SECURITIES
AND EXCHANGE COMMISSION
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 October 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
Australia
(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 x 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
x
If
"Yes"
is marked, indicate below the file number assigned to the registrant in
connection with Rule 12g3-2(b): 82- ___.
The
document attached as Exhibit 99.1 to this Report on Form 6-K is hereby
incorporated by reference herein and into the following registration statements:
(i) the Registrant's Registration Statement on Form F-3, Registration
No. 333-132776; (ii) the Registrant's Registration Statement on
Form F-3, Registration No. 333-132777; and (iii) the Registrant's
Registration Statement on Form F-3, Registration
No. 333-135428.
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:
October
18, 2006
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PSIVIDA
LIMITED
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| By: | /s/Michael Soja | |
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Michael Soja |
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Vice
President, Finance and Chief Financial
Officer
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EXHIBIT
INDEX
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EXHIBIT
99.1:
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Letter
Agreement, dated as of October 17, 2006, between pSivida Limited
and
Castlerigg Master Investments,
Ltd.
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Castlerigg
Master Investments Ltd.
c/o
Sandell Asset Management
40
West 57th St, 26th Floor
New
York, New York 10019
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October
17, 2006
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pSivida
Limited
Level
12,
BGC Centre
28
The
Esplanade, Perth
WA
6000
Australia
| Re: |
Investment
in pSivida Limited (the
“Company”)
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Ladies
and Gentlemen:
Reference
is hereby made to (i) the Amended and Restated Subordinated Convertible Note
(the “Note”),
dated
November 16, 2005 issued by the Company in favor of Castlerigg Master
Investments Ltd. (the “Investor”),
(ii)
the Amended and Restated Registration Rights Agreement (the “Agreement”),
dated
September 14, 2006, by and between the Company and the Investor and (iii) the
Registration Statement on Form F-3 (SEC File No. 333-132777) (the “Registration
Statement”
and
the
prospectus therein, the “Prospectus”)
registering 12,737,139 American Depositary Shares (“ADSs”)
issuable to the Investor (x) upon conversion of the Note, (y) as
interest on the Note and (z) upon exercise of the Existing Warrants and
declared effective by the Securities and Exchange Commission (the “SEC”)
on
September 29, 2006 at 4:00 p.m. EDT (the “Effectiveness
Date”).
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to such terms in the Agreement or the Note, as
appropriate.
Notwithstanding
the provisions of the Note, the Agreement or any other agreement between the
parties hereto to the contrary, and for good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Registration
Waivers.
(a) The
Company and the Investor hereby agree that from the date hereof until the
earlier to occur of (i) the date the Company has filed with the SEC its 2006
audited, U.S. GAAP-reconciled financial statements and (ii) December 14, 2006
(such date, the “Financial
Date”),
an
Allowable Grace Period shall be deemed to have occurred and be continuing (such
period, the “Financial
Period”);
provided,
however,
that
notwithstanding Section 3(r) of the Agreement, such Allowable Grace Period
may exceed 15 consecutive days, and the number of days in such Allowable Grace
Period shall not be taken into account in determining, for purposes of Section
3(r) of the Agreement, whether during any 365 day period Grace Periods have
exceeded an aggregate of 45 days. In the event that, on the first Trading Day
immediately following the Financial Period, the Prospectus in the Registration
Statement is not available to be used to make sales of Initial Registrable
Securities (as defined in the Registration Rights Agreement) for any reason,
including, without limitation, any Maintenance Failure that has occurred or
is
continuing, an Event of Default under the Note shall be deemed to have occurred
with respect to such Maintenance Failure (without regard to any cure periods
in
the Note otherwise applicable thereto).
(b) With
respect to the Registration Statement, the Company’s obligations set forth in
the Agreement relating to (i) delivery of prospectus copies in Sections
3(c)(iii) and 3(d)(ii), (ii) delivery of notice in Section 3(f)(i) and
(iii) delivery of the confirmation that such Registration Statement has
been declared effective to the Company’s transfer agent in Section 3(q) shall,
in each case, be deemed to be met if performed on or prior to the Financial
Date
in lieu of the Effectiveness Date.
(c) Section
1(e) of the Agreement is hereby amended by deleting such provision in its
entirety and replacing it with the following:
“Additional
Filing Deadline”
means
the later of (i) the date 30 days from the Effective Date of the
Initial Registration Statement and (ii) the earlier to occur of (x) the
date the Company has filed with the SEC its 2006 audited, U.S. GAAP-reconciled
financial statements and (y) December 14, 2006.
2. Net
Cash Balance.
