As filed
with the Securities and Exchange Commission on December 17,
2008.
Registration
No. 333-155164
|
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
|
|
|
|
|
|
AMENDMENT
NO. 1
TO
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
|
|
|
|
|
|
OCCULOGIX,
INC.
(Exact
name of registrant as specified in its charter)
|
|
|
|
|
|
Delaware
(State
or other jurisdiction of incorporation or organization)
|
|
59-3434771
(I.R.S.
Employer Identification Number)
|
|
2600
Skymark Avenue
Unit
9, Suite 103
Mississauga,
Ontario L4W 5B2
(905)
602-0887
(Address,
including zip code, and telephone number, including area code, of
registrant’s principal executive offices)
|
|
|
|
|
|
William
G. Dumencu
OccuLogix,
Inc.
2600
Skymark Avenue
Unit
9, Suite 103
Mississauga,
Ontario L4W 5B2
(905)
602-0887
(Name,
address, including zip code, and telephone number, including area code, of
agent for service)
|
|
|
|
|
|
Copy
to:
|
|
|
|
Andrew
J. Beck, Esq.
Torys
LLP
237
Park Avenue
New
York, New York 10017
(212)
880-6000
|
Approximate
date of commencement of proposed sale to the public:
From time
to time after the effective date of this registration statement.
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box:
o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box:
x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering.
o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon the filing
with the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box.
o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act,
check the following box.
o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|
Large
accelerated filer
¨
|
|
Accelerated
filer
x
|
|
Non-accelerated
filer
¨
(Do not check if
a smaller reporting company)
|
|
Smaller reporting company
¨
|
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of securities to be registered
|
Amount
to be registered
|
|
Proposed
maximum offering price per share(1)
|
|
|
Proposed
maximum aggregate offering price(1)
|
|
|
Amount
of registration fee(2)
|
|
|
Common
Stock ($.001 par value)
|
5,117,005
shares
|
|
$
|
3.655
|
|
|
$
|
18,702,653
|
|
|
$
|
735
|
|
|
(1)
|
Computed
in accordance with Rule 457(c) under the Securities Act of 1933 based upon
the average of the high and low prices for the registrant’s shares of
Common Stock ($.001 par value) as reported on The NASDAQ Capital Market on
October 31
,
2008.
|
The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The
information in this Prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This Prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not
permitted.
Subject
to Completion, dated December 17, 2008
Prospectus
5,117,005
SHARES
OCCULOGIX,
INC.
COMMON
STOCK
($.001
par value)
The
5,117,005 shares of Common Stock, $.001 par value (the “Common Stock”), of
OccuLogix, Inc. (“we”, “OccuLogix”, the “Registrant” or the “Company”) offered
hereby may be sold from time to time by certain security holders of the Company
(the “Selling Stockholders”). See “Selling
Stockholders”.
All
expenses incurred in connection with this offering are being borne by the
Company, other than any commissions or discounts paid or allowed by the Selling
Stockholders to underwriters, dealers, brokers or agents.
The
Selling Stockholders have not advised the Company of any specific plans for the
distribution of the shares offered hereby, but it is anticipated that the shares
may be sold from time to time in transactions (which may include block
transactions) on The NASDAQ Capital Market at the market prices then
prevailing. Sales of the shares offered hereby may also be made
through negotiated transactions or otherwise. The Selling
Stockholders and the brokers and dealers through which the sales of the shares
offered hereby may be made may be deemed to be “underwriters” within the meaning
of the Securities Act of 1933, as amended (the “Securities Act”), and their
commissions and discounts and other compensation may be regarded as
underwriters’ compensation. See “Plan of Distribution”.
The
Common Stock is quoted on The NASDAQ Capital Market under the symbol
“OCCX”.
See
“Risk Factors” on page 2 for a discussion of certain factors that should be
considered by prospective investors in the Common Stock offered
hereby.
These
securities have not been approved or disapproved by the Securities and Exchange
Commission or any state securities commission nor has the Securities and
Exchange Commission or any state securities commission passed upon the
accuracy or adequacy of this Prospectus. Any representation
to the contrary is a criminal offense.
The date
of this Prospectus is December 17, 2008.
TABLE OF
CONTENTS
|
|
Page
|
|
|
|
|
ADDITIONAL
INFORMATION
|
1
|
|
|
|
|
THE
COMPANY
|
1
|
|
|
|
|
RISK
FACTORS
|
1
|
|
|
|
|
USE
OF PROCEEDS
|
2
|
|
|
|
|
RECENT
DEVELOPMENTS
|
2
|
|
|
|
|
SELLING
STOCKHOLDERS
|
3
|
|
|
|
|
PLAN
OF DISTRIBUTION
|
10
|
|
|
|
|
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
|
12
|
|
|
|
|
LEGAL
MATTERS
|
12
|
|
|
|
|
EXPERTS
|
12
|
ADDITIONAL
INFORMATION
The
Company has filed with the Securities and Exchange Commission (the
“Commission”), Washington, D.C., a Registration Statement on Form S-3 under the
Securities Act with respect to the shares of the Common Stock offered hereby (as
amended and supplemented, the “Registration Statement”). This
Prospectus forms part of the Registration Statement and does not contain all of
the information set forth in the Registration Statement and the exhibits
thereto. For further information pertaining to the Company and the
shares of Common Stock offered hereby, reference is made to the Registration
Statement, including the exhibits filed therewith. All of these
documents may be inspected without charge at the Public Reference Room of the
Commission at 100 F Street, N.E., Room 1580, Washington, D.C. 20549, and copies
may be obtained by mail from the Public Reference Room of the Commission at 100
F Street, N.E., Room 1580, Washington, D.C. 20549 at prescribed
rates. The public may obtain information on the operation of the
Public Reference Room by calling the Commission at
1-800-SEC-0330. The Commission also maintains a Web site at
http://www.sec.gov that contains the Registration Statement, the exhibits
thereto and the documents incorporated by reference therein. The
statements contained in this Prospectus concerning any contract or document are
not necessarily complete; where such contract or other document is an exhibit to
the Registration Statement, each such statement is qualified in all respects by
the provisions of such exhibit.
