SECURITIES PURCHASE AGREEMENT
THIS
SECURITIES PURCHASE AGREEMENT
(the
“Agreement”),
dated
as of February 1, 2007, by and among OccuLogix, Inc., a Delaware
corporation
with
headquarters located at 0000 Xxxxxxx Xxxxxx, Xxxx 0, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxx X0X 0X0 (the “Company”),
and
the investors listed on the Schedule of Investors attached hereto as
Exhibit A (individually,
an “Investor”
and
collectively, the “Investors”).
BACKGROUND
A. The
Company and each Investor are executing and delivering this Agreement in
reliance upon the exemption from registration afforded by Section 4(2) of
the Securities Act of 1933, as amended (the “Securities
Act”),
and
Rule 506
of
Regulation D
(“Regulation
D”)
as
promulgated by the United States Securities and Exchange Commission (the
“SEC”)
under
the Securities Act.
B. Each
Investor, severally and not jointly, wishes to purchase, and the Company wishes
to sell, upon the terms and conditions stated in this Agreement, (i) that
aggregate number of shares of the Common Stock, par value $.001 per share,
of
the Company (the “Common
Stock”),
set
forth opposite such Investor’s name in column two (2) on the Schedule of
Investors in Exhibit A
(which
aggregate amount for all Investors together shall be 6,677,333 shares of Common
Stock and shall collectively be referred to herein as the “Common
Shares”)
and
(ii) warrants, in substantially the form attached hereto as Exhibit
F
(the
“Warrants”) to acquire up to that number of additional shares of Common Stock
set forth opposite such Investor’s name in column three (3) on the Schedule of
Investors (the shares of Common Stock issuable upon exercise of or otherwise
pursuant to the Warrants, collectively, the “Warrant
Shares”).
C. The
Common Shares, the Warrants and the Warrant Shares
issued
pursuant
to this Agreement are
collectively referred to herein as the “Securities.”
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 and the Investors agree as
follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
In
addition to the terms defined elsewhere in this Agreement, the following terms
have the meanings indicated:
“Affiliate”
means
any Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with a Person, as such
terms are used in and construed under Rule 144
under
the Securities Act.
“Agent”
has
the
meaning set forth in Section
3.1(l).
“Agreement”
has
the
meaning set forth in the Preamble.
“Best
Efforts”
means
the efforts that a prudent person desirous of achieving a result would use
in
similar circumstances to ensure that such result is achieved as expeditiously
as
practical; provided,
however,
that an
obligation to use Best Efforts under this Agreement does not require the Company
to dispose of or make any change to its business, expend any material funds
or
incur any other material burden.
“Business
Day”
means
any day other than Saturday, Sunday or other day on which commercial banks
in
The City of New York are authorized or required by law to remain
closed.
“Closing”
means
the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing
Date”
means
the date and time of the Closing and shall be on such date and time as is
mutually agreed to by the Company and each Investor.
“Closing
Price”
means,
for any date, the closing price per share of the Common Stock for such date
(or
the nearest preceding date) on the primary Eligible Market or exchange or
quotation system on which the Common Stock is then listed or
quoted.
“Company”
has
the
meaning set forth in the Preamble.
“Company
Counsel”
means
Torys
LLP,
counsel
to the Company.
“Common
Shares”
means
an aggregate of 6,677,333 shares of Common Stock, which are being issued and
sold by the Company to the Investors at the Closing.
“Common
Stock”
means
the common stock of the Company, par value $0.001 per share.
“Contingent
Obligation”
has
the
meaning set forth in Section
3.1(aa).
“Convertible
Securities”
means
any stock or securities (other than Options) convertible into or exercisable
or
exchangeable for Common Stock.
“Disclosure
Materials”
has
the
meaning set forth in Section 3.1(g).
“Effective
Date”
means
the date that the Registration Statement is first declared effective by the
SEC.
“Effectiveness
Period”
has
the
meaning set forth in Section 6.1(b).
“8-K
Filing”
has
the
meaning set forth in Section
4.5.
“Eligible
Market”
means
any of the New York Stock Exchange, the American Stock Exchange, The Nasdaq
Global Select Market, The Nasdaq Global Market or The Nasdaq Capital
Market.
“Event”
has
the
meaning set forth in Section 6.1(d).
“Event
Payments”
has
the
meaning set forth in Section 6.1(d).
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“Excluded
Events”
has
the
meaning set forth in Section 6.1(d)(ii).
“Excluded
Investors”
means
Xxxxx and Company, LLC and its Affiliates.
“Filing
Date”
means
30 days after the Closing Date.
“GAAP”
has
the
meaning set forth in Section
3.1(g).
“Indebtedness”
has
the
meaning set forth in Section
3.1(aa).
“Indemnified
Party”
has
the
meaning set forth in Section 6.4(c).
“Indemnifying
Party”
has
the
meaning set forth in Section 6.4(c).
“Insolvent”
has
the
meaning set forth in Section
3.1(h).
“Intellectual
Property Rights”
has
the
meaning set forth in Section 3.1(t).
“Investor”
has
the
meaning set forth in the Preamble.
“Lien”
means
any lien, charge, claim, security interest, encumbrance, right of first refusal
or other restriction.
“Losses”
means
any and all losses, claims, damages, liabilities, settlement costs and expenses,
including, without limitation, reasonable attorneys’ fees.
“Material
Adverse Effect”
means
(i) a material adverse effect on the results of operations, assets, business
or
financial condition of the Company and the Subsidiaries, taken as a whole on
a
consolidated basis, or (ii) material and adverse impairment of the
Company’s ability to perform its obligations under any of the Transaction
Documents, provided, that none of the following alone shall be deemed, in and
of
itself, to constitute a Material Adverse Effect: (i) a change in the market
price or trading volume of the Common Stock or (ii) changes in general economic
conditions or changes affecting the industry in which the Company operates
generally (as opposed to Company-specific changes) so long as such changes
do
not have a disproportionate effect on the Company and its Subsidiaries taken
as
a whole.
“Material
Permits”
has
the
meaning set forth in Section 3.1(v).
“Options”
means
any outstanding rights, warrants or options to subscribe for or purchase Common
Stock or Convertible Securities.
“Person”
means
any individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, or joint
stock company.
“Proceeding”
means
an action, claim, suit, investigation or proceeding (including, without
limitation, a partial proceeding, such as a deposition), whether commenced
or
threatened in writing.
“Prospectus”
means
the prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any information previously omitted from
a
prospectus filed as part of an effective registration statement in reliance
upon
Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Securities covered by the Registration Statement, and all
other amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
“Registrable
Securities”
means
the Common Shares and the Warrant Shares issued or issuable pursuant to the
Transaction Documents, together with any securities issued or issuable upon
any
stock split, dividend or other distribution, recapitalization or similar event
with respect to the foregoing.
“Registration
Statement”
means
each registration statement required to be filed under Article VI,
including (in each case) the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference
or
deemed to be incorporated by reference in such registration
statement.
“Regulation
D”
has
the
meaning set forth in the Preamble.
“Required
Effectiveness Date”
means
the
date
which is the earliest of (i) if the Registration Statement does not become
subject to review by the SEC, (a) ninety (90) days after the Closing Date or
(b)
five (5) Trading Days after the Company receives notification from the SEC
that
the Registration Statement will not become subject to review, or (ii) if the
Registration Statement becomes subject to review by the SEC, one hundred and
twenty (120) days after the Closing Date.
“Rule 144,”
“Rule 415,”
and
“Rule 424”
means
Rule 144,
Rule 415
and
Rule 424,
respectively, promulgated by the SEC pursuant to the Securities Act, as such
Rules may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC having substantially the same effect as such
Rule.
“SEC”
has
the
meaning set forth in the Preamble.
“SEC
Reports”
has
the
meaning set forth in Section 3.1(g).
“Securities”
has
the
meaning set forth in the Preamble.
“Securities
Act”
has
the
meaning set forth in the Preamble.
“Shares”
means
shares of the Company’s Common Stock.
“Short
Sales”
has
the
meaning set forth in Section
3.2(h).
“Subsidiary”
means
any direct
or
indirect subsidiary of the Company.
“Trading
Day”
means
(a) any day on which the Common Stock is listed or quoted and traded on its
primary Trading Market, (b) if the Common Stock is not then listed or
quoted and traded on any Eligible Market, then a day on which trading occurs
on
the The Nasdaq Global Select Market (or any successor thereto), or (c) if
trading ceases to occur on the The Nasdaq Global Select Market (or any successor
thereto), any Business Day.
“Trading
Market”
means
the The Nasdaq Global Select Market or
any
other Eligible Market, or any other national securities exchange, market or
trading or quotation facility on which the Common Stock is then listed or
quoted.
“Transaction
Documents”
means
this Agreement, the schedules and exhibits attached hereto,
the Warrants and the Transfer Agent Instructions.
“Transfer
Agent”
means
Mellon Investor Services LLC, or any successor transfer agent for the
Company.
“Transfer
Agent Instructions”
means,
with respect to the Company, the Irrevocable Transfer Agent Instructions, in
the
form of Exhibit E,
executed by the Company and delivered to and acknowledged in writing by the
Transfer Agent.
“Warrants”
has
the
meaning set forth in the Preamble.
“Warrant
Shares”
has
the
meaning set forth in the Preamble.
ARTICLE II
PURCHASE
AND SALE
2.1 Closing.
Subject
to the terms and conditions set forth in this Agreement, at the Closing, the
Company shall issue and sell to each Investor, and each Investor shall,
severally and not jointly, purchase from the Company, such number of Common
Shares
and Warrants and for the price set forth opposite such Investor’s name on
Exhibit A
hereto
under the headings “Common Shares”, “Warrants” and “Purchase Price”,
respectively. The date and time of the Closing shall be 11:00 a.m., New York
City Time, on the Closing Date. The Closing shall take place at the offices
of
the Company Counsel.
2.2 Closing
Deliveries.
(a) At
the
Closing, the Company shall deliver or cause to be delivered to each Investor
the
following:
(i) one
or
more stock certificates (or copies thereof provided by the Transfer Agent),
free
and clear of all restrictive and other legends (except as expressly provided
in
Section 4.1(b)
hereof), evidencing such number of Common Shares set forth opposite such
Investor’s name on Exhibit A
hereto
under the heading “Common Shares,” registered in the name of such
Investor;
(ii) a
Warrant, issued in the name of such Investor, pursuant to which such Investor
shall have the right to acquire such number of Warrant Shares set forth opposite
such Investor’s name on Exhibit A
hereto
under the heading “Warrant Shares”;
(iii) a
legal
opinion of Company Counsel, in the form of Exhibit C,
executed by such counsel and delivered to the Investors;
(iv) duly
executed Transfer Agent Instructions acknowledged by the Transfer Agent;
and
(v) evidence
of filing with each applicable Trading Market of an additional shares listing
application covering all of the Registrable Securities (and, if applicable,
evidence of conditional listing approval).
(b) At
the
Closing, each Investor shall deliver or cause to be delivered to the
Company the purchase price set forth opposite such Investor’s name on
Exhibit A
hereto
under the heading “Purchase Price” in United States dollars and in immediately
available funds, by wire transfer to an account designated in writing to such
Investor by the Company for such purpose.
ARTICLE III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Company.
The
Company hereby represents and warrants to the Investors as follows (which
representations and warranties shall be deemed to apply, where appropriate,
to
each Subsidiary of the Company):
(a) Subsidiaries.
The
Company has no Subsidiaries other than those listed in Schedule 3.1(a)
hereto.
Except as disclosed in Schedule 3.1(a)
hereto,
the Company owns, directly or indirectly, all of the capital stock or comparable
equity interests of each Subsidiary free and clear of any Lien and all the
issued and outstanding shares of capital stock or comparable equity interest
of
each Subsidiary are validly issued and are fully paid, non-assessable and free
of preemptive and similar rights.
(b) Organization
and Qualification.
Each of
the Company and the Subsidiaries is an entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation
or
organization (as applicable), with the requisite legal authority to own and
use
its properties and assets and to carry on its business as currently conducted.
Neither the Company nor any Subsidiary is in violation of any of the provisions
of its respective certificate or articles of incorporation, bylaws or other
organizational or charter documents. Each of the Company and the Subsidiaries
is
duly qualified to do business and is in good standing as a foreign corporation
or other entity in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification necessary, except
where the failure to be so qualified or in good standing, as the case may be,
would not, individually or in the aggregate, have or reasonably be expected
to
result in a Material Adverse Effect.
(c) Authorization;
Enforcement.
The
Company has the requisite corporate authority to enter into and to consummate
the transactions contemplated by each of the Transaction Documents to which
it
is a party and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of each of the Transaction Documents to which it
is a
party by the Company and the consummation by it of the transactions contemplated
hereby and thereby have been duly authorized by all necessary corporate action
on the part of the Company and no further consent or action is required by
the
Company, its Board of Directors or its stockholders. Each of the Transaction
Documents to which it is a party has been (or upon delivery will be) duly
executed by the Company and is, or when delivered in accordance with the terms
hereof will constitute, the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as may
be
limited by (i) applicable bankruptcy, insolvency, reorganization or other
laws of general application relating to or affecting the enforcement of
creditors rights generally, and (ii) the effect of rules of law governing
the availability of specific performance and other equitable
remedies.
(d) No
Conflicts.
The
execution, delivery and performance of the Transaction Documents to which it
is
a party by the Company and the consummation by the Company of the transactions
contemplated hereby and thereby do not, and will not, (i) conflict with or
violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents,
(ii) conflict with, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation (with or without
notice, lapse of time or both) of, any agreement, credit facility, debt or
other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which
any
property or asset of the Company or any Subsidiary is bound, or affected, except
to the extent that such conflict, default, termination, amendment, acceleration
or cancellation right would not reasonably be expected to have a Material
Adverse Effect, or (iii) result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject
(including, assuming the accuracy of the representations and warranties of
the
Investors set forth in Section
3.2
hereof,
federal and state securities laws and regulations and the rules and regulations
of any self-regulatory organization to which the Company or its securities
are
subject, including all applicable Trading Markets), or by which any property
or
asset of the Company or a Subsidiary is bound or affected, except to the extent
that such violation would not reasonably be expected to have a Material Adverse
Effect.
(e) The
Securities.
The
Securities
(including the Warrant Shares) are duly authorized and, when issued and paid
for
in accordance with the Transaction Documents, will be duly and validly issued,
fully paid and nonassessable, free and clear of all Liens and will not be
subject to preemptive or similar rights of stockholders (other than those
imposed by the Investors). The Company has reserved from its duly authorized
capital stock the maximum number of shares of Common Stock issuable upon
exercise of the Warrants. Assuming the continued validity of the Investors’
representations and warranties contained in Section 3.2(d),
the
offer, issuance and sale of the Shares, the Warrants and the Warrant Shares
to
the Investors pursuant to this Agreement, and in the case of the Warrant Shares,
pursuant to the Warrants, are exempt from the registration requirements of
the
Securities Act.
(f) Capitalization.
The
aggregate number of shares and type of all authorized, issued and outstanding
classes of capital stock, Options and other securities of the Company (whether
or not presently convertible into or exercisable or exchangeable for shares
of
capital stock of the Company) is set forth in Schedule 3.1(f)
hereto.
All outstanding shares of capital stock are duly authorized, validly issued,
fully paid and nonassessable and have been issued in compliance in all material
respects with all applicable securities laws. Except as disclosed in
Schedule 3.1(f)
hereto,
the Company did not have outstanding at December 31, 2006, any other Options,
script rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or
exercisable or exchangeable for, or entered into any agreement giving any Person
any right to subscribe for or acquire, any shares of Common Stock, or securities
or rights convertible or exchangeable into shares of Common Stock. Except as
set
forth on Schedule
3.1(f)
hereto,
and except for customary adjustments as a result of stock dividends, stock
splits, combinations of shares, reorganizations, recapitalizations,
reclassifications or other similar events, there are no anti-dilution or price
adjustment provisions contained in any security issued by the Company (or in
any
agreement providing rights to security holders) and the issuance and sale of
the
Securities will not obligate the Company to issue shares of Common Stock or
other securities to any Person (other than the Investors) and will not result
in
a right of any holder of securities to adjust the exercise, conversion, exchange
or reset price under such securities. To the knowledge of the Company, except
as
disclosed in the SEC Reports and any Schedules 13D or 13G filed with the SEC
pursuant to Rule 13d-1 of the Exchange Act by reporting persons or in
Schedule
3.1(f)
hereto,
no Person or group of related Persons beneficially owns (as determined pursuant
to Rule 13d-3 under the Exchange Act), or has the right to acquire, by agreement
with or by obligation binding upon the Company, beneficial ownership of in
excess of 5% of the outstanding Common Stock.
(g) SEC
Reports; Financial Statements.
Except
as set forth on Schedule 3.1(g),
the
Company has filed all reports required to be filed by it under the Exchange
Act,
including pursuant to Section 13(a) or 15(d) thereof, for the 12 months
preceding the date hereof on a timely basis or has received a valid extension
of
such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension and has filed all reports required to be filed by it
under
the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for
the
two years preceding the date hereof. Such reports required to be filed by the
Company under the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, together with any materials filed or furnished by the Company under
the
Exchange Act, whether or not any such reports were required being collectively
referred to herein as the “SEC
Reports”
and,
together with this Agreement and the Schedules to this Agreement, the
“Disclosure
Materials”.
As of
their respective dates, the SEC Reports filed by the Company complied in all
material respects with the requirements of the Securities Act and the Exchange
Act and the rules and regulations of the SEC promulgated thereunder, and none
of
the SEC Reports, when filed by the Company, contained any untrue statement
of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Reports comply in all material
respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis during
the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements, the notes
thereto and except that unaudited financial statements may not contain all
footnotes required by GAAP or may be condensed or summary statements, and fairly
present in all material respects the consolidated financial position of the
Company and its consolidated Subsidiaries as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject,
in
the case of unaudited statements, to normal, year-end audit adjustments. All
material agreements to which the Company or any Subsidiary is a party or to
which the property or assets of the Company or any Subsidiary are subject are
included as part of or identified in the SEC Reports, to the extent such
agreements are required to be included or identified pursuant to the rules
and
regulations of the SEC.
(h) Since
the
date of the latest audited financial statements included within the SEC Reports,
except as disclosed in the SEC Reports or in Schedule
3.1(h)
hereto,
(i) there has been no event, occurrence or development that, individually
or in the aggregate, has had or that would result in a Material Adverse Effect,
(ii) the Company has not incurred any material liabilities other than
(A) trade payables and accrued expenses incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to
be reflected in the Company’s financial statements pursuant to GAAP or required
to be disclosed in filings made with the SEC, (iii) the Company has not
altered its method of accounting or changed its auditors, except as disclosed
in
its SEC Reports, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders, in their capacities
as such, or purchased, redeemed or made any agreements to purchase or redeem
any
shares of its capital stock (except for repurchases by the Company of shares
of
capital stock held by employees, officers, directors, or consultants pursuant
to
an option of the Company to repurchase such shares upon the termination of
employment or services), and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant to existing
Company stock-based plans. The Company has not taken any steps to seek
protection pursuant to any bankruptcy law nor does the Company have any
knowledge or reason to believe that its creditors intend to initiate involuntary
bankruptcy proceedings or any actual knowledge of any fact which would
reasonably lead a creditor to do so. The Company is not as of the date hereof,
and after giving effect to the transactions contemplated hereby to occur at
the
Closing, will not be Insolvent (as defined below). For purposes of this
Section
3.1(h),
“Insolvent”
means
(i) the present fair saleable value of the Company’s assets is less than the
amount required to pay the Company’s total Indebtedness (as defined in
Section
3.1(aa)),
(ii)
the Company is unable to pay its debts and liabilities, subordinated, contingent
or otherwise, as such debts and liabilities become absolute and matured, (iii)
the Company intends to incur or believes that it will incur debts that would
be
beyond its ability to pay as such debts mature or (iv) the Company has
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted.
