ex10_1.htm


    
      

    

    Exhibit
10.1

       

      Execution
Copy

      


      AMENDING
AGREEMENT

      


      THIS AMENDING AGREEMENT (this “Agreement”), dated as
of,________________ 2008, is made by and among OccuLogix, Inc. (the
“Company”), a Delaware
corporation with executive offices located at 2600 Skymark Avenue, Building 9,
Suite 201, Mississauga, Ontario, L4W 5B2, Marchant Securities Inc. (the “Agent”), an Ontario
corporation with offices located at 100 York Boulevard, Suite 404, Richmond
Hill, Ontario, L4B 1J8, and the undersigned investor (the “Investor”). 

      


      The
Company may be considered a “connected issuer” and/or a “related issuer” (as
those terms are defined in National Instrument 33-105—Underwriting Conflicts) of
the Agent.  Elias Vamvakas, the Chairman and Chief Executive Officer
of the Company, and members of his family have an indirect ownership
interest in the Agent as to approximately 32%.  See Section 3.2(p) of
the Securities Purchase Agreement (defined below).

      


      BACKGROUND

      


      A.       Reference
is made to the Securities Purchase Agreement, dated as of May 19, 2008, by and
among the Company, the Agent and the investors listed on the Schedule of
Investors attached as Exhibit A thereto
(individually, an “SPA Investor” and, collectively,
the “SPA Investors”), including the
Investor, pursuant to which the SPA Investors agreed to purchase, and the
Company agreed to sell, upon the terms and conditions stated therein, $5,076,500
aggregate amount of shares of common stock, par value $.001 per share, of the
Company (the “Securities
Purchase Agreement”).

      


      B.        Reference
also is made to the Loan Agreement, dated as of February 19, 2008, by and among
the Company, the lenders listed on the Schedule of Lenders attached as Exhibit A thereto and
the Agent, as collateral agent, pursuant to which the lenders party thereto
advanced to the Company a loan in an aggregate principal amount of $3,000,000
(the “Original Loan
Agreement”).

      


      C.        Reference
also is made to the Amending Agreement, dated as of May 5, 2008, by and among
the Company, the lenders listed on the Schedule of New Lenders attached as Exhibit A thereto and
the Agent, as collateral agent, pursuant to which the lenders party thereto
advanced to the Company a loan in an aggregate principal amount of $300,000 and
pursuant to which the Original Loan Agreement was amended (the “Amending
Agreement”).  The Original Loan Agreement, as amended by the
Amending Agreement, is referred to hereinafter as the “Loan Agreement”.

      


      D.       
In response to the Company’s need for additional short-term financing, certain
of the SPA Investors have agreed to advance a loan to the Company in an
aggregate principal amount of $2,893,500 (the “SPA Investors’ Loan”)
pursuant to the Second Amending Agreement, dated as of July 28, 2008, by and
among the Company, the lenders listed on the Schedule of Second New Lenders
attached as Exhibit
A thereto, the lenders listed on the Schedule of Required Lenders
attached as Exhibit
B thereto and the Agent, as collateral agent, which, among other things,
amends the Loan Agreement (the “Second Amending
Agreement”).  In partial consideration of the advance by
certain of the SPA Investors of the SPA Investors’ Loan, the Company has agreed
to decrease each such SPA Investor’s commitment under the Securities Purchase
Agreement in an amount equal to the portion of the principal amount of the SPA
Investors’ Loan advanced by each such SPA Investor.


      
        
           


        

        
           


          
            

          

        

        
           


        

      

       

      E.        The
Company has agreed to decrease to zero the commitment under the Securities
Purchase Agreement of a certain SPA Investor who, the Company has learned, is
not qualified to purchase securities of the Company pursuant to the Securities
Purchase Agreement.

      


      F.        Pursuant
to, and upon the terms and conditions stated in, the Securities Purchase
Agreement, as amended hereby, the Company agrees to sell $2,173,000 aggregate
amount of shares of common stock, par value $.001 per share, of the
Company.

      


      NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, the Company, the Agent and the Investor hereby agree as
follows:

      


      1.         Definitions.  In
addition to the terms defined elsewhere in this Agreement, capitalized terms
that are not otherwise defined herein have the meanings given to such terms in
the Securities Purchase Agreement.

