FIRST AMENDMENT TO SUBSCRIPTION AGREEMENT
FIRST
AMENDMENT
This
first amendment (the “Amendment”)
to
Subscription Agreement, dated as of August 2, 2006 (the “Agreement”),
by
and among InSite Vision Incorporated, a Delaware corporation (the “Company”),
and
each of the subscribers (collectively, the “Subscribers”)
set
forth on Schedule 1 thereto is hereby made as of August 8, 2006, by and among
the Company and each of the Subscribers. All capitalized terms not defined
herein shall have the meanings ascribed to them in the Agreement (as amended
hereby).
RECITALS
WHEREAS,
the
Company and each of the Subscribers to the Agreement wish to amend the Agreement
to provide for additional warrant coverage to the Subscribers under certain
conditions and the Agreement may be amended by agreement of the Company and
each
of the Subscribers;
NOW,
THEREFORE,
in
consideration of the foregoing and of the covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
to
amend the Agreement in the following respects:
1. Amendment
of Section 1.1.
Section
1.1 of the Agreement is hereby amended to add a new subsection (c) to read
in
its entirety as follows:
“(c) In
the
event that the U.S. Food and Drug Administration (the “FDA”)
refuses to file the AzaSite New Drug Application that was submitted to the
FDA
by the Company on June 28, 2006, the Company will issue to each Subscriber
an
additional warrant (each, an “FDA
Warrant”
and
collectively, the “FDA
Warrants”)
to
purchase a number of shares of Common Stock equal to 20% of the Common Stock
purchased by each such Subscriber pursuant to Section 1.1(a) of the Agreement,
which warrant shall have a term of 5 years from the date of issuance described
below and shall be exercisable for cash at a per share exercise price equal
to
115% of the weighted average closing sale price of the Company’s Common Stock
for the 5 trading days immediately succeeding the date on which the Company
receives written notification from the FDA of such refusal.”
2. Amendment
of Section 6.1.
Subsection (e) of Section 6.1 of the Agreement is hereby deleted and replaced
in
its entirety as follows:
“(e) “Registrable
Securities”
shall
mean the Common Stock sold pursuant to this Agreement and the shares of Common
Stock issuable upon the exercise of the Warrants and the FDA Warrants;
provided,
however,
that
such Common Stock shall only be treated as Registrable Securities if and only
for so long as they (A) have not been disposed of pursuant to a registration
statement declared effective by the Commission; (B) have not been sold in a
transaction exempt from the registration and prospectus delivery requirements
of
the Securities Act so that all transfer restrictions and restrictive legends
with respect thereto are removed upon the consummation of such sale; (C) are
held by a Holder or a permitted transferee pursuant to Section 6.10; or (D)
have not become eligible for sale pursuant to Rule 144(k) (or any successor
thereto) under the Securities Act.”
3. Survival.
Except
as modified hereby, the Agreement continues in full force and effect, unmodified
in any way.
4. Counterparts.
This
Amendment may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
amendment.
5. Effectiveness.
This
Amendment shall be effective when executed by the Company and each of the
Subscribers set forth on Schedule A of the Agreement.
6. Governing
Law.
This
Amendment shall be governed by and construed under the laws of the State of
New
York, without regard to the conflict of laws provisions thereof.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this First Amendment to Subscription
Agreement as of the date first above written.
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INSITE
VISION INCORPORATED
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By:
___________________________________
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Name:
X. Xxxxx Xxxxxxxxxxxxxx, Ph. D.
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Title:
President and Chief Executive Officer
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SUBSCRIBER
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By:
___________________________________
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Name:
___________________________________
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Title:
___________________________________
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