(i) Absence
of Litigation.
Except
as disclosed in the SEC Reports, there is no action, suit, claim, or Proceeding,
or, to the Company’s knowledge, inquiry or investigation, before or by any
court, public board, government agency, self-regulatory organization or body
pending or, to the knowledge of the Company, threatened against or affecting
the
Company or any of its Subsidiaries that would be reasonably expected,
individually or in the aggregate, to have a Material Adverse
Effect.
(j) Compliance.
Except
as described in Schedule
3.1(j),
neither
the Company nor any Subsidiary, except in each case as would not, individually
or in the aggregate, reasonably be expected to have or result in a Material
Adverse Effect, (i) is in default under or in violation of (and no event
has occurred that has not been waived that, with notice or lapse of time or
both, would result in a default by the Company or any Subsidiary under), nor
has
the Company or any Subsidiary received written notice of a claim that it is
in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body, or (iii) is or has been in violation of
any statute, rule or regulation of any governmental authority.
(k) Title
to Assets.
The
Company and the Subsidiaries own no real property. Except as described in
Schedule
3.1(k),
the
Company and the Subsidiaries have good and marketable title in all personal
property owned by them that is material to the business of the Company and
the
Subsidiaries, free and clear of all Liens, except for Liens that do not,
individually or in the aggregate, have or result in a Material Adverse Effect.
Any real property and facilities held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases
of
which the Company and the Subsidiaries are in material compliance.
(l) No
General Solicitation; Placement Agent’s Fees.
Neither
the Company, nor any of its Affiliates, nor any Person acting on its or their
behalf, has engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D) in connection with the offer or sale
of the Securities. The Company shall be responsible for the payment of any
placement agent’s fees, financial advisory fees, or brokers’ commission (other
than for persons engaged by any Investor or its investment advisor) relating
to
or arising out of the issuance of the Securities pursuant to this Agreement.
The
Company shall pay, and hold each Investor harmless against, any liability,
loss
or expense (including, without limitation, reasonable attorney’s fees and
out-of-pocket expenses) arising in connection with any such claim for fees
arising out of the issuance of the Securities pursuant to this Agreement. The
Company acknowledges that it has engaged Xxxxx and Company, LLC as its
exclusive
placement agent (the “Agent”)
in
connection with the sale of the Securities. Other than the Agent, the Company
has not engaged any placement agent or other agent in connection with the sale
of the Securities.
(m) Private
Placement.
Neither
the Company nor any of its Affiliates nor, any Person acting on the Company’s
behalf has, directly or indirectly, at any time within the past six months,
made
any offer or sale of any security or solicitation of any offer to buy any
security under circumstances that would (i) eliminate the availability of
the exemption from registration under Regulation D under the Securities Act
in connection with the offer and sale by the Company of the Securities as
contemplated hereby or (ii) cause the offering of the Securities pursuant
to the Transaction Documents to be integrated with prior offerings by the
Company for purposes of any applicable law, regulation or stockholder approval
provisions, including, without limitation, under the rules and regulations
of
any Trading Market. The sale and issuance of the Securities hereunder does
not
contravene the rules and regulations of any Trading Market on which the Common
Stock is listed or quoted. The Company is not required to be registered as,
and
is not an Affiliate of, an “investment company” within the meaning of the
Investment Company Act of 1940, as amended. The Company is not required to
be
registered as a United States real property holding corporation within the
meaning of the Foreign Investment in Real Property Tax Act of 1980.
(n) Form
S-3 Eligibility.
The
Company is eligible to register the Common Shares and
the
Warrant Shares
for
resale by the Investors using Form S-3 promulgated under the Securities
Act.
(o) Listing
and Maintenance Requirements.
The
Company has not, in the twelve months preceding the date hereof, received notice
(written or oral) from any Trading Market on which the Common Stock is or has
been listed or quoted to the effect that the Company is not in compliance with
the listing or maintenance requirements of such Trading Market. The Company
is,
and has no reason to believe that it will not in the foreseeable future continue
to be, in compliance with all such listing and maintenance
requirements.
(p) Registration
Rights.
Except
as described in Schedule
3.1(p),
the
Company has not granted or agreed to grant to any Person any rights (including
“piggy-back” registration rights) to have any securities of the Company
registered with the SEC or any other governmental authority that have not been
satisfied or waived.
(q) Application
of Takeover Protections.
Except
as described in Schedule 3.1(q),
there
is no control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover
provision under the Company’s charter documents or the laws of its state of
incorporation that is or could become applicable to any of the Investors as
a
result of the Investors and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including, without
limitation, as a result of the Company’s issuance of the Securities and the
Investors’ ownership of the Securities.
(r) Disclosure.
The
Company confirms that neither it nor any officers, directors or Affiliates,
has
provided any of the Investors (other than Excluded Investors) or their agents
or
counsel with any information that constitutes or might constitute material,
nonpublic information (other than the existence and terms of the issuance of
Securities, as contemplated by this Agreement). The
Company understands and confirms that each of the Investors will rely on the
foregoing representations in effecting transactions in securities of the Company
(other than Excluded Investors). All disclosure provided by the Company to
the
Investors regarding the Company, its business and the transactions contemplated
hereby, including the Schedules to this Agreement, furnished by or on the behalf
of the Company are true and correct in all material respects and do not contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. To the Company’s
knowledge, except for the transactions contemplated by this Agreement, no event
or circumstance has occurred or information exists with respect to the Company
or any of its Subsidiaries or its or their business, properties, operations
or
financial condition, which, under applicable law, rule or regulation, requires
public disclosure or announcement by the Company but which has not been so
publicly announced or disclosed. The Company acknowledges and agrees that no
Investor (other than Excluded Investors) makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than
those set forth in the Transaction Documents.
(s) Acknowledgment
Regarding Investors’ Purchase of Securities.
Based
upon the assumption that the transactions contemplated by this Agreement are
consummated in all material respects in conformity with the Transaction
Documents, the Company acknowledges and agrees that each of the Investors (other
than Excluded Investors) is acting solely in the capacity of an arm’s length
purchaser with respect to the Transaction Documents and the transactions
contemplated hereby and thereby. The Company further acknowledges that no
Investor (other than Excluded Investors) is acting as a financial advisor or
fiduciary of the Company (or in any similar capacity) with respect to this
Agreement and the transactions contemplated hereby and any advice given by
any
Investor (other than Excluded Investors) or any of their respective
representatives or agents in connection with the Transaction Documents and
the
transactions contemplated hereby and thereby is merely incidental to the
Investors’ purchase of the Securities. The Company further represents to each
Investor that the Company’s decision to enter into this Agreement has been based
solely on the independent evaluation of the transactions contemplated hereby
by
the Company and its representatives.
(t) Patents
and Trademarks.
The
Company and its Subsidiaries own, or, to the knowledge of the Company, possess
adequate rights or licenses to use, all trademarks, trade names, service marks,
service xxxx registrations, service names, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets
and
other intellectual property rights (“Intellectual
Property Rights”)
necessary to conduct their respective businesses
as now
conducted, other than as would not have or reasonably be expected to have a
Material Adverse Effect. Except as set forth in Schedule 3.1(t), none of the
Company’s Intellectual Property Rights have expired or terminated, or are
expected to expire or terminate, within three years from the date of this
Agreement. Neither the Company nor any of its Subsidiaries is the subject of
any
claim of infringement or misappropriation by the Company or any of its
Subsidiaries of Intellectual Property Rights of others. Except as disclosed
in
the SEC Reports, there is no claim, action or Proceeding being made or brought,
or to the knowledge of the Company, being threatened, against the Company or
its
Subsidiaries regarding its Intellectual Property Rights.
(u) Insurance.
The
Company and the Subsidiaries (other than OcuSense, Inc.) are insured by insurers
of recognized financial responsibility against such losses and risks and in
such
amounts as are deemed by the management of the Company to be prudent and
customary in the businesses and locations in which the Company and the
Subsidiaries are engaged and located, respectively.
(v) Regulatory
Permits.
The
Company and the Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate federal, state, local or foreign regulatory
authorities necessary to conduct their respective businesses as described in
the
SEC Reports (“Material
Permits”),
except
where the failure to possess such permits does not, individually or in the
aggregate, have or would reasonably be expected to result in a Material Adverse
Effect, and neither the Company nor any Subsidiary has received any written
notice of proceedings relating to the revocation or modification of any Material
Permit.
(w) Transactions
With Affiliates and Employees.
Except
as set forth or incorporated by reference in the Company’s SEC Reports, none of
the officers, directors or employees of the Company is presently a party to
any
transaction that would be required to be reported on Form 10-K with the Company
or any of its Subsidiaries (other than for ordinary course services as
employees, officers or directors), including any contract, agreement or other
arrangement providing for the furnishing of services to or by, providing for
rental of real or personal property to or from, or otherwise requiring payments
to or from any such officer, director or employee or, to the Company’s
knowledge, any corporation, partnership, trust or other entity in which any
such
officer, director or employee has a substantial interest or is an officer,
director, trustee or partner.
(x) Internal
Accounting Controls.
The
Company and the Subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles
and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect
to
any differences.
(y) Xxxxxxxx-Xxxxx
Act.
The
Company is in compliance in all material respects with applicable requirements
of the Xxxxxxxx-Xxxxx Act of 2002 and applicable rules and regulations
promulgated by the SEC thereunder, except where such noncompliance would not
have, individually or in the aggregate, a Material Adverse Effect.
(z) Foreign
Corrupt Practices.
Neither
the Company nor any of its Subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or other Person acting on behalf of
the
Company or any of its Subsidiaries has, in the course of its actions for, or
on
behalf of, the Company (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expenses relating to
political activity; (ii) made any direct or indirect unlawful payment to any
foreign or domestic government official or employee from corporate funds; (iii)
violated or is in violation of any provision of the U.S. Foreign Corrupt
Practices Act of 1977, as amended; or (iv) made any unlawful bribe, rebate,
payoff, influence payment, kickback or other unlawful payment to any foreign
or
domestic government official or employee.
(aa) Indebtedness.
Except
as disclosed in Schedule
3.1(h),
neither
the Company nor any of its Subsidiaries (i) has any outstanding Indebtedness
(as
defined below) in an individual amount of more than $100,000, (ii) is in
violation of any term of or in default under any contract, agreement or
instrument relating to any Indebtedness, except where such violations and
defaults would not result, individually or in the aggregate, in a Material
Adverse Effect, or (iii) is a party to any contract, agreement or instrument
relating to any Indebtedness, the performance of which, in the judgment of
the
Company’s officers, has or is expected to have a Material Adverse Effect.
Schedule
3.1(h) provides
a detailed description of the material terms of any such outstanding
Indebtedness in an individual amount of more than $100,000. For purposes of
this
Agreement: (x) “Indebtedness”
of any
Person means, without duplication (A) all indebtedness for borrowed money,
(B) all obligations issued, undertaken or assumed as the deferred purchase
price
of property or services (other than trade payables entered into in the ordinary
course of business), (C) all reimbursement or payment obligations with respect
to letters of credit, surety bonds and other similar instruments, (D) all
obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses, (E) all indebtedness created or arising
under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to any property or assets acquired with
the proceeds of such indebtedness (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property), (F) all monetary obligations under
any
leasing or similar arrangement which, in connection with generally accepted
accounting principles, consistently applied for the periods covered thereby,
is
classified as a capital lease, (G) all indebtedness referred to in clauses
(A) through (F) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any mortgage,
lien, pledge, charge, security interest or other encumbrance upon or in any
property or assets (including accounts and contract rights) owned by any Person,
even though the Person which owns such assets or property has not assumed or
become liable for the payment of such indebtedness, and (H) all Contingent
Obligations in respect of indebtedness or obligations of others of the kinds
referred to in clauses (A) through (G) above; and (y) “Contingent
Obligation”
means,
as to any Person, any direct or indirect liability, contingent or otherwise,
of
that Person with respect to any indebtedness, lease, dividend or other
obligation of another Person if the primary purpose or intent of the Person
incurring such liability, or the primary effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid or discharged,
or that any agreements relating thereto will be complied with, or that the
holders of such liability will be protected (in whole or in part) against loss
with respect thereto.
(bb) Employee
Relations.
Neither
the Company nor any of its Subsidiaries is a party to any collective bargaining
agreement or employs any member of a union. The Company believes that its
relations with its employees are as disclosed in the SEC Reports. Except as
disclosed in the SEC Reports, during the period covered by the SEC Reports,
no
executive officer of the Company or any of its Subsidiaries (as defined in
Rule
501(f) of the Securities Act) has notified the Company or any such Subsidiary
that such officer intends to leave the Company or any such Subsidiary or
otherwise terminate such officer’s employment with the Company or any such
Subsidiary. To the knowledge of the Company or any such Subsidiary, no executive
officer of the Company or any of its Subsidiaries is in violation of any
material term of any employment contract, confidentiality, disclosure or
proprietary information agreement, non-competition agreement, or any other
contract or agreement or any restrictive covenant, and the continued employment
of each such executive officer does not subject the Company or any such
Subsidiary to any liability with respect to any of the foregoing
matters.
(cc) Labor
Matters.
The
Company and its Subsidiaries are in compliance in all material respects with
all
federal, state, local and foreign laws and regulations respecting labor,
employment and employment practices and benefits, terms and conditions of
employment and wages and hours, except where failure to be in compliance would
not, either individually or in the aggregate, reasonably be expected to result
in a Material Adverse Effect.
(dd) Subsidiary
Rights.
Except
as set forth in Schedule 3.1(a),
the
Company or one of its Subsidiaries has the unrestricted right to vote, and
(subject to limitations imposed by applicable law) to receive dividends and
distributions on, all capital securities of its Subsidiaries as owned by the
Company or such Subsidiary.
(ee) Tax
Status.
The
Company and each of its Subsidiaries (i) has made or filed all foreign, federal
and state income and all other tax returns, reports and declarations required
by
any jurisdiction to which it is subject, except for any which the failure to
make or file would not be reasonably expected to have, individually or in the
aggregate, a Material Adverse Effect, (ii) has paid all taxes and other
governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and (iii) has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to
the
periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority
of
any jurisdiction, and the officers of the Company know of no basis for any
such
claim.
3.2 Representations,
Warranties and Covenants of the Investors.
Each
Investor hereby, as to itself only and for no other Investor, represents,
warrants and covenants to the Company as follows:
(a) Organization;
Authority.
Such
Investor is an entity duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization with the requisite
corporate, partnership or other power and authority to enter into and to
consummate the transactions contemplated by the Transaction Documents and
otherwise to carry out its obligations hereunder and thereunder. The purchase
by
such Investor of the Securities hereunder has been duly authorized by all
necessary corporate, partnership or other action on the part of such Investor.
This Agreement has been duly executed and delivered by such Investor and
constitutes the valid and binding obligation of such Investor, enforceable
against it in accordance with its terms, except as may be limited by
(i) applicable bankruptcy, insolvency, reorganization or other laws of
general application relating to or affecting the enforcement of creditors rights
generally, and (ii) the effect of rules of law governing the availability
of specific performance and other equitable remedies.
(b) No
Public Sale or Distribution.
Such
Investor is (i) acquiring the Common Shares
and the Warrants and (ii) upon exercise of the Warrants will acquire the
Warrant Shares issuable upon exercise thereof, in
the
ordinary course of business for its own account and not with a view towards,
or
for resale in connection with, the public sale or distribution thereof, except
pursuant to sales registered under the Securities Act or under an exemption
from
such registration and in compliance with applicable federal and state securities
laws, and such Investor does not have a present arrangement to effect any
distribution of the Securities to or through any person or entity; provided,
however,
that by
making the representations herein, and subject to Section 3.2(c),
such
Investor does not agree to hold any of the Securities for any minimum or other
specific term and reserves the right to dispose of the Securities at any time
in
accordance with or pursuant to a registration statement or an exemption under
the Securities Act.
(c) No
Sale in Canada.
The
Investor acknowledges that the Securities are not qualified for
distribution to the public in Canada. The Investor certifies that (A) the
Investor is not a Canadian resident or acting for the account or benefit of
a
Canadian resident; (B) the Investor was, at the time of agreeing to acquire
the
Securities, and is, outside Canada; and (C) for a period ending four months
after the Closing Date, the Investor will not, directly or indirectly, offer
or
re-sell the Securities in Canada or to any Canadian resident,
or to
any Person who is acting on behalf of a resident of Canada or to any Person
whom
it believes intends to re-offer, re-sell or deliver any of the Securities in
Canada,
unless
permitted under applicable securities laws of the provinces and territories
of
Canada, and thereafter, any resale by the Investor to a Canadian resident or
in
Canada will be made in accordance with applicable securities laws of the
provinces and territories of Canada.
(d) Investor
Status.
At the
time such Investor was offered the Securities, it was, and at the date hereof
it
is, an “accredited investor” as defined in Rule 501(a) under the Securities Act
or a “qualified institutional buyer” as defined in Rule 144A(a) under the
Securities Act. Such Investor is not a registered broker dealer registered
under
Section 15(a) of the Exchange Act, or a member of the NASD, Inc. or an entity
engaged in the business of being a broker dealer. Except as otherwise disclosed
in writing to the Company on Exhibit
B-2
(attached hereto) on or prior to the date of this Agreement, such Investor
is
not affiliated with any broker dealer registered under Section 15(a) of the
Exchange Act, or a member of the NASD, Inc. or an entity engaged in the business
of being a broker dealer.
(e) Experience
of Such Investor.
Such
Investor, either alone or together with its representatives has such knowledge,
sophistication and experience in business and financial matters so as to be
capable of evaluating the merits and risks of the prospective investment in
the
Securities, and has so evaluated the merits and risks of such investment. Such
Investor understands that it must bear the economic risk of this investment
in
the Securities indefinitely, and is able to bear such risk and is able to afford
a complete loss of such investment.
(f) Access
to Information.
Such
Investor acknowledges that it has reviewed the Disclosure Materials and has
been
afforded: (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company
concerning the terms and conditions of the offering of the Securities and the
merits and risks of investing in the Securities; (ii) access to information
(other than material non-public information) about the Company and the
Subsidiaries and their respective financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to
evaluate its investment; and (iii) the opportunity to obtain such
additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment
decision with respect to the investment. Neither such inquiries nor any other
investigation conducted by or on behalf of such Investor or its representatives
or counsel shall modify, amend or affect such Investor’s right to rely on the
truth, accuracy and completeness of the Disclosure Materials and the Company’s
representations and warranties contained in the Transaction Documents. Such
Investor acknowledges receipt of copies of the SEC Reports. Such Investor is
aware that TLC Vision Corporation, a New Brunswick corporation, which is the
largest holder of the Common Stock, has publicly announced its intention to
continue to sell shares of Common Stock.