The
Company furnishes its stockholders with annual reports containing financial
statements audited by independent accountants for each fiscal year and quarterly
reports for the first three fiscal quarters of each year containing unaudited
summary financial information.
The
Company is subject to the informational requirements of the Securities Exchange
Act of 1934 (the “Exchange Act”) and, in accordance therewith, files reports,
proxy and information statements and other information with the
Commission. Such reports, proxy and information statements and other
information can be inspected and copied at the Public Reference Room of the
Commission. The Commission’s Web site also contains reports, proxy
and information statements and other information regarding the
Company. The Common Stock is traded on The NASDAQ Capital Market and,
in accordance therewith, the Company files reports, proxy statements and other
information with The NASDAQ Capital Market.
THE
COMPANY
The
Company is a Delaware corporation with executive offices at 2600 Skymark Avenue,
Unit 9, Suite 103, Mississauga, Ontario L4W 5B2, Canada and its telephone number
at that address is 905-602-0887.
RISK
FACTORS
Prior to
making an investment decision, prospective investors should consider carefully
the information and financial data included or incorporated by reference in this
Prospectus or any Prospectus Supplement.
Except
for the historical information contained in this Prospectus or incorporated by
reference, this Prospectus (and the information incorporated by reference in
this Prospectus) contains forward-looking statements that involve risks and
uncertainties. Our actual results could differ materially from those
discussed here or incorporated by reference. Factors that could cause
or contribute to such differences include, but are not limited to, those
discussed in our Annual Report on Form 10-K/A for the year ended
December 31, 2007 and our Quarterly Reports on Forms 10-Q and 10-Q/A for
2008, which are incorporated by reference.
USE
OF PROCEEDS
The
Company will not receive any of the proceeds from the sale of the shares offered
in this Prospectus.
RECENT
DEVELOPMENTS
On
October 6, 2008, the Company issued a press release announcing that, among other
transactions, it had completed the acquisition of the minority ownership
interest in OcuSense, Inc. (“OcuSense”) that the Company did not already own and
the private placement of U.S.$2,173,000 amount of shares of the Common
Stock.
The
acquisition of the minority ownership interest in OcuSense was effected pursuant
to the Agreement and Plan of Merger and Reorganization, dated April 22, 2008, by
and among the Company, OcuSense Acquireco, Inc., a wholly-owned subsidiary of
the Company (“Merger Sub”), and OcuSense, as amended by the Amending Agreement,
dated as of July 28, 2008, by and among OccuLogix, Merger Sub and OcuSense (as
amended, the “Merger Agreement”). As of October 6, 2008, the Company,
Merger Sub and OcuSense entered into a further agreement (the “Second Merger
Agreement Amending Agreement”), amending the Merger Agreement for, among other
purposes, to make explicit the consequences of the Reverse Stock Split (defined
below) on the numbers of shares of the Common Stock underlying the outstanding
stock options of OcuSense, which were assumed by OccuLogix pursuant to the
Merger Agreement, and on their respective exercise prices. All
historical share numbers and per share prices presented throughout this
Prospectus have been adjusted to reflect the 1-for-25 reverse stock split
effected on October 7, 2008 (the “Reverse Split”).
As
consideration for the minority ownership interest in OcuSense, the Company
issued an aggregate of 3,169,938 shares of the Common Stock to the minority
stockholders of OcuSense. The quantum of the merger consideration was
based on a full-enterprise valuation of OcuSense of U.S.$18,000,000, determined
in good faith by the respective boards of directors of the Company and OcuSense,
and a deemed value of U.S.$2.50 per share of the Common Stock, which was
reflective of the per share average trading price of the Common Stock on NASDAQ
during the period of negotiation of the merger consideration.
The
private placement of U.S.$2,173,000 amount of shares of the Common Stock was
effected pursuant to the Securities Purchase Agreement, dated as of May 19,
2008, by and among the Company, Marchant Securities Inc. (“Marchant”) and the
investors listed on the Schedule of Investors attached thereto as Exhibit A, as
amended by the Amending Agreements, each dated as of August 29, 2008,
by and among the Company, Marchant and each of the investors listed in the
Schedule of Investors attached thereto as Exhibit A (as amended, the “Securities
Purchase Agreement”). As of October 1, 2008, the Company, Marchant
and the investors party to the Securities Purchase Agreement entered into a
further agreement, amending the Securities Purchase Agreement, for among other
purposes, to revise the closing and funding mechanics of the transactions
contemplated thereunder. The private placement resulted in the
issuance of an aggregate of 869,200 shares of the Common Stock.
