale, merger or consolidation (where the Company
is not the surviving corporation), lease or otherwise, to assume this Agreement
expressly. This Agreement is not otherwise assignable by the Company or the
Executive.
-8-
14. Notices:
Any
notices required or permitted to be sent under this Agreement shall be effective
when delivered by hand or mailed by registered or certified mail, return receipt
requested, and addressed as follows:
If
to the
Company:
pSivida
Limited
Level
12,
BGC Centre
28
The
Esplanade, Perth
WA
6000
Australia
GPO
Box
2535
Perth,
WA
6831
Attn:
Chief Executive Officer, pSivida Limited
With
a
copy to:
Curtis,
Mallet-Prevost, Colt & Mosle LLP
101
Park
Avenue
New
York,
NY 10178
Attn:
Lawrence Goodman, Esq.
If
to
Executive:
Michael
J. Soja
34
Musket
Lane
Sudbury,
MA 01776
Either
party may change its address for receiving notices by giving notice to the
other
party.
15. Waiver:
The
failure of either party to enforce any of the provisions of this Agreement
shall
not be deemed a waiver thereof. No provision of this Agreement shall be deemed
to have been waived or modified unless such waiver or modification shall be
in
writing and signed by both parties hereto.
16. Entire
Agreement; Termination:
This
Agreement shall constitute the entire agreement of the parties pertaining to
this subject matter and shall supersede all prior agreements, representations
and understandings of the parties with respect to such subject matter. Any
and
all employment, severance, compensation, or other agreements and arrangements
between the Executive and the Company or any subsidiary thereof, whether dating
from before or after December 30, 2005 (including, without limitation, the
Severance Agreement, dated February 20, 2004, between the executive and the
pSivida Inc., as amended, and the Amended and Restated Change of Control
Agreement, dated August 17, 2004, between the Executive and pSivida Inc.) are
hereby terminated and of no further force and effect, and no parties shall
have
any further rights, obligations or liabilities thereunder; provided,
however,
that,
except as otherwise set forth herein (i) the Retention Agreement, dated
September 29, 2005, between the Executive, pSivida Inc. and the Company, (ii)
the ECPRNA, (iii) the Deferred Vesting Agreement, and (iv) all Restricted Stock
Award Agreements and Option Agreements shall remain in full force and effect
in
accordance with their terms.
-9-
17. Partial
Invalidity:
If any
provision in this Agreement is held by a court of competent jurisdiction to
be
invalid, void or unenforceable, the remaining provisions nevertheless shall
continue in full force and effect without being impaired or invalidated in
any
manner.
18. Counterparts:
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together shall constitute one and the same
instrument.
19. Governing
Law: This
Agreement shall be governed by and construed in accordance with the laws of
the
Commonwealth of Massachusetts. The parties agree that any action to enforce
the
terms of this Agreement shall be commenced in, and subject to the exclusive
jurisdiction of, Suffolk County, Boston, Massachusetts.
20. Surviving
Provision:
This
Agreement shall terminate upon the termination of your employment with the
Company for any reason; provided,
however,
that
the provisions of Sections 7,
8,
9,
10,
11,
12,
13,
14,
15,
16,
17,
19
and
20
hereof
(and any other operative provisions of this Agreement which, by logical
extension, are necessary to interpret and enforce this Agreement so as to give
effect to the parties’ intent) shall survive the termination of your employment
for any reason and the termination of this Agreement.
IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Agreement the day and year first above
written.
|
PSIVIDA
LIMITED
By:
/s/Gavin
Rezos
Name:
Gavin Rezos
Title:
Managing Director
|
EXECUTIVE
By:
/s/Michael
Soja
Name:
Michael Soja
-10-
EXHIBIT
A
RELEASE
OF CLAIMS
FOR
AND
IN CONSIDERATION OF the benefits to be provided me in connection with the
termination of my employment, as set forth in the employment agreement between
me and pSivida Limited (the “Company”) dated as of __________ (the “Agreement”),
which benefits are subject to my signing of this Release of Claims and to which
I am not otherwise entitled, and for other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, I, on my own behalf
and
on behalf of my heirs, executors, administrators, beneficiaries, representatives
and assigns, and all others connected with me, hereby release and forever
discharge the Company, its subsidiaries and other affiliates and all of their
respective past, present and future officers, directors, trustees, shareholders,
employees, agents, general and limited partners, members, managers, joint
venturers, representatives, successors and assigns, and all others connected
with any of them, both individually and in their official capacities, from
any
and all causes of action, rights and claims of any type or description, known
or
unknown, which I have had in the past, now have, or might now have, through
the
date of my signing of this Release of Claims, in any way resulting from, arising
out of or connected with my employment by the Company or any of its subsidiaries
or other affiliates or the termination of that employment or pursuant to any
federal, state or local law, regulation or other requirement (including without
limitation Title VII of the Civil Rights Act of 1964, the Age Discrimination
in
Employment Act, the Americans with Disabilities Act, and the fair employment
practices laws of the state or states in which I have been employed by the
Company or any of the subsidiaries or other affiliates, each as amended from
time to time).
