23 Nov

Pre-Quotation Disclosure Statement

EBR Systems, Inc. (ASX:EBR) • (ARBN 654 147 127) C/- Case Governance Pty Ltd • Level 13 • 41 Exhibition Street • Melbourne • Victoria 3000 US Tel: 408.720.1906 US Fax: 408.720.1996 23 November 2021 Pre-Quotation Disclosure The following information is provided to ASX Limited ( ASX ) for release to the market in connection with the official quotation, on a deferred settlement basis, of CHESS Depositary Interests ( CDIs ) representing shares of common stock ( Shares ) of EBR Systems, Inc. ( Company ) (ASX:EBR). Each CDI is equivalent to one Share. Capitalised terms not defined in this document have the meaning given to them in the replacement prospectus lodged with the Australian Securities and Investments Commission on 28 October 2021 ( Prospectus ). The Offer closed on 9 November 2021 and 100,064,351 CDIs were issued on 19 November 2021 under the Offer at an issue price of A$1.08 per CDI. In addition, 1,787,500 CDIs were also issued under the U.S. Private Placement. A total of A$110.0 million has been raised under the Offer and the U.S. Private Placement (before offer costs). 1 Capital Structure The Company confirms that in addition to the 101,851,851 CDIs issued under the Offer and the U.S. Private Placement: • 976,340 options were issued on 22 November (US time) to directors (of which 776,140 were issued under the Company’s equity incentive plan); • all principal and accrued interest on the Convertible Notes converted to 21,692,195 CDIs on 19 November 2021 with 21,133,480 CDIs issued referable to principal and 558,715 CDIs issued referable to accrued interest; and • each share of preferred stock of the Company converted into one Share and all preferred stock warrant converted into common stock warrants. Accordingly, as at 23 November 2021 (following completion of the Offer, the U.S. Private Placement, the conversion of the Convertible Notes, the conversion of the Company’s preferred shares and stock warrants and completion of the restructuring), the capitalisation of the Company is as follows: CDIs / Shares 267,925,340 Options 30,768,618 Warrants 19,811,028 1 1 Including 3,032,515 warrants issued by EBR Systems (Aust) Pty Ltd. Doc ID: 80828287.3 2 2 ASX Restrictions The following table shows the number of securities subject to ASX restrictions and the applicable restriction periods. Some of the securities listed in the following table are also subject to the voluntary escrow described below. Last day of ASX restriction Number of restricted CDIs Number of restricted Options Number of restricted Warrants 11 February 2022 - - 1,706,595 24 June 2022 4,591,477 - 3,063,365 3 October 2022 - - 3,063,365 18 November 2022 550,181 - - 23 November 2023 5,785,188 11,546,742 1,104,030 Total 10,926,846 11,546,742 8,937,355 3 Voluntary Escrow The following table shows the number of securities subject to voluntary escrow and the applicable escrow periods. Some of the securities listed in the following table are also subject to the ASX restrictions described above. Last day of voluntary escrow Number of escrowed CDIs Number of escrowed Options Number of escrowed Warrants 23 November 2022 45,537,901 - - 23 November 2023 114,221,926 21,997,408 18,486,748 Total 159,759,827 21,997,408 18,486,748 4 Listing Rule Waivers 4.1 Listing Rule 1.1 Condition 12 ASX has granted the Company a waiver from Listing Rule 1.1 Condition 12 to the extent necessary to permit the Company to have issue up to 28,585,671 options held by employees, directors and consultants and 441,500 warrants held by Silicon Valley Bank with an exercise price of less than A$0.20 on condition that the material terms and conditions of the options and warrants are clearly disclosed in the Prospectus. 4.2 Listing Rules 6.16, 6.19, 6.21 and 6.22 ASX has granted the Company a waiver from Listing Rules 6.16, 6.19, 6.21 and 6.22 to the extent necessary to permit the Company to have 28,585,671 options, with varying exercise prices and expiry dates, issued to employees, directors and consultants under the Company’s 2013 Equity Incentive Plan ( 2013 Plan ) and 19,811,028 unquoted warrants (including 3,032,515 warrants issued by a subsidiary but which, on exercise, immediately exchange for shares of common stock in the Company) issued to investors under the Company’s various fundraising and financing facilities ( Warrants ) that do not specifically comply with Listing Rules 6.16, 6.19, 6.21 and 6.22 on the following conditions: 1. The full terms of 2013 Plan and the full terms of the various Warrants are released to the market as pre-quotation disclosure. 2. The Company undertakes to obtain ASX approval for the implementation of any future option plan. Doc ID: 80828287.3 3 3. The Company undertakes not to issue any further options or Warrants that do not comply with Chapter 6 of the Listing Rules. 4.3 Listing Rule 10.14 ASX has granted the Company a waiver from Listing Rule 10.14 to the extent necessary to permit the Company to issue a total of 776,140 options ( Options ) under the Company’s 2021 equity incentive plan ( 2021 Plan ) to its directors, Allan Will, John McCutcheon, Bronwyn Evans, David Steinhaus and Karen Drexler (together, the Directors ), without shareholder approval, on the following conditions: 1. The prospectus contains the information required by Listing Rule 10.15 in respect of the proposed issue of Options. 2. In each case, the date by which the Company will issue the Options under the 2021 Plan must be no later than 3 years from the date of the Company’s admission to the official list of ASX. 3. Details of any Options issued to the Directors under the 2021 Plan will be published in the annual report of the Company relating to the period in which they were issued. 