As
announced in the Company’s press release of October 6, 2008, the Company prepaid
its then outstanding U.S.$6,703,500 aggregate principal amount bridge loan (the
“Bridge Loan”) to the lenders thereof by issuing to them shares of the Common
Stock at a per share price of U.S.$2.125. In connection with the
pre-payment of the Bridge Loan (plus accrued but unpaid interest), the Company
issued to the lenders thereof an aggregate of 3,304,511 shares of the Common
Stock. The Selling Stockholders consist of the investors under the
Securities Purchase Agreement, the lenders under the Bridge Loan, Marchant and
TLC Vision Corporation, formerly the Company’s largest stockholder.
As
announced in the Company’s press release of October 6, 2008, Elias Vamvakas has
stepped down as the Company’s Chief Executive Officer but remains the Chairman
of the Board. Eric Donsky, the Chief Executive Officer of OcuSense,
became the Company’s Chief Executive Officer on October 6, 2008, upon the
closing of the transactions contemplated by the Merger Agreement, as amended by
the Second Merger Agreement Amending Agreement.
On
October 7, 2008, the Company filed, with the Delaware Secretary of State, a
Certificate of Amendment to its Amended and Restated Certificate of
Incorporation, as amended, in order to (i) effect the Reverse Split and (ii)
upon the effectiveness of the Reverse Split, decrease the number of authorized
shares of the Common Stock from 500,000,000 to 40,000,000.
SELLING
STOCKHOLDERS
The
following table sets forth certain information as of October 23, 2008 (and as
adjusted to reflect the sale of all of the shares of the Common Stock offered
hereby by the Selling Stockholders) with respect to the beneficial ownership of
the Common Stock by the Selling Stockholders. Except as set forth in
the footnotes to the table, all of these shares of the Common Stock are owned
with sole voting and investment power. See “Recent Developments” for
additional information regarding the Selling Stockholders.
Michael
S. Berg, one of the Selling Stockholders, is an officer of the
Company.
John
Cornish, one of the Selling Stockholders, had been an officer of the Company
until January 2008.
Allison
Dabney, one of the Selling Stockholders, is an employee of
OcuSense.
Thomas N.
Davidson, a director of the Company, is the sole trustee and beneficiary of the
Thomas N. Davidson Revocable Trust, one of the Selling
Stockholders. Mr. Davidson’s wife, Sally A. Davidson, is a Selling
Stockholder. Cardinal Crest Holdings, LLC, also a Selling
Stockholder, is owned and controlled by members of Mr. Davidson’s family, and
the trustees and beneficiaries of the Thomas N. Davidson Education Trust – 2006,
also a Selling Stockholder, are members of Mr. Davidson’s family.
Richard
L. Lindstrom, one of the Selling Stockholders, is a director of the
Company.
Marchant,
one of the Selling Stockholders, rendered services in connection with the
Securities Purchase Agreement, as amended, and the Bridge Loan. For
such services, the Company paid Marchant a total of $750,000 in fees, of which
$268,800 was paid in cash and the balance paid by the issuance to Marchant of an
aggregate of 192,480 shares of the Common Stock. Marchant is
indirectly beneficially owned, as to approximately 32%, by Elias Vamvakas, the
Company’s Chairman of the Board and former Chief Executive Officer, and members
of his family.
Melton
Willows Pty Ltd, one of the Selling Stockholders, is a 70-75% stockholder of
MiniFAB Pty Ltd. (“MiniFAB”). MiniFAB is one of OcuSense’s major
engineering partners and has been working closely with OcuSense in the
development of its TearLab™ Osmolarity System, the point-of-care test for Dry
Eye Syndrome. OcuSense has paid MiniFAB approximately $446,000 during
2007 and approximately $401,500 during 2008 to date. In addition,
OcuSense has received, but not yet paid, invoices from MiniFAB totaling
approximately $28,600.
Tracy
Puckett, who, together with her husband as joint tenant, is one of the Selling
Stockholders, is an officer of the Company.
Wilson
Sonsini Goodrich & Rosati, P.C. (“WSGR”) has provided legal services to
OcuSense and is now providing legal services to the Company and will continue to
do so in the future. WS Investment Company, LLC (2008A) and WS
Investment Company, LLC (2008C), both Selling Stockholders, are investment
partnerships composed of certain current and former members of, and persons
associated with, WSGR. In addition, certain other Selling
Stockholders are current or former partners of WSGR or related
parties.
|
Name of Selling Stockholder
|
|
Shares
of Common Stock Owned prior to
Offering
|
|
Shares
of Common Stock Offered pursuant to
Offering
|
|
Shares
of Common Stock Owned
after
Offering
|
|
Percentage
of Outstanding Shares Beneficially Owned after
Offering
|
|
|
|
|
|
|
|
|
|
|
|
1243690
Ontario Limited
|
|
45,556
|
|
45,556
|
|
--
|
|
--
|
|
1317179
Ontario Inc.
|
|
25,015
|
|
25,015
|
|
--
|
|
--
|
|
2016728 Ontario Inc.
1
|
|
40,000
|
|
40,000
|
|
--
|
|
--
|
|
2144304
Ontario Inc.
|
|
29,948
|
|
29,948
|
|
--
|
|
--
|
|
6319335
Canada Inc.
|
|
22,602
|
|
22,602
|
|
--
|
|
--
|
|
6961576
Canada Inc.