Excluded
from the scope of this Release of Claims is (i) any claim arising under the
terms of the Agreement and (ii) any right of indemnification or contribution
that I have pursuant to the Certificate of Incorporation, Constitution, By-Laws
or other governing documents of the Company or any of its subsidiaries or other
affiliates.
In
signing this Release of Claims, I acknowledge my understanding that I may not
sign it prior to the termination of my employment, but that I may consider
the
terms of this Release of Claims for up to twenty-one (21) days (or such longer
period as the Company may specify) from the later of the date my employment
with
the Company terminates or the date I receive this Release of Claims. I also
acknowledge that I am advised by the Company and its affiliates to seek the
advice of an attorney prior to signing this Release of Claims; that I have
had
sufficient time to consider this Release of Claims and to consult with an
attorney, if I wished to do so, or to consult with any other person of my
choosing before signing; and that I am signing this Release of Claims
voluntarily and with a full understanding of its terms.
I
further
acknowledge that, in signing this Release of Claims, I have not relied on any
promises or representations, express or implied, that are not set forth
expressly in the Agreement. I understand that I may revoke this Release of
Claims at any time within seven (7) days of the date of my signing by written
notice to the General Counsel of the Company and that this Release of Claims
will take effect only upon the expiration of such seven-day revocation period
and only if I have not timely revoked it.
-11-
Intending
to be legally bound, I have signed this Release of Claims under seal as of
the
date written below.
Signature:
_____________________________________________
Name
(please print): ______________________________________
Date
Signed: ___________________________________________
-12-
Level
12, BGC Centre
28
The esplanade, Perth
WA
6000 Australia
May
16,
2006
Lori
Freedman
21
Swan
Road
Winchester,
MA 01890
Dear
Ms.
Freedman:
On
behalf
of the Board of Directors of pSivida Limited, an Australian corporation, I
am
pleased to offer you, Lori Freedman (referred to herein as “you”
or
“Executive”),
the
following employment agreement pursuant to this letter (the “Agreement”):
1. Employment:
The
Company (as defined in Section 8(d)
below)
agrees to employ you, and you agree to serve in the Company’s employ, on and
subject to the terms and conditions hereinafter set forth.
2. Duties
and Responsibilities: You
will
hold the title of and will serve as (i) Vice President, Corporate Affairs
of the Company, (ii) General Counsel of the Company and
(iii) Secretary of the Company and, in such capacities, will be an
Executive Officer (as defined in Section 8(d)
below)
of the Company and shall report directly and solely to the Company’s Principal
Executive Officer (as defined in Section 8(d) below). You agree to work
full-time at your positions with the Company and to devote your entire working
time, skill and attention to the discharge of your duties and responsibilities
and to promoting the best interests of the Company. Your duties and
responsibilities shall include (a) in your capacity as General Counsel of
the Company, overseeing the legal affairs of the Company (including the
activities of any outside counsel engaged by the Company) and advising the
directors and managers of the Company with respect to any legal issues which
may
arise, (b) in your capacity as Vice President, Corporate Affairs of the
Company, assisting in the development of corporate strategies for the Company,
(c) in your capacity as Secretary of the Company, maintaining records
reflecting the corporate governance of the Company, including records of
meetings of the Board of Directors (including committees) and shareholders,
and
certifying the authenticity and authority of corporate acts and resolutions
and
(d) those duties and responsibilities typically undertaken by such offices
as may be assigned to you from time to time by the Principal Executive Officer
or Board of Directors of the Company. Participation
in charitable and professional organizations is allowed so long as such
activities do not interfere with your duties and responsibilities or compete
with the business and activities of the Company. In the same manner as above,
you will also hold the title of and serve as (i) Vice President, Corporate
Affairs, (ii) General Counsel and (iii) Secretary of pSivida Inc. (the
“Subsidiary”).
You
will also serve as a member of the board of directors of the Subsidiary.