(a) Effective
from the date hereof until and including March 30, 2007, Section 15(e) of the
Note is hereby amended to replace the words “30% of the aggregate remaining
unamortized or un-converted Principal amount of Notes then outstanding” with the
words “One Million Five Hundred Thousand U.S. Dollars (US$1,500,000)”. From and
after March 31, 2007, such amendment shall no longer be effective.
(b) On
March
31, 2007, the Company shall (i) provide to the Investor a certification as
to whether the Net Cash Balance Test has been satisfied as of such date and
(ii) to the extent such certification contains material non-public
information, publicly disclose (on a Current Report on Form 6-K or otherwise)
such material non-public information. The Investor hereby waives the requirement
that such a certification be delivered on September 30, 2006.
3. Payments.
(a) The
Company shall make a one-time payment to the Investor on or prior 12:00 p.m.
EST
on December 28, 2006 of Eight Hundred Thousand U.S. Dollars (US$800,000). In
addition to such obligation, in the event that the Company fails to make such
payment on or prior to such date, the Company shall pay the Investor Five
Thousand U.S. Dollars (US$5,000) for each day after December 28, 2006
until such payment is made. The Company shall on each of January 31, 2007,
February 28, 2007 and March 30, 2007 pay to the Investor One Hundred Fifty
Thousand U.S. Dollars (US$150,000). The
payments in this Section 3(a) are being paid as consideration for the Investor
entering into this letter agreement and in lieu of any Registration Delay
Payments which have not yet been made and would otherwise be incurred by the
Company or due to the Investor, but for this Amendment, prior to or during
the
Financial Period; provided,
however,
that
such payments shall not constitute an amendment, modification or waiver of
any
Registration Delay Payments or other obligations of the Company incurred after
the Financial Period.
-2-
(b) The
Company shall reimburse the Investor for (i) its legal fees and expenses of
$15,000 incurred in connection with the negotiation of this letter agreement
and
matters relating thereto, and (ii) its legal fees and expenses of $10,000
incurred in connection with the review and negotiation of the Registration
Statement in accordance with Section 5 of the Registration Rights Agreement,
by
paying such amounts to Schulte Roth & Zabel LLP as set forth in such firm’s
written invoice therefore (collectively, the “Investor
Counsel Expense”).
Except as otherwise set forth in this letter agreement, each party shall pay
the
fees and expenses of its advisers, counsel, accountants and other experts,
if
any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this letter
agreement.
(c) All
payments hereunder shall be made in U.S. dollars and by wire transfer of
immediately available funds (x) with respect to any payment to the Investor,
in
accordance with the Investor’s written wire instructions provided to the Company
prior to the date of such payment and (y) with respect to the payment of the
Investor Counsel Expense, in accordance with the written wire instructions
provided to the Company by Schulte Roth & Zabel, LLP prior to the date
hereof.
4. Disclosure.
No
later than the next Business Day following the date hereof, the Company shall
furnish to the SEC a Current Report on Form 6-K attaching this letter agreement
as an exhibit to such submission (the “Letter
6-K Filing”).
5. Representations.
(a) As
of the
time of the submission of the Letter 6-K Filing with the SEC, the Investor
shall
not be in possession of any material, nonpublic information received from the
Company, any of its Subsidiaries or any of its respective officers, directors,
employees or agents, that is not disclosed in the Letter 6-K Filing or in some
other public filing or public disclosure.
(b) After
giving effect to this letter agreement, neither the Company nor the Investor
is
aware of any defaults or Events of Default as of the date hereof.
(c) The
Investor represents and warrants to the Company that: (i) it is the sole
holder of the Note; (ii) that it has not transferred beneficial ownership
thereof; and (iii) this agreement shall constitute written consent of the
Required Investors pursuant to Section 17 of the Note.
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6. Effective
Date.
Upon
the execution of this letter agreement by the Company and the Investor and
the
wire of the Investor Counsel Expense to Schulte Roth & Zabel, LLP, this
letter agreement shall be deemed effective.
7. Effect
of Letter Agreement.
Except
as expressly amended, waived or modified hereby, the Note, the Agreement and
the
other Transaction Documents (in each case, as amended prior to the date hereof),
and all terms contained therein, shall remain in full force and
effect.
8. Miscellaneous.
(a) Counterparts.
This
letter agreement may be executed in two or more identical counterparts, all
of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other
party; provided
that a
facsimile signature shall be considered due execution and shall be binding
upon
the signatory thereto with the same force and effect as if the signature were
an
original, not a facsimile signature.
(b) Headings.
The
headings of this letter agreement are for convenience of reference and shall
not
form part of, or affect the interpretation of, this letter
agreement.