2
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Dalton
J. Albrecht
|
|
36,107
|
|
36,107
|
|
--
|
|
--
|
|
Tsambikos
Antonarakis
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Nikolay
Antropov
|
|
25,309
|
|
25,309
|
|
--
|
|
--
|
|
Karl
and Kathryn Arrington JT TEN
|
|
9,629
|
|
9,629
|
|
--
|
|
--
|
|
Ralph
J. Barry
3
|
|
8,185
|
|
8,185
|
|
--
|
|
--
|
|
Simon
Benstead
1
|
|
219,750
|
|
219,750
|
|
--
|
|
--
|
|
Michael
S. Berg
|
|
59,151
4
|
|
24,071
|
|
35,080
4
|
|
*
|
|
Paul
Bluhm
|
|
20,000
|
|
20,000
|
|
--
|
|
--
|
|
Boteh
Inc.
|
|
62,978
|
|
62,978
|
|
--
|
|
--
|
|
Tina
& Kenny Brienza
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Frank
W. Burr
|
|
48,142
|
|
48,142
|
|
--
|
|
--
|
|
GundyCo
ITF Kristopher Calder
|
|
2,408
|
|
2,408
|
|
--
|
|
--
|
|
GundyCo
ITF Thomas Calder
|
|
2,408
|
|
2,408
|
|
--
|
|
--
|
|
Timothy
Callan
|
|
2,000
|
|
2,000
|
|
--
|
|
--
|
|
Trevor
Callan
|
|
4,000
|
|
4,000
|
|
--
|
|
--
|
|
Cardinal
Crest Holdings, LLC
|
|
50,000
|
|
50,000
|
|
--
|
|
--
|
|
Cedarview
II Holdings Inc.
|
|
48,790
|
|
48,790
|
|
--
|
|
--
|
|
David
Cheresh and Judith Varner, Trustees of the Cheresh-Varner Family Trust U/A
DTD 08/31/2005
|
|
2,000
|
|
2,000
|
|
--
|
|
--
|
|
Norine
Cohen
|
|
9,629
|
|
9,629
|
|
--
|
|
--
|
|
Jennifer
Colton, Marcy Colton & Tom P. Colton JT
|
|
5,062
5
|
|
5,062
|
|
--
|
|
--
|
|
Marcy
Colton IRA Ameritrade Inc Custodian
|
|
20,000
6
|
|
20,000
|
|
--
|
|
--
|
|
Name
of Selling Stockholder
|
|
Shares
of Common Stock Owned prior to Offering
|
|
Shares
of Common Stock Offered pursuant to Offering
|
|
Shares
of Common Stock Owned after Offering
|
|
Percentage
of Outstanding Shares Beneficially Owned
after Offering
|
|
|
|
|
|
|
|
|
|
|
|
Michael
Colton & Tom Colton & Marcy Colton JT TEN
|
|
5,062
5
|
|
5,062
|
|
--
|
|
--
|
|
Tom
P. Colton IRA Ameritrade Inc Custodian
|
|
20,000
7
|
|
20,000
|
|
--
|
|
--
|
|
John
Cornish
|
|
36,107
8
|
|
36,107
|
|
--
|
|
--
|
|
BMO
Nesbitt Burns ITF Michael Cucuz A/C 750-03648-10
|
|
8,000
|
|
8,000
|
|
--
|
|
--
|
|
Allison
Dabney
|
|
14,141
9
|
|
12,036
|
|
2,105
9
|
|
*
|
|
John
Danas
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Sunil
Dattani
|
|
48,142
|
|
48,142
|
|
--
|
|
--
|
|
Sally
A. Davidson
|
|
140,000
|
|
140,000
|
|
--
|
|
--
|
|
Thomas
N. Davidson Education Trust – 2006
|
|
50,000
|
|
50,000
|
|
--
|
|
--
|
|
Thomas
N. Davidson Revocable Trust
|
|
80,000
10
|
|
80,000
|
|
--
|
|
*
|
|
Alessandro
DeSimone
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Julia
Della Maestra
|
|
101,235
|
|
101,235
|
|
--
|
|
--
|
|
Prakash
Dhadphale
|
|
12,655
|
|
12,655
|
|
--
|
|
--
|
|
Justin
DiCiano
|
|
8,815
|
|
8,815
|
|
--
|
|
--
|
|
Discovery
Place Child Care Centre Ltd.
|
|
25,309
|
|
25,309
|
|
--
|
|
--
|
|
NBCN
Inc. in Trust for DME Holdings Inc. Acct #3M4515A
|
|
25,309
|
|
25,309
|
|
--
|
|
--
|
|
Bryce
C. Douglas
|
|
216,639
|
|
216,639
|
|
--
|
|
--
|
|
K.
