AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT

Exhibit 10.33

AMENDMENT NO. 1

TO

SECURITIES PURCHASE AGREEMENT

THIS AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT (the “Amendment”), is made as of the 21st day of November, 2014, by and between InSite Vision Incorporated, a Delaware corporation (the “Company”) Riverbank Capital Securities, Inc., broker-dealer, as placement agent (the “Placement Agent”), and the undersigned Purchasers constituting the Majority Holders under the Agreement (as defined below). Capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to them in the Agreement.

RECITALS

WHEREAS, the Company, the Placement Agent and the Purchasers previously entered into that certain Securities Purchase Agreement, dated October 9, 2014 (the “Agreement”), pursuant to which the Purchasers committed to purchase 12% Senior Secured Notes of the Company (“Notes”) and receive warrants to purchase shares of common stock, par value $0.01 per share, of the Company;

WHEREAS, Section 8.2 of the Agreement provides in relevant part that any term of the Agreement may be amended in writing signed by the Purchasers that are holders of a majority of the aggregate outstanding principal amount of the Notes then issued pursuant to the Agreement, or, if no Notes have then been issued, then by Purchasers representing a majority of the aggregate Commitment Amounts (the “Majority Holders”), the Placement Agent, and the Company;

WHEREAS, Notes were sold and issued by the Company in an Initial Closing that occurred on October 9, 2014, and on a Second Closing that occurred on November 14, 2014;

WHEREAS, the undersigned Purchasers constituting the Majority Holders, the Placement Agent and the Company desire to amend the Agreement as set forth below.

AGREEMENT

NOW, THEREFORE, the parties agree as follows:

1. Amendment of Section 1.3. Section 1.3 of the Agreement is hereby amended to read in its entirety as follows:

“1.3 Tranches; Closings. The purchase and sale of Notes and issuance of the Warrants in connection therewith shall take place in one or more tranches (each, a “Tranche”) as determined by the Company pursuant to the terms and conditions of this Agreement. The initial Tranche will be drawn in two separate closings, the first of which (the “Initial Closing”) shall occur on the date of this Agreement, or on such other date agreed upon by the Company and the Placement Agent (the “Initial Closing Date”), and the second of

which (the “Second Closing”) shall take place on the date that Subscriptions totaling in the aggregate the Maximum Commitment Amount are received (including Subscriptions with respect to which Notes were purchased and Warrants were issued in the Initial Closing), or on such other date that the Company and the Placement Agent agree to in writing (even if all Subscriptions do not total in the aggregate the Maximum Commitment Amount). After the Initial Closing Date and prior to the second anniversary of the Initial Closing Date (the “Draw Termination Date”), the Company may, in its sole and absolute discretion, schedule one or more subsequent closings for the purchase and sale of Tranches of Notes (each, a “Subsequent Closing”), until the entire Aggregate Commitment Amount of Notes has been sold. The Company shall schedule a Subsequent Closing by sending a written notice in substantially the form attached hereto as Exhibit C to the Placement Agent and to each Purchaser (a “Tranche Request”) at least 15 calendar days prior to the date of the Subsequent Closing, or a shorter period otherwise agreed upon by the Company and the Placement Agent. The Initial Closing, the Second Closing and each Subsequent Closing are each sometimes referred to herein as a “Closing,” and the date on which each such Closing occurs is sometimes referred to herein as a “Closing Date.” The Company may in its sole and absolute discretion decide not to schedule any Subsequent Closings and the Company is under no commitment to sell and issue all or any of the Notes and Warrants available for sale and issuance pursuant to this Agreement after the Initial Closing.”

2. Governing Law. This Amendment shall be governed by and construed under the laws of the State of New York without regard to principles of conflicts of law.

3. Counterparts. This Amendment may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

[Signature page follows]

2

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

COMPANY:

InSite Vision Incorporated

By: /s/ Xxxxx Xxxxxxx

Name: Xxxxx Xxxxxxx

Title: VP/CFO

PLACEMENT AGENT:

Riverbank Capital Securities, Inc.

By: /s/ Xxxxxxx XxXxxxxxx

Name: Xxxxxxx XxXxxxxxx

Title:

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
				Kesef Investments, LLC
Signature of Investor				Print name of Investor if an entity
				By: /s/ Xxxxxxx X. Xxxxxxx
Print Name of Investor				Print Name: Xxxxxxx X. Xxxxxxx
				Print Title: Managing Member
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxxxxxx XxXxxxxxx
Signature of Investor				Print name of Investor if an entity
Xxxxxxx XxXxxxxxx				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxxxx Xxxxx
Signature of Investor				Print name of Investor if an entity
Xxxxx Xxxxx				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxxxxxx X. Xxxxx “S”
Signature of Investor				Print name of Investor if an entity
Xxxxxxx X. Xxxxx “S”				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxx Xxxxx
Signature of Investor				Print name of Investor if an entity
Xxx Xxxxx				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
				Domato Venture Capital Fund
Signature of Investor				Print name of Investor if an entity
				By: /s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxx
Print Name of Investor				Print Name: Xxxxxxx Xxxxx Xxxxx Xxxxx
				Print Title: G.P.s
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxxxx Xxxxx
Signature of Investor				Print name of Investor if an entity
Xxxxx Xxxxx				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxx Xxxxxx
Signature of Investor				Print name of Investor if an entity
Xxx Xxxxxx				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxxxx X. Xxxxxx
Signature of Investor				Print name of Investor if an entity
Xxxxx X. Xxxxxx				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxxx X. Xxxxx
Signature of Investor				Print name of Investor if an entity
Xxxx X. Xxxxx				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxxxxx Xxxxx
Signature of Investor				Print name of Investor if an entity
RBC Capital Markets, LLC Cust F/B/O Xxxxxx Xxxxx XXX				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
				RL Capital Partners, L.P.
Signature of Investor				Print name of Investor if an entity
				By: /s/ Xxxxxx Xxxxx
Print Name of Investor				Print Name: Xxxxxx Xxxxx
				Print Title: Managing Member
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
				Nicky V LLC
Signature of Investor				Print name of Investor if an entity
				By: /s/ Xxxxxx Xxxx
Print Name of Investor				Print Name: Xxxxxx Xxxx
				Print Title: President
Signature of Joint Owner (if applicable)
Print Name of Joint Owner

IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to Securities Purchase Agreement as of the date first above written.

PURCHASER (If an individual):				PURCHASER (If an entity):
/s/ Xxxxxxx X. Xxxxxx
Signature of Investor				Print name of Investor if an entity
Xxxxxxx X. Xxxxxx				By:
Print Name of Investor				Print Name:
				Print Title:
Signature of Joint Owner (if applicable)
Print Name of Joint Owner