SECOND AMENDING AGREEMENT
EXHIBIT
10.2
Execution
Copy
THIS SECOND AMENDING AGREEMENT (this “Agreement”), dated as
of October 1, 2008, is made by and among OccuLogix, Inc. (the
“Company”), a Delaware
corporation with executive offices located at 0000 Xxxxxxx Xxxxxx, Xxxxxxxx 0,
Xxxxx 000, Xxxxxxxxxxx, Xxxxxxx, X0X 0X0, Xxxxxxxx Securities Inc. (the “Agent”), an Ontario
corporation with offices located at 000 Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx
Xxxx, Xxxxxxx, X0X 0X0, and the investors listed on the Schedule of Investors
attached hereto as Exhibit A
(individually, an “Investor” and, collectively,
the “Investors”).
The
Company may be considered a “connected issuer” and/or a “related issuer” (as
those terms are defined in National Instrument 33-105—Underwriting Conflicts) of
the Agent. Xxxxx Xxxxxxxx, the Chairman and Chief Executive Officer
of the Company, and members of his family have an indirect ownership interest in
the Agent as to approximately 32%. See Section 3.2(p) of the
Securities Purchase Agreement (defined below).
BACKGROUND
A. Reference
is made to the Securities Purchase Agreement, dated as of May 19, 2008, by and
among the Company, the Agent and the investors listed on the Schedule of
Investors attached as Exhibit A thereto,
including the Investors, as amended by the Amending Agreements, each dated as of
August 29, 2008, by and among the Company, the Agent and each of the Investors
(as amended, the “Securities
Purchase Agreement”). Pursuant to the Securities Purchase
Agreement, the Investors have agreed to purchase, and the Company has agreed to
sell, upon the terms and conditions stated therein, $2,173,000 aggregate amount
of shares of common stock, par value $.001 per share, of the
Company.
B. The
Securities Purchase Agreement provides that the Agent’s counsel, Xxxxxxx, Xxxxx
& Xxxxxxxxx LLP (“CBB”), would act as escrow agent
in connection with the closing of the transactions contemplated by the
Securities Purchase Agreement. CBB has informed the Agent and the
Company that it will not act in that capacity.
C. The
Securities Purchase Agreement also makes reference to a certain agency agreement
between the Agent and the Company. No formal agency agreement has
been, or will be, entered into by the Agent and the Company.
D. The
Securities Purchase Agreement, as a result of a drafting error, also makes
reference to the terms “Event”, “Event Payment” and “Event
Payments”. None of these terms is relevant or applicable to the
Securities Purchase Agreement.
E. The
Company, the Agent and the Investors have agreed to amend the Securities
Purchase Agreement in order to accommodate the changes in circumstances,
described in Recitals B and C, that have occurred since the execution and
delivery of the Securities Purchase Agreement and to correct the drafting error
described in Recital D.
F. The
Agent has provided each of the Investors with instructions regarding the payment
of the Closing Funds (defined below).
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company, the Agent and the Investors hereby agree
as follows:
1. Definitions. In
addition to the terms defined elsewhere in this Agreement, capitalized terms
that are not otherwise defined herein have the meanings given to such terms in
the Securities Purchase Agreement.
2. Definition of “Escrow
Agent”. The definition of “Escrow Agent” in Section 1.1 of the
Securities Purchase Agreement is hereby deleted in its entirety.
3. Section
2.2(b). Paragraph (b) of Section 2.2 of the Securities
Purchase Agreement is hereby deleted in its entirety.
4. Payment of Aggregate
Purchase Price. Each of the Investors hereby agrees to
deliver, or cause to be delivered, to the Company, in trust, in United States
dollars and in immediately available funds, the aggregate Purchase Price of the
number of the Common Shares set forth opposite such Investor’s name on the
Schedule of Investors attached as Exhibit A to the
Securities Purchase Agreement (the “Closing Funds”), all in
accordance with written instructions provided to such Investor by the Agent, as
such instructions may be amended or supplemented in writing from time to
time. The Company shall hold in trust, in a segregated bank account
(the “Trust Account”),
for the sole benefit of each of the Investors, the Closing Funds delivered by
such Investor to the Company, in trust, pursuant to this Section 4, together
with any interest earned thereon in the Trust Account (“Interest”), until the
Closing. The Closing Funds and any Interest shall constitute trust
property for the purposes for which it is held. Provided that all of
the closing conditions set forth in the Securities Purchase Agreement shall have
been satisfied or waived, the Agent shall deliver a direction to the Company,
authorizing and directing the Company to release the Closing Funds and any
Interest from the trust created hereby, whereupon the Company shall so release
the Closing Funds and any Interest and they shall become the sole property of
the Company and represent full payment for the number of the Common Shares being
purchased by such Investor pursuant to the Securities Purchase
Agreement. Without derogating from the scope of the power and
authority granted by each of the Investors to the Agent pursuant to Section 2.3
of the Securities Purchase Agreement, each of the Investors hereby irrevocably
authorizes the Agent, in its sole discretion, to deliver such direction to the
Company upon the fulfillment of the closing conditions set forth in the
Securities Purchase Agreement to the satisfaction of the Agent or the waiver of
such closing conditions by the Agent, in each case, in the Agent’s sole
discretion and without any further instructions, direction or confirmation of
such Investor.