(c) Severability.
If any
provision of this letter agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this letter agreement in that jurisdiction
or the validity or enforceability of any provision of this letter agreement
in
any other jurisdiction.
(d) Governing
Law; Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this letter agreement shall be governed by the internal laws of the State
of
New York, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of New York or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than
the
State of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in The City of New York,
Borough of Manhattan, for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding
is
improper. Each party hereby irrevocably waives personal service of process
and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it
under
this letter agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein
shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. If any provision of this letter agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
not
affect the validity or enforceability of the remainder of this letter agreement
in that jurisdiction or the validity or enforceability of any provision of
this
letter agreement in any other jurisdiction. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS LETTER AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
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(e) No
Third Party Beneficiaries.
This
letter agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of,
nor
may any provision hereof be enforced by, any other Person.
(f) Further
Assurances.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
letter agreement and the consummation of the transactions contemplated
hereby.
(g) No
Strict Construction.
The
language used in this letter agreement will be deemed to be the language chosen
by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
(h) Entire
Agreement; Effect on Prior Agreements; Amendments.
Except
for the Transaction Documents (to the extent any such Transaction Document
is
not amended by this letter agreement), this letter agreement supersedes all
other prior oral or written agreements between the Investor, the Company, their
affiliates and Persons acting on their behalf with respect to the matters
discussed herein, and this letter agreement and the instruments referenced
herein contain the entire understanding of the parties with respect to the
matters covered herein and therein, and, neither the Company nor the Investor
makes any representation, warranty, covenant or undertaking with respect to
such
matters other than those set forth or referred to herein and therein. No
provision of this letter agreement may be amended other than by an instrument
in
writing signed by the Company and the Investor. No provision hereof may be
waived other than by an instrument in writing signed by the party against whom
enforcement is sought. No consideration shall be offered or paid to any Person
to amend or consent to a waiver or modification of any provision of any of
the
Transaction Documents unless the same consideration also is offered to all
of
the parties to the Transaction Documents, holders of Amended and Restated Notes
or holders of the New Warrants, as the case may be.
-5-
(i) Notices.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this letter agreement must be in writing and given
in
accordance with Section 9(f) of the Securities Purchase Agreement; provided,
however,
that
the addresses and facsimile numbers for such communications and any other
communications governed by such Section shall be as follows if to the Company
(and the entity named below shall be the Company’s replacement agent for service
in the United States pursuant to such Section):
pSivida
Limited
c/o
pSivida Inc.
400
Pleasant Street
Watertown,
Massachusetts 02472
Facsimile:
(617)
812-2400
Attention:
Lori
Freedman, Esq., General Counsel
with
a
copy (for informational purposes only) to:
Curtis,
Mallet-Prevost, Colt & Mosle LLP
101
Park
Avenue
New
York,
New York 10178
Facsimile:
212-697-1559
Attention:
Lawrence
Goodman, Esq.
(j) Successors
and Assigns.
This
letter agreement shall be binding upon and inure to the benefit of the parties
and their respective successors and assigns in accordance with the terms of
Section 9(g) of the Securities Purchase Agreement.
(k) Remedies.
The
Investor and each holder of the Securities shall have all rights and remedies
accorded to any such Person in the Transaction Documents and all rights and
remedies which such holders have been granted at any time under any other
agreement or contract and all of the rights which such holders have under any
law. Any Person having any rights under any provision of this letter agreement
shall be entitled to enforce such rights specifically (without posting a bond
or
other security), to recover damages by reason of any breach of any provision
of
this letter agreement and to exercise all other rights granted by law.
Furthermore, the Company recognizes that in the event that it fails to perform,
observe, or discharge any or all of its obligations under this letter agreement,
any remedy at law may prove to be inadequate relief to the Investor. The Company
therefore agrees that the Investor shall be entitled to seek temporary and
permanent injunctive relief in any such case without the necessity of proving
actual damages and without posting a bond or other security.
[The
remainder of the page is intentionally left blank.]
-6-
Please
indicate your agreement to the foregoing by signing a copy of this letter
agreement where indicated below and returning it to us.
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Very
truly yours,
CASTLERIGG
MASTER INVESTMENTS LTD.
BY:
SANDELL ASSET MANAGEMENT CORP.
By:
/s/ Patrick T.
Burke
Name:
Patrick T. Burke
Title:
Senior Managing Director
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Agreed
and Acknowledged:
PSIVIDA
LIMITED
By:
/s/Michael
Soja
Name:
Michael J. Soja
Title:
Vice President, Finance and Chief Financial Officer