Exhibit 10.15
DATED THE 8th DAY OF DECEMBER 1997
BETWEEN
OCULEX PHARMACEUTICALS, INC
AND
XX XXXXX XXX
XX XXXXXX XXXX
AND
TRANSPAC INDUSTRIAL HOLDINGS LIMITED
TRANSPAC CAPITAL PTE LTD
REGIONAL INVESTMENT COMPANY LIMITED
=============================================================================
SECOND SUPPLEMENTAL AGREEMENT
=============================================================================
THIS AGREEMENT is made on December 8, 1997.
BETWEEN: -
(1) OCULEX PHARMACEUTICALS, INC., a company incorporated in the State of
California, United States of America, with its place of business at 000
X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000-0000, Xxxxxx Xxxxxx of America
("Oculex" or the "Company") of the first part;
AND
(2) XX XXXXX XXX (USA Passport No: 000000000) residing at 0000 Xxxxxxx
Xxxxx, Xxxxxxxxx, Xx 00000, Xxxxxx Xxxxxx of America ("JG"); and
XX XXXXXX XXXX (USA Passport No: 000000000) residing at 000 Xxxx Xxxx
Xxxxxx, Xxxxx Xxxx, XX 00000, Xxxxxx Xxxxxx of America ("VW")
collectively the "Major Shareholders", of the second part;
AND
(3) TRANSPAC INDUSTRIAL HOLDINGS LIMITED, a company incorporated in the
Republic of Singapore and having its registered office at 0 Xxxxxxx
Xxx, #00-00 XXX Xxxxx Xxx, Xxxxxxxxx 000000 ("Transpac Industrial");
TRANSPAC CAPITAL PTE LTD, a company incorporated in the Republic of
Singapore and having its registered office at 0 Xxxxxxx Xxx, #00-00 XXX
Xxxxx Xxx, Xxxxxxxxx 000000 ("Transpac Capital"); and
REGIONAL INVESTMENT COMPANY LIMITED, a company incorporated in the
Republic of Singapore and having its registered office at 0 Xxxxxxx
Xxx, #00-00 XXX Xxxxx Xxx, Xxxxxxxxx 000000 ("Regional Investment")
collectively the "Investors" of the third part.
The above parties to collectively be referred to as the "Parties".
2
WHEREAS: -
(A) Oculex is a company limited by shares and has at the date of this
Agreement an authorised share capital of 20,000,000 Common Stock and
11,000,000 Preferred Stock. As at the date of this Agreement, there are
3,865,061 issued and fully paid-up shares of Common Stock, 330,000
issued and fully paid-up shares of series A Preferred Stock and
3,667,878 issued and fully paid-up shares of series B Preferred Stock.
(B) The Major Shareholders hold approximately 40.86% of the issued share
capital in the Company represented by 3,091,086 shares of Common Stock
of the Company and 121,918 shares of Preferred B Stock of the Company.
(C) On 3rd October 1995, Oculex, the Major Shareholders, Transpac Industrial
and Transpac Capital entered into an Exchangeable Loan Agreement (the
"Loan Agreement") whereunder Transpac Industrial and Transpac Capital
agreed to make certain advances to Oculex upon certain conditions being
fulfilled.
(D) The Loan Agreement was subsequently amended by way of a Supplemental and
Accession Agreement dated 12th February 1996 (the "First Supplemental
Agreement') entered into between the parties to the Loan Agreement and
Regional Investment.
(E) The Loan Agreement (as amended by the First Supplemental Agreement) was
further varied by way of a Subscription Agreement dated 31 December 1996
entered into by and between the Parties, whereunder the Investors also
agreed to subscribe for 500,000 shares of Preferred B Stock in the
capital of Oculex.
(F) Pursuant to the Loan Agreement (amended as aforesaid, such amended Loan
Agreement to hereinafter be referred to as the "Amended Loan
Agreement"), the Investors are obliged to make advances to Oculex on the
terms and subject to the conditions of the Amended Loan Agreement and in
particular upon certain conditions being met. Pursuant to the proviso
set out in Clause 5 of the Amended Loan Agreement, the Investors may in
their absolute discretion waive any of such conditions in relation to
any or all of the advances and Oculex shall not be entitled to refuse to
accept any advance which the Investors have decided to make under the
Amended Loan Agreement.
(G) Pursuant to the Amended Loan Agreement, the Investors were obliged,
subject to the conditions set out-in the Amended Loan Agreement, to make
available to Oculex the aggregate sum of US$6,400,000. As at the date
hereof, the Investors have advanced to Oculex US$2,000,000 in total.