2
5. Return of the Closing
Funds. Notwithstanding Section 4 of this Agreement, if, at any
time, the Company and the Agent do not have a reasonable expectation that the
Closing shall occur on or prior to October 10, 2008 for any reason whatsoever,
then the Company shall return to each of the Investors, forthwith, the Closing
Funds and any Interest. In any event, if the Closing does not occur
on or prior to October 10, 2008 for any reason whatsoever, then the Company
shall return to each of the Investors, forthwith, the Closing Funds advanced by
such Investor and any Interest. In addition, the Company may return
to each of the Investors, at any time and for any reason whatsoever, the Closing
Funds and any Interest. In any such case, until such time as the
Securities Purchase Agreement, as amended hereby, has been, or may be,
terminated pursuant to Section 7.1 thereof, as amended hereby, the Agent may
instruct each of the Investors to deliver the Closing Funds to the Company again
in accordance with Section 4 of this Agreement.
6. Section
7.1(d). Paragraph (d) of Section 7.1 of the Securities
Purchase Agreement is hereby deleted in its entirety and replaced with the
following paragraph (d):
“(d) automatically
on November 12, 2008.”
7. Agency
Agreement. Each of the Investors understands and hereby
acknowledges that the Agency Agreement was not entered into by the Agent and the
Company.
8. Definition of “Agency
Agreement”. The definition of “Agency Agreement” in Section
1.1 of the Securities Purchase Agreement is hereby deleted in its
entirety.
9. Mutatis
Mutandis Construction of Securities
Purchase Agreement; “Agency Agreement”. The Securities
Purchase Agreement (including, without limitation, Sections 2.3, 3.2(p) and 6.1
thereof) shall be read and construed mutatis mutandis so as to
take into account, or reflect, the fact that the Agency Agreement does not
exist.
10. Definition of
“Event”. The definition of “Event” in Section 1.1 of the
Securities Purchase Agreement is hereby deleted in its entirety.
11. Mutatis
Mutandis Construction of Securities
Purchase Agreement; “Event Payment”. The Securities Purchase
Agreement (including, without limitation, Sections 6.1(d), 6.2(m) and 6.6
thereof) shall be read and construed mutatis mutandis so as to
remove all references to the terms “Event Payment” and “Event
Payments”. Without limiting the generality of the foregoing, the last
sentence of Section 6.6 of the Securities Purchase Agreement is hereby deleted
in its entirety.
12. Section
3.2(p). Notwithstanding part (v) of paragraph (p) of Section
3.2 of the Securities Purchase Agreement, each of the Investors understands and
hereby acknowledges that the Agent will not receive any benefit in connection
with the Offering, other than the commission payable to the Agent by the
Company, as such commission is described in the Company’s Proxy Statement for
the 2008 Annual and Special Meeting of Stockholders which was filed with the SEC
on August 29, 2008. Part (v) of paragraph (p) of Section 3.2 of the
Securities Purchase Agreement shall be read and construed
accordingly.
3
13. Securities Purchase
Agreement in Full Force and Effect. The Securities Purchase
Agreement remains in full force and effect, unamended, other than as
specifically amended by this Agreement.
14. Amendments;
Waivers. No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and the Investors or, in the case of a waiver, by the party against
whom enforcement of any such waiver is sought. No waiver of any
default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of
any subsequent default or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of any party to exercise any
right hereunder in any manner impair the exercise of any such
right.
15. Construction. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rules of
strict construction will be applied against any party.
