ex10_1.htm


    
      

    

    EXHIBIT
10.1

     

    Execution
Copy

     

    SECOND
AMENDING AGREEMENT

    


    THIS SECOND AMENDING AGREEMENT (this “Agreement”) is made
and entered into as of October 6, 2008 by and among
OccuLogix, Inc., a Delaware corporation (“Parent”), OcuSense
Acquireco, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent
(“Merger Sub”), and OcuSense,
Inc., a Delaware corporation (the “Company”).

     

    W I T NE
S S E T H:

     

    WHEREAS,
the parties hereto have made and entered into that certain Agreement and Plan of
Merger and Reorganization dated as of April 22, 2008 pursuant to which Parent
will acquire the Company through the statutory merger of Merger Sub with and
into the Company.

     

    WHEREAS,
such Agreement and Plan of Merger and Reorganization subsequently was amended by
the Amending Agreement, dated as of July 28, 2008, by and among Parent, Merger
Sub and the Company (as amended, the “Merger
Agreement”).

     

    WHEREAS,
following the Effective Time, Parent will effect a recapitalization (the “Reverse Stock Split”)
in which the issued and outstanding shares of Parent Common Stock will be
reverse split in a ratio of 1:25 (the “Reverse Split
Ratio”), upon the effectiveness of which the number of authorized shares
of Parent Common Stock will decrease from 500,000,000 to
40,000,000.

     

    WHEREAS,
the parties hereto wish to amend the Merger Agreement further, as provided for
herein, in order to give effect to their original intentions.

     

    NOW,
THEREFORE, in consideration of the foregoing premises, the mutual agreements and
other covenants set forth herein, the mutual benefits to be gained by the
performance thereof, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged and accepted, the parties
hereto hereby agree as follows:

     

    1.           Undefined Capitalized
Terms.  Capitalized terms used herein, but not defined, have
the respective meanings attributed to such terms in the Merger
Agreement.

     

    2.           Company
Options.  Notwithstanding any contrary or inconsistent
provision of the Merger Agreement, automatically and immediately upon the
effectiveness of the Reverse Stock Split, the number of shares of Parent Common
Stock into which the Company Options, to be assumed by Parent pursuant to
Section 2.6(d) of the Merger Agreement, shall be exercisable shall be decreased
by the Reverse Split Ratio and the per share exercise price of the assumed
Company Options shall be increased by the Reverse Split Ratio.


    
      
         


      

      
         


        
          

        

      

      
        
        

      

    


    3.           Conditions to Obligations of
Each Party.  Section 7.1 of the Merger Agreement is hereby
amended by deleting, in its entirety, Paragraph (d) thereof and replacing it
with the following Paragraph (d):

     

    (d)           Requisite Stockholder
Approval.  This Agreement shall have been adopted, and the
Merger shall have been approved, by the (i) holders of a majority of the
outstanding shares of Company Common Stock, voting together as a separate class,
(ii) holders of more than fifty percent of the outstanding shares of the
Company’s Preferred Stock and (iii) holders of a majority of shares of Parent
Common Stock represented at a duly constituted stockholders meeting of
Parent.

     

    4.           References to “this
Agreement”, etc.  Where
the context permits or requires, references to “this Agreement”, “herein”,
“hereunder”, “hereof”, “hereto”, “herewith” and other similar expressions in the
Merger Agreement shall be read and construed as references to the Merger
Agreement, as amended hereby.

     

    5.           Merger Agreement in Full
Force and Effect.  The Merger Agreement remains in full force
and effect, unamended, other than as specifically amended by this
Agreement.

     

    6.           Counterparts.  This
Agreement may be executed in one or more counterparts (including by facsimile or
e-mail transmission), all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties hereto and delivered to the other parties hereto,
it being understood that all parties need not sign the same
counterpart.

     

    7.           Severability.  In
the event that any provision of this Agreement or the application thereof
becomes, or is declared by a court of competent jurisdiction to be, illegal,
void or unenforceable, the remainder of this Agreement will continue in full
force and effect and the application of such provision to the other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto.  The parties hereto further agree to replace such void
or unenforceable provision of this Agreement with a valid and enforceable
provision that will achieve, to the extent possible, the economic, business and
other purposes of such void or unenforceable provision.

     

    8.           Governing
Law.  This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws
thereof.

     

     

    [Remainder
of page intentionally left blank]


    
      
         


      

      
        2

        
          

        

      

      
        
        

      

    


    IN
WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Agreement
to be executed as of the date first above written.

     

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            	 
      	
                                                    OCCULOGIX,
      INC.

                                                  
	 
      	 
      	 
	 
      	 
      	 
	 
      	
                                                    By: 
      

                                                  	/s/
      Elias Vamvakas
	 
      	
                                                    Name:  Elias
      Vamvakas

                                                  
	 
      	
                                                    Title:    Chief
      Executive Officer

                                                  
	 
      	 
      	 
	 
      	 
      	 
	 
      	
                                                    OCUSENSE
      ACQUIRECO, INC.

                                                  
	 
      	 
      	 
	 
      	 
      	 
	 
      	
                                                    By:   

                                                  	/s/
      Elias Vamvakas
	 
      	
                                                    Name:  Elias
      Vamvakas

                                                  
	 
      	
                                                    Title:    Chief
      Executive Officer

                                                  
	 
      	 
      	 
	 
      	 
      	 
	 
      	
                                                    OCUSENSE,
      INC.

                                                  
	 
      	 
      	 
	 
      	 
      	 
	 
      	
                                                    By:   

                                                  	/s/
      Eric Donsky
	 
      	
                                                    Name:  Eric
      Donsky

                                                  
	 
      	
                                                    Title:    Chief
      Executive
Officer

                                                  


                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
 

    SIGNATURE
PAGE TO SECOND AMENDING AGREEMENT