Douly Donne
|
|
31,636
|
|
31,636
|
|
--
|
|
--
|
|
Excite
Holdings Corporation
|
|
24,886
|
|
24,886
|
|
--
|
|
--
|
|
Jon
Fredericks
|
|
192,568
|
|
192,568
|
|
--
|
|
--
|
|
Robert
I. Gans, M.D.
|
|
7,593
|
|
7,593
|
|
--
|
|
--
|
|
Ralph
Goldsilver
|
|
10,000
|
|
10,000
|
|
--
|
|
--
|
|
BMO
Nesbitt Burns ITF Stephanie Gowing 7500400614
|
|
37,963
11
|
|
37,963
|
|
--
|
|
--
|
|
Name
of Selling Stockholder
|
|
Shares
of Common Stock Owned prior to Offering
|
|
Shares
of Common Stock Offered pursuant to Offering
|
|
Shares
of Common Stock Owned after Offering
|
|
Percentage
of Outstanding Shares Beneficially Owned
after Offering
|
|
|
|
|
|
|
|
|
|
|
|
Grand
Prix Coin Operated Auto Wash #1 Ltd.
|
|
23,607
12
|
|
23,607
|
|
--
|
|
--
|
|
Amarkumar
Gudka
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Guise
Management Corporation Defined Benefit Pension Plan
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
HEC
Fellows LLC
|
|
14,443
|
|
14,443
|
|
--
|
|
--
|
|
W
& R Hickel Family Trust Dated Nov. 3, 1995 as amended
|
|
28,886
|
|
28,886
|
|
--
|
|
--
|
|
Gail
M. Horwitz
|
|
7,593
|
|
7,593
|
|
--
|
|
--
|
|
James
and Daphne Jameson Family Trust Dated November 19, 1987
|
|
60,178
|
|
60,178
|
|
--
|
|
--
|
|
Kaleo
Financial Inc.
|
|
37,963
|
|
37,963
|
|
--
|
|
--
|
|
Gus
Karnasiotis
|
|
19,777
13
|
|
19,777
|
|
--
|
|
--
|
|
Gus
& Anne Karnasiotis
|
|
28,815
14
|
|
28,815
|
|
--
|
|
--
|
|
Deborah
A. Karp U/A 05/06/04 Deborah Karp Trustee for the Benefit of Deborah Karp
Trust
|
|
10,124
|
|
10,124
|
|
--
|
|
--
|
|
JimJan
Consultants Ltd.
15
|
|
75,926
|
|
75,926
|
|
--
|
|
--
|
|
Richard
L. Lindstrom
|
|
143,186
16
|
|
40,000
|
|
106,186
16
|
|
1.08%
|
|
Lynchburg
Wisdom Ventures, LLC
|
|
4,000
|
|
4,000
|
|
--
|
|
--
|
|
Rachel
Mamounis
|
|
7,200
|
|
7,200
|
|
--
|
|
--
|
|
Marchant
Securities Inc.
|
|
192,480
|
|
192,480
|
|
--
|
|
--
|
|
Loutfi
Mouaket
|
|
19,257
|
|
19,257
|
|
--
|
|
--
|
|
Peter
McCague
|
|
24,691
|
|
24,691
|
|
--
|
|
--
|
|
The
Peter C. Meinig Revocable Trust
|
|
240,710
|
|
240,710
|
|
--
|
|
--
|
|
Melton
Willows Pty Ltd
|
|
48,142
17
|
|
48,142
|
|
--
|
|
--
|
|
Reed
A. Miller
|
|
12,036
|
|
12,036
|
|
--
|
|
--
|
|
Kristine
A. Morrill
|
|
14,267
|
|
14,267
|
|
--
|
|
--
|
|
MSW
Investments Limited
|
|
50,618
|
|
50,618
|
|
--
|
|
--
|
|
Peter
R. Munson
3
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Name
of Selling Stockholder
|
|
Shares
of Common Stock Owned prior to Offering
|
|
Shares
of Common Stock Offered pursuant to Offering
|
|
Shares
of Common Stock Owned after Offering
|
|
Percentage
of Outstanding Shares Beneficially Owned
after Offering
|
|
|
|
|
|
|
|
|
|
|
|
Sean
J. Na
|
|
12,036
|
|
12,036
|
|
--
|
|
--
|
|
New
Horizons Holdings Inc.
|
|
13,889
|
|
13,889
|
|
--
|
|
--
|
|
Nick
Nianiaris
|
|
31,636
18
|
|
31,636
|
|
--
|
|
--
|
|
Vicki
G. Norton
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Terry
L. O’Neal
|
|
25,309
|
|
25,309
|
|
--
|
|
--
|
|
Sharon
Padzensky
|
|
25,309
|
|
25,309
|
|
--
|
|
--
|
|
Peoples
International Co. Inc.
|
|
61,086
|
|
61,086
|
|
--
|
|
--
|
|
Mary
Pejic
|
|
32,902
|
|
32,902
|
|
--
|
|
--
|
|
Voula
Politis
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Alfonso
Principato
|
|
9,629
|
|
9,629
|
|
--
|
|
--
|
|
Etienne
Puckett and Tracy Puckett JT TEN
|
|
25,309
19
|
|
25,309
|
|
--
|
|
--
|
|
Penson
Financial ITF Chris Salapoutis
|
|
30,000
|
|
30,000
|
|
--
|
|
--
|
|
Kathy
Rakhit
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Carol
Ann Rees
|
|
37,963
|
|
37,963
|
|
--
|
|
--
|
|
Anthony
Reisis
|
|
44,462
|
|
44,462
|
|
--
|
|
--
|
|
David
Sarraf
|
|
4,000
|
|
4,000
|
|
--
|
|
--
|
|
S.I.F.I.
S.p.A.
|
|
179,629
|
|
60,000
|
|
119,629
|
|
1.22%
|
|
David
W. Stevens
3
|
|
9,629
|
|
9,629
|
|
--
|
|
--
|
|
Syra
Kamin Limited
|
|
20,000
|
|
20,000
|
|
--
|
|
--
|
|
John
C. Taylor
|
|
10,000
|
|
10,000
|
|
--
|
|
--
|
|
TLC
Vision Corporation
|
|
39,278
|
|
39,278
|
|
--
|
|
--
|
|
TLC
Vision (USA) Corporation
|
|
711,536
|
|
711,536
|
|
--
|
|
--
|
|
Daniel
and Elizabeth Veal JT TEN
|
|
37,963
|
|
37,963
|
|
--
|
|
--
|
|
Jimmy
D. Veal and Linda T. Veal
|
|
25,309
|
|
25,309
|
|
--
|
|
--
|
|
Zachry
T. Veal and Leigh T. Veal
|
|
37,963
|
|
37,963
|
|
--
|
|
--
|
|
Visionary
Consultants Inc.
|
|
20,478
|
|
4,815
|
|
15,663
|
|
*
|
|
Research
Capital Corporation in trust for Peter G. Volpe account
27-90UA-8
|
|
25,309
|
|
25,309
|
|
--
|
|
--
|
|
Name
of Selling Stockholder
|
|
Shares
of Common Stock Owned prior to Offering
|
|
Shares
of Common Stock Offered pursuant to Offering
|
|
Shares
of Common Stock Owned after Offering
|
|
Percentage
of Outstanding Shares Beneficially Owned
after Offering
|
|
|
|
|
|
|
|
|
|
|
|
Vladimir
Riajskikh
2
|
|
25,015
|
|
25,015
|
|
--
|
|
--
|
|
Dayna
Warheit & Glenn A. Warheit JT TEN
|
|
5,062
20
|
|
5,062
|
|
--
|
|
--
|
|
Felicia
S. Warheit IRA Ameritrade Inc Custodian
|
|
10,000
|
|
10,000
|
|
--
|
|
--
|
|
Glenn
Warheit IRA Ameritrade Inc Custodian
|
|
10,000
21
|
|
10,000
|
|
--
|
|
--
|
|
Glenn
A. Warheit Living Trust
|
|
12,655
22
|
|
12,655
|
|
--
|
|
--
|
|
TD
Ameritrade Custodian Lynne Sharon Warheit Phillip Irving Warheit JT
TEN
|
|
25,309
23
|
|
25,309
|
|
--
|
|
--
|
|
Phillip
I. Warheit Ameritrade Inc Custodian
|
|
40,000
24
|
|
40,000
|
|
--
|
|
--
|
|
Jack
Wasserman Trust (dated Nov. 2, 1989)
|
|
240,710
|
|
240,710
|
|
--
|
|
--
|
|
Martin
J. Waters
25
|
|
15,470
|
|
9,629
|
|
5,841
|
|
*
|
|
Markus
& Edith Weigand
|
|
9,629
|
|
9,629
|
|
--
|
|
--
|
|
Brock
Wright
15
|
|
329,013
|
|
329,013
|
|
--
|
|
--
|
|
Janet
E. Wright
|
|
101,235
|
|
101,235
|
|
--
|
|
--
|
|
WS
Investment Company, LLC (2008A)
3 & 25
|
|
19,257
|
|
19,257
|
|
--
|
|
--
|
|
WS
Investment Company, LLC (2008C)
25
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Pak
Cheung Yan
|
|
4,815
|
|
4,815
|
|
--
|
|
--
|
|
Jason
Yim
|
|
15,165
|
|
15,165
|
|
--
|
|
--
|
|
David
C. Zeiger Trust dated 4/30/93 as amended
|
|
48,142
|
|
48,142
|
|
--
|
|
--
|
______________
*Less
than 1%
1
Simon
Benstead, a Selling Stockholder, has voting control and investment discretion
over the shares of the Common Stock held by 2016728 Ontario Inc., also a Selling
Stockholder.
2
Vladimir
Riajskikh, a Selling Stockholder, has an ownership interest in 6961576 Canada
Inc., also a Selling Stockholder.
3
Each of Ralph J. Barry,
Peter R. Munson, Jeffrey Guise and David W. Stevens is a partner of WS
Investment Company, LLC (2008A), also a Selling Stockholder. The
investment power of WS Investment Company, LLC (2008A) belongs to the WS
Investment Committee, of which Mr. Barry, Mr. Munson and Mr. Stevens are not
members. By virtue of his position with WS Investment Company, LLC
(2008A), each of Mr. Barry, Mr. Munson and Mr. Stevens may be deemed to have
investment power and beneficial ownership with respect to the securities held by
WS Investment Company, LLC (2008A), and each disclaims beneficial ownership of
such securities except to the extent of his pecuniary interest
therein.
4
This
number includes options held by Michael S. Berg to acquire an aggregate of
36,522 shares of the Common Stock, which options are currently exercisable or
exercisable within 60 days.
5
In
addition to these shares of the Common Stock, Tom P. Colton holds 20,000 shares
of the Common Stock, and he holds 5,062 shares of the Common Stock in joint
tenancy with certain other Selling Stockholders. All of these 25,062
shares of the Common Stock are offered hereby. In addition to these
shares of the Common Stock, Marcy Colton holds 20,000 shares of the Common
Stock, and she holds 5,062 shares of the Common Stock in joint tenancy with
certain other Selling Stockholders. All of these 25,062 shares of the
Common Stock are offered hereby.
6
In
addition to these shares of the Common Stock, Marcy Colton holds an aggregate of
10,124 shares of the Common Stock in joint tenancy with certain other Selling
Stockholders, which shares are offered hereby.