(g) No
Governmental Review.
Such
Investor understands that no United States federal or state agency or any other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities nor have such authorities passed upon or endorsed the merits
of the offering of the Securities.
(h) No
Conflicts.
The
execution, delivery and performance by such Investor of this Agreement and
the
consummation by such Investor of the transactions contemplated hereby will
not
(i) result in a violation of the organizational documents of such Investor
or (ii) conflict with, or constitute a default (or an event which with
notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which such Investor is a party, or
(iii) result in a violation of any law, rule, regulation, order, judgment
or decree (including federal and state securities laws) applicable to such
Investor, except in the case of clauses (ii) and (iii) above, for such that
are
not material and do not otherwise affect the ability of such Investor to
consummate the transactions contemplated hereby.
(i) Prohibited
Transactions.
No
Investor, directly or indirectly, and no Person acting on behalf of or pursuant
to any understanding with any Investor, has engaged in any purchases or sales
of
any securities, including derivatives, of the Company (including, without
limitation, any Short Sales (a “Transaction”)
involving any of the Company’s securities) since the time that such Investor was
first contacted by the Company, the Agent or any other Person regarding an
investment in the Company. Such Investor covenants that neither it nor any
Person acting on its behalf or pursuant to any understanding with such Investor
will engage, directly or indirectly, in any Transactions in the securities
of
the Company (including Short Sales) prior to the time the transactions
contemplated by this Agreement are publicly disclosed. “Short
Sales”
include,
without limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act and all types of direct and indirect
stock
pledges, forward sale contracts, options, puts, calls, short sales, swaps,
derivatives and similar arrangements (including on a total return basis), and
sales and other transactions through non-U.S. broker-dealers or foreign
regulated brokers.
(j) Restricted
Securities.
The
Investors understand that the Securities are characterized as “restricted
securities” under the U.S. federal securities laws inasmuch as they are being
acquired from the Company in a transaction not involving a public offering
and
that under such laws and applicable regulations such securities may be resold
without registration under the Securities Act only in certain limited
circumstances.
(k) Legends.
It is
understood that, except as provided in Section
4.1(b)
of this
Agreement, certificates evidencing such Securities may bear the legends set
forth in Section 4.1(b).
and
until
such legend has been removed in accordance with the procedures set forth in
Section 4.1(b):
(A) the
Securities cannot be traded through the facilities of the Toronto Stock Exchange
(on the Toronto Stock Exchange, the certificate representing the Securities
is
not freely transferable and consequently is not “good delivery” in settlement of
transactions); and (B) the Toronto Stock Exchange may deem the Investor to
be
responsible for any loss incurred on a sale made by the Investor of the
Securities.
(l) No
Legal, Tax or Investment Advice.
(m) Such
Investor understands that nothing in this Agreement or any other materials
presented by or on behalf of the Company to the Investor in connection with
the
purchase of the Securities constitutes legal, tax or investment advice. Such
Investor has consulted such legal, tax and investment advisors as it, in its
sole discretion, has deemed necessary or appropriate in connection with its
purchase of the Securities. Such Investor understands that the Agent has acted
solely as the agent of the Company in this placement of the Securities, and
that
the Agent makes no representation or warranty with regard to the merits of
this
transaction or as to the accuracy of any information such Investor may have
received in connection therewith. Such Investor acknowledges that it has not
relied on any information or advice furnished by or on behalf of the
Agent.
ARTICLE IV
OTHER
AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Investors covenant that the Securities will only be disposed of pursuant to
an
effective registration statement under, and in compliance with the requirements
of, the Securities Act or pursuant to an available exemption from the
registration requirements of the Securities Act, and in compliance with any
applicable state securities laws. In connection with any transfer of Securities
other than pursuant to an effective registration statement or to the Company,
the Company may require the transferor to provide to the Company an opinion
of
counsel (and the documents upon which the opinion is based) selected by the
transferor, the form and substance of which opinion shall be reasonably
satisfactory to the Company, to the effect that such transfer does not require
registration under the Securities Act. Notwithstanding the foregoing, the
Company hereby consents to and agrees to register on the books of the Company
and with its Transfer Agent, without any such legal opinion, except to the
extent that the Transfer Agent requests such legal opinion, any transfer of
Securities by an Investor to an Affiliate of such Investor, provided that the
transferee certifies to the Company that it is an “accredited investor” as
defined in Rule 501(a) under the Securities Act and provided that such Affiliate
does not request any removal of any existing legends on any certificate
evidencing the Securities.
(b) The
Investors agree to the imprinting, so long as is required by this Section 4.1(b),
of the
following legends on any certificate evidencing any of the Securities:
THESE
SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”),
OR
ANY APPLICABLE STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH
APPLICABLE STATE SECURITIES LAWS OR BLUE SKY LAWS.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK
EXCHANGE (THE "TSX"); HOWEVER, THE SAID SECURITIES CANNOT BE TRADED THROUGH
THE
FACILITIES OF THE TSX SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY
ANY CERTIFICATE REPRESENTING SUCH SECURITIES IS NOT "GOOD DELIVERY" IN
SETTLEMENT OF TRANSACTIONS ON THE TSX.
Certificates
evidencing Securities shall not be required to contain such legends or any
other
legend (i) while a registration statement (including the Registration Statement)
covering the resale of the Securities is effective under the Securities Act,
(ii) following any sale of such Securities pursuant to Rule 144
if
the
holder provides the Company with a legal opinion (and the documents upon which
the legal opinion is based) reasonably acceptable to the Company to the effect
that the Securities can be sold under Rule 144, (iii) if the holder provides
the
Company with a legal opinion (and the documents upon which the legal opinion
is
based) reasonably acceptable to the Company to the effect that the
Securities are eligible for sale under Rule 144(k), or (iv) if the
holder provides the Company with a legal opinion (and the documents upon which
the legal opinion is based) reasonably acceptable to the Company to the effect
that the
legend
is not required under applicable requirements of the Securities Act (including
controlling judicial interpretations and pronouncements issued by the Staff
of
the SEC). The Company shall cause its counsel to issue the legal opinion
included in the Transfer Agent Instructions to the Transfer Agent on the
Effective Date. Following the Effective Date or at such earlier time as a legend
is no longer required for certain Securities, the Company will no later than
five
Trading
Days following the delivery by an Investor to the Company or the Transfer Agent
of (i) a legended certificate representing such Securities, and (ii) an opinion
of counsel to the extent required by Section
4.1(a),
deliver
or cause to be delivered to such Investor a certificate representing such
Securities that is free from all restrictive and other legends. The Company
may
not make any notation on its records or give instructions to the Transfer Agent
that enlarge the restrictions on transfer set forth in this
Section.
If
within
three
Trading
Days after the Company’s
receipt
of a legended certificate and the other documents as specified in Clauses (ii),
(iii) and (iv) of the paragraph immediately above, as applicable, the Company
shall fail to issue and deliver to such Investor a certificate representing
such
Securities that is free from all restrictive and other legends, and if on or
after such Trading Day the Investor purchases (in an open market transaction
or
otherwise) shares of Common Stock to deliver in satisfaction of a sale by the
Investor of shares of Common Stock that the Investor anticipated receiving
from
the Company without any restrictive legend (the “Covering
Shares”),
then
the Company shall, within five
Trading
Days after the Investor’s
request,
pay cash
to the Investor in an amount equal to the excess
(if any) of the Investor’s
total
purchase price (including brokerage commissions, if any) for the Covering
Shares,
over the
product of (A) the number of Covering Shares, times (B) the closing bid
price
on the
date of delivery of such certificate and the other documents as specified in
Clauses (ii),
(iii) and (iv) of
the
paragraph immediately above, as applicable.
(c) The
Company will not object to and shall permit (except as prohibited by law) an
Investor to pledge or grant a security interest in some or all of the Securities
in connection with a bona fide margin agreement or other loan or financing
arrangement secured by the Securities, and if required under the terms of such
agreement, loan or arrangement, the Company will not object to and shall permit
(except as prohibited by law) such Investor to transfer pledged or secured
Securities to the pledgees or secured parties. Except as required by law, such
a
pledge or transfer would not be subject to approval of the Company, no legal
opinion of the pledgee, secured party or pledgor shall be required in connection
therewith, and no notice shall be required of such pledge. Each Investor
acknowledges that the Company shall not be responsible for any pledges relating
to, or the grant of any security interest in, any of the Securities or for
any
agreement, understanding or arrangement between any Investor and its pledgee
or
secured party. At the appropriate Investor’s expense, the Company will execute
and deliver such reasonable documentation as a pledgee or secured party of
Securities may reasonably request in connection with a pledge or transfer of
the
Securities, including the preparation and filing of any required prospectus
supplement under Rule 424(b)(3) of the Securities Act or other applicable
provision of the Securities Act to appropriately amend the list of Selling
Stockholders thereunder. Provided that the Company is in compliance with the
terms of this Section
4.1(c),
the
Company’s indemnification obligations pursuant to Section
6.4
shall
not extend to any Proceeding or Losses arising out of or related to this
Section
4.1(c).
4.2 Furnishing
of Information.
Until
the date that any Investor owning Common Shares
or
Warrant Shares may sell all of them under Rule 144(k) of the Securities Act
(or
any successor
provision), the Company covenants to use its commercially reasonable efforts
to
timely file (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the Company after
the date hereof pursuant to the Exchange Act. The Company further covenants
that
it will take such further action as any holder of Securities may reasonably
request to satisfy the provisions of this Section
4.2.
4.3 Integration.
The
Company shall not, and shall use its commercially reasonable efforts to ensure
that no Affiliate thereof shall, sell, offer for sale or solicit offers to
buy
or otherwise negotiate in respect of any security (as defined in Section 2
of the Securities Act) that would be integrated with the offer or sale of the
Securities in a manner that would require the registration under the Securities
Act of the sale of the Securities to the Investors or that would be integrated
with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market.
4.4 Reservation
of Securities.
The
Company shall maintain a reserve from its duly authorized shares of Common
Stock
for issuance pursuant to the Transaction Documents in such amount as may be
required to fulfill its obligations to issue such Shares under the Transaction
Documents. In the event that at any time the then authorized shares of Common
Stock are insufficient for the Company to satisfy its obligations to issue
such
Shares under the Transaction Documents, the Company shall promptly take such
actions as may be required to increase the number of authorized
shares.
4.5 Securities
Laws Disclosure; Publicity.
The
Company shall, at or before 8:30 a.m., New York time, on the first Trading
Day
following execution of this Agreement, issue a press release reasonably
acceptable to the Investors disclosing all material terms of the transactions
contemplated hereby. On the Closing Date, the Company shall file a Current
Report on Form 8-K with the SEC (the “8-K
Filing”)
describing the terms of the transactions contemplated by the Transaction
Documents and including as exhibits to such Current Report on Form 8-K the
Transaction Documents (including the schedules and the names, and addresses
of
the Investors and the amount(s) of Securities respectively purchased)
and the
form of Warrants,
in the
form required by the Exchange Act. Thereafter, the Company shall timely file
any
filings and notices required by the SEC or applicable law with respect to the
transactions contemplated hereby and provide copies thereof to the Investors
promptly after filing. Except as herein provided, the Company shall not publicly
disclose the name of any Investor, or include the name of any Investor in any
press release without the prior written consent of such Investor, unless
otherwise required by law. The Company shall not, and shall cause each of its
Subsidiaries and its and each of their respective officers, directors, employees
and agents not to, provide any Investor with any material nonpublic information
regarding the Company or any of its Subsidiaries from and after the issuance
of
the above referenced press release without the express written consent of such
Investor.
4.6 Use
of
Proceeds.
The
Company intends to use the net proceeds from the sale of the Securities for
working capital and general corporate purposes. The Company also may use a
portion of the net proceeds, currently intended for general corporate purposes,
to acquire or invest in technologies, products or services that complement
its
business, although the Company has no present plans or commitments and is not
currently engaged in any material negotiations with respect to these types
of
transactions. Pending these uses, the Company intends to invest the net proceeds
from this offering in short-term, interest-bearing, investment-grade securities,
or as otherwise pursuant to the Company’s customary investment
policies.
4.7 Restriction
on Issuances.
From
the Closing Date until 45 days after the Effective Date, the Company shall
not
issue or sell any shares of Common Stock other than the issuance of shares
of
Common Stock (i) upon the exercise of Options outstanding on the date hereof,
(ii) upon the exercise of Options issued in the future under the Company’s 2002
Stock Option Plan or other security-based compensation arrangements, (iii)
upon
the exercise of the Warrants, (iv) to banks, equipment lessors or other
financial institutions, or to real property lessors, pursuant to a debt
financing, equipment leasing or real property leasing transaction, (v) pursuant
to the acquisition of another corporation by the Company by merger, purchase
of
substantially all of the assets or other reorganization or pursuant to a joint
venture agreement, and (vi) in connection with marketing or similar agreements
or strategic partnerships (including, without limitation, by way of a private
placement to strategic investors and/or entities (whatever the legal form)
in
which, or of which, one or more members of the Company’s management owns or
controls an equity stake of 10% or greater).
ARTICLE V
CONDITIONS
5.1 Conditions
Precedent to the Obligations of the Investors.
The
obligation of each Investor to acquire Securities at the Closing is subject
to
the satisfaction or waiver by such Investor, at or before the Closing, of each
of the following conditions:
(a) Representations
and Warranties.
The
representations and warranties of the Company contained herein shall be true
and
correct in all material respects as of the date when made and as of the Closing
as though made on and as of such date; and
(b) Performance.
The
Company and each other Investor shall have performed, satisfied and complied
in
all material respects with all covenants, agreements and conditions required
by
the Transaction Documents to be performed, satisfied or complied with by it
at
or prior to the Closing.
5.2 Conditions
Precedent to the Obligations of the Company.
The
obligation of the Company to sell the Securities at the Closing is subject
to
the satisfaction or waiver by the Company, at or before the Closing, of each
of
the following conditions:
(a) Representations
and Warranties.
The
representations and warranties of the Investors contained herein shall be true
and correct in all material respects as of the date when made and as of the
Closing Date as though made on and as of such date; and
(b) Performance.
The
Investors shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Investors at or
prior to the Closing.
ARTICLE VI
REGISTRATION
RIGHTS
6.1 Registration
Statement.
(a) As
promptly as possible, and in any event on or prior to the Filing Date, the
Company shall prepare and file with the SEC a Registration Statement covering
the resale of all Registrable Securities for an offering to be made on a
continuous basis pursuant to Rule 415. The Registration Statement shall be
on
Form S-3 (except if the Company is not then eligible to register for resale
the
Registrable Securities on Form S-3, in which case such registration shall be
on
another appropriate form in accordance with the Securities Act and the Exchange
Act) and shall contain (except if otherwise directed by the Investors or
requested by the SEC) the “Plan of Distribution” in substantially the form
attached hereto as Exhibit D.
(b) The
Company shall use its commercially reasonable efforts to cause the Registration
Statement to be declared effective by the SEC as promptly as possible after
the
filing thereof, but in any event prior to the Required Effectiveness Date,
and
shall use its commercially reasonable efforts to keep the Registration Statement
continuously effective under the Securities Act until the earlier of the date
that all Common Shares and Warrant Shares covered by such Registration Statement
have been sold or can be sold publicly under Rule 144(k) (the “Effectiveness
Period”);
provided that, upon notification by the SEC that a Registration Statement will
not be reviewed or is no longer subject to further review and comments, the
Company shall request acceleration of such Registration Statement within
five (5) Trading Days after receipt of such notice and request that it
becomes effective at 4:00 p.m. New York City time on the Effective
Date.
(c) The
Company shall notify the Investors in writing promptly (and in any event within
two Trading Days) after receiving notification from the SEC that the
Registration Statement has been declared effective.
(d) Should
an
Event (as defined below) occur, then upon the occurrence of such Event, and
on
every monthly anniversary thereof until the applicable Event is cured, the
Company shall pay to each Investor an amount in cash, as liquidated damages
and
not as a penalty, equal to one and one half percent (1.5%) of (i) the number
of
Common Shares held by such Investor as of the date of such Event, multiplied
by
(ii) the purchase price paid by such Investor for such Common Shares then held;
provided, however, that the total amount of payments pursuant to this
Section 6.1(d)
shall
not exceed, when aggregated with all such payments paid to all Investors, twelve
percent (12%) of the aggregate purchase price of the Securities purchased
pursuant to this Agreement. The payments to which an Investor shall be entitled
pursuant to this Section 6.1(d)
are
referred to herein as “Event
Payments.”
Any
Event Payments payable pursuant to the terms hereof shall apply on a pro rated
basis for any portion of a month prior to the cure of an Event. In the event
the
Company fails to make Event Payments in a timely manner, such Event Payments
shall bear interest at the rate of one percent (1.0%) per month (prorated for
partial months) until paid in full. All pro rated calculations made pursuant
to
this paragraph shall be based upon the actual number of days in such pro rated
month.
For
such
purposes, each of the following shall constitute an “Event”:
(i) the
Registration Statement is not filed on or prior to the Filing Date or is not
declared effective on or prior to the Required Effectiveness Date;
(ii) except
as
provided for in Section
6.1(e)
(the
“Excluded
Events”),
after
the Effective Date, an Investor is not permitted to sell Registrable Securities
under the Registration Statement (or a subsequent Registration Statement filed
in replacement thereof) for any reason (other than the fault of such Investor)
for five or more Trading Days (whether or not consecutive);
(iii) except
as
a result of the Excluded Events, the Common Stock is not listed or quoted,
or is
suspended from trading, on an Eligible Market for a period of three Trading
Days
(which need not be consecutive Trading Days) during the Effectiveness
Period;
(iv) with
respect to an Investor, the Company fails for any reason to deliver a
certificate evidencing any Securities to such Investor within five Trading
Days
after delivery of such certificate is required pursuant to any Transaction
Document or the exercise rights of the Investors pursuant to the Warrants are
otherwise suspended for any reason; or
(v) during
the Effectiveness Period, except as a result of the Excluded Events, the Company
fails to have any Shares listed on an Eligible Market.
(e) Notwithstanding
anything in this Agreement to the contrary, after 60 consecutive Trading Days
of
continuous effectiveness of the initial Registration Statement filed and
declared effective pursuant to this Agreement, the Company may, by written
notice to the Investors, suspend sales under a Registration Statement after
the
Effective Date thereof and/or require that the Investors immediately cease
the
sale of shares of Common Stock pursuant thereto and/or defer the filing of
any
subsequent Registration Statement if the Company is engaged in a material
merger, acquisition or sale and the Board of Directors determines in good faith,
by appropriate resolutions, that, as a result of such activity, (A) it
would be materially detrimental to the Company (other than as relating solely
to
the price of the Common Stock) to maintain a
Registration Statement at such time or (B) it is in the best interests of
the Company to suspend sales under such registration at such time. Upon receipt
of such notice, each Investor shall immediately discontinue any sales of
Registrable Securities pursuant to such registration until such Investor is
advised in writing by the Company that the current Prospectus or amended
Prospectus, as applicable, may be used. In no event, however, shall this right
be exercised to suspend sales beyond the period during which (in the good faith
determination of the Company’s Board of Directors) the failure to require such
suspension would be materially detrimental to the Company. The Company’s rights
under this Section
6(e)
may be
exercised for a period of no more than 30 Trading Days at a time and not more
than two times in any twelve-month period, without such suspension being
considered as part of an Event Payment determination. Immediately after the
end
of any suspension period under this Section
6(e),
the
Company shall take all necessary actions (including filing any required
supplemental prospectus) to restore the effectiveness of the applicable
Registration Statement and the ability of the Investors to publicly resell
their
Registrable Securities pursuant to such effective Registration
Statement.
