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 2007
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
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- ___.
The
documents attached as Exhibit 99.1 and Exhibit 99.2 to this Report on Form
6-K
are 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; (iii) the Registrant's
Registration Statement on Form F-3, Registration No. 333-135428; (iv)
the Registrant's Registration Statement on Form F-3, Registration
No. 333-141083; and (v) the Registrant's Registration Statement on
Form F-3, Registration No. 333-141091.
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
18, 2007
PSIVIDA
LIMITED
By:
/s/Michael
J.
Soja
Michael
J. Soja
Vice
President, Finance and Chief Financial Officer
EXHIBIT
INDEX
|
EXHIBIT
99.1:
|
Notice
of General Meeting Cover Letter
|
|
EXHIBIT
99.2:
|
Notice
of General Meeting, Explanatory Memorandum and Proxy
Form
|
17
May
2007
Dear
Shareholder
It
is
with pleasure that I enclose our Notice of General Meeting (NoM) and Proxy
Form.
The General Meeting will be held in Perth, Australia at 9:00 am WST on Tuesday,
19 June 2007.
The
Board
believes the Company has made substantial progress this calendar year by
achieving significant milestones that include:
| · |
Exclusive
worldwide licensing agreement with Pfizer Inc. for ophthalmic applications
of our leading drug delivery system with development and sales related
milestone payments of up to A$194m
(US$155m) and equity investments of up to A$12.5
(US$10m)
|
| · |
Sale
of subsidiary AION Diagnostics for A$3.6m
(US$3.0m)
|
| · |
Enrolment
of over 500 patients in the approximately 900 patients Phase III clinical
study of MedidurTM
for the treatment of Diabetic Macular
Edema
|
| · |
Redemption
in full of the Sandell Asset Management (Castlerigg) convertible note
and
redemption notice issued to remaining convertible
note holders, after which the Company will have retired all of its
debt.
|
The
NoM
provides for the future financing of the Company and contains a resolution
being
put to shareholders for approval in order to provide the Company with the
maximum flexibility in this regard.
The
complete Board encourages you to approve the following resolutions:
| 1. |
Ratification
of Past Placement of Shares to Pfizer
|
| 2. |
Ratification
of Past Issues of Warrants to Sandell
|
| 3. |
Approval
of Possible Placements of ADSs and
Warrants
|
Your
Board believes that with shareholder ratification and approval of the above
resolutions, the Company can secure an additional investment by Pfizer and
other
institutional investors. This will permit the Company to make advances in our
technology and product development and should create even further licensing
opportunities.
In
the
coming months, I look forward to being able to advise you on the completion
of
additional milestones by the Company and on our progress toward increased
success. I urge you either to attend the General Meeting or to send your
completed proxy forms. I thank you for your continued support as a
shareholder.
Yours
sincerely
Dr.
David J Mazzo
Non-executive
Chairman
 |
pSivida
Limited
Level
12 BGC Centre, 28 The Esplanade, Perth
WA 6000 Australia
T
+61
8 9226 5099 F
+61
8 9226 5499
E
pSivida@pSivida.com W
www.pSivida.com
ABN
78 009 232 026
|
|
PSIVIDA
LIMITED
ABN
78 009 232 026
NOTICE
OF GENERAL MEETING,
EXPLANATORY
MEMORANDUM
AND
PROXY FORM
Date
of Meeting:
Tuesday,
19 June 2007
Time
of Meeting:
9:00
am
Place
of Meeting:
Level
2,
QV1 Building
250
St
George’s Terrace
Perth,
Western Australia
Australia
NOTICE
OF GENERAL MEETING
Notice
is
hereby given that a General Meeting of the shareholders of pSivida Limited
(pSivida
or
the
Company)
will be
held at Level
2, QV1 Building, 250 St George’s Terrace, Perth, Western
Australia
on
Tuesday,
19 June 2007
at
9:00am
(Western
Standard Time).
In
accordance with Regulation 7.11.37 of the Corporations Act 2001, the directors
have determined that, for the purpose of voting at the meeting, members are
those persons who are the registered holders of Shares at 9:00am (Western
Standard Time) on Sunday, 17 June 2007.