Notwithstanding
the foregoing, only for so long as the Company is an Australian Company and
legally required under Australian law to have an Australian resident as its
secretary, the Company may have one additional Australian resident Secretary
with only those duties as are required under Australian law.
3. Term:
The
term
of your employment will be from the date hereof until such time as your
employment is terminated in accordance with, and subject to the obligations
set
forth in, Section 8
and
elsewhere in this Agreement.
4. Compensation:
You
shall
receive compensation commensurate with that received by the other Executive
Officers of the Company, including without limitation the following initial
terms:
(a) Base
Salary: Your
base
salary as of the date hereof will be Two Hundred Seventy-Two Thousand, Four
Hundred and Ninety-Seven Dollars ($272,497) per year (the “Base
Salary”),
payable semi-monthly or in accordance with the policies and procedures of the
Company as in effect from time to time, provided that in the event the Company
in its sole discretion increases Executive’s Base Salary above $272,497, the
Base Salary as so increased will be referred to as “Base
Salary”.
Notwithstanding anything contrary in this Agreement, the Company will review
your Base Salary on an annual basis and may elect to increase (but not decrease
without your agreement) it pursuant to such review.
(b) Bonus:
In
addition to your base salary, you will be eligible to receive an annual cash
bonus in an amount to be determined by the Company or the Company’s Board of
Directors, as the case may be (the “Bonus”).
(c)
Stock
Options: You
will
be eligible to participate in the Company’s Employee Share Option Plan in
accordance with the terms and guidelines thereof. The issuance of options and
shares thereunder shall be subject to the approval of the Board of Directors
or
shareholders of the Company. Notwithstanding the foregoing, the Company agrees
that you will receive grants of stock options commensurate with those received
by other Executive Officers of the Company. In addition, as soon as practicable
after the execution of this Agreement, you will be granted options to purchase
250,000 of the Company’s ordinary shares at an exercise price and subject to
vesting and expiration as determined by the Company or the Company’s Board of
Directors, as the case may be.
The
initial terms set forth above in this Section 4
shall be
subject to review and adjustment on an annual basis to ensure that your overall
compensation package is commensurate with the compensation package, including
base salary, bonus and stock options grants, of other Executive Officers of
the
Company.
5. Expenses:
You
shall
be reimbursed for reasonable business-related expenses in accordance with
applicable policies and procedures of the Company as in effect from time to
time.
6. Vacation
and Fringe Benefits: You
will
be entitled to four (4) weeks’ paid vacation per calendar year. In addition you
will be entitled to fringe benefits in accordance with the policies of the
Company, but in any event at a level not less than that provided to the
Company’s other Executive Officers, which benefits shall include, without
limitation, (i) participation in any employee pension benefit plan within
the meaning of Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended (“ERISA”),
including any 401(k) savings plan adopted or maintained by the Company made
generally available to U.S. executives of the Company and (ii) participation
in
any health insurance, disability insurance, group life insurance or any other
employee welfare benefit plan within the meaning of Section 3(1) of ERISA
made generally available to Executive Officers of the Company.
-2-
7. Taxes:
All
payments made to you pursuant to this Agreement or otherwise in connection
with
your employment shall be subject to the usual withholding practices of the
Company and will be made in compliance with existing federal and state
requirements regarding the withholding of tax.
Moreover, should any benefit payment that is described in this Agreement be
subject to Section 409A of the Internal Revenue Code of 1986 as amended,
the Company agrees that, subject to your instruction, it is authorized to,
and
agrees to, make payments in a manner that complies with the requirements of
Section 409A to the fullest extent possible. However, in the event that one
or more provisions of Section 409A is violated, the Company shall not be
responsible for the payment of any tax liability, penalties or interest that
are
imposed upon you as a result of said violation, nor shall the Company be under
any obligation to make you whole or otherwise compensate you for such additional
liability, unless such violation results from any action or failure to act
by
the Company, contrary to its obligations under this Paragraph.
8. Termination
and Severance Benefits: Either
you or the Company may at any time terminate your employment with the Company
after giving two weeks’ notice to the other party, in which case the obligations
of the parties and the termination and severance benefits and payments payable
upon termination will be as described in this Section 8.
(a) Termination
Upon Death or Disability: If
you
cease to be an employee of the Company as a result of death or Disability,
the
Company will have no further obligation or liability to you hereunder other
than
for payment in cash within five calendar days after the date of termination
of
(i) Base Salary earned and unpaid at the date of termination, (ii) Bonus
earned but unpaid at the date of termination, if any, and
(iii) compensation for accrued vacation, if any (collectively, the
“Accrued
Obligations”).