7
In
addition to these shares of the Common Stock, Tom P. Colton holds an aggregate
of 10,124 shares of the Common Stock in joint tenancy with certain other Selling
Stockholders, which shares are offered hereby.
8
In
addition to these shares of the Common Stock, John Cornish holds 7,360 shares of
the Common Stock jointly with his wife, which shares are not offered
hereby.
9
This
number includes options held by Allison Dabney to acquire an aggregate of 2,360
shares of the Common Stock, which options are currently exercisable or
exercisable within 60 days.
10
Thomas
N. Davidson, the sole trustee and beneficiary of the Thomas N. Davidson
Revocable Trust and a director of the Company, directly or indirectly, holds an
aggregate of 222,120 shares of the Common Stock, and he also holds options to
acquire an aggregate of 2,800 shares of the Common Stock that are currently
exercisable or exercisable within 60 days.
11
In
addition to these shares of the Common Stock, Stephanie Gowing holds 80 shares
of the Common Stock, which shares are not offered hereby.
12
Grand
Prix Coin Operated Auto Wash #1 Ltd. is owned as to 50% by Glenn Warheit and as
to 50% by Phillip Warheit. Glenn Warheit holds 10,000 shares of the
Common Stock, and he holds 5,062 shares of the Common Stock in joint tenancy
with Dayna Warheit. The Glenn A. Warheit Living Trust, of which Mr.
Warheit is the sole trustee and beneficiary, holds 12,655 shares of the Common
Stock. All of these 27,717 shares of the Common Stock are offered
hereby. Philip Warheit holds 40,000 shares of the Common Stock, and
he holds 25,309 shares of the Common Stock in joint tenancy with Lynne Sharon
Warheit. All of these 65,309 shares of the Common Stock are offered
hereby.
13
In
addition to these shares of the Common Stock, Gus & Anne Karnasiotis hold
28,815 shares of the Common Stock, which shares are offered hereby.
14
In
addition to these shares of the Common Stock, Gus Karnasiotis holds 19,777
shares of the Common Stock, which shares are offered hereby.
15
Brock
Wright, a Selling Stockholder, has voting control and investment discretion over
the shares of the Common Stock held by JimJan Consultants Ltd., also a Selling
Stockholder.
16
This
number includes the 86,238 shares of the Common Stock held by Richard L.
Lindstrom, a director of the Company, and options held by him to acquire an
aggregate of 16,948 shares of the Common Stock, which options are currently
exercisable or exercisable within 60 days.
17
The
Wilkinson Superannuation Fund is the beneficial owner of these shares of the
Common Stock.
18
Dr.
Nick Nianiaris Medicine Professional Corporation holds 117 shares of the Common
Stock, over which Nick Nianiaris exercises voting control and investment
discretion. Those 117 shares of the Common Stock are not offered
hereby.
19
In
addition to these shares of the Common Stock, Tracy Puckett holds options to
acquire an aggregate of 12,731 shares of the Common Stock that are currently
exercisable or exercisable within 60 days.
20
In
addition to these shares of the Common Stock, Glenn Warheit holds 10,000 shares
of the Common Stock. The Glenn A. Warheit Living Trust, of which Mr.
Warheit is the sole trustee and beneficiary, holds 12,655 shares of the Common
Stock; and Grand Prix Coin Operated Auto Wash #1 Ltd., a company owned by Mr.
Warheit as to 50%, holds 23,607 shares of the Common Stock. All of
these 46,262 shares of the Common Stock are offered hereby.
21
In
addition to these shares of the Common Stock, Glenn Warheit holds 5,062 shares
of the Common Stock in joint tenancy with Dayna Warheit. The Glenn A.
Warheit Living Trust, of which Mr. Warheit is the sole trustee and beneficiary,
holds 12,655 shares of the Common Stock; and Grand Prix Coin Operated Auto Wash
#1 Ltd., a company owned by Mr. Warheit as to 50%, holds 23,607 shares of the
Common Stock. All of these 41,324 shares of the Common Stock are
offered hereby.
22
In
addition to these shares of the Common Stock, Glenn Warheit holds 10,000 shares
of the Common Stock, and he holds 5,062 shares of the Common Stock in joint
tenancy with Dayna Warheit. Grand Prix Coin Operated Auto Wash #1
Ltd., a company owned by Mr. Warheit as to 50%, holds 23,607 shares of the
Common Stock. All of these 38,669 shares of the Common Stock are
offered hereby.
23
In
addition to these shares of the Common Stock, Phillip Warheit holds 40,000
shares of the Common Stock, and Grand Prix Coin Operated Auto Wash #1 Ltd., a
company owned by Mr. Warheit as to 50%, holds 23,607 shares of the Common
Stock. All of these 63,607 shares of the Common Stock are offered
hereby.
24
In
addition to these shares of the Common Stock, Phillip Warheit holds 25,309
shares of the Common Stock in joint tenancy with Lynne Sharon Warheit, and Grand
Prix Coin Operated Auto Wash #1 Ltd., a company owned by Mr. Warheit as to 50%,
holds 23,607 shares of the Common Stock. All of these 48,916 shares
of the Common Stock are offered hereby.