BUSINESS
|
1.
|
Resolution
1 - Ratification of Past Placement of Shares to
Pfizer
|
To
consider and, if thought fit, pass the following as an ordinary
resolution:
“That,
for the purposes of Listing Rule 7.4 of the Listing Rules of ASX Limited, and
for all other purposes, the Company ratifies the issue of a total of 22,483,748
fully paid ordinary shares in the Company at an issue price of A$0.2735 per
share to Pfizer Inc on 4 April 2007.”
|
2.
|
Resolution
2 - Ratification of Past Issues of Warrants to
Sandell
|
To
consider and, if thought fit, pass the following as an ordinary
resolution:
“That,
for the purposes of Listing Rule 7.4 of the Listing Rules of ASX Limited, and
for all other purposes, the Company approves the issue to Sandell Master
Investments Ltd, on 15 May 2007, of:
| (a) |
warrants
over 4,000,000 American Depositary Shares expiring on 15 May 2012 at
an
exercise price of US$1.57 each;
|
| (b) |
warrants
over 1,000,000 American Depositary Shares expiring on 15 May 2012 at
an
exercise price of US$1.95 each; and
|
| (c) |
warrants
over 2,341,347 American Depositary Shares expiring on 15 May 2012 at
an
exercise price of US$1.21 each.”
|
|
3.
|
Resolution
3 - Approval of Possible Placements of ADSs and
Warrants
|
To
consider and, if thought fit, pass the following as an ordinary
resolution:
“That,
for the purposes of Listing Rule 7.1 of the Listing Rules of ASX Limited, and
for all other purposes, the Company approves the issue, within 3 months after
the date of this meeting (or a longer period as may be approved by ASX), at
the
sole discretion of the Directors of the Company:
| (a) |
the
issue of up to an aggregate of 15,000,000 American Depositary Shares
in
the Company, at an issue price being no lower than a 20% discount to
the 5
day volume weighted average market price on NASDAQ of the Company's
American Depositary Shares prior to their allotment;
and
|
| (b) |
the
issue to the subscribers for such American Depositary Shares of up
to an
aggregate of 7,500,000 unquoted warrants over American Depositary Shares
in the Company expiring 5 years from the date of issue at an exercise
price of no lower than a 20% discount to the 5 day volume weighted
average
market price on NASDAQ of the Company's American Depositary Shares
prior
to their allotment.”
|
2
NOTICE
OF GENERAL MEETING
|
4.
|
Other
Business
|
To
consider any other business brought forward in accordance with the Company’s
constitution or the law.
By
order
of the Board
Aaron
Finlay
Company
Secretary
17
May
2007
3
NOTICE
OF GENERAL MEETING
Notes
The
accompanying Explanatory Memorandum forms part of this Notice of General Meeting
and should be read in conjunction with it. Terms defined in the Explanatory
Memorandum have the same meaning where used in this Notice of General
Meeting.
Voting
exclusion statements
The
Company will disregard any votes cast on the resolutions by the following
persons:
|
Resolutions
|
Persons
|
|
1 Ratification
of Past Placement of Shares to Pfizer
2 Ratification
of Past Issues of Warrants to Sandell
|
Any
person who participated in the issue and any associates of those
persons.
|
|
3 Approval
of Possible Placements of ADSs and Warrants
|
Any
person who may participate in the proposed issue and any person who
may
obtain a benefit (except a benefit solely in the capacity of a holder
of
ordinary securities) and any associates of those
persons.
|
Unless:
| · |
the
vote is cast as a proxy for a person who is entitled to vote, in
accordance with the directions on the proxy form specifying how the
proxy
is to vote; or
|
| · |
the
vote is cast by the Chairman as proxy for a person who is entitled
to
vote, in accordance with a direction on the proxy form to vote as the
proxy decides.
|
Use
of Technology
It
is
proposed that, the Chief Executive Officer, Dr Paul Ashton, will attend the
General Meeting in person with other directors in attendance using video
conference technology where possible.
4
NOTICE
OF GENERAL MEETING
| 1. |
Introduction
|
This
Explanatory Memorandum forms part of the Notice of General Meeting of pSivida
Limited and has been prepared to provide the shareholders of pSivida Limited
(pSivida
or
the
Company)
with
information in connection with the General Meeting of the Company to be held
at
Level 2, QV1 Building, 250 St George’s Terrace, Perth, Western Australia at
9:00am (Western Standard Time) on 19 June 2007.
