Contract
Execution
Copy
THIS AMENDING AGREEMENT is
made and entered into as of December 19, 2007 by and among (i)
OccuLogix, Inc. (the “Parent”), a Delaware corporation, (ii) Solx, Inc. (the
“Company”), a Delaware corporation, and (iii) Xxxxx X. Xxxxx, acting for and on
behalf of the Stockholder Representative Committee referred to in the Merger
Agreement (defined below).
WHEREAS,
the Parent, OccuLogix Mergeco, Inc., the Company and Xxxx X. Xxxxx, Xxxx
Xxxxxxxx and Xxxxx X. Xxxxx, acting, in each case, in his capacity as a member
of the Stockholder Representative Committee, referred to therein, entered into
an Agreement and Plan of Merger dated as of August 1, 2006;
WHEREAS,
such Agreement and Plan of Merger dated as of August 1, 2006 was amended
subsequently;
WHEREAS,
such Agreement and Plan of Merger, dated as of August 1, 2006, as amended, is
referred to hereinafter as the “Merger Agreement”;
WHEREAS,
at the Effective Time (defined below), OccuLogix Mergeco, Inc. merged with and
into Solx, Inc., following which time the Company continued as the surviving
corporation;
WHEREAS,
the Parent proposes to sell to Solx Acquisition, Inc. (“Acquireco”), a Delaware
corporation owned or controlled by Xxxx X. Xxxxx, all of the issued and
outstanding shares of the capital stock of the Company for, among other things,
the assumption by Acquireco of certain of the Parent’s liabilities incurred in
connection with, or otherwise relating, to the Company’s business, including the
Parent’s obligation, under Section 1.7(b) of the Merger Agreement and as
evidenced by the Secured Promissory Note (defined below), to pay $5,000,000 from
the Holdback Amount (defined below) to the Participating Rights Holders (defined
below) on September 1, 2008 (the “Outstanding Payment Obligation”);
WHEREAS,
Section 10.5 of the Merger Agreement provides, in part, that the Parent may
assign all of its rights and obligations thereunder to a person that acquires
all of the capital stock, or substantially all of the assets, of the Company or
any division or business unit of the Parent responsible for the business of the
Company (provided that, in the event of such an assignment, the amount of the
Holdback Amount theretofore unpaid, less the amount of the Indemnity Holdback
Amount (defined below) permitted to be withheld pursuant to Section 1.7(b), if
any, shall be paid immediately to the Participating Rights Holders and allocated
among them in accordance with Section 2.1, and provided, further, that such
person assumes the Merger Agreement, in writing, and agrees to be bound by and
to comply with all of the terms and conditions thereof);
WHEREAS,
the parties hereto acknowledge that, without such assumption of the Outstanding
Payment Obligation by Acquireco, it is unlikely that the Outstanding Payment
Obligation would be paid by the Parent to the Participating Rights
Holders;
WHEREAS,
the parties hereto do not wish the assignment of the Outstanding Payment
Obligation by the Parent to Acquireco, and the assumption thereof by Acquireco,
to cause any amount owing to the Participating Rights Holders under the Merger
Agreement to become due and payable immediately;
WHEREAS,
the Parent executed and delivered a Secured Promissory Note, dated September 1,
2006 and in the aggregate principal amount of $13,000,000, to the Stockholder
Representative Committee (the “Secured Promissory Note”) in order to evidence
the Parent’s obligation to pay the Holdback Amount pursuant to the Merger
Agreement, including, among other obligations, the Outstanding Payment
Obligation and the FDA Milestone Payment;
WHEREAS,
Xxxxx X. Xxxxx has been duly designated, pursuant to Section 2.5(a) of the
Merger Agreement, the single member representative of the Stockholder
Representative Committee upon whose instruction the Parent and the Company are
entitled to rely without investigation or inquiry (the “Single Member
Representative”);
WHEREAS, pursuant to Section
2.5(b) of the Merger Agreement, the Stockholder Representative Committee has the
authority to execute and deliver this Amending Agreement for and on behalf of
the Participating Rights Holders;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained and intending to be legally bound hereby, the
Parent, the Company and Xxxxx X. Xxxxx, acting in his capacity as the Single
Member Representative for and on behalf of the Stockholder Representative
Committee, hereby agree as follows:
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1.
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Capitalized
terms used in this Amending Agreement but not otherwise defined herein
have the respective meanings attributed to such terms in the Merger
Agreement.
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2.
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Section
10.5 of the Merger Agreement is hereby amended by deleting the following
words from the second sentence
thereof:
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(provided
that, in the event of such an assignment, the amount of the Holdback Amount
theretofore unpaid, less the amount of the Indemnity Holdback Amount permitted
to be withheld pursuant to Section 1.7(b), if any, shall be paid immediately to
the Participating Rights Holders and allocated among them in accordance with
Section 2.1, and provided, further, that such person assumes this Agreement, in
writing, and agrees to be bound by and to comply with all of the terms and
conditions hereof).
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3.
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The
parties hereto acknowledge and agree that the FDA Milestone will not be
met and that, accordingly, the FDA Milestone Payment will never become due
and payable.
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4.
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Xxxxx
X. Xxxxx, in his capacity as the Single Member Representative acting for
and on behalf of the Stockholder Representative Committee, hereby
acknowledges and confirms: (i) the agreement of the Stockholder
Representative Committee to the assignment by the Parent to Acquireco, and
the assumption by Acquireco, of all of the outstanding obligations and
liabilities of the Parent under the Secured Promissory Note, including,
without limitation, the Outstanding Payment Obligation; and (b) the full
and final release and discharge, by the Stockholder Representative
Committee, of the Parent and its affiliates and subsidiaries, and their
respective officers, directors, shareholders, agents, servants,
representatives, successors, heirs and assigns, from the Outstanding
Payment Obligation and from any and all claims, demands, obligations,
suits and causes of action, of any nature whatsoever, whether known or
unknown, which the Stockholder Representative Committee or any of the
Participating Rights Holders ever had, now has or might have in the future
in connection with, or as a result of or otherwise arising from, any or
all of the outstanding obligations and liabilities of the Parent under the
Secured Promissory Note, including, without limitation, the Outstanding
Payment Obligation.
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5.
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The
Merger Agreement remains in full force and effect, unamended, other than
as amended by this Amending
Agreement.
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6.
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This
Amending Agreement may be executed and delivered (including by facsimile
transmission and e-mail communication) in one or more counterparts, and by
the different parties hereto in separate counterparts, each of which, when
executed and delivered, shall be deemed to be an original but all of which
taken together shall constitute one and the same
agreement.
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7.
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This
Amending Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware applicable to contracts executed and
performed in that state.
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REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the Parent, the Company and Xxxxx X. Xxxxx, acting in his
capacity as the Single Member Representative for and on behalf of the
Stockholder Representative Committee, have duly executed this Amending Agreement
as an instrument under seal as of the date first above written.
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By:
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“Xxxxx Xxxxxxxx”
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Name:
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Xxxxx Xxxxxxxx
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Title:
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Chief Executive Officer | |
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Solx,
Inc.
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By:
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“Xxxxxxx X. Xxxxx”
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Name:
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Xxxxxxx X. Xxxx
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Title:
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President
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Single
Member Representative, Acting for and on behalf of the Stockholder
Representative Committee
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“Xxxxx X. Xxxxx”
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Xxxxx X. Xxxxx
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