(f) The
Company shall not, from the date hereof until the Effective Date of the
Registration Statement, prepare and file with the SEC a registration statement
relating to an offering for its own account or the account of others under
the
Securities Act of any of its equity securities, other
than any registration statement relating to the Company’s employee benefit plans
registered on Form S-8.
6.2 Registration
Procedures.
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) Not
less
than three Trading Days prior to the filing of a Registration Statement or
any
related Prospectus or any amendment or supplement thereto, furnish via email
to
those Investors who have supplied the Company with email addresses copies of
all
such documents proposed to be filed, which documents (other than any document
that is incorporated or deemed to be incorporated by reference therein) will
be
subject to the review of such Investors. The Company shall reflect in each
such
document when so filed with the SEC such comments regarding the Investors and
the plan of distribution as the Investors may reasonably and promptly propose
no
later than two Trading Days after the Investors have been so furnished with
copies of such documents as aforesaid.
(b) (i) Subject
to Section
6.1(e),
prepare
and file with the SEC such amendments, including post-effective amendments,
to
each Registration Statement and the Prospectus used in connection therewith
as
may be necessary to keep the Registration Statement continuously effective,
as
to the applicable Registrable Securities for the Effectiveness Period and
prepare and file with the SEC such additional Registration Statements in order
to register for resale under the Securities Act all of the Registrable
Securities; (ii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement, and as so supplemented or amended to
be
filed pursuant to Rule 424; (iii) respond as promptly as reasonably
possible, and in any event within 12 Trading Days (except to the extent that
the
Company reasonably requires additional time to respond to accounting comments),
to any comments received from the SEC with respect to the Registration Statement
or any amendment thereto; and (iv) comply in all material respects with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all Registrable Securities covered by the Registration Statement
during the applicable period in accordance with the intended methods of
disposition by the Investors thereof set forth in the Registration Statement
as
so amended or in such Prospectus as so supplemented.
(c) Notify
the Investors as promptly as reasonably possible, and (if requested by the
Investors, confirm such notice in writing no later than two Trading Days
thereafter), of any of the following events: (i) the SEC notifies the
Company whether there will be a “review” of any Registration Statement;
(ii) the SEC comments in writing on any Registration Statement;
(iii) any Registration Statement or any post-effective amendment is
declared effective; (iv) the SEC or any other Federal or state governmental
authority requests any amendment or supplement to any Registration Statement
or
Prospectus or requests additional information related thereto; (v) the SEC
issues any stop order suspending the effectiveness of any Registration Statement
or initiates any Proceedings for that purpose; (vi) the Company receives
notice of any suspension of the qualification or exemption from qualification
of
any Registrable Securities for sale in any jurisdiction, or the initiation
or
threat of any Proceeding for such purpose; or (vii) the financial
statements included in any Registration Statement become ineligible for
inclusion therein or any Registration Statement or Prospectus or other document
contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(d) Use
its
reasonable Best Efforts to avoid the issuance of or, if issued, obtain the
withdrawal of (i) any order suspending the effectiveness of any
Registration Statement, or (ii) any suspension of the qualification (or
exemption from qualification) of any of the Registrable Securities for sale
in
any jurisdiction, as soon as possible.
(e) If
requested by an Investor, provide such Investor, without charge, at least one
conformed copy of each Registration Statement and each amendment thereto,
including financial statements and schedules, and all exhibits to the extent
requested by such Person (including those previously furnished or incorporated
by reference) promptly after the filing of such documents with the
SEC.
(f) Promptly
deliver to each Investor, without charge, as many copies of the Prospectus
or
Prospectuses (including each form of prospectus) and each amendment or
supplement thereto as such Persons may reasonably request. The Company hereby
consents to the use of such Prospectus and each amendment or supplement thereto
by each of the selling Investors in connection with the offering and sale of
the
Registrable Securities covered by such Prospectus and any amendment or
supplement thereto to the extent permitted by federal and state securities
laws
and regulations.
(g) (i) In
the time and manner required by each Trading Market, prepare and file with
such
Trading Market an additional shares listing application covering all of the
Registrable Securities; (ii) take all steps necessary to cause such Common
Shares to be approved for listing on each Trading Market as soon as possible
thereafter; (iii) provide to each Investor evidence of such listing; and
(iv) except as a result of the Excluded Events, during the Effectiveness
Period, maintain the listing of such Common Shares on each such Trading Market
or another Eligible Market.
(h) Prior
to
any public offering of Registrable Securities, use its reasonable Best Efforts
to register or qualify or cooperate with the selling Investors in connection
with the registration or qualification (or exemption from such registration
or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as
any Investor requests in writing, to keep each such registration or
qualification (or exemption therefrom) effective for so long as required, but
not to exceed the duration of the Effectiveness Period, and to do any and all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of the Registrable Securities covered by a Registration
Statement; provided,
however,
that
the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities
in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(i) Cooperate
with the Investors to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be delivered to a transferee
pursuant to a Registration Statement, which certificates shall be free, to
the
extent permitted by this Agreement and under law, of all restrictive legends,
and to enable such certificates to be in such denominations and registered
in
such names as any such Investors may reasonably request.
(j) Upon
the
occurrence of any event described in Section
6.2(c)(vii),
as
promptly as reasonably possible, prepare a supplement or amendment, including
a
post-effective amendment, to the Registration Statement or a supplement to
the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, neither the Registration Statement nor such Prospectus
will contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(k) Cooperate
with any reasonable due diligence investigation undertaken by the Investors
in
connection with the sale of Registrable Securities, including, without
limitation, by making available documents and information; provided that the
Company will not deliver or make available to any Investor material, nonpublic
information unless such Investor requests in advance in writing to receive
material, nonpublic information and agrees to keep such information
confidential.
(l) Comply
with all rules and regulations of the SEC applicable to the registration of
the
Securities.
(m) It
shall
be a condition precedent to the obligations of the Company to complete the
registration pursuant to this Agreement with respect to the Registrable
Securities of any particular Investor or to make any Event Payments set forth
in
Section
6.1(d)
to such
Investor that such Investor furnish to the Company the information specified
in
Exhibits
X-0,
X-0
and
B-3
hereto
and such other information regarding itself, the Registrable Securities and
other shares of Common Stock held by it and the intended method of disposition
of the Registrable Securities held by it (if different from the Plan of
Distribution set forth on Exhibit D
hereto)
as shall be reasonably required to effect the registration of such Registrable
Securities and shall complete and execute such documents in connection with
such
registration as the Company may reasonably request.
(n) The
Company shall comply with all applicable rules and regulations of the SEC under
the Securities Act and the Exchange Act, including, without limitation, Rule
172
under the Securities Act, file any final Prospectus, including any supplement
or
amendment thereof, with the SEC pursuant to Rule 424 under the Securities Act,
promptly inform the Investors in writing if, at any time during the
Effectiveness Period, the Company does not satisfy the conditions specified
in
Rule 172 and, as a result thereof, the Investors are required to make available
a Prospectus in connection with any disposition of Registrable Securities and
take such other actions as may be reasonably necessary to facilitate the
registration of the Registrable Securities hereunder.
6.3 Registration
Expenses.
The
Company shall pay all fees and expenses incident to the performance of or
compliance with Article VI of this Agreement by the Company, including
without limitation (a) all registration and filing fees and expenses,
including without limitation those related to filings with the SEC, any Trading
Market and in connection with applicable state securities or Blue Sky laws,
(b) printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities), (c) messenger, telephone and
delivery expenses, (d) fees and disbursements of counsel for the Company,
(e) fees and expenses of all other Persons retained by the Company in
connection with the consummation of the transactions contemplated by this
Agreement, and (f) all listing fees to be paid by the Company to the
Trading Market.
6.4 Indemnification
(a) Indemnification
by the Company.
The
Company shall, notwithstanding any termination of this Agreement, indemnify
and
hold harmless each Investor, the officers, directors, partners, members, agents
and employees of each of them, each Person who controls any such Investor
(within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) and the officers, directors, partners, members, agents
and
employees of each such controlling Person, to the fullest extent permitted
by
applicable law, from and against any and all Losses (as determined by a court
of
competent jurisdiction in a final judgment not subject to appeal or review)
arising out of or relating to (i) any misrepresentation or breach of any
representation or warranty made by the Company in the Transaction Documents
or
any other certificate, instrument or document contemplated hereby or thereby,
(ii) any breach of any covenant, agreement or obligation of the Company
contained in the Transaction Documents or any other certificate, instrument
or
document contemplated hereby or thereby, (iii) any cause of action, suit or
claim brought or made against such Indemnified Party (as defined in Section 6.4(c)
below)
by a third party (including for these purposes a derivative action brought
on
behalf of the Company), arising out of or resulting from (x) the execution,
delivery, performance or enforcement of the Transaction Documents or any other
certificate, instrument or document contemplated hereby or thereby, (y) any
transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of the issuance of the Securities, or (z) the
status of Indemnified Party as holder of the Securities or (iv) any untrue
or
alleged untrue statement of a material fact contained in the Registration
Statement, any Prospectus or any form of Company prospectus or in any amendment
or supplement thereto or in any Company preliminary prospectus, or arising
out
of or relating to any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein (in the case
of
any Prospectus or form of prospectus or supplement thereto, in the light of
the
circumstances under which they were made) not misleading, except to the extent,
but only to the extent, that (A) such untrue statements, alleged untrue
statements, omissions or alleged omissions are based solely upon information
regarding such Investor furnished in writing to the Company by such Investor
for
use therein, or to the extent that such information relates to such Investor
or
such Investor’s proposed method of distribution of Registrable Securities and
was reviewed and expressly approved by such Investor expressly for use in the
Registration Statement, or (B) with respect to any prospectus, if the untrue
statement or omission of material fact contained in such prospectus was
corrected on a timely basis in the prospectus, as then amended or supplemented,
if such corrected prospectus was timely made available by the Company to the
Investor, and the Investor seeking indemnity hereunder was advised in writing
not to use the incorrect prospectus prior to the use giving rise to Losses.
(b) Indemnification
by Investors.
Each
Investor shall, severally and not jointly, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person who controls
the Company (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses (as determined by a court of
competent jurisdiction in a final judgment not subject to appeal or review)
arising solely out of any untrue statement of a material fact contained in
the
Registration Statement, any Prospectus, or any form of prospectus, or in any
amendment or supplement thereto, or arising out of or relating to any omission
of a material fact required to be stated therein or necessary to make the
statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto, in the light of the circumstances under which they were
made) not misleading, but only to the extent that such untrue statement or
omission is contained in any information so furnished by such Investor in
writing to the Company specifically for inclusion in such Registration Statement
or such Prospectus or to the extent that (i) such untrue statements or
omissions are based solely upon information regarding such Investor furnished
to
the Company by such Investor in writing expressly for use therein, or to the
extent that such information relates to such Investor or such Investor’s
proposed method of distribution of Registrable Securities and was reviewed
and
expressly approved by such Investor expressly for use in the Registration
Statement (it being understood that the information provided by the Investor
to
the Company in Exhibits
X-0,
X-0
and
B-3
and the
Plan of Distribution set forth on Exhibit D,
as the
same may be modified by such Investor and other information provided by the
Investor to the Company in or pursuant to the Transaction Documents constitutes
information reviewed and expressly approved by such Investor in writing
expressly for use in the Registration Statement), such Prospectus or such form
of prospectus or in any amendment or supplement thereto. In no event shall
the
liability of any selling Investor hereunder be greater in amount than the dollar
amount of the net proceeds received by such Investor upon the sale of the
Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct
of Indemnification Proceedings.
If any
Proceeding shall be brought or asserted against any Person entitled to indemnity
hereunder (an “Indemnified
Party”),
such
Indemnified Party shall promptly notify the Person from whom indemnity is sought
(the “Indemnifying
Party”)
in
writing, and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party
and
the payment of all fees and expenses incurred in connection with defense
thereof; provided, that the failure of any Indemnified Party to give such notice
shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that it shall be
finally determined by a court of competent jurisdiction (which determination
is
not subject to appeal or further review) that such failure shall have
proximately and materially adversely prejudiced the Indemnifying
Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (i) the Indemnifying Party has agreed in writing to pay such fees
and expenses; or (ii) the Indemnifying Party shall have failed promptly to
assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (iii) the
named parties to any such Proceeding (including any impleaded parties) include
both such Indemnified Party and the Indemnifying Party, and such Indemnified
Party shall have been advised by counsel that a conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at
the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense thereof and the reasonable fees and expenses of
separate counsel shall be at the expense of the Indemnifying Party). It shall
be
understood, however, that the Indemnifying Party shall not, in connection with
any one such Proceeding (including separate Proceedings that have been or will
be consolidated before a single judge) be liable for the fees and expenses
of
more than one separate firm of attorneys at any time for all Indemnified
Parties, which firm shall be appointed by a majority of the Indemnified Parties.
The Indemnifying Party shall not be liable for any settlement of any such
Proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending
Proceeding in respect of which any Indemnified Party is a party, unless such
settlement includes an unconditional release of such Indemnified Party from
all
liability on claims that are the subject matter of such Proceeding.
All
reasonable fees and expenses of the Indemnified Party (including reasonable
fees
and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within 20 Trading
Days of written notice thereof to the Indemnifying Party (regardless of whether
it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require
such Indemnified Party to undertake to reimburse all such fees and expenses
to
the extent it is finally judicially determined that such Indemnified Party
is
not entitled to indemnification hereunder).
(d) Contribution.
If a
claim for indemnification under Section
6.4(a)
or (b)
is
unavailable to an Indemnified Party (by reason of public policy or otherwise),
then each Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as
a
result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission
of a
material fact, has been taken or made by, or relates to information supplied
by,
such Indemnifying Party or Indemnified Party, and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a result
of any Losses shall be deemed to include, subject to the limitations set forth
in Section
6.4(c),
any
reasonable attorneys’ or other reasonable fees or expenses incurred by such
party in connection with any Proceeding to the extent such party would have
been
indemnified for such fees or expenses if the indemnification provided for in
this Section was
available to such party in accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section
6.4(d)
were
determined by pro rata allocation or by any other method of allocation that
does
not take into account the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this
Section
6.4(d),
no
Investor shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the proceeds actually received by such Investor from
the
sale of the Registrable Securities subject to the Proceeding exceed the amount
of any damages that such Investor has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
No
Person guilty of fraudulent misrepresentation (within the meaning of
Section
11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
The
indemnity and contribution agreements contained in this Section
are
in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
6.5 Dispositions.
Each
Investor agrees that it will comply with the prospectus delivery requirements
of
the Securities Act as applicable to it in connection with sales of Registrable
Securities pursuant to the Registration Statement and shall sell its Registrable
Securities in accordance with the Plan of Distribution set forth in the
Prospectus. Each Investor further agrees that, upon receipt of a notice from
the
Company of the occurrence of any event of the kind described in Sections
6.2(c)(v),
(vi)
or
(vii),
such
Investor will discontinue disposition of such Registrable Securities under
the
Registration Statement until such Investor is advised in writing by the Company
that the use of the Prospectus, or amended Prospectus, as applicable, may be
resumed. The Company may provide appropriate stop orders to enforce the
provisions of this paragraph.
6.6 No
Piggyback on Registrations.
Neither
the Company nor any of its security holders (other than the Investors in such
capacity pursuant hereto and the Excluded Investors) may include securities
of
the Company in the Registration Statement other than the Registrable
Securities.
6.7 Piggy-Back
Registrations.
If at
any time during the Effectiveness Period there is not an effective Registration
Statement covering all of the Registrable Securities and the Company shall
determine to prepare and file with the SEC a registration statement relating
to
an offering for its own account or the account of others under the Securities
Act of any of its equity securities, other than on Form S-4 or Form S-8 (each
as
promulgated under the Securities Act) or their then equivalents, relating to
equity securities to be issued solely in connection with any acquisition of
any
entity or business or equity securities issuable in connection with stock option
or other employee benefit plans, then the Company shall send to each Investor
not then eligible to sell all of their Registrable Securities under Rule 144
in
a three-month period, written notice of such determination and if, within ten
days after receipt of such notice, any such Investor shall so request in
writing, the Company shall include in such registration statement all or any
part of such Registrable Securities such Investor requests to be registered.
Notwithstanding
the foregoing, in the event that, in connection with any underwritten public
offering, the managing underwriter(s) thereof shall impose a limitation on
the
number of shares of Common Stock which may be included in the Registration
Statement because, in such underwriter(s)’ judgment, marketing or other factors
dictate such limitation is necessary to facilitate public distribution, then
the
Company shall be obligated to include in such Registration Statement only such
limited portion of the Registrable Securities with respect to which such
Investor has requested inclusion hereunder as the underwriter shall permit;
provided,
however,
that
(i) the Company shall not exclude any Registrable Securities unless the Company
has first excluded all outstanding securities, the holders of which are not
contractually entitled to inclusion of such securities in such Registration
Statement or are not contractually entitled to pro rata inclusion with the
Registrable Securities and (ii) after giving effect to the immediately preceding
proviso, any such exclusion of Registrable Securities shall be made pro rata
among the Investors seeking to include Registrable Securities and the holders
of
other securities having the contractual right to inclusion of their securities
in such Registration Statement by reason of demand registration rights, in
proportion to the number of Registrable Securities or other securities, as
applicable, sought to be included by each such Investor or other holder. If
an
offering in connection with which an Investor is entitled to registration under
this Section
6.7
is an
underwritten offering, then each Investor whose Registrable Securities are
included in such Registration Statement shall, unless otherwise agreed by the
Company, offer and sell such Registrable Securities in an underwritten offering
using the same underwriter or underwriters and, subject to the provisions of
this Agreement, on the same terms and conditions as other shares of Common
Stock
included in such underwritten offering and
shall
enter into an underwriting agreement in a form and substance reasonably
satisfactory to the Company and the underwriter or underwriters. Upon the
effectiveness of the registration statement for which piggy-back registration
has been provided in this Section
6.7,
any
Event Payments payable to an Investor whose Securities are included in such
registration statement shall terminate and no longer be payable.
ARTICLE VII
MISCELLANEOUS
7.1 Termination.
This
Agreement may be terminated by the Company or any Investor, by written notice
to
the other parties, if the Closing has not been consummated by the third Business
Day following the date of this Agreement; provided that no such termination
will
affect the right of any party to xxx for any breach by the other party (or
parties).
7.2 Fees
and Expenses.