However, nothing in this Agreement shall adversely affect your rights or those
of your family or beneficiaries under any applicable plans, policies or
arrangements of the Company or any other agreement in effect between you and
the
Company or any subsidiary thereof.
(b) Termination
by the Company for Cause or by You Without Good Cause: If
the
Company terminates your employment for Cause (as defined in Section 8(d)) or
if
you terminate your employment other than for Good Cause (as defined in Section
8(d)), the Company shall have no further obligation or liability to you
hereunder other than for payment of Accrued Obligations.
(c) Termination
by the Company Without Cause or by You for Good Cause: If
the
Company terminates your employment other than for Cause, or you terminate your
employment for Good Cause, then, in addition to payment of the Accrued
Obligations, you shall receive the following:
-3-
(i) Lump
Sum
Severance Payment:
(A) If
such
termination occurs on or before December 31, 2007, then the Company will pay
you, within thirty (30) days following the later of (a) the termination of
employment, or (b) the date you deliver to the Company a release of claims
in
the form attached hereto as Exhibit
A
(the
“Payment Date”), a lump-sum cash amount equal to 200% of the sum of (x) your
annual Base Salary, plus (y) the greater of (1) 100 percent of your bonus for
the completed year immediately preceding the year in which your employment
is
terminated, and (2) 100 percent of your bonus for the immediately preceding
employment year. The Company will also pay you on the Payment Date a pro rata
portion of your Maximum Bonus for the year of termination.
(B) If
such
termination occurs after December 31, 2007, then the Company will pay you on
the
Payment Date in the manner set forth below in this Section 8(c)(i)(B), a lump
sum amount equal to 100% of the sum of (x) your annual Base Salary, plus
(y) the greater of (1) 100 percent of your bonus for the completed year
immediately preceding the year in which your employment is terminated, and
(2)
100 percent of your bonus for the immediately preceding employment year. The
Company will also pay you on the Payment Date a pro rata portion of your Maximum
Bonus for the year of termination. If such termination occurs after December
31,
2007, the total amount due under this Section 8(c)(i)(B) shall be paid on
the Payment Date in the following manner: (a) you will be paid a lump-sum
cash payment equal to 50% of the total amount due under this
Section 8(c)(i)(B), and (b) at the Company’s option (I) you will be granted
that number of shares of the common equity or ADRs, as the case may be, of
the
Company traded in the U.S. equal to 50% of the total amount due under this
Section 8(c)(i)(B) divided by the Fair Market Value Per Share (as defined
in Section 8(d) below), or (II) you will be paid a lump-sum cash payment equal
to the remaining fifty percent (50%) of the total amount due under this
Section 8(c)(i)(B).
The
Company will use commercially reasonable efforts to provide for the registration
of any shares granted pursuant to clause 8(c)(i)(B)(b)(I), and you agree to
cooperate with the Company in effecting any such registration. In no event
shall
the Company be required to file a separate registration statement to register
such shares.
(ii) If
such
termination occurs on or before December 31, 2007, the Company will continue,
for a period of two (2) years from the date of termination, to provide you
with
medical benefits under (as the case may be) the Company’s group medical, dental
and vision plan provided to Executive Officers of the Company. If such
termination occurs after December 31, 2007, the Company will continue, for
a
period of one (1) year from the date of termination, to provide you with medical
benefits under (as the case may be) the Company’s group medical, dental and
vision plan provided to Executive Officers of the Company. To the extent that
the Company is unable to provide such benefits to you under its existing plans,
the Company will pay you cash amounts equal to your costs of obtaining medical,
dental and vision coverage comparable to the coverage previously provided under
the Company’s plans.
-4-
(iii) If
such
termination occurs on or before December 31, 2007, the Company will continue,
for a period of two (2) years from the date of termination, to provide you
with
benefits under (as the case may be) the Company’s life insurance arrangements
and disability arrangements provided to Executive Officers of the Company.
If
such termination occurs after December 31, 2007, the Company will continue,
for
a period of one (1) year from the date of termination, to provide you with
benefits under (as the case may be) the Company’s life insurance arrangements
and disability arrangements provided to Executive Officers of the Company.
To
the extent that the Company is unable to provide such benefits to you under
its
existing plans, including any conversion rights provided under such plans,
the
Company will pay you cash amounts equal to the cost the Company would have
incurred to provide those benefits to you had you continued to be employed
by
the Company.
(iv) Notwithstanding
the terms of any awards of stock options or restricted stock, all options to
purchase Company stock held by you will automatically and immediately vest
and
become exercisable upon such termination and remain exercisable for a period
of
one (1) year following the date of termination (except that incentive stock
options shall be exercisable for only three (3) months thereafter), and all
restricted stock held by you pursuant to any restricted stock plans or
arrangements of the Company shall automatically and immediately vest and no
longer be subject to forfeiture. The Company agrees that it will not exercise
any right that the Company has to purchase, repurchase or reacquire all or
any
part of such vested stock.
(v) Payments
under this Agreement shall be made without regard to whether the deductibility
of such payments (or any other payments to or for the benefit of Executive)
would be limited or precluded by Internal Revenue Code Section 280G and without
regard to whether such payments (or any other payments) would subject Executive
to the federal excise tax levied on certain "excess parachute payments" under
Internal Revenue Code Section 4999; provided, that if the total of all
payments to or for the benefit of Executive, after reduction for all federal
taxes (including the tax described in Internal Revenue Code Section 4999, if
applicable) with respect to such payments ("Executive's total after-tax
payments"), would be increased by the limitation or elimination of any payment
under this Agreement, amounts payable under this Agreement (whether in
the form or cash, stock or otherwise) shall be reduced to the extent, and only
to the extent, necessary to maximize Executive's total after-tax payments.
The
determination as to whether and to what extent payments under this
Agreement are required to be reduced in accordance with the preceding sentence
shall be made at the Company's expense by such accounting, legal or consulting
firm as the Company and the Executive may agree. In the event payments
under this Agreement are required to be limited or eliminated pursuant to this
Section 8(c)(v),
the
Executive, in his or her sole discretion, shall determine which payments (e.g.,
cash payments or stock payments) shall be limited or eliminated. In the event
of
any underpayment or overpayment under this Agreement, as determined under
this Section 8(c)(v), the amount of such underpayment or overpayment shall
forthwith be paid to Executive or refunded to the Company, as the case may
be.
(d) Definitions:
The
following terms shall have the meanings set forth below:
-5-
“Cause” shall
mean, in respect of the termination of your employment by the Company, a
termination for one of the following reasons only: (a) willful malfeasance
or
gross negligence in your performance of the duties of your position that has
a
material adverse effect on the Company, (b) the material breach by you while
you
are an employee of the Company of Sections 1, 2, 3, 5 and 7(2) of the
Employee Confidentiality, Proprietary Rights and Noncompetition Agreement,
dated
October 1, 2001, between pSivida Inc. and the Executive (the “ECPRNA”),
(c)
fraud or dishonesty by you with respect to the Company or your employment with
the Company, or (d) your conviction of any felony (including, in each case,
entry of a guilty or nolo
contendere plea
and
excluding traffic violations or similar minor offenses). The Company may treat
a
termination of your employment as termination for Cause only after (i) giving
you written notice of the intention to terminate for Cause, including a
description of the conduct that the Company believes constitutes the basis
for a
Cause termination, and of your right to a hearing by the Company’s Board of
Directors, (ii) in the event of a termination under clause (a), (b) or (c)
above, providing you with a 30-day period in which to cure the conduct giving
rise to the Company’s notice of a Cause termination, (iii) at least 30 days but
not more than 45 days after giving the notice, conducting a hearing by the
Board
at which you may be represented by counsel, and (iv) giving you written notice
of the results of the hearing and the factual basis for the Board’s
determination of Cause, which shall require a vote of a majority of the members
of the Board then in office other than yourself. For purposes of this definition
of Cause, no act or omission shall be considered to have been “willful” unless
it was not in good faith and Executive had knowledge at the time that the act
or
omission was not in the best interest of the Company. Except in connection
with
your opportunity, if any, to cure the conduct giving rise to the Company’s
notice of termination for Cause as set forth in clause (ii) above, nothing
in
the foregoing sentence shall prevent the Company from terminating your
employment pending any determination of Cause as set forth in the foregoing
sentence, any such determination shall be retroactive to the date of termination
and the Company shall not be obligated to compensate you hereunder for the
period from such termination until such time, if any, as the Company’s Board of
Directors determines that such termination was not for Cause. Notwithstanding
the foregoing, Cause shall not include an act or failure to act based on (w)
authority given pursuant to a resolution duly adopted by the Company’s Board of
Directors, (x) the advice of outside counsel of the Company, (y) any
incapacity resulting from Disability or (z) any actual or anticipated act
or failure to act for which notice is provided by the Company after you have
provide written notice of a termination for Good Cause.
“Company”
shall
mean pSivida Limited and any successor of pSivida Limited (including without
limitation a successor by merger, sale, consolidation, reorganization or other
business combination or by acquisition of assets or equity of pSivida Limited),
provided if any such successor has a parent, then Company shall mean the
ultimate parent corporation.
“Disability” shall
mean physical or mental incapacity of a nature which prevents you, in the
professional judgment of your physician or, at the Company’s election, a
board-certified physician mutually agreed upon by the Company and you, from
performing the essential functions of your position with the Company with or
without a reasonable accommodation for a period of one hundred and twenty
(120) consecutive days or one hundred eighty (180) days during any consecutive
12-month period.
“Executive
Officer”
shall
have the same meaning as the term “officer” under Rule 16a-1(f) of the
Securities Exchange Act of 1934.
-6-
“Fair
Market Value Per Share” shall
mean the average of the closing price of the Company’s common stock or ADRs, as
the case may be, on the Nasdaq National Market (or relevant exchange, if not
the
Nasdaq National Market) for each of the ten (10) trading days ending on the
trading day that is four (4) full trading days prior to the Payment Date.
Notwithstanding
the foregoing, in the event the Company elects under Section 8(c)(i)(B) to
grant
shares subject to any restrictions, then for purposes of determining Fair Market
Value per Share, the closing price of the Company’s common stock or ADRs, as the
case may be, on the Nasdaq National Market (or relevant exchange, if not the
Nasdaq National Market) for each of such ten (10) trading days shall be 90%
of
the actual closing price on the Nasdaq or such exchange.
“Good
Cause” shall
mean, in respect of the termination of your employment by you, a termination
for
one of the following reasons only: (i) failure by the Company to maintain you
in
the positions of (A) Vice President, Corporate Affairs of the Company,
(B) General Counsel of the Company and (C) Secretary of the Company,
without your consent, (ii) failure by the Company to maintain you as an
Executive Officer of the Company, (iii) a material diminution of your
duties and responsibilities in such positions or a material diminution of your
authority with respect to such positions, as described in
Section 2
hereof,
excluding for this purpose an isolated, insubstantial and inadvertent action
not
taken in bad faith and which is remedied by the Company promptly after receipt
of written notice thereof given by you, (iv) any change in your reporting
relationship, as described in Section 2 hereof, such that you no longer report
directly to the Principal Executive Officer; (v) a breach by the Company of
Section 4 or any other material term of this Agreement, or (vi) relocation
of your principal place of work to a location more than thirty (30) miles from
your address as set forth in Section 14 below, without your prior consent.
You
may treat a resignation from employment as termination for Good Cause only
after
(a) giving the Company written notice of the intention to terminate for Good
Cause, (b) providing the Company at least 15 days after receipt of such
notice to cure the conduct or action giving rise to Good Cause, and (c) if
applicable, the Company has failed to cure the action or conduct giving rise
to
Good Cause during the 15 day cure period.
“Maximum
Bonus” payable
in a year will be calculated assuming all bonus targets or formulas for
determining the bonus in such year had been met if Executive and Board had,
prior to the termination of Executive's employment, agreed on such targets
or
formulas. If no such targets or formulas have been set as of such termination
date, then the Maximum Bonus shall be deemed to be the greater of (x) 100
percent of his bonus for the completed year immediately preceding the year
in
which his employment is terminated, and (y) 100 percent of his bonus for
the immediately preceding employment year.
“Principal
Executive Officer”
shall
mean the Company’s highest ranking executive officer, whether such individual
holds the title of Chief Executive Officer, Managing Director, or Managing
Executive Director.
“$” shall
mean US$.
(e) Release:
Notwithstanding anything to the contrary contained in this Agreement, in order
for you to be eligible for any severance benefits under this Section 7, you
must execute and deliver to the Company (and not revoke within seven (7) days
of
executing) the release of claims in the attached as Exhibit
A
hereto.
-7-
9. Fees
and Expenses: In
the
event of Executive's termination of employment, the Company will pay any and
all
fees and expenses (including legal fees and other costs of arbitration or
litigation) that may be incurred by Executive in enforcing his rights under
this
Agreement.