      


      2.         Exhibit
A.

      


      (a)        The
Schedule of Investors attached as Exhibit A to the
Securities Purchase Agreement is hereby deleted in its entirety and replaced
with the Schedule of Investors attached as Exhibit A to this
Agreement.

      


      (b)        For
greater certainty, if the Investor is one of the SPA Investors who have agreed
to advance a portion of the principal amount of the SPA Investors’ Loan pursuant
to the Second Amending Agreement, then the dollar amount appearing under the
column headed “Amount of Investment (U.S.$)”, opposite the Investor’s name, on
the Schedule of Investors attached as Exhibit A to the
Securities Purchase Agreement, as amended hereby, shall be deemed to be a dollar
amount that is lower than the corresponding dollar amount appearing on such
schedule, immediately prior to its amendment hereby, by the amount of the
portion of the principal amount of the SPA Investors’ Loan advanced by the
Investor.

      


      (c)        From
and after the date hereof, each of the SPA Investors, opposite whose name on the
Schedule of Investors attached as Exhibit A to this
Agreement appears a nil dollar amount under the column headed “Amount of
Investment (U.S.$)”, shall no longer have any rights, or owe any obligations,
under the Securities Purchase Agreement, and neither the Company nor the Agent
shall have any rights against, or owe any obligations to, any of such SPA
Investors pursuant to the Securities Purchase Agreement.


      
        
           


        

        
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      3.         Recital
B.  The parties hereto hereby acknowledge and agree that the
minimum number of shares of the Common Stock to be purchased and sold pursuant
to the Securities Purchase Agreement, as amended hereby, shall be the quotient
of (i) the aggregate of the dollar amounts appearing on the Schedule of
Investors attached as Exhibit A to this
Agreement, divided by (ii) $0.10 and, in any event, shall be less than the
minimum number referenced in Recital B of the Securities Purchase
Agreement.

      


      4.         Definition of “Agency
Agreement”.  The definition of “Agency Agreement” in Section
1.1 of the Securities Purchase Agreement is hereby deleted in its entirety and
replaced with the following definition:

      


      “Agency Agreement” means the
Agency Agreement entered into, or to be entered into, by the Agent and the
Company in respect of the Offering.

      


      5.         Section
5.1(b).  Paragraph (b) of Section 5.1 of the Securities
Purchase Agreement is hereby deleted in its entirety and replaced with the
following paragraph (b):

      


      (b)       Stockholder
Approval.  The majority of the stockholders of the Company
shall have duly approved the transactions contemplated by the Transaction
Documents;

      


      6.         Section
5.2(c).  Paragraph (b) of Section 5.2 of the Securities
Purchase Agreement is hereby deleted in its entirety and replaced with the
following paragraph (b):

      


      (b)       Stockholder
Approval.  The majority of the stockholders of the Company
shall have duly approved the transactions contemplated by the Transaction
Documents.

      


      7.         Section
7.1.  Section 7.1 of the Securities Purchase Agreement is
hereby deleted in its entirety and replaced with the following Section
7.1:

      


      7.1       Termination.  This
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Closing Date, notwithstanding any requisite
approval thereof by the majority of the stockholders of the
Company:

      


      (a)       by
duly authorized mutual written consent executed by the Company and all of the
Investors;

      


      (b)       automatically
if the majority of the stockholders of the Company does not provide the
requisite approval thereof;

      


      (c)       automatically
if there shall be any law that makes the consummation of such transactions
illegal or otherwise prohibited or if any court of competent jurisdiction,
governmental authority or Trading Market shall have issued an order, decree,
ruling or taken any other action restraining, enjoining or otherwise prohibiting
such transactions; and


      
        
           


        

        
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      (d)       automatically
on October 31, 2008.

      


      8.         Section
7.9.  Section 7.9 of the Securities Purchase Agreement is
hereby deleted in its entirety and replaced with the following Section
7.9:

      


      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, THE AGENT AND EACH INVESTOR HEREBY IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY
OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY
THE COMPANY, THE AGENT OR ANY INVESTOR HEREUNDER, IN CONNECTION HEREWITH
(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, THE AGENT OR ANY INVESTOR, ANY CLAIM THAT HE,
SHE OR IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT OR
THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.  EACH PARTY HEREBY
IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING
SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA
REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY)
TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER 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, THE AGENT AND EACH INVESTOR HEREBY WAIVE ALL RIGHTS
TO A TRIAL BY JURY.