3
(H) At the request of Oculex and the Major Shareholders, the Investors have
agreed to advance to Oculex the remaining sum of US$4,400,000 and this
Agreement sets out the terms and conditions of such advance.
NOW IT IS HEREBY AGREED AS FOLLOWS: -
1. DEFINITIONS AND INTERPRETATION
1.1 All terms and references used in the Amended Loan Agreement and which
are defined or construed in the Amended Loan Agreement but are not
defined or construed in this Agreement shall have the same meaning and
construction In this Agreement.
1.2 References to Clauses, Recitals and Appendices are to clauses, recitals
and appendices of this Agreement.
1.3 Words denoting the singular number only shall include the plural number
and vice versa. Words denoting the masculine gender only shall include
the feminine and neuter genders.
1.4 The Recitals to this Agreement shall be and form an integral part of
this Agreement.
1.5 The headings in this Agreement are inserted for convenience only and
shall be ignored in construing this Agreement.
2. ADVANCES
2.1 At the request of Oculex and the Major Shareholders, the Investors have
agreed to exercise their rights under the Amended Loan Agreement to
advance the remaining sum of US$4,400,000, being the Second Advance and
the Third Advance under the Amended Loan Agreement, to Oculex in the
proportion set out in the Appendix. The terms and conditions governing
such advances shall be as stated in the Amended Loan Agreement.
2.2 Oculex and the Major Shareholders hereby agree that Oculex will accept
such advances when made by the Investors on the terms and conditions set
out in the Amended Loan Agreement.
4
3. AMENDMENTS TO THE LOAN AGREEMENT
3.1 The Parties agree that with effect from the date hereof, Article 15(B)
of the Amended Loan Agreement shall be amended by deleting the words
"US$2.75 per Preferred B Stock, for the next US$1,000,000 and US$3.00
per Preferred B Stock thereafter" in the fifth and sixth lines thereof
and replacing them with the following:
"AND US$2.75 PER PREFERRED B STOCK THEREAFTER"
3.2 Except to the extent expressly varied or amended by the provisions of
this Agreement, the terms and conditions of the Amended Loan Agreement
are hereby confirmed and shall remain in full force and effect.
4. MISCELLANEOUS
4.1 This Agreement 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 instrument.
4.2 All notices, requests, demands and other communications under this
Agreement or in connection herewith shall be given to or made upon as
follows: -
If to the Investors : TRANSPAC INDUSTRIAL HOLDINGS LIMITED
0 Xxxxxxx Xxx, #00-00 XXX Xxxxx Xxx,
Xxxxxxxxx 000000
Fax No: (000) 000 0000
TRANSPAC CAPITAL PTE LTD
0 Xxxxxxx Xxx, #00-00 XXX Xxxxx Xxx,
Xxxxxxxxx 000000
Fax No: (000) 000 0000
REGIONAL INVESTMENT COMPANY LIMITED
0 Xxxxxxx Xxx, #00-00 XXX Xxxxx Xxx,
Xxxxxxxxx 000000
Fax No: (000) 000 0000
If to the Company : OCULEX PHARMACEUTICALS INC.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Fax No: (000) 000 0000.
5
If to JG : XX XXXXX XXX
0000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xx 00000
Xxxxxx Xxxxxx of America
Fax No: (000) 000 0000
If to VW : XX XXXXXX XXXX
000 Xxxx Xxxx Xxxxxx, Xxxxx Xxxx, XX 00000
United States' of America
Fax No: (000) 000 0000
All notices, requests, demands and other communications given or made in
accordance with the provisions of this Agreement shall be in writing,
and shall be sent by airmail, return receipt requested, or by telecopy
(facsimile) with confirmation of receipt, and shall be deemed to be
given or made when receipt is so confirmed. Any party may, by written
notice to the other, alter its address or respondent, and such notice
shall be considered to have been given 10 days after the airmailing or
telecopying thereof.
5. COSTS AND EXPENSES
5.1 Oculex shall pay:-
5.1.1 all costs and expenses (including legal fees and stamp and other
documentary taxes) incurred by the Investors in connection with
the preparation, negotiation and entry into of this Agreement
and/or any amendment of, supplement to or waiver in respect of
this Agreement, subject to a maximum of US$2,000; and
5.1.2 on demand, all costs and expenses (including legal fees) incurred
by the Investors in protecting or enforcing or in contemplation
of protecting or enforcing any rights under this Agreement and/or
any such amendment, supplement or waiver.
6. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties
pertaining to the subject matter hereof, and any and all other prior
written or oral agreements existing between the Parties are expressly
cancelled.
6
7. GOVERNING LAW AND JURISDICTION
7.1 This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
7.2 In relation to any legal action or proceeding arising out of or in
connection with this Agreement ("Proceedings"), each of the parties
hereto hereby irrevocably submits to the jurisdiction of the courts of
the State of California and Singapore and waives any objection to
Proceedings in any such courts on the grounds of venue or on the grounds
that the Proceedings have been brought in an inconvenient forum.
7.3 That submission shall not affect the right of the Investors to take
Proceedings in any other jurisdiction nor shall the taking of
Proceedings in any jurisdiction preclude the Investors from taking
Proceedings in any other jurisdiction.
7.4 Each of the Major Shareholders and the Company hereby irrevocably
appoints Oculex Asia Pharmaceuticals Pte Ltd (of 00 Xxxxxxx Xxxxx,
Xxxxxxxxx 358660) in Singapore from time to time to receive, for it or
him and on its or his behalf, service of process in any Proceedings in
Singapore. Such service shall be deemed completed on delivery to the
process agent (whether or not it is forwarded to and received by the
Company or the Major Shareholders). If for any reason the process agent
ceases to be able to act as such, the Company and the Major Shareholders
irrevocably agree to appoint a substitute process agent acceptable to
the Investors, and to deliver to the Investors a copy of the new agent's
acceptance of that appointment, within 30 days of such acceptance.
7.5 The Company and the Major Shareholders irrevocably consent to any
process in any Proceedings anywhere being served by the mailing of a
copy of the process served by prepaid registered post to them in
accordance with Clause 10. Such service shall become effective 30 days
after mailing.
7.6 The Company and the Major Shareholders irrevocably and generally consent
in respect of any Proceedings anywhere to the giving of any relief or
the issue of any process in connection with those Proceedings including,
without limitation, the making, enforcement or execution against any
assets whatsoever (irrespective of their use or intended use) of any
order or judgment which may be made or given in those Proceedings, and
agrees that any final order or judgment shall be conclusive.
7.7 The parties may, subject to mutual consent, alternatively submit any and
all disputes arising out of or in connection with this Agreement
including its validity, construction and performance to a sole
arbitrator appointed in California, USA, under the ICC rules of
Conciliation and Arbitration.
7
8. PREVALENCE OF AGREEMENT
In the event of any inconsistency between the provisions of this
Agreement and the Articles of Incorporation or the Bye-laws of the
Company, the provisions of this Agreement shall as between the parties
hereto prevail. Forthwith upon the entry of this Agreement, the parties
hereto shall forthwith cause such alterations as the Investors may
approve to be made to the Articles of Incorporation or the Bye-laws of
the Company, so as to ensure that the provisions of such documents are
consistent with the terms of this Agreement.
IN WITNESS WHEREOF, the parties executed this Agreement as of the date
first above written.
Signed by ) /s/ Xxxxx Xxx
)
for and on behalf of )
)
OCULEX PHARMACEUTICALS, INC. )
)
in the presence of:- ) /s/ Xxxxxx X. XxXxxxxxx
Signed by )
)
XX XXXXX XXX ) /s/ Xxxxx Xxx
)
in the presence of:- ) /s/ Xxxxxx X. XxXxxxxxx
Signed by )
)
XX XXXXXX XXXX ) /s/ Xxxxxx Xxxx
)
in the presence of:- ) /s/ Xxxxxx X. XxXxxxxxx
8
Signed by )
)
for and on behalf of ) /s/ Xxxxxxx Xxxxxx
)
TRANSPAC INDUSTRIAL )
HOLDINGS LIMITED )
)
in the presence of:- ) /s/ Xxxxxx X. XxXxxxxxx
Signed by )
)
for and on behalf of ) /s/ Xxxxxxx Xxxxxx
)
TRANSPAC CAPITAL PTE LTD )
)
in the presence of:- ) /s/ Xxxxxx X. XxXxxxxxx
Signed by )
)
for and on behalf of ) /s/ Xxxxxxx Xxxxxx
)
REGIONAL INVESTMENT )
COMPANY LIMITED )
)
in the presence of:- ) /s/ Xxxxxx X. XxXxxxxxx
9
APPENDIX
INVESTOR AMOUNT TO BE ADVANCED
Transpac Capital US$2,108,039
Transpac Industrial US$1,796,784
Regional Investment US$495,177
---------------------
TOTAL: US$4,400,000
---------------------
10
