UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K/A
(Amendment No. 1)
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): May 19, 2008
OCCULOGIX,
INC.
(Exact
name of Registrant as specified in its Charter)
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Delaware
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000
51030
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59-343-4771
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(State
or other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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2600
Skymark Avenue, Unit 9, Suite 201
Mississauga,
Ontario L4W 5B2
(Address
of principal executive offices)
Registrant’s
telephone number, including area code:
(905)
602-0887
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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ITEM
1.01 Entry into a Material Definitive Agreement
On May
20, 2008, OccuLogix, Inc. (the “Company”) issued a press release announcing that
it has entered into a definitive agreement with a number of investors for the
private placement of U.S.$5,076,500 of shares of common stock at a per share
price equal to the lower of (i) U.S.$0.10 and (ii) the volume-weighted average
closing price of the Company’s common stock on NASDAQ for the 15-day trading
period immediately preceding the closing date of the sale (the “Securities
Purchase Agreement”).
The
Company has agreed to prepare and file with the U.S. Securities and Exchange
Commission (the “SEC”), on or prior to the 30
th
day
following the closing date of the private placement, a registration statement
(the “Registration Statement”), covering the resale of the shares of the
Company’s common stock sold pursuant to the Securities Purchase Agreement, for
an offering to be made on a continuous basis pursuant to Rule 415, as
promulgated by the SEC under the Securities Act of 1933, as amended (the
“Securities Act”). Pursuant to the Securities Purchase Agreement, the
Company has agreed to use commercially reasonable efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as possible after its filing but, in any event, if the Registration
Statement does not become subject to review by the SEC, prior to the earliest to
occur of (i) the 90
th
day
following the closing date of the sale and (ii) the fifth trading day following
the date on which the Company receives notification from the SEC that the
Registration Statement will not be subject to the SEC’s review. If
the Registration Statement becomes subject to review by the SEC, the Company
will be obligated to use commercially reasonable efforts to cause the
Registration Statement to be declared effective prior to the 120
th
day
following the closing date of the sale. Pursuant to the Securities
Purchase Agreement, the Company has also agreed to use commercially reasonable
efforts to keep the Registration Statement continuously effective under the
Securities Act until the earlier of the date on which all of the shares of the
Company’s common stock sold pursuant to the Securities Purchase Agreement have
been sold and the date on which all of such shares can be sold publicly under
Rule 144(b)(1), as promulgated by the SEC under the Securities Act.
Stockholder
approval of the proposed private placement is required under the NASDAQ rules
governing the issuance of shares. On May 20, 2008, the Company filed
a preliminary proxy statement to solicit the proxies of its stockholders for the
approval of the proposed private placement, among other
approvals. The Company intends to call a meeting of its stockholders
as soon as practicable.
It is a
condition precedent to closing of the proposed private placement that a majority
of the votes cast at the Company’s stockholders meeting by the stockholders of
the Company, who are disinterested in the transactions contemplated by the
Securities Purchase Agreement and the Merger Agreement (defined below), be cast
in favor of such transactions. On April 22, 2008, the Company had
entered into a definitive agreement to acquire the minority ownership interest
in OcuSense, Inc. that it does not already own (the “Merger
Agreement”). Currently, the Company owns 50.1% of the capital stock
of OcuSense, Inc., on a fully diluted basis.
ITEM
3.02 Unregistered Sale of Equity Securities
Pursuant
to the Securities Purchase Agreement, the Company will sell an aggregate of a
minimum of 50,765,000 shares of its common stock to the investors party thereto
for aggregate gross proceeds of U.S.$5,076,500.
Such sale
will be done in reliance upon the exemption from registration afforded by
Section 4(2) of the Securities Act and Rule 506 of Regulation D, as promulgated
by the SEC under the Securities Act, and Rule 903 of Regulation S, as
promulgated by the SEC under the Securities Act, as well as the exemptions from
the prospectus and registration requirements afforded by National Instrument
45-106—Prospectus and Registration Exemptions in Canada and comparable
exemptions in certain other foreign jurisdictions.
Marchant
Securities Inc. (“Marchant”) is acting as exclusive placement agent in Canada in
connection with the sale of shares of the Company’s common stock pursuant to the
Securities Purchase Agreement. For such service, the Company has
agreed to pay Marchant a commission equal to 6% of the aggregate gross proceeds
realized from sales to investors who are Canadian residents for purposes of
applicable securities laws. Subject to obtaining the requisite
stockholder and regulatory approvals, the Company will pay 50% of such
commission by issuing to Marchant shares of the Company’s common stock at a per
share price equal to the per share price of the shares of the Company’s common
stock sold pursuant to the Securities Purchase Agreement. The Company
will pay the balance of the commission in cash. Marchant is
indirectly beneficially owned, as to approximately 32%, by Mr. Vamvakas, the
Company’s Chairman and Chief Executive Officer, and members of his
family.
ITEM
9.01 Financial Statements and Exhibits
(d)
Exhibits
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Securities
Purchase Agreement, dated as of May 19, 2008, by and among OccuLogix,
Inc., Marchant Securities Inc. and the investors listed on the Schedule of
Investors attached thereto as Exhibit
A.
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Press
Release of OccuLogix, Inc. dated May 20,
2008.
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the Company has duly
caused this Report to be signed on its behalf by the undersigned hereunto duly
authorized.
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OCCULOGIX,
INC.
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Date:
May 21, 2008
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By:
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/s/Suh
Kim
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Suh
Kim
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General
Counsel
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