Except
as expressly set forth in the Transaction Documents to the contrary, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other
experts, if any, and all other expenses incurred by such party incident to
the
negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall pay all Transfer Agent fees, stamp taxes and other taxes
and
duties levied in connection with the sale and issuance of the applicable
Securities.
7.3 Entire
Agreement.
The
Transaction Documents, together with the Exhibits and Schedules thereto, contain
the entire understanding of the parties with respect to the subject matter
hereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules. At or after the Closing, and
without further consideration, the Company will execute and deliver to the
Investors such further documents as may be reasonably requested in order to
give
practical effect to the intention of the parties under the Transaction
Documents.
7.4 Notices.
Any and
all notices or other communications or deliveries required or permitted to
be
provided hereunder shall be in writing and shall be deemed given and effective
on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile or email at the facsimile number or
email address specified in this Section prior
to
6:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day
after the date of transmission, if such notice or communication is delivered
via
facsimile or email at the facsimile number or email address specified in this
Section on a day that is not a Trading Day or later than 6:30 p.m. (New York
City time) on any Trading Day, (c) the Trading Day following the date of
deposit with a nationally recognized overnight courier service, or (d) upon
actual receipt by the party to whom such notice is required to be given. The
addresses, facsimile numbers and email addresses for such notices and
communications are those set forth on the signature pages hereof, or such other
address or facsimile number as may be designated in writing hereafter, in the
same manner, by any such Person.
7.5 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 each of
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. Notwithstanding the foregoing, a waiver
or consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Investors under Article VI
may be
given by Investors holding at least a majority of the Registrable Securities
to
which such waiver or consent relates.
7.6 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.
7.7 Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns. The Company may not assign
this Agreement or any rights or obligations hereunder without the prior written
consent of the Investors. Any Investor may assign its rights under this
Agreement to any Person to whom such Investor assigns or transfers any
Securities, provided (i)
such
transferor agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company after such
assignment, (ii) the Company is furnished with written notice of (x) the name
and address of such transferee or assignee and (y) the Registrable Securities
with respect to which such registration rights are being transferred or
assigned, (iii) following such transfer or assignment, the further disposition
of such securities by the transferee or assignee is restricted under the
Securities Act and applicable state securities laws and applicable provincial
securities laws of Canada, (iv) such
transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions hereof that apply to the “Investors”, (v)
such
transfer shall have been made in accordance with the applicable requirements
of
this Agreement and with all laws applicable thereto and (vi) in the case of
an
assignment of registration rights pursuant to Article
VI,
such
transferee or assignee acquires at least 100,000 shares of Common Stock
(including Warrants exercisable for such shares).
7.8 No
Third-Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except that each Indemnified
Party is an intended third party beneficiary of Section 6.4
and (in
each case) may enforce the provisions of such Section directly against the
parties with obligations thereunder.
7.9 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 AND INVESTORS
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 OR ANY INVESTOR HEREUNDER,
IN
CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED
HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE TRANSACTION
DOCUMENTS), AND HEREBY IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT,
ACTION OR PROCEEDING BROUGHT BY THE COMPANY OR ANY INVESTOR, ANY CLAIM THAT
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 THIS 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 AND INVESTORS
HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY.
7.10 Survival.
The
representations and warranties, agreements and covenants contained herein shall
survive the Closing.
7.11 Execution.
This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to
the
other party, it being understood that both parties need not sign the same
counterpart. In the event that any signature is delivered by facsimile
transmission or email 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 email-attached
signature page were an original thereof.
7.12 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.
7.13 Rescission
and Withdrawal Right.
Notwithstanding anything to the contrary contained in (and without limiting
any
similar provisions of) the Transaction Documents, whenever any Investor
exercises a right, election, demand or option owed to such Investor by the
Company under a Transaction Document and the Company does not timely perform
its
related obligations within the periods therein provided, then, prior to the
performance by the Company of the Company’s related obligation, such Investor
may rescind or withdraw, in its sole discretion from time to time upon written
notice to the Company, any relevant notice, demand or election in whole or
in
part without prejudice to its future actions and rights.
7.14 Replacement
of Securities.
If any
certificate or instrument evidencing any Securities is mutilated, lost, stolen
or destroyed, the Company shall issue or cause to be issued in exchange and
substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or destruction and
the execution by the holder thereof of a customary lost certificate affidavit
of
that fact and an agreement to indemnify and hold harmless the Company for any
losses in connection therewith. The applicants for a new certificate or
instrument under such circumstances shall also pay any reasonable third-party
costs associated with the issuance of such replacement Securities.
7.15 Remedies.
In
addition to being entitled to exercise all rights provided herein or granted
by
law, including recovery of damages, each of the Investors and the Company will
be entitled to seek specific performance under the Transaction Documents. The
parties agree that monetary damages may not be adequate compensation for any
loss incurred by reason of any breach of obligations described in the foregoing
sentence and hereby agree to waive in any action for specific performance of
any
such obligation (other than in connection with any action for a temporary
restraining order) the defense that a remedy at law would be adequate.
7.16 Payment
Set Aside.
To the
extent that the Company makes a payment or payments to any Investor hereunder
or
any Investor enforces or exercises its rights hereunder, and such payment or
payments or the proceeds of such enforcement or exercise or any part thereof
are
subsequently invalidated, declared to be fraudulent or preferential, set aside,
recovered from, disgorged by or are required to be refunded, repaid or otherwise
restored to the Company by a trustee, receiver or any other person under any
law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.
7.17 Adjustments
in Share Numbers and Prices.
In the
event of any stock split, subdivision, dividend or distribution payable in
shares of Common Stock (or other securities or rights convertible into, or
entitling the holder thereof to receive directly or indirectly shares of Common
Stock), combination or other similar recapitalization or event occurring after
the date hereof, each reference in any Transaction Document to a number of
shares or a price per share shall be amended to appropriately account for such
event.
7.18 Independent
Nature of Investors’ Obligations and Rights.
The
obligations of each Investor under any Transaction Document are several and
not
joint with the obligations of any other Investor, and no Investor shall be
responsible in any way for the performance of the obligations of any other
Investor under any Transaction Document. The decision of each Investor to
purchase Securities pursuant to this Agreement has been made by such Investor
independently of any other Investor and independently of any information,
materials, statements or opinions as to the business, affairs, operations,
assets, properties, liabilities, results of operations, condition (financial
or
otherwise) or prospects of the Company which may have been made or given by
any
other Investor or by any agent or employee of any other Investor, and no
Investor or any of its agents or employees shall have any liability to any
other
Investor (or any other person) relating to or arising from any such information,
materials, statements or opinions. Nothing contained herein or in any
Transaction Document, and no action taken by any Investor pursuant thereto,
shall be deemed to constitute the Investors as a partnership, an association,
a
joint venture or any other kind of entity, or create a presumption that the
Investors are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated by the Transaction Documents.
Each
Investor acknowledges that no other Investor has acted as agent for such
Investor in connection with making its investment hereunder and that no other
Investor will be acting as agent of such Investor in connection with monitoring
its investment hereunder. Each Investor shall be entitled to independently
protect and enforce its rights, including without limitation the rights arising
out of this Agreement or out of the other Transaction Documents, and it shall
not be necessary for any other Investor to be joined as an additional party
in
any Proceeding for such purpose.
[SIGNATURE
PAGES TO FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
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:
Chairman &
CEO
Address
for
Notice:
0000
Xxxxxxx
Xxxxxx
Xxxxxxxx
0, Xxxxx
000
Xxxxxxxxxxx,
Xxxxxxx
X0X
0X0
Xxxxxx
Facsimile
No.: (000)
000-0000
Telephone
No.: (000) 000-0000
Attn:
Xxxxx
Xxxxxxxx
and
Xxx
Xxx,
Esq.
With
a copy
to:
Torys
LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx, Xxx Xxxx
00000
Facsimile:
(000)
000-0000
Telephone: (000)
000-0000
Attn:
Xxxxxx
X.
Xxxx, Esq.
Investor
Signature Page
By
its
execution and delivery of this signature page, the undersigned Investor hereby
joins in and agrees to be bound by the terms and conditions of the Securities
Purchase Agreement dated as of __________, 2007 (the “Purchase Agreement”) by
and among OccuLogix,
Inc.
and the
Investors (as defined therein), as to the number of shares of Common Stock
and
Warrants set forth below, and authorizes this signature page to be attached
to
the Purchase Agreement or counterparts thereof.
Name
of
Investor:
__________________________________________
By:
_____________________________________________
Name:
Title:
Address: _________________________________________
__________________________________________
__________________________________________
Telephone
No.:
____________________________________
Facsimile
No.:
_____________________________________
Email
Address:
____________________________________
Number
of Shares:
__________________________________
Number
of Warrants:
_ ______________________________
Aggregate
Purchase
Price: $___________________________
Exhibits:
A Schedule
of Investors
B Instruction
Sheet for Investors
C Opinion
of Company Corporate Counsel
D Plan
of
Distribution
E Company
Transfer Agent Instructions
F Form
of
Warrant
Exhibit A
Schedule
of Investors
|
Investor
|
Common
Shares
|
Warrants
|
Warrant
Shares
|
Purchase
Price
|
|
Cranshire
Capital, LP
|
335,000
|
134,000
|
134,000
|
$502,500.00
|
|
Enable
Growth Partners LP
|
1,134,750
|
453,900
|
453,900
|
$1,702,125.00
|
|
Enable
Opportunity Partners LP
|
133,500
|
53,400
|
53,400
|
$200,250.00
|
|
Xxxxxx
Diversified Strategy Master Fund LLC, Ena
|
66,750
|
26,700
|
26,700
|
$100,125.00
|
|
Evolution
Master Fund Ltd. SPC, Segregated Portfolio M
|
1,133,333
|
453,333
|
453,333
|
$1,699,999.50
|
|
Capital
Ventures International
|
1,335,000
|
534,000
|
534,000
|
$2,002,500.00
|
|
Xxxxxx
Bay Fund LP
|
251,450
|
100,580
|
100,580
|
$377,175.00
|
|
Xxxxxx
Bay Overseas Funds Ltd.
|
283,550
|
113,420
|
113,420
|
$425,325.00
|
|
RHP
Master Fund, Ltd.
|
335,000
|
134,000
|
134,000
|
$502,500.00
|
|
Xxxxxxxx
Investment Master Fund Ltd.
|
335,000
|
134,000
|
134,000
|
$502,500.00
|
|
Sherleigh
Associates Inc., Profit Sharing Plan
|
1,000,000
|
400,000
|
400,000
|
$1,500,000
|
|
UBS
X’Xxxxxx LLC fbo X’Xxxxxx PIPEs Corporate Strategies Master
Limited
|
334,000
|
133,600
|
133,600
|
$501,000.00
|
|
TOTAL
|
6,677,333
|
2,670,933
|
2,670,933
|
$10,015,999.50
|
Exhibit B
INSTRUCTION
SHEET FOR INVESTOR
(to
be
read in conjunction with the entire Securities Purchase Agreement)
| A. |
Complete
the following items in the Securities Purchase Agreement:
|
| 1. |
Complete
and execute the Investor Signature Page. The Agreement must be executed
by
an individual authorized to bind the
Investor.
|
| 2. |
Exhibit B-1
- Stock Certificate Questionnaire:
|
Provide
the information requested by the Stock Certificate Questionnaire.
| 3. |
Exhibit B-2
- Registration Statement
Questionnaire:
|
Provide
the information requested by the Registration Statement
Questionnaire.
| 4. |
Exhibit B-3
- Investor Certificate:
|
Provide
the information requested by the Investor Certificate.
| 5. |
Return,
via facsimile, the signed Securities Purchase Agreement including
the
properly completed Exhibits B-1 through B-3,
to:
|
Facsimile:
Telephone:
Attn:
| 6. |
After
completing instruction number five (5) above, deliver the original
signed
Securities Purchase Agreement including the properly completed
Exhibits B-1
through B-3 to:
|
Address:
Attn:
| B. |
Instructions
regarding the wire transfer of funds for the purchase of the Securities
will be telecopied to the Investor by the Company at a later
date.
|
Exhibit B-1
STOCK
CERTIFICATE QUESTIONNAIRE
|
Please
provide us with the following information:
|
||
|
1.
|
The
exact name that the Securities are to be registered in
(this
is the name that will appear on the stock certificate(s)). You may
use a
nominee name if appropriate:
|
__________________________________________
|
|
2.
|
The
relationship between the Investor of the Securities and the Registered
Holder listed in response to item 1 above:
|
__________________________________________
|
|
3.
|
The
mailing address, telephone and telecopy number and email address
of the
Registered Holder listed
in
response to item 1 above:
|
__________________________________________
|
| __________________________________________ | ||
| __________________________________________ | ||
| __________________________________________ | ||
| __________________________________________ | ||
|
4.
|
The
Tax Identification Number of the Registered Holder listed in response
to
item 1 above:
|
__________________________________________
|
Exhibit B-2
REGISTRATION
STATEMENT QUESTIONNAIRE
In
connection with the Registration Statement, please provide us with the following
information regarding the Investor.
1. Please
state your organization’s name exactly as it should appear in the Registration
Statement:
______________________________________________________________________
Except
as set
forth below, your organization does not hold any equity securities of the
Company
on behalf of another person or entity.
State
any
exceptions here:
______________________________________________________________________
2. Address
of your organization:
______________________________________________________
______________________________________________________
Telephone:
__________________________
Fax:
________________________________
Contact
Person: _______________________
3. Have
you
or your organization had any position, office or other material relationship
within the past three years with the Company or its affiliates?
(Include
any relationships involving you or any of your affiliates, officers, directors,
or principal equity holders (5% or more) that has held any position or office
or
has had any other material relationship with the Company (or its predecessors
or
affiliates) during the past three years.)
_______
Yes _______
No
If
yes,
please indicate the nature of any such relationship below:
4. Are
you
the beneficial owner of any other securities of the Company?
(Include
any equity securities that you beneficially own or have a right to acquire
within 60 days after the date hereof, and as to which you have sole voting
power, shared voting power, sole investment power or shared investment
power.)
_______
Yes _______
No
If
yes,
please describe the nature and amount of such ownership
as of a
recent date.
5. Except
as
set forth below, you wish that all the shares of the Company’s common stock
beneficially owned by you or that you have the right to acquire from the Company
be offered for your account in the Registration Statement.
State
any
exceptions here:
6. Have
you
made or are you aware of any arrangements relating to the distribution of the
shares of the Company pursuant to the Registration Statement?
_______
Yes _______
No
If
yes,
please describe the nature and amount of such arrangements.
7. NASD
Matters
(a) State
below whether (i) you or any associate
or
affiliate
of yours
are a member
of the
NASD, a controlling
shareholder of an NASD member,
a
person
associated
with a member,
a
direct or indirect affiliate
of a
member,
or an
underwriter
or related person
with
respect to the proposed offering; (ii) you or any associate
or
affiliate
of yours
owns any stock or other securities of any NASD member
not
purchased in the open market; or (iii) you or any associate
or
affiliate
of yours
has made any outstanding subordinated loans to any NASD member.
If you
are a general or limited partnership, a no answer asserts that no such
relationship exists for you as well as for each of your general or limited
partners.
|
Yes:
__________
|
No:
__________
|
If
“yes”,
please identify the NASD member
and
describe your relationship, including, in the case of a general or limited
partner, the name of the partner
If
you
answer “no” to Question 7(a), you need not respond to Question 7(b).
(b) State
below whether you or any associate
or
affiliate
of yours
has been an underwriter, or a controlling
person
or member of any investment banking or brokerage firm which has been or might
be
an underwriter for securities of the Corporation or any affiliate
thereof
including, but not limited to, the common stock now being
registered.
|
Yes:
__________
|
No:
__________
|
If
“yes”,
please identify the NASD member
and
describe your relationship, including, in the case of a general or limited
partner, the name of the partner.
ACKNOWLEDGEMENT
The
undersigned hereby agrees to notify the Company promptly of any changes in
the
foregoing information which should be made as a result of any developments,
including the passage of time. The undersigned also agrees to provide the
Company and the Company’s counsel any and all such further information regarding
the undersigned promptly upon request in connection with the preparation,
filing, amending, and supplementing of the Registration Statement (or any
prospectus contained therein). The undersigned hereby consents to the use of
all
such information in the Registration Statement.
The
undersigned understands and acknowledges that the Company will rely on the
information set forth herein for purposes of the preparation and filing of
the
Registration Statement.
The
undersigned understands that the undersigned may be subject to serious civil
and
criminal liabilities if the Registration Statement, when it becomes effective,
either contains an untrue statement of a material fact or omits to state a
material fact required to be stated in the Registration Statement or necessary
to make the statements in the Registration Statement not misleading. The
undersigned represents and warrants that all information it provides to the
Company and its counsel is currently accurate and complete and will be accurate
and complete at the time the Registration Statement becomes effective and at
all
times subsequent thereto, and agrees during the Effectiveness Period and any
additional period in which the undersigned is making sales of Shares under
and
pursuant to the Registration Statement, to notify the Company immediately of
any
misstatement of a material fact in the Registration Statement, and of the
omission of any material fact necessary to make the statements contained therein
not misleading.
Dated:
__________
______________________________
Name
______________________________
Signature
______________________________
Name
and Title of
Signatory
Exhibit B-3
CERTIFICATE
FOR CORPORATE, PARTNERSHIP, LIMITED LIABILITY COMPANY,
TRUST,
FOUNDATION AND JOINT INVESTORS
If
the
Investor is a corporation, partnership, limited liability company, trust,
pension plan, foundation, joint investor (other than a married couple) or other
entity, an authorized officer, partner, or trustee must complete, date and
sign
this Certificate.
CERTIFICATE
The
undersigned certifies that the representations and responses below are true
and
accurate:
(a) The
Investor has been duly formed and is validly existing and has full power and
authority to invest in the Company. The person signing on behalf of the
undersigned has the authority to execute and deliver the Securities Purchase
Agreement on behalf of the Investor and to take other actions with respect
thereto.
(b) Indicate
the form of entity of the undersigned:
____ Limited
Partnership
____ General
Partnership
____ Limited
Liability Company
____ Corporation
____ Revocable
Trust (identify each grantor and indicate under what circumstances the trust
is
revocable by the
grantor):______________________________________________________________________________________________________________________________________
(Continue
on a separate piece of paper, if necessary.)
____ Other
type of Trust (indicate type of trust and, for trusts other than pension trusts,
name the grantors and
beneficiaries):__________________________________________________________________________________________________________________________________
(Continue
on a separate piece of paper, if necessary.)
____ Other
form of organization (indicate form of organization):
____________________________________________________________________________________________________________________________________________
.
.
(c) Indicate
the approximate date the undersigned entity was
formed: _______________________________________________________________________________
.
(d) In
order
for the Company to offer and sell the Securities in conformance with state
and
federal securities laws, the following information must be obtained regarding
your investor status. Please initial
each category
applicable to you as an investor in the Company.