10. No
Duty to Mitigate; No Offset:
Benefits
payable under this Agreement as a result of termination of Executive’s
employment will be considered severance pay in consideration of his past service
and his continued service, and his entitlement thereto will neither be governed
by any duty to mitigate his damages by seeking further employment nor offset
by
any compensation that he may receive from other employment following the date
of
termination. Notwithstanding the foregoing, you agree that the Company may
cease
its payment for, or provision of, one or more of the continued benefits under
Section 8(c)(ii) or 8(c)(iii) during the periods set forth therein
following the date of your termination from employment to the extent that you
obtain comparable benefit coverage with another employer. This provision shall
be applied in an ad
seriatim basis
so
that the Company may only cease payment of those comparable benefits that you
obtain with another employer. You agree to notify the Company as soon as
practicable in the event that you obtain comparable coverage or benefits during
the period noted above and you acknowledge that the Company’s obligation to
continue payment for, or provision of, benefits shall cease from and after
the
date you obtain comparable coverage.
11. Indemnification:
To the
extent permitted by law, the Company will defend, indemnify and hold Executive
harmless from and against any and all losses, liabilities, damages, expenses
(including attorneys' fees and costs), actions, causes of action or proceedings
arising directly or indirectly from Executive's performance of this Agreement
or
services as an employee and/or officer of the Company. Executive may retain
his
own counsel to defend himself in such actions, and the Company will pay for
the
reasonable costs and expense of such counsel. This indemnification is in
addition to any right of indemnification to which Executive may be entitled
under the Company's Articles of Incorporation and By-laws, any separate
indemnification agreements between the Company and Executive, and any insurance
policies that may be maintained by the Company.
12. Rights
of Survivors:
If
Executive dies after becoming entitled to benefits under this Agreement
following termination of employment but before all such benefits have been
provided, (a) all unpaid cash amounts will be paid to the beneficiary that
has
been designated by Executive in writing (the “beneficiary”), or if none, to
Executive's estate, (b) all applicable insurance coverage will be provided
to
Executive's family as though Executive had continued to live, and (c) any stock
options that become exercisable under Section 8 will be exercisable by the
beneficiary, or if none, the estate.
13. Successors:
This
Agreement will inure to and be binding upon the Company's successors. The
Company will require any successor to all or substantially all of the business
and/or assets of the Company by sale, merger or consolidation (where the Company
is not the surviving corporation), lease or otherwise, to assume this Agreement
expressly. This Agreement is not otherwise assignable by the Company or the
Executive.
-8-
14. Notices:
Any
notices required or permitted to be sent under this Agreement shall be effective
when delivered by hand or mailed by registered or certified mail, return receipt
requested, and addressed as follows:
If
to the
Company:
pSivida
Limited
Level
12,
BGC Centre
28
The
Esplanade, Perth
WA
6000
Australia
GPO
Box
2535
Perth,
WA
6831
Attn:
Chief Executive Officer, pSivida Limited
With
a
copy to:
Curtis,
Mallet-Prevost, Colt & Mosle LLP
101
Park
Avenue
New
York,
NY 10178
Attn:
Lawrence Goodman, Esq.
If
to
Executive:
Lori
Freedman
21
Swan
Road
Winchester,
MA 01890
Either
party may change its address for receiving notices by giving notice to the
other
party.
15. Waiver:
The
failure of either party to enforce any of the provisions of this Agreement
shall
not be deemed a waiver thereof. No provision of this Agreement shall be deemed
to have been waived or modified unless such waiver or modification shall be
in
writing and signed by both parties hereto.
16. Entire
Agreement; Termination:
This
Agreement shall constitute the entire agreement of the parties pertaining to
this subject matter and shall supersede all prior agreements, representations
and understandings of the parties with respect to such subject matter. Any
and
all employment, severance, compensation, or other agreements and arrangements
between the Executive and the Company or any subsidiary thereof, whether dating
from before or after December 30, 2005 (including, without limitation, the
Severance Agreement, dated February 20, 2004, between the executive and the
pSivida Inc., as amended, and the Amended and Restated Change of Control
Agreement, dated August 17, 2004, between the Executive and pSivida Inc.) are
hereby terminated and of no further force and effect, and no parties shall
have
any further rights, obligations or liabilities thereunder; provided,
however,
that,
except as otherwise set forth herein (i) the Retention Agreement, dated
September 29, 2005, between the Executive, pSivida Inc. and the Company, (ii)
the ECPRNA, (iii) the Deferred Vesting Agreement, and (iv) all Restricted Stock
Award Agreements and Option Agreements shall remain in full force and effect
in
accordance with their terms.