The
purpose of this Explanatory Memorandum is to provide shareholders with
information that the board of directors of the Company (Board)
believes to be material to shareholders in deciding whether or not to approve
the resolutions. At the General Meeting shareholders will be asked to consider
resolutions approving:
| 1. |
Ratification
of past placement of Shares to Pfizer;
|
| 2. |
Ratification
of past issues of Warrants to Sandell;
and
|
| 3. |
Approval
of possible placements of ADSs and
Warrants.
|
The
proposed capital raisings referred to at item 3 above (see Resolution 3
discussed below) may not occur. They have been put to shareholders for advance
approval in order to maximise the Company's ability to progress any capital
raising(s) considered by the Board to be in the Company's best interests. If
this resolution is passed at the General Meeting, the Company should be able
to
complete capital raisings up to the amount specified in Resolution 3 without
reducing the number of securities which the Company can issue in future under
the 15% annual limit imposed by Listing Rule 7.1 and without further need to
revert to shareholders for approval with the expense of convening further
general meetings.
Each
of
the resolutions is an ordinary resolution requiring it to be passed by a simple
majority of votes cast by shareholders entitled to vote on the resolution.
Further information regarding each of these resolutions is set out
below.
This
Explanatory Memorandum is an important document, and should be read in its
entirety by all shareholders.
| 2. |
Resolution
1 - Ratification of Past Placement of Shares to
Pfizer
|
On
4
April 2007, the Company advised ASX that it had signed an exclusive worldwide
Collaborative Research and License Agreement (License
Agreement)
with
Pfizer Inc (Pfizer)
for
pSivida’s controlled drug delivery technologies, including the Medidur™
technology, in ophthalmic applications.
On
entering into the License Agreement on 3 April 2007, the Company issued to
Pfizer a total of 22,483,748 Shares (Placement Shares)
at an
issue price of A$0.2735 per Share to raise US$5 million (A$6.1 million) before
transaction costs (the Placement).
From
their date of issue on 4 April 2007, the Placement Shares ranked equally in
all
respects with the Company’s then existing Ordinary Shares.
Resolution
1 seeks shareholder approval under Listing Rule 7.4 to ratify the Placement.
The
effect of such ratification will be that the Placement Shares will not be
counted as reducing the number of securities which the Company can issue in
the
future without shareholder approval under the 15% limit imposed by Listing
Rule
7.1 (ie the 15% limit is “renewed” to the extent of the
ratification).
The
purpose of the Placement was to raise funds to be used to redeem the outstanding
convertible note held by Sandell.
5
NOTICE
OF GENERAL MEETING
The
Directors of the Company believe resolution 1 is in the best interests of the
Company and its shareholders and unanimously recommend that shareholders vote
in
favour of it.
| 3. |
Resolution
2 - Ratification of Past Issues of
Warrants
|
On
16 May
2007, In accordance with its announcement to ASX on that date, the Company
redeemed in full the convertible note (Convertible
Note)
held by
Castlerigg Master Investments Ltd trading as Sandell Asset Management
(Sandell)
by
making a single repayment of US$13,750,000.
On
redemption of the Convertible Note, the Company also issued to Sandell the
Warrants which the Company previously agreed to issue under the Binding Letter
of Intent dated 2 April 2007 and announced to ASX on 4 April 2007 consisting
of:
|
(a)
|
4,000,000
Warrants (Series
D Warrants)
over ADSs expiring on 15 May 2012 with an exercise price of US$2.00.
The
issue of the Series D Warrants was previously announced to ASX on
2
January 2007 and was approved by shareholders at the general meeting
of
the Company held on 20 February 2007;
and
|
|
(b)
|
4,000,000
Warrants (Series
E Warrants)
over ADSs expiring on 15 May 2012 with an exercise price of US$1.57
per
ADS and 1,000,000 Warrants (Series
F Warrants)
over ADSs expiring on 15 May 2012 with an exercise price of US$1.95
per
ADS.
|
In
addition, on redemption of the Convertible Note, the Company issued to Sandell
2,341,347 Warrants (Series
G Warrants)
over
ADSs expiring on 15 May 2012 with an exercise price of US$1.21. The Series
G
Warrants were issued instead of the Series B Warrants approved by shareholders
at the General Meeting on 19 September 2006 as that shareholder approval is
no
longer effective for the purposes of Listing Rule 7.1.
No
funds
were raised by the issue of the Series E, Series F or Series G Warrants
(Sandell
Warrants),
but
funds will be raised if and when they are exercised. A summary of the terms
of
the Sandell Warrants is set out in the Appendix A to this Explanatory
Memorandum.
