ex10_2.htm


    
      

    

    Exhibit
10.2



    Execution
Copy

    


    AMENDING
AGREEMENT

     

    THIS AMENDING AGREEMENT (this “Agreement”) is made
and entered into as of July 28, 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 (the “Merger
Agreement”).

    


    WHEREAS,
since the date of the Merger Agreement, circumstances have arisen so as to cause
the parties hereto to believe that it is in their respective best interests, and
those of their respective stockholders, to amend the Merger Agreement as
provided for herein.

    


    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.             
Unrestricted Cash
Requirement.

    


    (a)           Section
6.8 of the Merger Agreement is hereby amended in its entirety and replaced with
the following Section 6.8:

    


    
      	
               
      

            	
              6.8

            	
              Working Capital
      Requirements.  Parent shall use commercially reasonable
      efforts to ensure that Parent is capitalized with at least $1,000,000 of
      unrestricted cash at the Effective Time, which cash shall be available to
      fund working capital and general and administrative expenses of Parent and
      the Surviving Corporation.

            


    

    


    (b)           Section
7.1 is hereby amended by deleting, in its entirety, Paragraph (e) thereof and
replacing it with the following Paragraph (e):

    


    (e)           Debt and Working Capital
Requirements.  As of the Closing Date, Parent shall be
capitalized with at least $1,000,000 of unrestricted cash, which cash shall be
available to fund the working capital and general and administrative expenses of
Parent and the Surviving Corporation.


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    2.            
Requirement for Legal
Opinion.  Section 7.3 of the Merger Agreement is hereby amended
by deleting, in its entirety, Paragraph (f) thereof.

    


    3.            
Termination.  Section
8.1 is hereby amended by deleting, in its entirety, Paragraph (b) thereof and
replacing it with the following Paragraph (b):

    


    (b)           by
Parent or the Company, if the Closing Date shall not have occurred by October
31, 2008, provided, however,
that the right to terminate this Agreement under this Section 8.1(b) shall
not be available to any party whose action or failure to act has been a
principal cause of, or resulted in, the failure of the Merger to occur on or
before such date and such action or failure to act constitutes a breach of this
Agreement.

    


    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 AMENDING AGREEMENT