      


      9.         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
Securities Purchase Agreement shall be read and construed as references to the
Securities Purchase Agreement, as amended hereby.


      
        
           


        

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

      


      11.       Amendments;
Waivers.  No provision of this Agreement may be waived or
amended except in a written instrument signed, in the case of an amendment, by
the Company and the Investor 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.

      


      12.       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.

      


      13.       Governing Law; Venue; Waiver
of Jury Trial.  THE CORPORATE LAWS OF THE STATE OF DELAWARE
SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE RIGHTS OF THE COMPANY AND ITS
STOCKHOLDERS.  ALL QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY,
ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.  THE
COMPANY, THE AGENT AND THE INVESTOR HEREBY IRREVOCABLY SUBMIT TO THE
NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY
OF NEW YORK, BOROUGH OF MANHATTAN FOR THE ADJUDICATION OF ANY DISPUTE BROUGHT BY
THE COMPANY, THE AGENT OR THE INVESTOR IN CONNECTION HEREWITH AND HEREBY
IRREVOCABLY WAIVE, AND AGREE NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING
BROUGHT BY THE COMPANY, THE AGENT OR THE INVESTOR, ANY CLAIM THAT HE, SHE OR IT
IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT OR THAT SUCH
SUIT, ACTION OR PROCEEDING IS IMPROPER.  EACH PARTY HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY
SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR
CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH EVIDENCE OF DELIVERY) TO SUCH PARTY
AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THE SECURITIES PURCHASE
AGREEMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT
SERVICE OF PROCESS AND NOTICE THEREOF.  NOTHING CONTAINED HEREIN SHALL
BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED
BY LAW.  THE COMPANY, THE AGENT AND THE INVESTOR HEREBY WAIVE ALL
RIGHTS TO A TRIAL BY JURY.


      
        
           


        

        
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      14.       Execution.  This
Agreement may be executed in any number of separate counterparts (including by
facsimile or e-mail transmission), all of which, when taken together, shall be
considered one and the same agreement.  In the event that any
signature is delivered by facsimile transmission or e-mail attachment, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or e-mail-attached signature page were an original
thereof.

      


      15.       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.

      


      16.       Currency.  All
dollar amounts in this Agreement are expressed in the lawful currency of the
U.S.

      


      [THE
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]


      
        
           


        

        
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      IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed by their
respective authorized signatories as of the date first indicated
above.

      


      
        	 
      	
                OCCULOGIX,
      INC.

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                Name:

              	
                William
      G. Dumencu

              
	 
      	 
      	
                Title:

              	
                Chief
      Financial Officer and Treasurer

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                MARCHANT
      SECURITIES INC.

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                Name:

              	
                Gregory
      L. Marchant

              
	 
      	 
      	
                Title:

              	
                President
      and CEO

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
                Name
      of Investor:

              
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	
                By:

              	 
      	 
      
	 
      	 
      	
                Name:

              	 
      
	 
      	 
      	
                Title:

              	 
      
	 
      	 
      	 
      	 
      


      


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      Exhibit
A

      


      SCHEDULE
OF INVESTORS

       

      
        	
                Investor

              	 	
                Amount of Investment
      (U.S.$)

              	 
	 
      	 	 	 
	
                2016728
      Ontario Inc.

              	 	 	100,000	 
	
                2144304
      Ontario Inc.

              	 	 	0	 
	
                Dalton
      J. Albrecht

              	 	 	0	 
	
                Tsambikos
      Antonarakis

              	 	 	0	 
	
                Karl
      & Kathryn Arrington

              	 	 	0	 
	
                Ralph
      J. Barry

              	 	 	0	 
	
                Simon
      Benstead

              	 	 	300,000	 
	
                Michael
      S. Berg

              	 	 	0	 
	
                Paul
      Bluhm

              	 	 	50,000	 
	
                Tina
      & Kenny Brienza

              	 	 	0	 
	
                Frank
      W. Burr

              	 	 	0	 
	
                Kris
      Calder

              	 	 	0	 
	
                Thomas
      Calder

              	 	 	0	 
	
                Timothy
      Callan

              	 	 	5,000	 
	
                Trevor
      Callan

              	 	 	10,000	 
	
                Cardinal
      Crest Holdings, LLC

              	 	 	125,000	 
	
                Cedarview
      II Holdings Inc.