___ 1. A
bank as
defined in Section 3(a)(2) of the Securities Act, or any savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the
Securities Act
whether
acting in its individual or fiduciary capacity;
___ 2. A
broker
or dealer registered pursuant to Section 15 of the Securities Exchange Act
of 1934;
___ 3. An
insurance company as defined in Section 2(13) of the Securities
Act;
___ 4. An
investment company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48)
of that Act;
___ 5. A
Small
Business Investment Company licensed by the U.S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of
1958;
___ 6. A
plan
established and maintained by a state, its political subdivisions, or any agency
or instrumentality of a state or its political subdivisions, for the benefit
of
its
employees, if such plan has total assets in excess of $5,000,000;
___ 7. An
employee benefit plan within the meaning of the Employee Retirement Income
Security Act of 1974, if the investment decision is made by a plan fiduciary,
as
defined
in Section 3(21) of such Act, which is either a bank, savings and loan
association, insurance company, or registered investment advisor, or if the
employee benefit plan
has total assets in excess of $5,000,000 or, if a self-directed plan, with
investment decisions made solely by persons that are accredited
investors;
___ 8. A
private
business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940;
___ 9. Any
partnership or corporation or any organization described in
Section 501(c)(3) of the Internal Revenue Code or similar business trust,
not formed for the specific
purpose of acquiring the Securities, with total assets in excess of
$5,000,000;
___ 10. A
trust,
with total assets in excess of $5,000,000, not formed for the specific purpose
of acquiring the Securities, whose purchase is directed by a sophisticated
person
as described in Rule 506(b)(2)(ii) of
the Exchange Act;
___ 11. An
entity
in which all of the equity owners qualify under any of the above subparagraphs.
If the undersigned belongs to this investor category only, list the
equity
owners
of the undersigned, and the investor category which each such equity owner
satisfies: ____________________________________________________
_____________________________________________________________________________________________________________
(Continue
on a separate piece of paper, if necessary.)
Please
set forth in the space provided below the (i) states, if any, in the U.S.
in which you maintained your principal office during the past two years and
the
dates during which you maintained your office in each state, (ii) state(s),
if any, in which you are incorporated or otherwise organized and
(iii) state(s), if any, in which you pay income taxes.
____________________________________________________________________________________________
____________________________________________________________________________________________
____________________________________________________________________________________________
Dated:__________________________,
2007
_______________________________
Print
Name of Investor
_______________________________
Name:
Title:
(Signature
and title of authorized officer, partner or trustee)
SECURITIES
DELIVERY INSTRUCTIONS
Please
instruct us as to where you would like the Securities delivered at
Closing:
Name:
_________________________________________________________
Company:
______________________________________________________
Address:_______________________________________________________
______________________________________________________________
Telephone:
_____________________________________________________
Other
Special Instructions:__________________________________________
______________________________________________________________
Exhibit C
OPINION
OF COMPANY
CORPORATE COUNSEL
February
__, 2007
To
the
Investors identified on Exhibit
A
to
the
Agreement defined below
Re: OccuLogix,
Inc.
Ladies
and Gentlemen:
We
have
acted as counsel to OccuLogix, Inc., a Delaware corporation (the “Company”),
in
connection with the Securities Purchase Agreement, dated as of January __,
2007,
by and among the Company, and the investors signatory thereto (the “Agreement”),
and
the transactions contemplated therein. Capitalized terms used herein and not
otherwise defined herein shall have the respective meanings assigned to such
terms in the Agreement.
This
opinion is being delivered pursuant to Section 2.2(a)(iv) of the Agreement.
In
rendering this opinion, we have examined executed originals, counterparts or
copies of each of the following:
1. the
Agreement (and the exhibits and schedules thereto);
2. the
Company’s Amended and Restated Certificate of Incorporation as in effect on the
date hereof (the
“Certificate
of Incorporation”);
3. the
Company’s Amended and Restated Bylaws (the “Bylaws”)
as in
effect on the date hereof;
4. the
corporate resolutions of the Board of Directors of the Company authorizing
the
execution and delivery of the Agreement and the consummation of the transactions
contemplated thereby, including the issuance and sale of the Common Shares,
the
Warrants and the Warrant Shares;
5. a
certificate from the Secretary of the State of Delaware as to the good standing
of the Company dated February __, 2007 (the “Good
Standing Certificate”);
6. the
Officer’s Certificate of the Company, dated as of the date hereof (the
“Officer’s
Certificate”);
and
7. such
other documents and certificates of public officials and representatives of
the
Company as we have deemed necessary as a basis for the opinions expressed
herein.
References
to (1) “Applicable
Laws”
shall
mean those laws, rules and regulations of the State of New York and the United
States of America as well as the General Corporation Law of the State of
Delaware (“DGCL”)
which,
in our experience, are normally applicable to transactions of the type similar
to the issuance and sale of the Common Shares and the Warrants, (2) the term
“Governmental
Authorities”
shall
mean any New York State or federal executive, legislative, judicial,
administrative or regulatory body and (3) the term “Applicable
Orders”
shall
mean those orders or decrees of Governmental Authorities applicable to the
Company identified to us
by the
Chief Financial Officer or Secretary of
the
Company.
As
to
various questions of fact material to this opinion, we have relied upon the
representations and warranties contained in the Agreement and upon certificates
and other documents and statements of officers of the Company, including without
limitation, the Officer’s Certificate, and of public officials. In our
examination of the documents referred to above, we have assumed (i) the
genuineness of all signatures; (ii) the incumbency, authority, capacity (in
the
case of natural persons), and legal right and power under all applicable laws,
statutes, rules and regulations of all persons executing the Agreement on behalf
of the parties thereto other than the Company to enter into the Agreement and
perform the obligations thereunder that are applicable to them; (iii) the
Agreement has been duly authorized, executed and delivered by, and is binding
upon and enforceable against, all persons (other than the Company) executing
the
Agreement; (iv) the authenticity and completeness of all documents submitted
to
us as original or certified documents; (v) the conformity to authentic original
documents of all documents submitted to us as certified, conformed, facsimile
or
photostatic copies; and (vi) that the Good Standing Certificate remains accurate
from the date thereof through and including the date of this opinion. We have
made no independent investigation of such assumptions.
We
are
attorneys admitted to practice only in the State of New York and we opine herein
only as to the effect of the Applicable Laws of the State of New York, the
federal laws of the United States of America and the DGCL on the subject
transaction. We do not opine on and we assume no responsibility as to the
applicability of or the effect on any of the matters covered herein other than
the Applicable Laws.
The
opinions set forth below are subject to the following additional assumptions,
limitations, qualifications and exceptions:
|
A.
|
The
legality, validity, binding effect and enforceability of the Agreement
and
the Warrants may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, marshaling or
other
similar laws now or hereafter in effect, affecting creditors’ rights and
remedies generally;
|
|
B.
|
The
legality, validity, binding effect and enforceability of the Agreement
and
the Warrants may be subject to general principles of equity, regardless
of
whether considered in equity or at law;
|
|
C.
|
No
opinion is expressed with respect to the enforceability of provisions
regarding indemnification and contribution against liabilities where
such
indemnification and contribution is contrary to public
policy;
|
D.
We
have
assumed that the issuance and sale of the Common Shares, the Warrants and the
Warrant Shares do not and will not conflict with, contravene, violate or
constitute a default under (i) any mortgage, lien, lease, agreement, contract,
instrument, order, arbitration award, judgment or decree to which the Company
is
subject, (ii) any rule, law or regulation to which the Company is subject (other
than the Applicable Laws) or (iii) any judicial or administrative order or
decree of any governmental authority (other than the Applicable
Orders);
E.
Where
we
render an opinion “to our knowledge” with respect to the Company, it is based
solely upon (i) the actual, current knowledge of those attorneys within this
firm who devoted substantive attention to the representation of the Company
in
connection with the transactions to which this opinion relates, (ii) the
representations and warranties of the Company set forth in the Agreement, (iii)
receipt of a certificate executed by an authorized officer of the Company
covering such matters, and (iv) review of documents provided to us by the
Company in connection with rendering this opinion, and the due diligence
performed in connection therewith, which review and due diligence were limited
to reviewing the Agreement, the Certificate of Incorporation, the Bylaws and
minute books of the Company, the Good Standing Certificate and certificates
of
the Company, and which due diligence did not include any examination of courts,
boards, other tribunals or public records with respect to any litigation,
investigation or proceedings, or judgments, orders or decrees applicable to
the
Company or any of its properties;
F.
We
express no opinion as to the effect on the opinions herein stated of (i) the
compliance or non-compliance of any party to the Agreement (other than the
Company to the extent set forth herein) with any state, federal or other laws
or
regulations applicable to them, or (ii) the legal or regulatory status or the
nature of the business of such other parties;
G.
Our
opinion as to good standing contained in paragraph 1 is based solely on the
Good
Standing Certificate and is given only as of the date thereof;
H. We
express no opinion on the due authorization of the Common Shares or the Warrant
Shares, in each case where the amount of Common Stock required to be issued
under such instruments exceeds the authorized but unissued Common Stock set
forth in the Certificate of Incorporation; and
I. This
opinion is limited to the matters expressly set forth herein and no opinion
is
implied or may be inferred beyond the matters expressly so stated. This opinion
is based upon facts known to the undersigned on the date hereof, and the
undersigned does not undertake any liability or responsibility to inform you
of
any change in circumstances occurring after the date hereof which might alter
the opinions contained herein.
Based
upon and subject to the foregoing, we are of the opinion that:
1. The
Company is a corporation validly existing and in good standing under the laws
of
the State of Delaware and has the requisite corporate power and authority to
carry on its business as now conducted and to own its properties.
2. (a)
The
Company has the requisite corporate power and authority to enter into and
perform the Agreement and to issue the Common Shares, the Warrants and the
Warrant Shares in accordance with the terms of the Agreement and the Warrants,
as the case may be; (b) the execution and delivery of the Agreement and the
Warrants by the Company and the consummation by it of the transactions
contemplated thereby have been duly authorized by the Company’s Board of
Directors and no further consent or authorization of the Company, its Board
of
Directors, or its shareholders is required; (c) the Agreement and the Warrants
have been duly executed and delivered by the Company; and (d) the Agreement
and
the Warrants constitute valid and binding obligations of the Company enforceable
against the Company in accordance with their terms.
3. The
Common Shares are duly authorized and, upon issuance in accordance with the
terms of the Agreement, will be validly issued, fully paid and non-assessable,
and, to our knowledge, free from all liens and charges with respect to the
issuance thereof. The Warrant Shares are duly authorized and, upon issuance
in
accordance with the terms and conditions of the Warrants, will be validly
issued, fully paid and non-assessable, and, to our knowledge, free from all
liens and charges with respect to the issuance thereof. A number of shares
of
Common Stock sufficient to meet the Company’s obligations to issue Common Stock
upon full exercise of the Warrants has been duly reserved.
4. No
authorization, approval or consent of any Governmental Authority or the
shareholders of the Company, is required for the issuance and sale of the
Securities as contemplated by the Agreement or the consummation of the other
transactions contemplated thereby.
5. The
execution and delivery of the Agreement by the Company and the
issuance of the Common Shares and the Warrants pursuant thereto do not, and,
if
issued on the date hereof, the issuance of the Warrant Shares upon exercise
of
the Warrants would not, (i) violate any provision of the Certificate of
Incorporation or Bylaws, as currently in effect, or (ii) violate or contravene
(a) any Applicable Law, or (b) any Applicable Order of which we are aware,
the
violation or contravention of which would result in a Material Adverse
Effect.
6. We
have
not been engaged to devote substantive attention to any claims, actions, suits,
proceedings or investigations that are pending against the Company or its
properties, or against any officer or director of the Company in his or her
capacity as such. Except
as
described in the Schedules to the Agreement and the SEC Filings, to our
knowledge there is no action or proceeding pending against the Company or its
Subsidiaries before any court or administrative agency that questions the
validity of the Agreement or which reasonably might be expected to result,
either individually or in the aggregate, in a Material Adverse
Effect.
7. There
is
no control share acquisition, business combination, poison pill (including
any
distribution under a rights agreement) or other similar anti-takeover provision
under the Certificate of Incorporation or Bylaws or the DGCL that is or could
become applicable to any of the Investors as a result of the Investors and
the
Company fulfilling their obligations or exercising their rights under the
Agreement, including, without limitation, as a result of the Company’s issuance
of the Securities and the Investors’ ownership of the Securities.
8. Assuming
the representations made by the Investors in the Agreement are true and correct,
the sale of the Common Shares and the Warrants are exempt, and the Warrant
Shares, if issued on the date hereof, would be exempt from the registration
requirements of Section 5 of the Securities Act.
These
opinions are rendered only to you and are solely for your benefit in connection
with the transactions contemplated by the Agreement and may not, without our
prior express written consent, be quoted or relied upon for any other purpose
or
by an other person.
Exhibit D
PLAN
OF DISTRIBUTION
The
selling stockholders may, from time to time, sell any or all of their shares
of
common stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at fixed or
negotiated prices. The selling stockholders may use any one or more of the
following methods when selling shares:
| · |
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
| · |
block
trades in which the broker-dealer will attempt to sell the shares
as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
| · |
purchases
by a broker-dealer as principal and resale by the broker-dealer for
its
account;
|
| · |
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
| · |
privately
negotiated transactions;
|
| · |
short
sales;
|
| · |
broker-dealers
may agree with the selling stockholders to sell a specified number
of such
shares at a stipulated price per
share;
|
| · |
a
combination of any such methods of sale;
and
|
| · |
any
other method permitted pursuant to applicable
law.
|
The
selling stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this prospectus.
Broker-dealers
engaged by the selling stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from
the selling stockholders (or, if any broker-dealer acts as agent for the
purchaser of shares, from the purchaser) in amounts to be negotiated. The
selling stockholders do not expect these commissions and discounts to exceed
what is customary in the types of transactions involved. Any profits on the
resale of shares of common stock by a broker-dealer acting as principal might
be
deemed to be underwriting discounts or commissions under the Securities Act.
Discounts, concessions, commissions and similar selling expenses, if any,
attributable to the sale of shares will be borne by a selling stockholder.
The
selling stockholders may agree to indemnify any agent, dealer or broker-dealer
that participates in transactions involving sales of the shares if liabilities
are imposed on that person under the Securities Act.
The
selling stockholders may from time to time pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of common stock from time to time under this
prospectus after we have filed a supplement to this prospectus under Rule
424(b)(3) or other applicable provision of the Securities Act of 1933
supplementing or amending the list of selling stockholders to include the
pledgee, transferee or other successors in interest as selling stockholders
under this prospectus.
The
selling stockholders also may transfer the shares of common stock in other
circumstances, in which case the transferees, pledgees or other successors
in
interest will be the selling beneficial owners for purposes of this prospectus
and may sell the shares of common stock from time to time under this prospectus
after we have filed a supplement to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act of 1933 supplementing or
amending the list of selling stockholders to include the pledgee, transferee
or
other successors in interest as selling stockholders under this
prospectus.
The
selling stockholders and any broker-dealers or agents that are involved in
selling the shares of common stock may be deemed to be “underwriters” within the
meaning of the Securities Act in connection with such sales. In such event,
any
commissions received by such broker-dealers or agents and any profit on the
resale of the shares of common stock purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act.
We
are
required to pay all fees and expenses incident to the registration of the shares
of common stock. We have agreed to indemnify the selling stockholders against
certain losses, claims, damages and liabilities, including liabilities under
the
Securities Act.
The
selling stockholders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares of common stock, nor is there
an underwriter or coordinating broker acting in connection with a proposed
sale
of shares of common stock by any selling stockholder. If we are notified by
any
selling stockholder that any material arrangement has been entered into with
a
broker-dealer for the sale of shares of common stock, if required, we will
file
a supplement to this prospectus. If the selling stockholders use this prospectus
for any sale of the shares of common stock, they will be subject to the
prospectus delivery requirements of the Securities Act.
The
anti-manipulation rules of Regulation M under the Securities Exchange Act of
1934 may apply to sales of our common stock and activities of the selling
stockholders.
Exhibit E
COMPANY
TRANSFER AGENT INSTRUCTIONS
Mellon
Investor Services LLC
Newport
Office Center VII
000
Xxxxxxxxxx Xxxxxxxxx
Xxxxxx
Xxxx, Xxx Xxxxxx 00000
Attention:
Ladies
and Gentlemen:
Reference
is made to that certain Securities Purchase Agreement, dated as of February
1,
2007 (the “Agreement”),
by and
among OccuLogix, Inc., a Delaware corporation (the “Company”),
and
the investors named on the Schedule of Investors attached thereto (collectively,
the “Holders”),
pursuant to which the Company is issuing to the Holders shares (the
“Common
Shares”)
of
Common Stock of the Company, par value $.001 per share (the “Common
Stock”),
and
Warrants (the “Warrants”),
which
are exercisable into shares of Common Stock.
This
letter shall serve as our irrevocable authorization and direction to you
(provided that you are the transfer agent of the Company at such time):
(i)
to issue shares of Common Stock upon transfer or resale of the Common Shares;
and
(ii)
to issue shares of Common Stock upon the exercise of the Warrants (the
“Warrant
Shares”)
to or
upon the order of a Holder from time to time upon delivery to you of a properly
completed and duly executed Exercise Notice, in the form attached hereto as
Exhibit I,
which
has been acknowledged by the Company as indicated by the signature of a duly
authorized officer of the Company thereon.
You
acknowledge and agree that so long as you have previously received
(a) written confirmation from the Company’s legal counsel that either
(i) a registration statement covering resales of the Common Shares and the
Warrant Shares has been declared effective by the Securities and Exchange
Commission (the “SEC”)
under
the Securities Act of 1933, as amended (the “1933
Act”),
and
that resales of the Common Shares and the Warrant Shares may be made thereunder,
or (ii) sales of the Common Shares and the Warrant Shares may be made in
conformity with Rule 144 under the 1933 Act (“Rule 144”),
(b) if applicable, a copy of such registration statement, and
(c) notice from legal counsel to the Company or any Holder that a transfer
of Common Shares and/or Warrant Shares has been effected either pursuant to
the
registration statement (and a prospectus delivered to the transferee) or
pursuant to Rule 144, then, unless otherwise required by law, within three
(3) business days of your receipt of the notice referred to in (c), you shall
issue the certificates representing the Common Shares and the Warrant Shares
so
sold
to the
transferees registered in the names of such transferees, and such certificates
shall not bear any legend restricting transfer of the Common Shares and
the
Warrant Shares thereby and should not be subject to any stop-transfer
restriction.
A
form of
written confirmation (to be used in connection with any sale) from the Company’s
outside legal counsel that a registration statement covering resales of the
Common Shares and the Warrant Shares has
been
declared effective by the SEC under the 1933 Act is attached hereto as
Exhibit II.
Please
be
advised that the Holders are relying upon this letter as an inducement to enter
into the Agreement and, accordingly, each Holder is a third party beneficiary
to
these instructions.
Please
execute this letter in the space indicated to acknowledge your agreement to
act
in accordance with these instructions. Should you have any questions concerning
this matter, please contact me at (000) 000-0000.
Very
truly
yours,
By: __________________________________________________
Name:
Title:
THE
FOREGOING INSTRUCTIONS ARE
ACKNOWLEDGED
AND AGREED TO
this
day
of ___________, 2007
MELLON
INVESTOR SERVICES LLC
By:_____________________________
Name:______________________
Title:_______________________
Enclosures
Exhibit F
FORM
OF WARRANT
NEITHER
THESE SECURITIES NOR THE SECURITIES FOR WHICH THESE SECURITIES ARE EXERCISABLE
HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE
STATE SECURITIES LAWS. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON
EXERCISE OF THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
OCCULOGIX,
INC.