Resolution
2 seeks shareholder ratification under Listing Rule 7.4 of the issue of the
Sandell Warrants. The effect of such ratification will be that the Sandell
Warrants and any Shares issued upon their exercise, will not be counted as
reducing the number of securities which the Company can issue in the future
without shareholder approval under the 15% limit imposed by Listing
Rule 7.1 (ie the 15% limit is "renewed" to the extent of the
approval).
The
Directors believe that Resolution 2 is in the best interests of the Company
and
its shareholders and unanimously recommend that shareholders vote in favour
of
it.
| 4. |
Resolution
3 - Approval of Possible Placements of ADSs and
Warrants
|
Resolution
3 seeks approval to issue up to an aggregate of 15,000,000 ADSs (Future
Placement ADSs)
to
Pfizer and clients of international fund managers and broker dealers within
3
months of the date of the General Meeting, some of whom may be existing
investors in the Company.
The
issue
price for the Future Placement ADSs will be determined by the Board in its
discretion, but will be no lower than a 20% discount to the 5 day volume
weighted average market price prior to allotment. By way of example, if the
maximum aggregate number of 15,000,000 Future Placement ADSs were issued at
an
issue price of US$2.00 each, the placement would raise US$30.0 million before
costs and the Future Placement ADSs issued would represent approximately 20.92%
of the total undiluted capital of the Company as at the date of this Explanatory
Memorandum plus the 15,000,000 Future Placement ADSs (ie 716,939,630 Ordinary
Shares).
6
NOTICE
OF GENERAL MEETING
Any
Future Placement ADSs issued following this resolution may be accompanied by
the
issue of free attaching Warrants over ADSs (Future
Placement Warrants)
on a
ratio which will be determined by the Board in its discretion, but will not
exceed one Future Placement Warrant for every two Future Placement ADSs issued.
The Future Placement Warrants will be issued with an expiry date of up to 5
years from the date of their issue with an exercise price not less than a 20%
discount to the 5 day volume weighted average market price prior to allotment.
By way of example, in the event that the maximum aggregate number of Future
Placement ADSs is issued by the Company, the maximum aggregate number of Future
Placement Warrants that may be issued by the Company in accordance with this
resolution would be 7,500,000. If all those Future Placement Warrants were
to be
exercised at an exercise price of US$2.00 per ADS, the proceeds would be US$15.0
million representing approximately 9.47% of the Company's share capital (as
at
the date of this Explanatory Memorandum plus the 15,000,000 Future Placement
ADSs plus the 7,500,000 ADSs arising from the exercise of those Future Placement
Warrants). The key terms and conditions of these proposed Future Placement
Warrants are expected to be substantially the same as the applicable terms
which
are set out in the Appendix B to this Explanatory Memorandum.
At
the
General Meeting held on 20 February 2007, shareholders approved a similar
resolution to Resolution 3 for the placement of up to 15,000,000 ADSs and up
to
7,500,000 Warrants. This
approval required that the ADSs and free attaching Warrants be issued by 20
May
2007. As the Company did not place all of the 15,000,000 ADSs and 7,500,000
Warrants, the Company seeks a new shareholder approval so that it is able to
issue ADSs and Warrants once that date has passed.
The
Future Placement ADSs and Future Placement Warrants may be issued in one or
more
placements (Future
Placements)
within
3 months after the date of the General Meeting. Any Future Placement ADSs will
rank equally in all respects with all other ADSs then on issue. The Company
may
issue Shares instead of ADSs and options to acquire Shares instead of Warrants,
on terms no less favourable than the terms for Future Placement ADSs and Future
Placement Warrants described above.
As
announced to ASX on 4 April 2007, Pfizer has agreed to invest a further US$5
million in pSivida equity in addition to the US$5 million which it has already
invested, subject to certain conditions. A portion of the Future Placement
ADSs
or Shares underlying the Future Placement ADSs may be allocated to Pfizer in
respect of this further investment.
Funds
raised by the issue of any Future Placement ADSs will be used to further
progress research and development and to augment working capital
requirements.
Resolution
3 seeks shareholder approval under Listing Rule 7.1 for the issue of Future
Placement ADSs and any attaching Future Placement Warrants as described above.
The effect of such approval will be that any Future Placement ADSs, Future
Placement Warrants and any ADSs or Shares issued upon exercise of those Future
Placement Warrants, will not be counted as reducing the number of securities
which the Company can issue in the future without shareholder approval under
the
15% limit imposed by Listing Rule 7.1 (ie the 15% limit is "renewed" to the
extent of the approval).
