INSITE VISION INCORPORATED CONSENT TO EXPAND SIZE OF OFFERING OF NOTES AND WARRANTS
Unassociated Document
INSITE
VISION INCORPORATED
WHEREAS,
pursuant to that certain confidential private offering memorandum, dated
December 27, 2005 (the “Memorandum”), of InSite Vision Incorporated (the
“Company”) and pursuant to those certain subscription agreements, dated as of
December 30, 2005 (the “Subscription Agreements”), by and between the Company
and each of the investors (the “Investors”) thereto, the Company offered and
sold $4.3 million aggregate principal amount of senior secured promissory notes
(the “Notes”) and warrants (“Warrants”) to purchase 860,000 shares of Common
Stock of the Company (the “Offering);
WHEREAS,
the Company and Paramount BioCapital, Inc., as placement agent in connection
with the Offering (the “Placement Agent”), entered into a placement agreement
dated as of December 16, 2005 (the “Placement Agent Agreement”), pursuant to
which the size of the Offering was limited to $6.0 million in aggregate
principal amount of Notes and Warrants to purchase 1.2 million shares of Common
Stock;
WHEREAS,
the disclosure in the Memorandum, the terms of the Subscription Agreement and
the terms of the Placement Agent Agreement (i) limit the size of the Offering
to
$6.0 million in aggregate principal amount of Notes and Warrants to purchase
1.2
million shares of Common Stock of the Company and (ii) provide that each Warrant
will have an exercise price equal to the volume weighted average price of the
Company’s Common Stock, as reported on the American Stock Exchange (the “AMEX”)
for the five trading days immediately prior to the date of the applicable
closing (each, a “Closing Date”), will be exercisable for five years from the
final Closing Date of the Offering (the “Final Closing Date”);
WHEREAS,
the Company entered into an Agreement Regarding Warrant Strike Price with Pinto
Technology Ventures L.P. (“Pinto”) on Friday, December 30, 2005, pursuant to
which the Company accepted a binding subscription from Pinto for up to $2.0
million in aggregate principal amount of Notes, subject to receipt of this
Consent from each other Investor in the Offering, and the Company and Pinto
agreed that the Warrants to be issued to Pinto shall have an exercise price
equal to the volume weighted average price of the Company’s Common Stock, as
reported on the American Stock Exchange for the five trading days immediately
prior to December 30, 2005, the Closing Date of each other Investors’ investment
in the Offering (the “Adjusted Exercise Price”);
WHEREAS,
the Company desires to expand the size of the Offering to allow the issue and
sale of an additional $300,000 in principal amount of Notes and Warrants to
purchase an additional 60,000 shares of Common Stock and to obtain each other
Investors’ consent to the Adjusted Exercise Price.
NOW
THEREFORE, the parties hereto agree as follows:
Notwithstanding
the terms of the Memorandum, the Subscription Agreements and the Placement
Agreement, the Company is hereby authorized to issue and sell, as part of the
Offering, an additional $300,000 in principal amount of Notes and Warrants
to
purchase an additional 60,000 shares of Common Stock, and the exercise price
of
the Warrants to be issued to Pinto shall be the Adjusted Exercise Price. The
sale and issuance of such additional securities shall otherwise be on identical
terms as contemplated by the Offering.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the undersigned has executed this Agreement on behalf of the
Company as of this 6th
day of
January, 2006.
INSITE
VISION INCORPORATED
By:____________________________________
Name:
▇.
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, Ph. D.
Title: President
and Chief Executive Officer
PARAMOUNT
BIOCAPITAL, INC.
By:_________________________________
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, M.D.
Title: Chairman
& Chief Executive Officer
INVESTOR:
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Name:
By:_________________________________
Name:
Title: