AMENDED & RESTATED AGENCY AGREEMENT
Exhibit 99.2
AMENDED
& RESTATED AGENCY AGREEMENT
January
8, 2010
OccuLogix,
Inc. d/b/a TearLab Corporation
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.A.
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Attention:
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▇▇▇▇
Dumencu, Chief Financial Officer
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Dear
Sirs/Mesdames:
The
undersigned, ▇▇▇▇▇▇▇▇ Securities Inc. (the “Canadian Placement Agent”),
understands that OccuLogix, Inc. d/b/a TearLab Corporation (the “Company”) proposes to issue
and sell up to $5,000,000 aggregate amount of shares of common stock, par value
$0.001 per share, of the Company (the “Common Shares”), subject to
the terms and conditions set forth in this Agreement (as hereinafter
defined). This Agreement amends and restates in its entirety the
agency agreement by and between the Canadian Placement Agent and the Company,
dated November 25, 2009.
Upon and
subject to the terms and conditions set forth herein, the Canadian Placement
Agent hereby agrees to act as, and the Company hereby appoints the Canadian
Placement Agent as, the Company’s sole and exclusive agent in Canada for the
offer for sale, on a best efforts agency basis, of the Common Shares for
aggregate gross proceeds to the Company of up to $5,000,000 (the “Offering”).
The
Company agrees that the Canadian Placement Agent will be permitted to appoint
other investment dealers, duly licensed or registered in their respective
jurisdictions, as agents of the Canadian Placement Agent to assist in the
Offering and that the Canadian Placement Agent may determine the remuneration
payable to such other dealers appointed by it. Such remuneration
shall be payable by the Canadian Placement Agent. The Company grants
all of the rights and benefits of this Agreement to any dealer who is an agent
of the Canadian Placement Agent and appoints the Canadian Placement Agent
trustee of such rights and benefits for all such dealers, and the Canadian
Placement Agent hereby accepts such trust and agrees to hold such rights and
benefits for and on behalf of all such dealers. The Canadian
Placement Agent shall ensure that any dealer who is its agent with respect to
the Offering agrees with the Canadian Placement Agent and the Company, in
writing, to comply with the covenants and obligations given by the Canadian
Placement Agent herein.
Furthermore,
the Company understands and acknowledges that the Canadian Placement Agent will
pay referral fees to any other third parties who introduce the Canadian
Placement Agent to any of the Purchasers (as hereinafter defined) (“Referring
Parties”). Such referral fees will be negotiated by the
Canadian Placement Agent with Referring Parties, if any, and shall be payable by
the Canadian Placement Agent, and the Company shall have no liability whatsoever
therefor or in respect thereof.
In
consideration of the services rendered by the Canadian Placement Agent in
connection with the Offering, the Company shall issue to the Canadian Placement
Agent, at each Closing (as hereinafter defined), at the Canadian Placement
Agent’s option, either: (i) 9% of the aggregate purchase price of Common Shares
sold at such Closing to the Purchasers (the “Canadian Investment”) in
cash; or (ii) a number of shares of the Company’s common stock equal
to the quotient of (A) the Canadian Investment, and (B) the closing consolidated
bid price per share on the NASDAQ Capital Market immediately prior to such
Closing (the “Placement
Shares”).
The
Canadian Placement Agent may not purchase any of the Common Shares for its own
account. No agent of the Canadian Placement Agent and no Referring
Party may purchase any of the Common Shares for the account of the Canadian
Placement Agent. However, nothing herein shall be interpreted or
construed as prohibiting any agent of the Canadian Placement Agent or any
Referring Party from participating in the Offering for its own
account.
As of the
date hereof, it is contemplated that the Offering will be completed in two
closings, the first of which is contemplated to occur on or about January 8,
2010.
DEFINITIONS
In this
Agreement, the following terms shall have the following meanings:
“Affiliates” means the
affiliates (as such term is defined in the Business Corporations Act
(Ontario)) of the Canadian Placement Agent;
“Agreement” means this
agreement, as it may be amended, supplemented and/or amended and restated from
time to time, and the expressions “hereof”, “herein”, “hereto”, “hereunder”, “hereby” and similar
expressions refer to this Agreement as a whole and not to any particular section
or other portion hereof, and the expression “Section”, followed by a
number, means and refers to the specified section of this Agreement, except as
may be otherwise specifically provided herein;
“Business Day” means a day
which is not a Saturday, a Sunday or a statutory or civic holiday in the City of
Toronto, Ontario;
“Canadian Placement Agent” has
the meaning ascribed thereto in the first paragraph of this
Agreement;
2
“Closing” means each closing
of the purchase and sale of the Common Shares as contemplated by this Agreement
and the Securities Purchase Agreement;
“Closing Date” means the date
on which each Closing occurs, as mutually agreed to by the Company and the
Canadian Placement Agent;
“Common Shares” has the
meaning ascribed thereto in the first paragraph of this Agreement;
“Company” has the meaning
ascribed thereto in the first paragraph of this Agreement;
“including” means “including,
without limitation”;
“Material Subsidiary” means
TearLab, Inc., a corporation incorporated under the laws of the State of
Delaware;
“Non-Canadian Purchasers” has
the meaning ascribed thereto in Section 8;
“notice” has the meaning
ascribed thereto in Section 15;
“Offering” has the meaning
ascribed thereto in the second paragraph of this Agreement;
“Offering Memorandum” means
the offering memorandum of the Company dated November 11, 2009 and prepared for
the purposes of the Offering;
“Personnel” has the meaning
ascribed thereto in Section 12;
“Placement Shares” has the
meaning ascribed thereto in the fifth paragraph of this Agreement;
“Purchasers” means,
collectively, persons resident in Canada who, as purchasers or beneficial
purchasers, acquire any of the Common Shares by duly completing and executing
and delivering the Securities Purchase Agreement, paying the required funds and
duly completing and executing and delivering any other required documentation,
and the term “Purchasers” also includes the
respective permitted assignees or transferees of such persons;
“Referring Parties” has the
meaning ascribed thereto in the fourth paragraph of this Agreement;
“SEC” means the U.S.
Securities and Exchange Commission;
“Securities Laws” means,
collectively, all securities laws and the respective regulations made
thereunder, together with applicable published fee schedules, prescribed forms,
policy statements, rules, notices, orders, blanket rulings and other regulatory
instruments, in each of the provinces and territories of Canada;
“Securities Purchase
Agreement” means the securities purchase agreement between the Purchasers
and the Company, in the form substantially agreed upon as of the date hereof,
pursuant to which the Purchasers (and investors resident in jurisdictions
outside Canada) agree to subscribe for
and purchase the Common Shares (and, for greater certainty, includes all
schedules and exhibits thereto), as such agreement may be amended, supplemented
and/or amended and restated from time to time;
3
“Securities Regulators” means,
collectively, the securities regulators or other securities regulatory
authorities in the Selling Jurisdictions; and
“Selling Jurisdictions” means
such provinces and territories of Canada as mutually agreed to by the Company
and the Canadian Placement Agent.
TERMS
AND CONDITIONS
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1.
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Sale
on Exempt Basis. The
Canadian Placement Agent hereby agrees to use its best effort to arrange
for the sale of the Common Shares in the Selling
Jurisdictions. All such efforts and sales will occur on a
private placement basis in compliance with all applicable Securities Laws
such that the offer and sale of the Common Shares does not obligate the
Company to file a prospectus or other offering document (other than the
Offering Memorandum) under Securities Laws in connection
therewith.
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2.
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Filings. The Company
hereby undertakes to file, or cause to be filed, all forms or undertakings
required to be filed by the Company in connection with the offer and sale
of the Common Shares so that the distribution of the Common Shares to the
Purchasers may occur lawfully without the necessity of filing a prospectus
or other offering document (other than the Offering Memorandum) under
Securities Laws in connection therewith, and the Canadian Placement Agent
hereby undertakes to use its commercially reasonable efforts to cause the
Purchasers to complete and execute and deliver (and it shall be a
condition of Closing in favour of the Company that the Purchasers complete
and execute and deliver to the Company) any forms required by applicable
Securities Laws. The Company shall pay all fees payable in
connection with such filings.
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3.
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Covenants
of the Company. The Company
hereby covenants to the Canadian Placement Agent, and hereby acknowledges
that the Canadian Placement Agent is relying on such covenants in
connection with the offer and sale of the Common Shares, that the Company
shall:
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3.1
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allow
the Canadian Placement Agent and its representatives the opportunity to
conduct all due diligence which the Canadian Placement Agent reasonably
may require to be conducted prior to each Closing
Date;
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3.2
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duly
execute and deliver the Securities Purchase Agreement at or prior to the
first Closing and comply with and satisfy all terms, conditions and
covenants therein contained to be complied with or satisfied by the
Company;
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4
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3.3
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fulfill
or cause to be fulfilled, at or prior to each Closing, each of the
conditions applicable to the Company, including those set out in Section
9;
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3.4
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ensure
that the Common Shares, when issued and paid for in accordance with the
Securities Purchase Agreement, shall be duly and validly issued and shall
be fully paid and non-assessable;
and
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3.5
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in
connection with the issuance of the Common Shares, execute and file with
the applicable Securities Regulators all forms, notices and certificates
required to be filed pursuant to applicable Securities Laws in the time
frames required thereby.
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4.
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Material
Changes during Distribution. During the
period from the date hereof to the final Closing, the Company shall notify
the Canadian Placement Agent promptly (and, if requested by the Canadian
Placement Agent, confirm such notification in writing) of any material
change (actual, anticipated, contemplated or threatened, whether financial
or otherwise) in the business, affairs, operations, assets, liabilities
(contingent or otherwise) or capital of the Company. In any
event, the Company shall notify the Canadian Placement Agent of any such
material change as soon as practicable and, in any event, prior to any
Closing. During the period from the date hereof to the final
Closing, the Company shall promptly, and, in any event, within any
applicable time limit, comply with all applicable filing and other
requirements under applicable Securities Laws as a result of such
change.
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5.
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Press
Releases. During the
period from the date hereof to the final Closing, subject to applicable
law (including the time limits imposed thereunder), the Company shall
consult with the Canadian Placement Agent as to the content and form of
any press release issued in connection with the
Offering.
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6.
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Representations
and Warranties of the Company. The
Canadian Placement Agent shall have the benefit of all of the
representations, warranties and covenants made by the Company to the
Purchasers (and the other investors party to the Securities Purchase
Agreement) and set forth in the Securities Purchase Agreement as though
the Canadian Placement Agent were a Purchaser thereunder. Such
representations and warranties form an integral part of this Agreement and
shall survive the final Closing (which, for greater certainty, will be the
first Closing if there should take place only one Closing) for a period of
12 months and shall continue in full force and effect for the benefit of
the Canadian Placement Agent during such period. For the
avoidance of doubt, it is agreed that nothing herein shall be construed to
give rise to any obligation on the part of the Company to sell any Common
Shares.
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7.
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Representations,
Warranties and Covenants of the Canadian Placement Agent. The
Canadian Placement Agent hereby represents, warrants and covenants to the
Company as follows:
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5
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7.1
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in
respect of the offer and sale of the Common Shares, the Canadian Placement
Agent has complied, and will comply, with the Securities Laws of the
Selling Jurisdictions;
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7.2
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the
Canadian Placement Agent and its representatives have not engaged in or
authorized, and will not engage in or authorize, any form of general
solicitation or general advertising in connection with, or in respect of,
the Common Shares in any newspaper, magazine, printed media of general and
regular paid circulation or any similar medium, or broadcast over radio or
television or otherwise, and have not conducted, and will not conduct, any
seminar or meeting concerning the offer and sale of the Common Shares
whose attendees have been invited by any such general solicitation or
general advertising; and
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7.3
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the
Canadian Placement Agent is a registered “exempt market dealer” in the
Province of Ontario and is able to broker the sale of the Common Shares
resident in the other Selling Jurisdictions that are “accredited
investors” as such term is defined in National Instrument 45-106 Prospectus and Registration
Exemptions.
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8.
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Closing. The
purchase and sale of the Common Shares to the Purchasers shall be
completed at the Toronto, Ontario, offices of Torys LLP (or at such other
place as the Company and the Canadian Placement Agent may agree upon) and
the purchase and sale of all of the other Common Shares shall be completed
at the San Diego, California, offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇ P.C. (or at such other place as the Company and the purchasers of
such Common Shares (the “Non-Canadian
Purchasers”) may agree upon) on each Closing Date, at 9:00 a.m.
(Eastern time) (or at such other time as the Company, the Canadian
Placement Agent and the Non-Canadian Purchasers may agree
upon). At or prior to each Closing, the Securities Purchase
Agreement shall have been executed and delivered by the parties
thereto. At or prior to each Closing, or as soon as practicable
following each Closing, the Company shall duly and validly deliver to the
Canadian Placement Agent, for re-delivery to the Purchasers, original
stock certificates in definitive form representing the Common Shares,
registered in the respective names of the Purchasers, against payment by
the Purchasers, in lawful money of the United States, of the subscription
price therefor in accordance with the Securities Purchase Agreement and
the prior written direction of the Company. In addition, at or
prior to each Closing, or as soon as practicable following each Closing,
the Company shall duly and validly deliver to the Canadian Placement Agent
original stock certificates in definitive form representing the number of
the Placement Shares issuable to the Canadian Placement Agent at such
Closing, registered in the name of the Canadian Placement
Agent.
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6
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9.
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Closing
Conditions. Each
Purchaser’s obligation to purchase the Common Shares shall be conditional
upon the fulfillment, at or prior to the time of the relevant Closing, of
the following conditions:
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9.1
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the
Canadian Placement Agent shall have received a certificate, dated as of
the relevant Closing Date, signed by the Chief Executive Officer and the
Chief Financial Officer of the Company, or such other officers of the
Company as the Canadian Placement Agent may agree, certifying, for and on
behalf of the Company and without personal liability,
that:
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9.1.1
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no
order, ruling or determination having the effect of suspending the sale or
ceasing the trading in any securities of the Company (including the Common
Shares) has been issued by any securities regulatory authority and is
continuing in effect and no proceedings for that purpose have been
instituted or are pending or contemplated or threatened by any securities
regulatory authority;
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9.1.2
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the
Company has duly complied with all the terms, covenants and conditions of
this Agreement on its part to be complied with up to the time of such
Closing; and
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9.1.3
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the
representations and warranties of the Company contained in the Securities
Purchase Agreement are true and correct as of the time of such Closing
with the same force and effect as if made at and as of the time of such
Closing after giving effect to the transactions contemplated by this
Agreement;
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9.2
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the
Canadian Placement Agent shall have received from the Company’s Secretary
a certificate having attached thereto (i) the Company’s Certificate of
Incorporation as in effect on the date of such Closing, (ii) the Company’s
Bylaws as in effect on the date of such Closing, (iii) resolutions
approved by the Company’s Board of Directors authorizing the transactions
contemplated hereby, (iv) if applicable, resolutions approved by the
Company’s stockholders authorizing the transactions contemplated hereby
and (v) good standing certificates with respect to the Company and the
Material Subsidiary issued by the Secretary of State of the State of
Delaware;
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9.3
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the
Canadian Placement Agent shall have received evidence satisfactory to it,
acting reasonably, that all requisite approvals, consents and acceptances
of the Company’s shareholders and the regulatory authorities having
jurisdiction, including NASDAQ and the Toronto Stock Exchange, as well as
third party consents, if any, required to be made or obtained by the
Company in order to complete the purchase and sale of the Common Shares to
be completed at such Closing have been made or
obtained;
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7
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9.4
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the
Securities Purchase Agreement shall have been executed and delivered by
the parties thereto;
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9.5
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the
Canadian Placement Agent shall have received oral or written confirmation
from the Company’s transfer agent that the issuance of the Common Shares
and the Placement Shares has been or will be duly recorded in the
Company’s share transfer register;
and
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9.6
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the
Canadian Placement Agent shall be satisfied, acting reasonably, with its
due diligence review with respect to the business, assets, financial
condition, affairs and prospects of the
Company.
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10.
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Rights of
Termination.
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10.1
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Due
Diligence Out. In the
event that the due diligence investigations performed by the Canadian
Placement Agent and/or its representatives reveal any material information
or fact not generally known to the public which, in the Canadian Placement
Agent’s opinion, acting reasonably, likely will materially and adversely
affect the market price of the Common Shares, quality of the investment or
marketability of the Offering, the Canadian Placement Agent shall be
entitled, at its sole option, to terminate its obligations under this
Agreement (and, for greater certainty, in accordance with the Securities
Purchase Agreement, the obligations of the Purchasers arranged by it to
purchase the Common Shares) by written notice to that effect given to the
Company at any time prior to any
Closing.
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10.2
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Litigation. If any
inquiry, action, suit, investigation or proceeding, whether formal or
informal (including matters of regulatory transgression or unlawful
conduct and including any inquiry or investigation by NASDAQ, the Toronto
Stock Exchange, any Securities Regulator or the SEC), is commenced or
announced in relation to the Company, or any of its officers or directors,
the Canadian Placement Agent shall be entitled, at its sole option, to
terminate its obligations under this Agreement (and, for greater
certainty, in accordance with the Securities Purchase Agreement, the
obligations of the Purchasers arranged by it to purchase the Common
Shares) by written notice to that effect given to the Company at any time
prior to any Closing.
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10.3
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Disaster
Out. In the
event that prior to any Closing, there should develop, occur or come into
effect any event of any nature which, in the opinion of the Canadian
Placement Agent, acting reasonably, likely will materially adversely
affect the financial markets generally or the business, operations,
affairs or profitability of the Company or the market price or value of
the Common Shares (including terrorism, natural disaster, a new, or a
change in, any applicable law or regulation or other condition or
occurrence of national or international consequence), the Canadian
Placement Agent shall be entitled, at its sole option, to terminate its
obligations under this Agreement (and, for greater certainty, in
accordance with the Securities Purchase Agreement, the obligations of the
Purchasers arranged by it to purchase the Common Shares) by written notice
to that effect given to the Company at any time prior to any
Closing.
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8
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10.4
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Change
in Material Fact. In the
event that prior to any Closing, the Canadian Placement Agent or any of
its representatives, through due diligence investigations or otherwise,
discovers, or there should occur a material change or a change in material
fact, or a new material fact should arise, which, in the sole opinion of
the Canadian Placement Agent, has or could be expected to have a material
adverse change or material adverse effect on the business, operations,
affairs or profitability of the Company, or on the market price or value
of the Common Shares, the Canadian Placement Agent shall be entitled, at
its sole option, to terminate its obligations under this Agreement (and,
for greater certainty, in accordance with the Securities Purchase
Agreement, the obligations of the Purchasers arranged by it to purchase
the Common Shares) by written notice to that effect given to the Company
at any time prior to any Closing.
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10.5
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Profitably
Marketed. In the
event that prior to any Closing, the state of the Canadian, U.S. or
international financial markets is such that, in the opinion of the
Canadian Placement Agent, acting reasonably, the Common Shares cannot be
profitably marketed, the Canadian Placement Agent shall be entitled, at
its sole option, to terminate its obligations under this Agreement (and,
for greater certainty, in accordance with the Securities Purchase
Agreement, the obligations of the Purchasers arranged by it to purchase
the Common Shares) by written notice to that effect given to the Company
at any time prior to any Closing.
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10.6
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Non-Compliance
with Conditions. The Company
hereby agrees that all terms, conditions and covenants in this Agreement
and the Securities Purchase Agreement shall be construed as conditions and
complied with insofar as the same relate to acts to be performed, or
caused to be performed, by the Company and that the Company will use
commercially reasonable efforts to cause such terms, conditions and
covenants to be complied with, and any breach or failure by the Company to
comply with any of such terms, conditions and covenants, or any
representation and warranty given by the Company in this Agreement or in
the Securities Purchase Agreement becoming false and not being rectified
by the time of any Closing, shall entitle the Canadian Placement Agent, at
its sole option, to terminate its obligations under this Agreement (and,
for greater certainty, in accordance with the Securities Purchase
Agreement, the obligations of the Purchasers arranged by it to purchase
the Common Shares) by written notice to that effect given to the Company
at any time prior to any Closing. The Canadian Placement Agent
may waive, in whole or in part, or extend the time for compliance with,
any of such terms, conditions and covenants or any other or subsequent
breach or non-compliance, provided that
any such waiver or extension shall be binding on the Canadian Placement
Agent only if the same is in writing and signed by
it.
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9
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10.7
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Cease
Trade Order. In the
event that any order to cease trading in securities of the Company is made
or threatened by a Securities Regulator or the SEC, which, in the opinion
of the Canadian Placement Agent, acting reasonably, operates, or could
operate, to prevent or restrict trading in the Common Shares or the
distribution of the Common Shares in the Selling Jurisdictions, the
Canadian Placement Agent shall be entitled, at its sole option, to
terminate its obligations under this Agreement (and, for greater
certainty, in accordance with the Securities Purchase Agreement, the
obligations of the Purchasers arranged by it to purchase the Common
Shares) by written notice to that effect given to the Company at any time
prior to any Closing.
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10.8
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Termination
by Company. In the
event that the Company’s Board of Directors determines or resolves to
abandon the Offering, then the Company may terminate this Agreement by
giving at least three Business Days’ written notice to the Canadian
Placement Agent, provided, for
greater certainty, that no such termination shall relieve the Company of
its obligation to pay all of the Canadian Placement Agent’s reasonable
expenses and fees pursuant to, and in accordance with, Section
11.
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10.9
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Exercise
of Termination Rights. The rights
of termination contained in this Section 10 are in addition to any other
rights or remedies that each of the parties hereto may have in respect of
any default, act or failure to act, or non-compliance, by the other party
hereto in respect of any of the matters contemplated by this Agreement or
the Securities Purchase Agreement. In the event of any
termination of this Agreement by a party hereto, there shall be no further
liability on the part of such party, except in respect of (i) any
liability which may have arisen, or may arise, after such termination
under Sections 11 and/or 12 in respect of acts or omissions prior to such
termination and (ii) the provisions of Section
14.
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11.
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Expenses. Whether or
not the Offering is completed, the Company will pay all reasonable fees
and expenses in connection with the Offering, including (i) all expenses
of, or incidental to, the issue, sale or distribution of the Common Shares
(including the fees and expenses of the Company’s counsel and all costs
incurred in connection with the preparation of documents relating to the
Offering) and (ii) all reasonable expenses and fees incurred by, or on
behalf of, the Canadian Placement Agent (including the reasonable fees and
disbursements of the Canadian Placement Agent’s counsel). All
reasonable fees and expenses incurred by the Canadian Placement Agent or
on its behalf shall be payable by the Company immediately upon receiving
an invoice therefor from the Canadian Placement
Agent.
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10
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12.
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Indemnity. The Company
hereby agrees to, and shall, indemnify and hold the Canadian Placement
Agent and the Affiliates, and each of their respective directors,
officers, employees, shareholders and agents (collectively, the “Personnel”), harmless
from and against any and all expenses, losses (other than loss of
profits), claims, actions, damages or liabilities, whether joint or
several (including the aggregate amount paid in reasonable settlement of
any actions, suits, proceedings or claims), and the reasonable fees and
expenses of their counsel that may be incurred in advising with respect to
and/or defending any claim that may be made against the Canadian Placement
Agent, the Affiliates and/or the Personnel, or to which any of them may
become subject or otherwise involved in any capacity under any statute or
common law or otherwise, insofar as such expenses, losses, claims,
actions, damages or liabilities arise out of or are based, directly or
indirectly, upon the performance of professional services rendered to the
Company by any of the Canadian Placement Agent, the Affiliates or the
Personnel hereunder or otherwise in connection with the matters referred
to in this Agreement (including any claim that the Offering Memorandum
contains an untrue statement of a material fact, or an omission to state a
material fact that is required to be stated, or that is necessary to make
a statement not misleading in the light of the circumstances in which it
was made), provided,
however, that this indemnity shall not apply to the extent that a court of
competent jurisdiction in a final judgment that has become non-appealable
shall determine that:
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12.1
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the
Canadian Placement Agent, the Affiliates and/or the Personnel have been
negligent or dishonest or have committed any fraudulent act or engaged in
willful misconduct in the course of such performance;
and
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12.2
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the
expenses, losses, claims, actions, damages or liabilities, as to which
indemnification is claimed, were caused by the negligence, dishonesty,
fraud or willful misconduct referred to in Section
12.1.
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If, for
any reason (other than the reasons set forth in Sections 12.1 and 12.2), the
foregoing indemnification is unavailable to the Canadian Placement Agent, the
Affiliates and/or the Personnel or insufficient to hold them harmless, then the
Company shall contribute to the amount paid or payable by the Canadian Placement
Agent, the Affiliates and/or the Personnel as a result of such expenses, losses,
claims, actions, damages or liabilities in such proportion as is appropriate to
reflect, not only the relative benefits received by the Company on the one hand
and the Canadian Placement Agent and/or the Affiliates on the other hand, but
also the relative fault of the Company and the Canadian Placement Agent and/or
the Affiliates, as well as any relevant equitable considerations; provided that the
Company, in any event, shall contribute only the amount paid or payable by the
Canadian Placement Agent and/or the Affiliates as a result of such expenses,
losses, claims, damages or liabilities that is in excess of the value of the
Placement Shares issued to the Canadian Placement Agent as compensation for the
services rendered hereunder. The value of such Placement Shares shall
be deemed to be equal to (i) the product of the number of the Placement Shares
issued to the Canadian Placement Agent at the first Closing multiplied by the
closing consolidated bid price per share of the Company’s common stock on the
NASDAQ Capital Market on the date the Securities Purchase Agreement is executed
by the Purchasers purchasing Common Shares in the first Closing plus (ii) the product
of the number of the Placement Shares issued to the Canadian Placement Agent at
the second Closing (if any) multiplied by the closing consolidated bid price per
share of the Company’s common stock on the NASDAQ Capital Market on the date the
Securities Purchase Agreement is executed by the Purchasers purchasing Common
Shares in the second Closing. The right to contribution under this
Section 12 is in addition to, and not in substitution for or derogation of, any
other right to contribution by statute or otherwise at law.
11
The
Company hereby agrees that, if any legal proceeding shall be brought against the
Company, the Canadian Placement Agent, the Affiliates and/or any Personnel by
any governmental commission or regulatory authority or any stock exchange or
other entity having regulatory authority, either domestic or foreign, or if the
Company, the Canadian Placement Agent, the Affiliates and/or any Personnel
become subject to an investigation by such governmental commission, regulatory
authority, stock exchange or other entity, and any Personnel shall be required
to testify in connection therewith or shall be required to respond to procedures
designed to discover information regarding, in connection with or by reason of
the performance of professional services rendered to the Company by the Canadian
Placement Agent, the Affiliates or any Personnel under this Agreement, the
Canadian Placement Agent, the Affiliates and/or the Personnel shall have the
right to employ a single firm of counsel in connection therewith, and the
reasonable fees and expenses of such counsel and the out-of-pocket expenses
incurred by the Agent, the Affiliates and/or the Personnel in connection
therewith shall be paid by the Company as they are
incurred. Notwithstanding the foregoing, the Canadian Placement Agent
and/or the Affiliates and the Personnel shall utilize counsel to the Company,
unless, in the reasonable opinion of either (i) the Company or (ii) the Canadian
Placement Agent and/or the Affiliates, there is an actual, potential or apparent
conflict between the interests of such parties on the one hand and the interests
of the Company on the other hand, such that joint representation would be
inappropriate.
12
Promptly
after receipt of notice of the commencement of any legal proceeding against the
Canadian Placement Agent, the Affiliates and/or any of the Personnel or after
receipt of notice of the commencement of any investigation, which is based,
directly or indirectly, upon any matter in respect of which indemnification may
be sought from the Company, the Canadian Placement Agent and/or the Affiliates
(or any one of them) will notify the Company in writing of the commencement
thereof and, throughout the course thereof, will provide copies of all relevant
documentation to the Company, will keep the Company advised of the progress
thereof and will discuss with the Company all significant actions
proposed.
The
indemnity and contribution obligations of the Company shall be in addition to
any liability which the Company may otherwise have, shall extend upon the same
terms and conditions to the Affiliates and the Personnel who are not signatories
hereto and shall be binding upon, and enure to the benefit of, any successors,
assigns, heirs and personal representatives of the Company, the Canadian
Placement Agent, the Affiliates and the Personnel, as applicable. The
foregoing provisions shall survive the completion of professional services
rendered under this Agreement.
Notwithstanding
anything herein to the contrary, the Canadian Placement Agent shall not be
entitled to the payment of the fees and expenses provided for in Section 11 if a
court of competent jurisdiction, in a final judgment that has become
non-appealable, shall determine that the Canadian Placement Agent, the
Affiliates and/or the Personnel have been negligent or dishonest or have
committed any fraudulent act or engaged in willful misconduct in the course of
their performance of professional services rendered to the Company hereunder or
otherwise in connection with the matters referred to in this Agreement, in which
case the Canadian Placement Agent shall refund to the Company, in full, all
amounts paid by the Company pursuant to Section 11.
With
respect to any party who may be indemnified by this Section 12 and is not a
party to this Agreement, the Canadian Placement Agent shall obtain and hold the
rights and benefits of this Section 12 in trust for, and on behalf of, such
indemnified party.
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13.
|
Automatic
Termination. This
Agreement shall terminate automatically and be of no further force and
effect, and the transactions contemplated hereby and by the Securities
Purchase Agreement, and that are then still remaining to be completed,
will be abandoned (regardless of any approval thereof by the requisite
majority of the shareholders of the Company), if (i) the first Closing
does not occur on or prior to January 29, 2010 or (ii) a second Closing is
not completed on or prior to the 90th
day following the earlier of (A) the Closing Date of the first Closing and
(B) January 30, 2010.
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14.
|
Confidentiality. The
Canadian Placement Agent agrees to maintain the confidentiality of all
information provided to it by the Company and, without the prior consent
of the Company, shall not disclose any such information to any person or
entity (and each such person or entity shall be subject to comparable
confidentiality obligations), other than the Affiliates and the Personnel,
each of which shall be subject to comparable confidentiality
obligations. The confidentiality obligations in this Section 14
shall not apply to any information which: (i) is or becomes
part of the public domain, prior to or after the time of maintenance of
the confidentiality of such information, or is or becomes publicly
available without breach hereof by the Canadian Placement Agent, the
Affiliates or the Personnel; (ii) is lawfully acquired by the Canadian
Placement Agent or any of the Affiliates from a third party that does not
owe any confidentiality obligation to the Company with respect to such
information; (iii) is developed by or on behalf of the Canadian Placement
Agent or any of the Affiliates, without reference to or reliance upon
confidential information of the Company; (iv) was in the possession of the
Canadian Placement Agent or any of the Affiliates before receipt thereof
from the Company, without the receiving party being bound by a
confidentiality agreement or otherwise being prohibited from transmitting
or disclosing such information by any confidentiality, legal or fiduciary
obligation with respect to such information; (v) the Company excepts from
the confidentiality obligations under this Section 14 in writing; or (vi)
is required to be disclosed by a governmental body or a court of law
having jurisdiction. The Canadian Placement Agent agrees that
it shall be liable for any breach of this Section 14 by the Affiliates and
the Personnel.
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13
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15.
|
Notices. Any notice
or other communication to be given under this Agreement (a “notice”) shall be in
writing and addressed as follows:
|
|
15.1
|
If
to the Company, to:
|
OccuLogix,
Inc. d/b/a TearLab Corporation
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.A.
Attention: ▇▇▇▇
Dumencu, Chief Financial Officer
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
with a
copy to:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.A.
14
Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
|
15.2
|
If
to the Canadian Placement Agent,
to:
|
▇▇▇▇▇▇▇▇
Securities Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
with a
copy to:
Blake,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, Commerce Court West
Toronto,
Ontario ▇▇▇ ▇▇▇
▇▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
or to
such other address as either of the parties hereto may designate by notice given
to the other party hereto.
Each
notice shall be personally delivered to the addressee or sent by confirmed
electronic mail or facsimile transmission to the addressee and (i) a notice
which is personally delivered, if delivered on a Business Day, shall be deemed
to be given and received on that day and, in any other case, shall be deemed to
be given and received on the first Business Day following the day on which it is
delivered; and (ii) a notice which is sent by confirmed electronic mail or
facsimile transmission shall be deemed to be given and received on the first
Business Day following the day on which it is sent.
|
16.
|
Time
of Essence. Time shall,
in all respects, be of the essence
hereof.
|
|
17.
|
United
States Dollars. All
references herein to dollar amounts are to lawful money of the United
States of America.
|
|
18.
|
Headings. The
headings contained herein are for convenience only and shall not affect
the meaning or interpretation
hereof.
|
15
|
19.
|
Singular
and Plural, etc. Where
the context so requires, words importing the singular number include the
plural and vice versa, and words importing gender shall include the
masculine, feminine and neuter
genders.
|
|
20.
|
Entire
Agreement. This
Agreement constitutes the only agreement between the parties with respect
to the subject matter hereof and shall supersede any and all prior
negotiations and understandings. This Agreement may not be
amended or modified in any respect, other than by written instrument
signed by the parties hereto.
|
|
21.
|
Severability. The
invalidity or unenforceability of any particular provision of this
Agreement shall not affect or limit the validity or enforceability of the
remaining provisions of this
Agreement.
|
|
22.
|
Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the laws
of the Province of Ontario and the federal laws of Canada applicable
therein.
|
|
23.
|
Successors
and Assigns. The terms
and provisions of this Agreement shall be binding upon, and enure to the
benefit of, the Company and the Canadian Placement Agent and their
respective executors, heirs, successors and permitted assigns; provided that
this Agreement shall not be assignable by either party hereto without the
prior written consent of the other party
hereto.
|
|
24.
|
Further
Assurances. Each of the
parties hereto shall do, or cause to be done, all such acts and things and
shall execute and deliver, or cause to be executed and delivered, all such
documents, agreements and other instruments as may reasonably be necessary
or desirable for the purpose of carrying out the provisions and intent of
this Agreement.
|
|
25.
|
Effective
Date. This
Agreement is intended to, and shall, take effect as of November 20, 2009,
notwithstanding its actual date of execution or
delivery.
|
|
26.
|
Language. The parties
hereby acknowledge that they have expressly required this Agreement and
all notices, statements of account and other documents required or
permitted to be given or entered into pursuant hereto to be drawn up in
the English language only. Les parties reconnaissent
avoir expressément demandé que la présente convention ainsi que tout avis,
tout état de compte et tout autre document à être ou pouvant être donné ou
conclu en vertu des dispositions des présentes soient rédigés en langue
anglaise seulement.
|
|
27.
|
Counterparts. This
Agreement may be executed in any number of counterparts and by facsimile
or e-mail transmission, each of which so executed shall constitute an
original and all of which taken together shall form one and the same
agreement.
|
16
If the
Company is in agreement with the foregoing terms and conditions, please so
indicate by executing a copy of this Agreement where indicated below and
delivering the same to the Canadian Placement Agent.
Your very
truly,
|
▇▇▇▇▇▇▇▇
SECURITIES INC.
|
||
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
|
||
|
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
||
|
President
and Chief Executive Officer
|
||
|
The
foregoing terms and conditions are hereby accepted.
|
||
|
DATED
as of the 8TH
day of January 2010
|
||
|
OCCULOGIX,
INC. d/b/a TEARLAB CORPORATION
|
||
|
/s/
▇▇▇▇ Dumencu
|
||
|
▇▇▇▇
Dumencu
|
||
|
Chief
Financial Officer
|
17