WARRANT
Warrant
No. [
] Dated:
______________, 2007
OCCULOGIX,
INC., a Delaware corporation (the “Company”),
hereby certifies that, for value received, [Name of Holder] or its registered
assigns (the “Holder”),
is
entitled to purchase from the Company up to a total of
[ ]1
shares
of common stock, $0.001 par value per share (the “Common
Stock”),
of
the Company (each such share, a “Warrant
Share”
and
all
such shares, the “Warrant
Shares”)
at an
exercise price equal to [$_________] per share (as adjusted from time to time
as
provided in Section 9,
the
“Exercise
Price”),
at
any time on or after August [__], 2007 (the “Initial
Exercise Date”)
and
through and including the date that is five years from the date of issuance
hereof (the “Expiration
Date”),
and
subject to the following terms and conditions. This Warrant (this “Warrant”)
is one
of a series of similar warrants issued pursuant to that certain Securities
Purchase Agreement, dated as of the date hereof, by and among the Company and
the Purchasers identified therein (the “Purchase
Agreement”).
All
such warrants are referred to herein, collectively, as the “Warrants.”
1 __%
warrant coverage.
1. Definitions.
In
addition to the terms defined elsewhere in this Warrant, capitalized terms
that
are not otherwise defined herein have the meanings given to such terms in the
Purchase Agreement.
2. Registration
of Warrant.
The
Company shall register this Warrant, upon records to be maintained by the
Company for that purpose (the “Warrant
Register”),
in
the name of the Holder of record hereof from time to time. The Company may
deem
and treat the registered Holder of this Warrant as the absolute owner hereof
for
the purpose of any exercise hereof or any distribution to the Holder, and for
all other purposes, absent actual notice to the contrary.
3. Registration
of Transfers.
The
Company shall register the transfer of any portion of this Warrant in the
Warrant Register, upon surrender of this Warrant, with the Form of Assignment
attached hereto duly completed and signed, to the Transfer Agent or to the
Company at its address specified herein. Upon any such registration of transfer,
a new warrant to purchase Common Stock, in substantially the form of this
Warrant (any such new warrant, a “New
Warrant”),
evidencing the portion of this Warrant so transferred shall be issued to the
transferee and a New Warrant evidencing the remaining portion of this Warrant
not so transferred, if any, shall be issued to the transferring Holder. The
acceptance of the New Warrant by the transferee thereof shall be deemed the
acceptance by such transferee of all of the rights and obligations of a holder
of a Warrant.
4. Exercise
and Duration of Warrants.
(a) This
Warrant shall be exercisable by the registered Holder at any time and from
time
to time on or after the Initial Exercise Date to and including the Expiration
Date. At 6:30 P.M., New York City time on the Expiration Date, the portion
of this Warrant not exercised prior thereto shall be and become void and of
no
value; provided that, if the average of the Closing Prices for the five Trading
Days immediately prior to (but not including) the Expiration Date exceeds the
Exercise Price on the Expiration Date, provided further that, if on the
Expiration Date, there is no effective Registration Statement covering the
resale of the Warrant Shares, then this Warrant shall be deemed to have been
exercised in full (to the extent not previously exercised) on a “cashless
exercise” basis at 6:30 P.M., New York City time on the Expiration
Date.
(b) A
Holder
may exercise this Warrant by delivering to the Company (i) an exercise
notice, in the form attached hereto (the “Exercise
Notice”),
appropriately completed and duly signed, and (ii) payment of the Exercise
Price for the number of Warrant Shares as to which this Warrant is being
exercised (which may take the form of a “cashless exercise” if so indicated in
the Exercise Notice and only if a “cashless exercise” may occur at such time
pursuant to Section 10 below), and the date such items are delivered to the
Company (as determined in accordance with the notice provisions hereof) is
an
“Exercise
Date.”
The
Holder shall not be required to deliver the original Warrant in order to effect
an exercise hereunder. Execution and delivery of the Exercise Notice shall
have
the same effect as cancellation of the original Warrant and issuance of a New
Warrant evidencing the right to purchase the remaining number of Warrant
Shares.
5. Delivery
of Warrant Shares.
(a) Upon
exercise of this Warrant, the Company shall promptly (but in no event later
than
five Trading Days after the Exercise Date) issue or cause to be issued and
cause
to be delivered to or upon the written order of the Holder and in such name
or
names as the Holder may designate, a certificate for the Warrant Shares issuable
upon such exercise, free of restrictive legends unless a registration statement
covering the resale of the Warrant Shares and naming the Holder as a selling
stockholder thereunder is not then effective and the Warrant Shares are not
freely transferable without volume restrictions pursuant to Rule 144 under
the Securities Act. The Holder, or any Person so designated by the Holder to
receive Warrant Shares, shall be deemed to have become the holder of record
of
such Warrant Shares as of the Exercise Date. The Company shall, upon request
of
the Holder, use its best efforts to deliver Warrant Shares hereunder
electronically through The Depository Trust Company or another established
clearing corporation performing similar functions.
(b) This
Warrant is exercisable, either in its entirety or, from time to time, for a
portion of the number of Warrant Shares. Upon surrender of this Warrant
following one or more partial exercises, the Company shall issue or cause to
be
issued, at its expense, a New Warrant evidencing the right to purchase the
remaining number of Warrant Shares.
(c) In
addition to any other rights available to a Holder, if the Company fails to
deliver to the Holder a certificate representing Warrant Shares by the third
Trading Day after the date on which delivery of such certificate is required
by
this Warrant, and if after such third Trading Day the Holder purchases (in
an
open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by the Holder of the Warrant Shares that the Holder
anticipated receiving from the Company (a “Buy-In”),
then
the Company shall, within three Trading Days after the Holder’s request and in
the Holder’s discretion, either (i) pay cash to the Holder in an amount
equal to the Holder’s total purchase price (including brokerage commissions, if
any) for the shares of Common Stock so purchased (the “Buy-In
Price”),
at
which point the Company’s obligation to deliver such certificate (and to issue
such Common Stock) shall terminate, or (ii) promptly honor its obligation
to deliver to the Holder a certificate or certificates representing such Common
Stock and pay cash to the Holder in an amount equal to the excess (if any)
of
the Buy-In Price over the product of (A) such number of shares of Common Stock,
times (B) the Closing Price on the date of the event giving rise to the
Company’s obligation to deliver such certificate.
(d) The
Company’s obligations to issue and deliver Warrant Shares in accordance with the
terms hereof are absolute and unconditional, irrespective of any action or
inaction by the Holder to enforce the same, any waiver or consent with respect
to any provision hereof, the recovery of any judgment against any Person or
any
action to enforce the same, or any setoff, counterclaim, recoupment, limitation
or termination, or any breach or alleged breach by the Holder or any other
Person of any obligation to the Company or any violation or alleged violation
of
law by the Holder or any other Person, and irrespective of any other
circumstance which might otherwise limit such obligation of the Company to
the
Holder in connection with the issuance of Warrant Shares. Nothing herein shall
limit a Holder’s right to pursue any other remedies available to it hereunder,
at law or in equity including, without limitation, a decree of specific
performance and/or injunctive relief with respect to the Company’s failure to
timely deliver certificates representing shares of Common Stock upon exercise
of
this Warrant as required pursuant to the terms hereof.
6. Charges,
Taxes and Expenses.
Issuance and delivery of certificates for shares of Common Stock upon exercise
of this Warrant shall be made without charge to the Holder for any issue or
transfer tax, withholding tax, transfer agent fee or other incidental tax or
expense in respect of the issuance of such certificates, all of which taxes
and
expenses shall be paid by the Company; provided, however, that the Company
shall
not be required to pay any tax which may be payable in respect of any transfer
involved in the registration of any certificates for Warrant Shares or Warrants
in a name other than that of the Holder. The Holder shall be responsible for
all
other tax liability that may arise as a result of holding or transferring this
Warrant or receiving Warrant Shares upon exercise hereof.
7. Replacement
of Warrant.
If this
Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
hereof, or in lieu of and substitution for this Warrant, a New Warrant, but
only
upon receipt of evidence reasonably satisfactory to the Company of such loss,
theft or destruction and customary and reasonable bond or indemnity, if
requested. Applicants for a New Warrant under such circumstances shall also
comply with such other reasonable regulations and procedures and pay such other
reasonable third-party costs as the Company may prescribe.
8. Reservation
of Warrant Shares.
The
Company covenants that it will at all times reserve and keep available out
of
the aggregate of its authorized but unissued and otherwise unreserved Common
Stock, solely for the purpose of enabling it to issue Warrant Shares upon
exercise of this Warrant as herein provided, the number of Warrant Shares which
are then issuable and deliverable upon the exercise of this entire Warrant,
free
from preemptive rights or any other contingent purchase rights of persons other
than the Holder (after giving effect to the adjustments and restrictions of
Section 9, if any). The Company covenants that all Warrant Shares so
issuable and deliverable shall, upon issuance and the payment of the applicable
Exercise Price in accordance with the terms hereof, be duly and validly
authorized, issued and fully paid and nonassessable. The Company will take
all
such action as may be necessary to assure that such shares of Common Stock
may
be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of any securities exchange or automated
quotation system upon which the Common Stock may be listed.
9. Certain
Adjustments.
The
Exercise Price and number of Warrant Shares issuable upon exercise of this
Warrant are subject to adjustment from time to time as set forth in this
Section 9.
(a) Stock
Dividends and Splits.
If the
Company, at any time while this Warrant is outstanding, (i) pays a stock
dividend on its Common Stock or otherwise makes a distribution on any class
of
capital stock that is payable in shares of Common Stock, (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, or
(iii) combines outstanding shares of Common Stock into a smaller number of
shares, then in each such case the Exercise Price shall be multiplied by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding immediately before such event and of which the denominator shall
be
the number of shares of Common Stock outstanding immediately after such event.
Any adjustment made pursuant to clause (i) of this paragraph shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such dividend or distribution, and any
adjustment pursuant to clause (ii) or (iii) of this paragraph shall become
effective immediately after the effective date of such subdivision or
combination.
(b) Pro
Rata Distributions.
If the
Company, at any time while this Warrant is outstanding, distributes to holders
of Common Stock (i) evidences of its indebtedness, (ii) any security
(other than a distribution of Common Stock covered by the preceding paragraph),
(iii) rights or warrants to subscribe for or purchase any security, or
(iv) any other asset other than cash dividends out of earnings (in each
case, “Distributed
Property”),
then
in each such case the Holder shall be entitled upon exercise of this Warrant
for
the purchase of any or all of the Warrant Shares, to receive the amount of
Distributed Property which would have been payable to the Holder had such Holder
been the holder of such Warrant Shares on the record date for the determination
of stockholders entitled to such Distributed Property. The Company will at
all
times set aside in escrow and keep available for distribution to such holder
upon exercise of this Warrant a portion of the Distributed Property to satisfy
the distribution to which such Holder is entitled pursuant to the preceding
sentence.
(c) Fundamental
Transactions.
If any
capital reorganization, reclassification of the capital stock of the Company,
consolidation or merger of the Company with another corporation in which the
Company is not the survivor, or sale, transfer or other disposition of all
or
substantially all of the Company’s assets to another corporation shall be
effected (all such transactions being hereinafter referred to as a “Fundamental
Transaction”),
then
the Company shall use its best efforts to ensure that lawful and adequate
provision shall be made whereby the Holder shall thereafter have the right
to
purchase and receive upon the basis and upon the terms and conditions herein
specified and in lieu of the Warrant Shares immediately theretofore issuable
upon exercise of this Warrant, such shares of stock, securities or assets as
would have been issuable or payable with respect to or in exchange for a number
of Warrant Shares equal to the number of Warrant Shares immediately theretofore
issuable upon exercise of this Warrant, had such reorganization,
reclassification, consolidation, merger, sale, transfer or other disposition
not
taken place, and in any such case appropriate provision shall be made with
respect to the rights and interests of the Holder to the end that the provisions
hereof (including, without limitation, provision for adjustment of the Exercise
Price) shall thereafter be applicable, as nearly equivalent as may be
practicable in relation to any share of stock, securities or assets thereafter
deliverable upon the exercise thereof. The Company shall not effect any such
consolidation, merger, sale, transfer or other disposition unless prior to
or
simultaneously with the consummation thereof the successor corporation (if
other
than the Company) resulting from such consolidation or merger, or the
corporation purchasing or otherwise acquiring such assets or other appropriate
corporation or entity shall assume the obligation to deliver to the Holder,
at
the last address of the Holder appearing on the books of the Company, such
shares of stock, securities or assets as, in accordance with the foregoing
provisions, the Holder may be entitled to purchase, and the other obligations
under this Warrant. The provisions of this Section 9(c) shall similarly
apply to successive reorganizations, reclassifications, consolidations, mergers,
sales, transfers or other dispositions, each of which transactions shall also
constitute a Fundamental Transaction. Notwithstanding the foregoing, if any
Fundamental Transaction constitutes or results in (a) a “going private”
transaction as defined in Rule 13e-3 under the Exchange Act, (b) an
acquisition of the Company primarily for cash, or (c) an acquisition,
merger or sale with or into a Person not traded on an Eligible Market, then
the
Company (or any such successor or surviving entity) will redeem this Warrant
from the Holder for a purchase price, payable in cash on the closing date of
such Fundamental Transaction, equal to the Black Scholes Value of the remaining
unexercised portion of this Warrant on the closing date of such Fundamental
Transaction, provided that the per share consideration to be received by the
holders of Common Stock upon the consummation of such Fundamental Transaction
is
less than the Exercise Price. “Black
Scholes Value”
means
the value of this Warrant based on the Black and Scholes Option Pricing Model
obtained from the “OV” function on Bloomberg determined as of the day
immediately following the public announcement of the applicable Fundamental
Transaction and reflecting (i) a risk-free interest rate corresponding to
the U.S. Treasury rate for a period equal to the remaining term of this Warrant
as of such date and (ii) an expected volatility equal to the lesser of (x)
70 - or (y) 100 - day volatility obtained from the HVT function on
Bloomberg.
(d) Subsequent
Equity Sales.
(i) If,
at
any time while this Warrant is outstanding, the Company issues additional shares
of Common Stock or rights, warrants, options or other securities or debt
convertible, exercisable or exchangeable for shares of Common Stock or otherwise
entitling any Person to acquire shares of Common Stock (collectively,
“Common
Stock Equivalents”)
at an
effective price to the Company per share of Common Stock (the "Effective
Price")
less
than the Exercise Price (as adjusted hereunder to such date), then the total
maximum number of shares of Common Stock issuable upon conversion, exercise
or
exchange of such Common Stock Equivalents shall be deemed to be outstanding
as
of the date of issuance of such Common Stock Equivalents and the Exercise Price
shall be reduced to equal the product of (A) the Exercise Price in effect
immediately prior to such issuance of Common Stock or Common Stock Equivalents
times (B) a fraction, the numerator of which is the sum of (1) the number of
shares Common Stock outstanding or deemed to be outstanding immediately prior
to
such issuance, plus (2) the number of shares of Common Stock which the aggregate
Effective Price of the Common Stock issued (or deemed to be issued) would
purchase at the Exercise Price (as adjusted hereunder to such date), and the
denominator of which is the aggregate number of shares of Common Stock
outstanding or deemed to be outstanding immediately after such issuance.
Notwithstanding the foregoing, in no event shall the Exercise Price be reduced
below $1.85 per share (as appropriately adjusted for any event described in
paragraph (a) of this Section) through the operation of this paragraph (d).
For
purposes of this paragraph, in connection with any issuance of any Common Stock
Equivalents, (A) the maximum number of shares of Common Stock potentially
issuable at any time upon conversion, exercise or exchange of such Common Stock
Equivalents (the "Deemed
Number")
shall
be deemed to be outstanding upon issuance of such Common Stock Equivalents
(without regard to any provision contained therein for a subsequent adjustment
to such number of shares), (B) the Effective Price applicable to such Common
Stock shall equal the minimum dollar value of consideration payable to the
Company to purchase such Common Stock Equivalents and to convert, exercise
or
exchange them into Common Stock (without regard to any provision contained
therein for a subsequent adjustment to such number of shares), divided by the
Deemed Number, and (C) no further adjustment shall be made to the Exercise
Price
upon the actual issuance of Common Stock upon conversion, exercise or exchange
of such Common Stock Equivalents. If such Common Stock Equivalents by their
terms provide, with the passage of time or otherwise, for any decrease in the
consideration payable to the Company, or increase in the number of shares of
Common Stock issuable upon the exercise, conversion or exchange thereof, the
Exercise Price computed upon the original issue thereof, and any subsequent
adjustments based thereon, shall, upon any such decrease or increase becoming
effective, be recomputed to reflect such decrease or increase insofar as it
affects such Common Stock Equivalents. On the expiration of any Common Stock
Equivalent, or the termination of any such right to convert or exchange any
such
Common Stock Equivalent into or for Common Stock, the Exercise Price then in
effect hereunder shall forthwith be readjusted (increased or decreased, as
the
case may be) to the Exercise Price which would have been in effect at the time
of such expiration or termination had such Common Stock Equivalent, to the
extent outstanding immediately prior to such expiration or termination, never
been granted, issued or sold, and the shares of Common Stock issuable thereunder
shall no longer be deemed to be outstanding.
(ii) If,
at
any time while this Warrant is outstanding, the Company issues Common Stock
Equivalents with an Effective Price or a number of underlying shares that floats
or resets or otherwise varies or is subject to adjustment based (directly or
indirectly) on market prices of the Common Stock (a "Floating
Price Security"),
then
for purposes of applying the preceding paragraph in connection with any
subsequent exercise, the Effective Price will be determined separately on each
Exercise Date and will be deemed to equal the lowest Effective Price at which
any holder of such Floating Price Security is entitled to acquire Common Stock
on such Exercise Date (regardless of whether any such holder actually acquires
any shares, on such date).
(iii) Notwithstanding
the foregoing, no adjustment will be made under this paragraph (d) in respect
of
any Excluded Stock. For purposes hereof, “Excluded
Stock”
shall
mean shares of Common Stock or Common Stock Equivalents issued or deemed issued
(v) upon the exercise of Options outstanding on the date hereof, (w) upon
the issuance of Options in the future under the Company’s 2002 Stock Option Plan
or other security-based compensation arrangements, (x) to banks, equipment
lessors or other financial institutions, or to real property lessors, pursuant
to a debt financing, equipment leasing or real property leasing transaction,
(y)
pursuant to the acquisition of another corporation by the Company by merger,
purchase of substantially all of the assets or other reorganization or pursuant
to a joint venture agreement, (z) in connection with marketing or similar
agreements or strategic partnerships (including, without limitation, by way
of a
private placement to strategic investors and/or entities (whatever the legal
form) in which, or of which, one or more members of the Company’s management
beneficially owns or controls an equity stake of 10% or greater and (aa) in
a firm commitment underwritten public offering.
(e) Number
of Warrant Shares.