-9-
17. Partial
Invalidity:
If any
provision in this Agreement is held by a court of competent jurisdiction to
be
invalid, void or unenforceable, the remaining provisions nevertheless shall
continue in full force and effect without being impaired or invalidated in
any
manner.
18. Counterparts:
This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original but all of which together shall constitute one and the same
instrument.
19. Governing
Law: This
Agreement shall be governed by and construed in accordance with the laws of
the
Commonwealth of Massachusetts. The parties agree that any action to enforce
the
terms of this Agreement shall be commenced in, and subject to the exclusive
jurisdiction of, Suffolk County, Boston, Massachusetts.
20. Surviving
Provision:
This
Agreement shall terminate upon the termination of your employment with the
Company for any reason; provided,
however,
that
the provisions of Sections 7,
8,
9,
10,
11,
12,
13,
14,
15,
16,
17,
19
and
20
hereof
(and any other operative provisions of this Agreement which, by logical
extension, are necessary to interpret and enforce this Agreement so as to give
effect to the parties’ intent) shall survive the termination of your employment
for any reason and the termination of this Agreement.
IN
WITNESS WHEREOF,
the
parties hereto have duly executed this Agreement the day and year first above
written.
|
PSIVIDA
LIMITED
By:
/s/Gavin
Rezos
Name:
Gavin Rezos
Title:
Managing Director
|
EXECUTIVE
By:
/s/
Lori
Freedman
Name:
Lori Freedman
-10-
EXHIBIT
A
RELEASE
OF CLAIMS
FOR
AND
IN CONSIDERATION OF the benefits to be provided me in connection with the
termination of my employment, as set forth in the employment agreement between
me and pSivida Limited (the “Company”) dated as of __________ (the “Agreement”),
which benefits are subject to my signing of this Release of Claims and to which
I am not otherwise entitled, and for other good and valuable consideration,
the
receipt and sufficiency of which is hereby acknowledged, I, on my own behalf
and
on behalf of my heirs, executors, administrators, beneficiaries, representatives
and assigns, and all others connected with me, hereby release and forever
discharge the Company, its subsidiaries and other affiliates and all of their
respective past, present and future officers, directors, trustees, shareholders,
employees, agents, general and limited partners, members, managers, joint
venturers, representatives, successors and assigns, and all others connected
with any of them, both individually and in their official capacities, from
any
and all causes of action, rights and claims of any type or description, known
or
unknown, which I have had in the past, now have, or might now have, through
the
date of my signing of this Release of Claims, in any way resulting from, arising
out of or connected with my employment by the Company or any of its subsidiaries
or other affiliates or the termination of that employment or pursuant to any
federal, state or local law, regulation or other requirement (including without
limitation Title VII of the Civil Rights Act of 1964, the Age Discrimination
in
Employment Act, the Americans with Disabilities Act, and the fair employment
practices laws of the state or states in which I have been employed by the
Company or any of the subsidiaries or other affiliates, each as amended from
time to time).
Excluded
from the scope of this Release of Claims is (i) any claim arising under the
terms of the Agreement and (ii) any right of indemnification or contribution
that I have pursuant to the Certificate of Incorporation, Constitution, By-Laws
or other governing documents of the Company or any of its subsidiaries or other
affiliates.
In
signing this Release of Claims, I acknowledge my understanding that I may not
sign it prior to the termination of my employment, but that I may consider
the
terms of this Release of Claims for up to twenty-one (21) days (or such longer
period as the Company may specify) from the later of the date my employment
with
the Company terminates or the date I receive this Release of Claims. I also
acknowledge that I am advised by the Company and its affiliates to seek the
advice of an attorney prior to signing this Release of Claims; that I have
had
sufficient time to consider this Release of Claims and to consult with an
attorney, if I wished to do so, or to consult with any other person of my
choosing before signing; and that I am signing this Release of Claims
voluntarily and with a full understanding of its terms.
I
further
acknowledge that, in signing this Release of Claims, I have not relied on any
promises or representations, express or implied, that are not set forth
expressly in the Agreement. I understand that I may revoke this Release of
Claims at any time within seven (7) days of the date of my signing by written
notice to the General Counsel of the Company and that this Release of Claims
will take effect only upon the expiration of such seven-day revocation period
and only if I have not timely revoked it.
-11-
Intending
to be legally bound, I have signed this Release of Claims under seal as of
the
date written below.
Signature:
_____________________________________________
Name
(please print): ______________________________________
Date
Signed: ___________________________________________
-12-