4.4 Listing Rule 10.18 ASX has granted the Company a waiver from Listing Rule 10.18 to the extent necessary to permit the Company upon a change of control to pay termination benefits to existing Company employees pursuant to the terms of the existing contracts with the Company’s employees. 4.5 Listing Rule 14.2.1 ASX has granted the Company a waiver from Listing Rule 14.2.1 to the extent necessary to permit the Company not to provide in its proxy form an option for holders of CDIs to vote against a resolution to elect or re-elect a director, on the following conditions: 1. The Company releases details of the waiver to the market as part of the pre-quotation disclosure, and the terms of this waiver are set out in the meeting documents provided to all holders of CDIs. 2. The Company complies with the relevant U.S. laws, its Bylaws and any applicable Securities Exchange Commission rules as to the content of proxy forms applicable to resolutions for the election of directors. 3. The Company provides disclosures acceptable to ASX in the CDI Voting Instruction Form provided to the Company's CDI holders as required by ASX Settlement Operating Rule 13.8.9, to make it clear that CDI holders are only able to vote for the resolution or abstain from voting to re- elect the directors or ratify the appointment of an auditor and provides disclosures of the reasons why this is the case in the notice of meeting for the relevant stockholder meeting. 4. Without limiting the ASX's right to vary or revoke its decision under Listing Rule 18.3, the waiver from Listing Rule 14.2.1 only applies for so long as the relevant US laws prevent the Company from allowing stockholders to vote against a resolution to elect a director where plurality voting is implemented or ratify the appointment of an auditor. Doc ID: 80828287.3 4 4.6 Listing Rule 14.4 ASX has granted the Company a waiver from Listing Rule 14.4 to the extent necessary to permit the Company to permit a director appointed by the Board to fill a casual vacancy or as an additional director to hold office beyond the next annual meeting after that person’s appointment if the term of office of the class of director into which that person has been appointed expires at a later annual general meeting, in accordance with the Company’s constituent documents. For more information, please contact: Frank Hettmann CFO EBR Systems, Inc. E: Frank.Hettmann@ebrsystemsinc.com Foreign Ownership Restrictions The Offer was made available to non-U.S. investors in reliance on the exemption from registration contained in Regulation S (relating to offshore offerings) of the U.S. Securities Act of 1933 ( U.S. Securities Act ) and a no action letter issued by the staff of the SEC. Accordingly, the Company’s CHESS Depositary Interests ( CDIs ) issued under the Offer have not been, and will not be, registered under the U.S. Securities Act or the laws of any state or other jurisdiction in the U.S. As a result of relying on the Regulation S exemption, the CDIs issued under the offer will be ‘restricted securities’ under Rule 144 of the U.S. Securities Act. This means that you will not be permitted to sell the CDIs issued to you under the Offer into the U.S. or to a U.S. Person for a period of at least 12 months from the Allotment Date, unless the resale of the CDIs is registered under the U.S. Securities Act or an exemption from registration is available. Accordingly, the market for CDIs is likely to be limited to the ASX and purchasers of CDIs will be unable to sell the CDIs into the U.S. or to U.S. Persons due to the restrictions on the transfer of CDIs unless an exemption from registration is available. The Company has requested that all CDIs issued under the Offer bear a designation on the ASX to enforce these restrictions. This designation is intended to automatically prevent any CDIs from being sold on the ASX to U.S. Persons. However, you will still be able to freely transfer your CDIs on the ASX to any person other than a U.S. Person, or pursuant to an exemption from registration. If you sell CDIs or underlying Shares pursuant to an exemption from registration, you would need to establish the availability of such an exemption at your expense. The Company cannot provide any assurances as to when this designation will be lifted from the CDIs. Forward-Looking Statements This announcement contains or may contain forward-looking statements that are based on management’s beliefs, assumptions and expectations and on information currently available to management. All statements that address operating performance, events or developments that we expect or anticipate will occur in the future are forward-looking statements. These include, without limitation, regulatory clearances and sales of our product as well as the Company’s expectations with respect to its ability to develop and commercialise new products. Management believes that these forward-looking statements are reasonable when made. You should not place undue reliance on forward-looking statements because they speak only as of the date when made. The Company does not assume any obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. The Company may not actually achieve the plans, projections or expectations disclosed in forward- looking statements. Actual results, developments or events could differ materially from those disclosed in the forward- looking statements.
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