16. Governing Law; Venue; Waiver
of Jury Trial. THE CORPORATE LAWS OF THE STATE OF DELAWARE
SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS. ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY,
ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. THE
COMPANY, THE AGENT AND EACH INVESTOR HEREBY IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY
OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY
THE COMPANY, THE AGENT OR ANY INVESTOR HEREUNDER IN CONNECTION HEREWITH AND
HEREBY IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR
PROCEEDING BROUGHT BY THE COMPANY, THE AGENT OR ANY INVESTOR, ANY CLAIM THAT HE,
SHE OR IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT OR
THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY
IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING
SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA
REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THE SECURITIES
PURCHASE AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND
SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED
HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY
MANNER PERMITTED BY LAW. THE COMPANY, THE AGENT AND EACH INVESTOR
HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
4
17. Execution. This
Agreement may be executed in any number of separate counterparts (including by
facsimile or e-mail transmission), all of which, when taken together, shall be
considered one and the same agreement. In the event that any
signature is delivered by facsimile transmission or e-mail attachment, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or e-mail-attached signature page were an original
thereof.
18. Severability. If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.
19. Currency. All
dollar amounts in this Agreement are expressed in the lawful currency of the
U.S.
[THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
5
IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized signatories as of the date first indicated
above.
| By: |
/s/ Xxxxx Xxxxxxxx
|
||
|
Name: Xxxxx
Xxxxxxxx
|
|||
|
Title: Chief
Executive Officer
|
|||
|
XXXXXXXX
SECURITIES INC.
|
|||
| By: |
/s/ Xxxxxxx X. Xxxxxxxx
|
||
|
Name: Xxxxxxx
X. Xxxxxxxx
|
|||
|
Title: President
and CEO
|
|||
Investor Signature
Page
By his,
her or its execution and delivery of this signature page, the undersigned hereby
joins in and agrees to be bound by the terms and conditions of the Second
Amending Agreement (the “Agreement”), dated as of
October 1, 2008, by and among OccuLogix, Inc., Xxxxxxxx Securities Inc. and the
investors listed on the Schedule of Investors attached thereto as Exhibit A, and
authorizes this signature page to be attached to the Agreement or counterparts
thereof.
|
Name
of Investor:
|
||||
|
By:
|
||||
|
Name:
|
||||
|
Title:
|
||||
|
Address:
|
||||
|
Telephone
No.:
|
||||
|
Facsimile
No.:
|
||||
|
Email
Address:
|
||||
|
Aggregate
Purchase Price: U.S.$
|
||||
Exhibit
A
SCHEDULE
OF INVESTORS
|
Investor
|
Amount of Investment
(U.S.$)
|
|
|
2016728
Ontario Inc.
|
100,000
|
|
|
Xxxxx
Xxxxxxxx
|
300,000
|
|
|
Xxxx
Xxxxx
|
50,000
|
|
|
Xxxxxxx
Xxxxxx
|
5,000
|
|
|
Xxxxxx
Xxxxxx
|
10,000
|
|
|
Cardinal
Crest Holdings, LLC
|
125,000
|
|
|
Cheresh
Varner Trust
|
5,000
|
|
|
Xxxxx
Xxxxxx
|
50,000
|
|
|
Xxx
Xxxxxx
|
50,000
|
|
|
Xxxxxxx
Xxxxx
|
20,000
|
|
|
Xxxxx
X. Xxxxxxxx
|
350,000
|
|
|
Xxxxxx
X. Xxxxxxxx Education Trust – 2006
|
125,000
|
|
|
Xxxxxx
X. Xxxxxxxx Revocable Trust
|
200,000
|
|
|
Xxxxxx
XxXxxxx
|
10,000
|
|
|
Xxxxx
X. Goldsilver
|
25,000
|
|
|
Xxx
and Xxxx Karnasiotis
|
60,000
|
|
|
Xxxxxxx
X. Xxxxxxxxx
|
100,000
|
|
|
Lynchburg
Wisdom Ventures, LLC
|
10,000
|
|
|
Xxxxxx
Xxxxxxxx
|
18,000
|
|
|
New
Horizons Holdings Inc.
|
10,000
|
|
|
Peoples
International Co. Inc.
|
40,000
|
|
|
Xxxxxxx
Xxxxxx
|
50,000
|
|
|
Xxxxx
Salapoutis
|
75,000
|
|
|
Xxxxx
Xxxxxx
|
10,000
|
|
|
S.I.F.I.
S.p.A.
|
150,000
|
|
|
Xxxx
Xxxxx Limited
|
50,000
|
|
|
Xxxx
X. Xxxxxx
|
25,000
|
|
|
Xxxxxxx
Xxxxxxx
|
25,000
|
|
|
Xxxxx
Xxxxxxx
|
25,000
|
|
|
Xxxxxxx
Xxxxxxx
|
100,000
|
|