              	 	 	0	 
	
                Cheresh
      Varner Trust

              	 	 	5,000	 
	
                Norine
      Cohen

              	 	 	0	 
	
                John
      Cornish

              	 	 	0	 
	
                Marcy
      Colton

              	 	 	50,000	 
	
                Tom
      Colton

              	 	 	50,000	 
	
                Michael
      Cucuz

              	 	 	20,000	 
	
                Allison
      Dabney

              	 	 	0	 
	
                John
      Danas

              	 	 	0	 
	
                Sunil
      Dattani

              	 	 	0	 
	
                Sally
      A. Davidson

              	 	 	350,000	 
	
                Thomas
      N. Davidson Education Trust – 2006

              	 	 	125,000	 
	
                Thomas
      N. Davidson Revocable Trust

              	 	 	200,000	 
	
                Alessandro
      DeSimone

              	 	 	0	 
	
                Justin
      DiCiano

              	 	 	10,000	 
	
                Bryce
      C. Douglas

              	 	 	0	 
	
                Excite
      Holdings Corporation

              	 	 	0	 
	
                Ralph
      W. Goldsilver

              	 	 	25,000	 
	
                Amarkumar
      Gudka

              	 	 	0	 
	
                Guise
      Management Corporation Defined Benefit Pension Plan

              	 	 	0	 
	
                HEC
      Fellows LLC

              	 	 	0	 
	
                W
      & R Hickel Family Trust

              	 	 	0	 


      

      

        
          
             


          

          
            1

            
              

            

          

          
             


          

        

      

       

      
        	
                Investor

              	 	
                Amount of Investment
      (U.S.$)

              	 
	 	 	 	 	 
	
                James
      and Daphne Jameson Family Trust

              	 	 	0	 
	
                Gus
      and Anne Karnasiotis

              	 	 	60,000	 
	
                Richard
      L. Lindstrom

              	 	 	100,000	 
	
                Attlilio
      Lombardi

              	 	 	0	 
	
                Lynchburg
      Wisdom Ventures, LLC

              	 	 	10,000	 
	
                Rachel
      Mamounis

              	 	 	18,000	 
	
                Peter
      McCague

              	 	 	0	 
	
                The
      Peter Meinig Revocable Trust

              	 	 	0	 
	
                Melton
      Willows Pty Ltd

              	 	 	0	 
	
                Reed
      A. Miller

              	 	 	0	 
	
                Kristine
      Morrill

              	 	 	0	 
	
                Loutfi
      Mouaket

              	 	 	0	 
	
                Peter
      R. Munson

              	 	 	0	 
	
                Sean
      J. Na

              	 	 	0	 
	
                New
      Horizons Holdings Inc.

              	 	 	10,000	 
	
                Vicki
      G. Norton

              	 	 	0	 
	
                Peoples
      International Co. Inc.

              	 	 	40,000	 
	
                Voula
      Politis

              	 	 	0	 
	
                Alfonso
      Principato

              	 	 	0	 
	
                Kathy
      Rakhit

              	 	 	0	 
	
                Anthony
      Reisis

              	 	 	50,000	 
	
                Chris
      Salapoutis

              	 	 	75,000	 
	
                David
      Sarraf

              	 	 	10,000	 
	
                S.I.F.I.
      S.p.A.

              	 	 	150,000	 
	
                David
      W. Stevens

              	 	 	0	 
	
                Syra
      Kamin Limited

              	 	 	50,000	 
	
                John
      C. Taylor

              	 	 	25,000	 
	
                Visionary
      Consultants Inc.

              	 	 	0	 
	
                Felicia
      Warheit

              	 	 	25,000	 
	
                Glenn
      Warheit

              	 	 	25,000	 
	
                Phillip
      Warheit

              	 	 	100,000	 
	
                Jack
      Wasserman Trust

              	 	 	0	 
	
                Martin
      J. Waters

              	 	 	0	 
	
                Markus
      & Edith Weigand

              	 	 	0	 
	
                WS
      Investment Company LLC (2008A)

              	 	 	0	 
	
                WS
      Investment Company LLC (2008C)

              	 	 	0	 
	
                Thomas
      Yan

              	 	 	0	 
	
                Jason
      Yim

              	 	 	0	 


      

       

       

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