Simultaneously with any adjustment to the Exercise Price pursuant to
paragraph (a) of this Section, the number of Warrant Shares that may be
purchased upon exercise of this Warrant shall be increased or decreased (as
the
case may be), proportionately, so that after such adjustment the aggregate
Exercise Price payable hereunder for the decreased or increased (as the case
may
be) number of Warrant Shares shall be the same as the aggregate Exercise Price
in effect immediately prior to such adjustment.
(f) Calculations.
All
calculations under this Section 9 shall be made to the nearest cent or the
nearest 1/100th of a share, as applicable. The number of shares of Common Stock
outstanding at any given time shall not include shares owned or held by or
for
the account of the Company, and the disposition of any such shares shall be
considered an issue or sale of Common Stock.
(g) Notice
of Adjustments.
Upon
the occurrence of each adjustment pursuant to this Section 9, the Company
at its expense will promptly compute such adjustment in accordance with the
terms of this Warrant and prepare a certificate setting forth such adjustment,
including a statement of the adjusted Exercise Price and adjusted number or
type
of Warrant Shares or other securities issuable upon exercise of this Warrant
(as
applicable), describing the transactions giving rise to such adjustments and
showing in detail the facts upon which such adjustment is based. Upon written
request, the Company will promptly deliver a copy of each such certificate
to
the Holder and to the Transfer Agent.
(h) Notice
of Corporate Events.
If the
Company (i) declares a dividend or any other distribution of cash,
securities or other property in respect of its Common Stock, including without
limitation any granting of rights or warrants to subscribe for or purchase
any
capital stock of the Company, (ii) authorizes or approves, enters into any
agreement contemplating, or solicits stockholder approval for, any Fundamental
Transaction or (iii) authorizes the voluntary dissolution, liquidation or
winding up of the affairs of the Company, then the Company shall deliver to
the
Holder a notice describing the material terms and conditions of such
transaction, at least ten calendar days prior to the applicable record or
effective date on which a Person would need to hold Common Stock in order to
participate in or vote with respect to such transaction, and the Company will
take all steps reasonably necessary in order to insure that the Holder is given
the practical opportunity to exercise this Warrant prior to such time so as
to
participate in or vote with respect to such transaction; provided, however,
that
the failure to deliver such notice or any defect therein shall not affect the
validity of the corporate action required to be described in such
notice.
10. Payment
of Exercise Price.
The
Holder shall pay the Exercise Price in immediately available funds; provided,
however, that if at any time after the Required Effective Date a Registration
Statement covering the resale of the Warrant Shares is not effective on the
Exercise Date, the Holder may satisfy its obligation to pay the Exercise Price
through a “cashless exercise,” in which event the Company shall issue to the
Holder the number of Warrant Shares determined as follows:
X
= Y
[(A-B)/A]
where:
X
= the
number of Warrant Shares to be issued to the Holder.
Y
= the
number of Warrant Shares with respect to which this Warrant is being
exercised.
A
= the
average of the Closing Prices for the five Trading Days immediately prior to
(but not including) the Exercise Date.
B
= the
Exercise Price.
For
purposes of Rule 144 promulgated under the Securities Act, it is intended,
understood and acknowledged that the Warrant Shares issued in a cashless
exercise transaction shall be deemed to have been acquired by the Holder, and
the holding period for the Warrant Shares shall be deemed to have commenced,
on
the date this Warrant was originally issued pursuant to the Purchase
Agreement.
11. Limitation
on Exercise.
Notwithstanding anything to the contrary contained herein, the number of shares
of Common Stock that may be acquired by the Holder upon any exercise of this
Warrant (or otherwise in respect hereof) shall be limited to the extent
necessary to insure that, following such exercise (or other issuance), the
total
number of shares of Common Stock then beneficially owned by such Holder and
its
Affiliates and any other Persons whose beneficial ownership of Common Stock
would be aggregated with the Holder’s for purposes of Section 13(d) of the
Exchange Act, does not exceed 4.999% (the “Maximum
Percentage”)
of the
total number of issued and outstanding shares of Common Stock (including for
such purpose the shares of Common Stock issuable upon such exercise). For such
purposes, beneficial ownership shall be determined in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder. Each delivery of an Exercise Notice hereunder will constitute a
representation by the Holder that it has evaluated the limitation set forth
in
this paragraph and determined that issuance of the full number of Warrant Shares
requested in such Exercise Notice is permitted under this paragraph, and the
Company shall have no liability with respect to this Section 11. The
Company’s obligation to issue shares of Common Stock in excess of the limitation
referred to in this Section shall be suspended (and shall not terminate or
expire notwithstanding any contrary provisions hereof) until such time, if
any,
as such shares of Common Stock may be issued in compliance with such limitation,
but in no event later than the Expiration Date. By written notice to the
Company, the Holder may waive the provisions of this Section or increase or
decrease the Maximum Percentage to any other percentage specified in such
notice, but (i) any such waiver or increase will not be effective until the
61st day after such notice is delivered to the Company, and (ii) any such
waiver or increase or decrease will apply only to the Holder and not to any
other holder of Warrants.
12. Fractional
Shares.
The
Company shall not be required to issue or cause to be issued fractional Warrant
Shares on the exercise of this Warrant. If any fraction of a Warrant Share
would, except for the provisions of this Section, be issuable upon exercise
of
this Warrant, the number of Warrant Shares to be issued will be rounded down
to
the nearest whole share.
13. Notices.
Any and
all notices or other communications or deliveries hereunder (including without
limitation any Exercise Notice) shall be in writing and shall be deemed given
and effective on the earliest of (i) the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number
specified in the Purchase Agreement prior to 6:30 p.m. (New York City time)
on a Trading Day, (ii) the next Trading Day after the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile
number specified in the Purchase Agreement on a day that is not a Trading Day
or
later than 6:30 p.m. (New York City time) on any Trading Day, (iii) the
Trading Day following the date of delivery to the courier service, if sent
by
nationally recognized overnight courier service, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The address
for such notices or communications shall be as set forth in the Purchase
Agreement.
14. Warrant
Agent.
The
Company shall serve as warrant agent under this Warrant. Upon 30 days’ notice to
the Holder, the Company may appoint a new warrant agent. Any corporation into
which the Company or any new warrant agent may be merged or any corporation
resulting from any consolidation to which the Company or any new warrant agent
shall be a party or any corporation to which the Company or any new warrant
agent transfers substantially all of its corporate trust or stockholder services
business shall be a successor warrant agent under this Warrant without any
further act. Any such successor warrant agent shall promptly cause notice of
its
succession as warrant agent to be mailed (by first class mail, postage prepaid)
to the Holder at the Holder’s last address as shown on the Warrant
Register.
15. Miscellaneous.
(a) Subject
to the restrictions on transfer set forth on the first page hereof, this Warrant
may be assigned by the Holder. This Warrant may not be assigned by the Company
except to a successor in the event of a Fundamental Transaction. This Warrant
shall be binding on and inure to the benefit of the parties hereto and their
respective successors and assigns. Subject to the preceding sentence, nothing
in
this Warrant shall be construed to give to any Person other than the Company
and
the Holder any legal or equitable right, remedy or cause of action under this
Warrant. This Warrant may be amended only in writing signed by the Company
and
the Holder and their successors and assigns.
(b) The
Company will not, by amendment of its governing documents or through any
reorganization, transfer of assets, consolidation, merger, dissolution, issue
or
sale of securities or any other voluntary action, avoid or seek to avoid the
observance or performance of any of the terms of this Warrant, but will at
all
times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder against impairment. Without limiting the generality
of
the foregoing, the Company (i) will not increase the par value of any
Warrant Shares above the amount payable therefor on such exercise,
(ii) will take all such action as may be reasonably necessary or
appropriate in order that the Company may validly and legally issue fully paid
and nonassessable Warrant Shares on the exercise of this Warrant, and
(iii) will not close its stockholder books or records in any manner which
interferes with the timely exercise of this Warrant.
(c) GOVERNING
LAW; VENUE; WAIVER OF JURY TRIAL.
ALL
QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION
OF THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. EACH PARTY HEREBY IRREVOCABLY SUBMITS
TO
THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY
OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR IN CONNECTION HEREWITH OR WITH ANY TRANSACTION CONTEMPLATED HEREBY OR
DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT OF ANY OF THE
TRANSACTION DOCUMENTS), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT
IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT
TO THE JURISDICTION OF ANY SUCH COURT AND 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 THIS 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. EACH OF THE COMPANY AND THE HOLDER HEREBY WAIVES ALL RIGHTS
TO
A TRIAL BY JURY.
(d) The
headings herein are for convenience only, do not constitute a part of this
Warrant and shall not be deemed to limit or affect any of the provisions
hereof.
(e) In
case
any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute
provision in this Warrant.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK,
SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by
its
authorized officer as of the date first indicated above.
|
OCCULOGIX,
INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
OCCULOGIX,
INC.
COMPANY
DISCLOSURE SCHEDULE
This
Company Disclosure Schedule is made and given pursuant to the Securities
Purchase Agreement (the “Agreement”),
dated
as of ______________________, 2007, among OccuLogix, Inc. (the “Company”),
a
Delaware corporation, and the investors listed on the Schedule of Investors
attached thereto as Exhibit
A
(the
“Investors”).
All
capitalized terms used but not defined herein have the respective meanings
attributed to such terms in the Agreement, unless otherwise provided. The
section or subsection numbers below correspond to the section or subsection
of
the representations and warranties contained in the Agreement that are modified
by the disclosure contained herein and any other section or subsection of the
Agreement. To the extent that (a) one portion of this Company Disclosure
Schedule specifically refers to another portion hereof by specific
cross-reference or (b) it is readily apparent from the text of the disclosure
contained herein that an item disclosed in one section or subsection of this
Company Disclosure Schedule is omitted from another section or subsection where
such disclosure would be appropriate, such item shall be deemed to have been
disclosed in the section or subsection of this Company Disclosure Schedule
from
which such item is omitted.
Nothing
in this Company Disclosure Schedule is intended to broaden the scope of any
representation or warranty contained in the Agreement or to create any covenant.
Inclusion of any item in this Company Disclosure Schedule (a) does not represent
a determination that such item is material or establish a standard of
materiality, (b) does not represent a determination that such item did not
arise
in the ordinary course of business and (c) shall not constitute, or be deemed
to
be, an admission to any third party concerning such item or an admission of
default or breach under any agreement or document. Unless otherwise stated
herein or in the Agreement, all statements made herein are made as of the date
hereof. Matters reflected in this Company Disclosure Schedule are not
necessarily limited to matters required by the Agreement to be reflected herein;
such additional matters, if any, are included for informational purposes
only.
The
information contained herein is provided solely for purposes of making
disclosure to the Investors under the Agreement. In disclosing such information,
the Company does not waive any attorney-client privilege attaching to such
information or any protection afforded by the work-product doctrine with respect
to any of the matters disclosed herein.
SCHEDULE
3.1(a)
Subsidiaries
Solx,
Inc.
OcuSense,
Inc.2
OccuLogix
Holdings, Inc.
OccuLogix
OccuLogix
Canada LLC
2
The
Company owns 1,754,589 shares of the Series A Preferred Stock of OcuSense,
Inc.,
representing 50.1% of OcuSense, Inc.’s capital stock on a fully diluted
basis.
SCHEDULE
3.1(f)
Capitalization
|
Type
of Securities
|
Number
Authorized
|
Number
Issued and
Outstanding
|
|
Common
Stock, par value $0.001 per share
|
75,000,000
|
50,626,562
|
|
Preferred
Stock, par value $0.001 per share
|
10,000,000
|
-
|
|
Options
to purchase shares of Common Stock, par value $0.001 per share, under
the
Company’s 2002 Stock Option Plan
|
4,456,000
|
3,445,221
|
|
Options
to purchase shares of Common Stock, par value $0.001 per share, outside
the Company’s 2002 Stock Option Plan
|
n/a
|
572,000
|
Pursuant
to a standby financing commitment that Xxxxx Xxxxxxxx, the Company’s Chairman
and Chief Executive Officer, gave to the Company on November 30, 2006, Xx.
Xxxxxxxx committed to purchase convertible debentures of the Company in an
aggregate maximum principal amount of $8,000,000 (“Convertible
Debentures”).
At any
time and from time to time prior to their maturity date, at Xx. Xxxxxxxx’
option, all or a portion of the principal amount of outstanding Convertible
Debentures may be converted into shares of Common Stock at a rate of $2.70
per
share. No Convertible Debentures are outstanding on the date hereof, and such
standby financing commitment will terminate on the Closing if the net proceeds
of sale of Securities pursuant the Agreement are at least
$8,000,000.
To
the
knowledge of the Company, each of the following Persons beneficially owns in
excess of 5% of outstanding Common Stock. The Company makes no statement
regarding the filing with the SEC by any of them of Schedule 13D or Schedule
13G.
| · |
TLC
Vision Corporation
|
| · |
Diamed
Medizintechnik GmbH
|
| · |
Sowood
Capital Management L.P.
|
| · |
Boston
Scientific Corporation
|
SCHEDULE
3.1(g)
SEC
Reports; Financial Statements
NIL
SCHEDULE
3.1(h)
Indebtedness
in an amount greater than $100,000:
Pursuant
to the Agreement and Plan of Merger (the “Merger
Agreement”),
dated
as of August 1, 2006, among the Company, OccuLogix Mergeco, Inc., formerly
a
wholly owned subsidiary of the Company, Solx, Inc. (“Solx”)
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 (the “Stockholder
Representative Committee”),
as
amended by the Amending Agreement, dated as of August 30, 2006, by and among
such parties, the Company is obligated to pay the Stockholder Representative
Committee, acting as the representative of the former stockholders of Solx,
$3,000,000 and $5,000,000, on September 1, 2007 and September 1, 2008,
respectively. In addition, if Solx receives final approval from the U.S. Food
and Drug Administration (the “FDA”)
for the
marketing and sale of its GMS gold shunt, then the Company will be obligated
to
pay an additional $5,000,000 to the former stockholders of Solx.
Pursuant
to the Series A Stock Purchase Agreement (the “Series
A Stock Purchase Agreement”),
dated
as of November 30, 2006, between OcuSense, Inc. (“OcuSense”)
and the
Company, the Company will be required to pay to OcuSense $2,000,000 upon the
attainment by OcuSense of the first of two pre-defined milestones and another
$2,000,000 upon the attainment by OcuSense of the second of such milestones,
provided that both milestones are achieved prior to May 1, 2009. In addition,
pursuant to the Series A Preferred Stock Purchase Agreement, the Company will
be
required to purchase $3,000,000 of shares of OcuSense’s Series B Preferred Stock
upon OcuSense’s receipt from the FDA of 510K clearance for OcuSense’s DES Test
and to purchase another $3,000,000 of shares of OcuSense’s Series B Preferred
Stock upon OcuSense’s receipt from the FDA of CLIA waiver for the DES
Test.
SCHEDULE
3.1(k)
Title
to Assets
As
of
September 1, 2006, Solx granted a security interest in all of its intellectual
property to Xxxx X. Xxxxx, Xxxx Xxxxxxxx and Xxxxx X. Xxxxx, in their capacity
as members of the Stockholder Representative Committee, in order to secure
Solx’s obligations under the Guaranty, dated as of September 1, 2006, by Solx in
favor of Xxxx X. Xxxxx, Xxxx Xxxxxxxx and Xxxxx X. Xxxxx, in their capacity
as
members of the Stockholder Representative Committee (the “Guaranty”).
Pursuant to the Guaranty, Solx guaranteed the Company’s obligations under the
Merger Agreement to make payments of up to an aggregate of $13,000,000 to the
Stockholder Representative Committee, acting as the representative of the former
stockholders of Solx.
SCHEDULE
3.1(j)
Compliance
NIL
SCHEDULE
3.1(p)
Registration
Rights
NIL
SCHEDULE
3.1(q)
Application
of Takeover Protections
NIL
SCHEDULE
3.1(t)
Patents
and Trademarks
Attached
hereto is a chart indicating those of the Company’s trademarks that have been
abandoned or cancelled as well as those of the Company’s trademarks with renewal
dates pending within the next three years.
|
Country
|
Xxxx
|
File
No.
|
Application/
Registration No.
|
Status
|
Next
Due Date
|
Comments
|
|
Australia
|
RHEOPHERESIS
|
33479-2045
|
797438
|
Registered
|
Renewal
Due Date:
June
17, 2009.
|
Must
be renewed by June 17, 2009, otherwise registration will
lapse
|
|
Canada
|
VASCULAR
SCIENCES
|
33479-2010
|
1,159,953
|
Abandoned
|
Abandoned
on October 12, 2006
|
|
|
Canada
|
RHEOCLINIC
|
33479-2013
|
1,183,091
|
Abandoned
|
Allow
to lapse per client’s instructions.
|
|
|
Canada
|
RHEO
THERAPEUTICS
|
33479-2084
|
1,247,666
|
Allowed
|
Declaration
of Use and Registration Fee Due: February 17, 2008
|
Declaration
of Use and Registration fee must be paid by February 17, 2008 otherwise
application will be deemed abandoned
|
|
Canada
|
RHEOPHERESIS
|
33479-2029
|
1,253,711
|
Pending
|
Office
Action Response Due:
February
22, 2007
|
Allow
to lapse per Xxxxx Xxxxxxxxxxxx’x instructions received by telephone on
December 5, 2006.
|
|
European
|
 |
33479-2060
|
4678025
|
Accepted
|
Allow
to lapse - per Xxxxx Xxxxxxxxxxxx’x instructions December 5,
2006
|
|
|
European
|
 |
33479-2061
|
4678033
|
Opposed
|
Allow
to lapse per Xxxxx Xxxxxxxxxxxx’x instructions of December 5,
2006
|
|
|
Singapore
|
RHEO
(wares)
|
33479-2058
|
T05/16411A
|
Abandoned
|
||
|
Singapore
|
RHEO
(services)
|
33479-2066
|
T05/16412Z
|
Abandoned
|
||
|
USA
|
OUR
VISION IS YOUR VISION
|
33479-2016
|
2,293,681
|
Cancelled
|
Cancelled
on August 19, 2006
|
|
|
USA
|
RHEOTHERAPY
|
33479-2017
|
2,207,551
|
Cancelled
|
Cancelled
on September 3, 2005
|
|
|
USA
|
VASCULAR
SCIENCES
|
33479-2038
|
76/412,446
|
Abandoned
|
Abandoned
on April 19, 2006
|
|
|
USA
|
OCCULOGIX
|
33479-2018
|
2,446,726
|
Registered
|
Section
8/15 Due Date:
April
24, 2007.
Renewal
Due Date:
April
24, 2011.
|
Affidavit
of Use/Continued Use must be filed by April 24, 2007 otherwise
registration will lapse
|
|
USA
|
RHEOPHERESIS
|
33479-2019
|
2,547,756
|
Registered
|
Section
8/15 Due Date:
March
12, 2008.
Renewal
Due Date:
March
12, 2012.
|
Affidavit
of Use/Continued Use must be filed by March 12, 2008 otherwise
registration will lapse
|
|
USA
|
OCCULOGIX
|
33479-2022
|
2,511,866
|
Registered
|
Section
8/15 Due Date:
November
27, 2007.
Renewal
Due Date:
November
27, 2011.
|
Affidavit
of Use/Continued Use must be filed by November 27, 2007 otherwise
registration will
lapse.
|