The
Directors believe that Resolution 3 is in the best interests of the Company
and its shareholders and unanimously recommend that shareholders vote in favour
of it.
7
NOTICE
OF GENERAL MEETING
| 5. |
Undirected
Proxies
|
The
Chairman of the meeting intends to use any undirected proxies held by him to
vote at the meeting in favour of each of the resolutions referred to
above.
| 6. |
Definitions
|
ADS
means
American Depositary Share (each ADS represents 10 Shares).
ASX
means
the Australian Securities Exchange operated by ASX Limited.
Board
means
the board of directors of the Company.
Company
means
pSivida Limited, ABN 78 009 232 026.
Corporations
Act
means
the Corporations
Act 2001 (Cth).
Depositary
means
Citibank, N.A. a national banking association organised under the laws of the
United States of America.
Listing
Rules
means
the Listing Rules of ASX.
Ordinary
Shares or
Shares
means
fully paid ordinary shares in the Company.
Sandell
Warrants
means
the Series E, Series F and Series G Warrants.
Warrants
means
warrants to subscribe for Shares and/or ADSs.
8
APPENDIX
A
TERMS
OF THE SANDELL WARRANTS
| 1. |
The
Sandell Warrants are freely transferable (subject to restrictions imposed
by U.S. securities laws), but the Company does not intend to apply
for
quotation of these Warrants on ASX, NASDAQ or any other
exchange.
|
| 2. |
The
Shares to be issued on the exercise of a Sandell Warrant will be subject
to an agreement with the Company's Depositary in respect of restricted
ADSs and will rank equally in all respects with the Company's then
existing Shares issued under the same agreement or similar agreements.
The
Company must apply for quotation of the Ordinary Shares underlying
the
ADSs issuable on exercise.
|
| 3. |
The
Sandell Warrants constitute options to acquire ADSs at any time on
or
before the fifth anniversary of the issue of the
Warrants.
|
| 4. |
There
is a limit of 4.99% in respect of the holder of the Sandell Warrants
and
its affiliates’ beneficial ownership in Shares, which may prevent the
holder from exercise of part of the Sandell Warrant (this limit may
be
changed by the holder of the Sandell Warrants but cannot exceed
9.99%).
|
| 5. |
The
exercise price may be adjusted in accordance with a formula which is
substantially the same as the formula contained in Listing Rule 6.22.2,
if
there is a pro rata issue to holders of
Shares.
|
| 6. |
Subject
to the Listing Rules, other adjustments may be made upon a bonus issue
to
holders of Shares or the reorganisation of the capital of the
Company.
|
| 7. |
If
there is a fundamental transaction (such as a transaction which involves
a
change in control of the Company or a transfer of substantially all
of its
assets) the Company will use its best endeavours to procure that the
successor entity assumes all of the obligations of the Company under
the
Sandell Warrants.
|
9
APPENDIX
B
TERMS
OF THE FUTURE PLACEMENT WARRANTS
| 1. |
The
Future Placement Warrants are freely transferable (subject to restrictions
imposed by U.S. securities laws), but the Company does not intend to
apply
for quotation of these Warrants on ASX, NASDAQ or any other
exchange.
|
| 2. |
The
Future Placement Warrants will constitute options to acquire ADSs or
Shares at any time on or before the fifth anniversary of the issue
of the
Warrants.
|
| 3. |
All
Shares issued on exercise of Future Placement Warrants to acquire Shares
will rank equally in all respects with the Company's then existing
Shares.
Where the Future Placement Warrants constitute options to acquire ADSs,
the Shares to be issued on the exercise of the Future Placement Warrants
may be subject to an agreement with the Company's Depositary in respect
of
restricted ADSs and if so will rank equally in all respects with the
Company's then existing Shares issued under the same agreement or similar
agreements.
|
| 4. |
The
Company must apply for quotation of the Shares issuable on exercise
of the
Future Placement Warrants, including Shares underlying any ADSs which
may
be issuable.
|
| 5. |
The
exercise price may be adjusted in accordance with a formula which is
substantially the same as the formula contained in Listing Rule 6.22.2,
if
there is a pro rata issue to holders of
Shares.
|
| 6. |
Subject
to the Listing Rules, other adjustments may be made upon a bonus issue
to
holders of Shares or the reorganisation of the capital of the
Company.
|
10