25
Martin J. Waters is a
partner of WS Investment Company, LLC (2008A) and WS Investment Company, LLC
(2008C), which are also Selling Stockholders. The investment power of
WS Investment Company, LLC (2008A) and WS Investment Company, LLC (2008C)
belongs to the WS Investment Committee, of which Mr. Waters is not a
member. By virtue of his positions with WS Investment Company, LLC
(2008A) and WS Investment Company, LLC (2008C), Mr. Waters may be deemed to have
investment power and beneficial ownership with respect to the securities held by
WS Investment Company, LLC (2008A) and WS Investment Company, LLC (2008C), and
he disclaims beneficial ownership of such securities except to the extent of his
pecuniary interest therein.
PLAN
OF DISTRIBUTION
The
Selling Stockholders may, from time to time, sell any or all of their shares of
Common Stock on any stock exchange, market or trading facility on which the
shares are traded or in private transactions. These sales may be at
fixed or negotiated prices. A Selling Stockholder may use any one or
more of the following methods when selling shares:
|
|
·
|
ordinary
brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
|
|
|
·
|
block
trades in which the broker-dealer will attempt to sell the shares as agent
but may position and resell a portion of the block as principal to
facilitate the transaction;
|
|
|
·
|
purchases
by a broker-dealer as principal and resale by the broker-dealer for its
account;
|
|
|
·
|
an
exchange distribution in accordance with the rules of the applicable
exchange;
|
|
|
·
|
privately
negotiated transactions;
|
|
|
·
|
broker-dealers
may agree with the Selling Stockholders to sell a specified number of such
shares at a stipulated price per
share;
|
|
|
·
|
a
combination of any such methods of sale;
and
|
|
|
·
|
any
other method permitted pursuant to applicable
law.
|
The
Selling Stockholders may also sell shares under Rule 144 under the Securities
Act, if available, rather than under this Prospectus.
Broker-dealers
engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or
discounts from the Selling Stockholders (or, if any broker-dealer acts as agent
for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The Selling Stockholders do not expect these commissions
and discounts to exceed what is customary in the types of transactions
involved. Any profits on the resale of shares of the Common Stock by
a broker-dealer acting as principal might be deemed to be underwriting discounts
or commissions under the Securities Act. Discounts, concessions,
commissions and similar selling expenses, if any, attributable to the sale of
shares will be borne by a Selling Stockholder. The Selling
Stockholders may agree to indemnify any agent, dealer or broker-dealer that
participates in transactions involving sales of the shares if liabilities are
imposed on that person under the Securities Act.
The
Selling Stockholders may from time to time pledge or grant a security interest
in some or all of the shares of the Common Stock owned by them and, if they
default in the performance of their secured obligations, the pledgees or secured
parties may offer and sell the shares of the Common Stock from time to time
under this Prospectus after we have filed a supplement to this Prospectus under
Rule 424(b)(3) or other applicable provision of the Securities Act supplementing
or amending the list of Selling Stockholders to include the pledgees,
transferees or other successors in interest as Selling Stockholders under this
Prospectus.
The
Selling Stockholders also may transfer the shares of the Common Stock in other
circumstances, in which case the transferees, pledgees or other successors in
interest will be the selling beneficial owners for purposes of this Prospectus
and may sell the shares of the Common Stock from time to time under this
Prospectus after we have filed a supplement to this Prospectus under Rule
424(b)(3) or other applicable provisions of the Securities Act supplementing or
amending the list of Selling Stockholders to include the pledgees, transferees
or other successors in interest as Selling Stockholders under this
Prospectus.
The
Selling Stockholders and any broker-dealers or agents that are involved in
selling the shares of the Common Stock may be deemed to be
“underwriters” within the meaning of the Securities Act in connection with such
sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the shares of the Common Stock
purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act.
We are
required to pay all fees and expenses incident to the registration of the shares
of the Common Stock. We have agreed to indemnify the Selling
Stockholders against certain losses, claims, damages and liabilities, including
liabilities under the Securities Act.
The
Selling Stockholders have advised us that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their shares of the Common Stock, nor is
there an underwriter or coordinating broker acting in connection with a proposed
sale of shares of the Common Stock by any Selling Stockholder. If we
are notified by any Selling Stockholder that any material arrangement has been
entered into with a broker-dealer for the sale of shares of the Common Stock, if
required, we will file a supplement to this Prospectus. If the
Selling Stockholders use this Prospectus for any sale of the shares of the
Common Stock, they will be subject to the prospectus delivery requirements of
the Securities Act.
The
anti-manipulation rules of Regulation M under the Exchange Act may apply to
sales of the Common Stock and activities of the Selling
Stockholders.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The
Company’s Annual Report on Form 10-K for the year ended December 31, 2007, as
amended by five Forms 10-K/A, Quarterly Reports on Form 10-Q for the quarter
ended March 31, 2008, as amended by a Form 10-Q/A, for the quarter ended June
30, 2008 and for the quarter ended September 30, 2008 and Current Reports on
Form 8-K dated January 9, 2008, January 28, 2008, February 5, 2008, February 20,
2008, February 25, 2008, March 20, 2008, April 3, 2008, April 25, 2008, May 6,
2008, May 21, 2008, as amended by a Form 8-K/A, June 20, 2008, July 2, 2008,
July 28, 2008, July 29, 2008, August 15, 2008, September 11, 2008, September 18,
2008 and October 9, 2008, as amended by a Form 8-K/A, the Company’s Definitive
Proxy Statement dated August 29, 2008, in connection with the 2008 Annual and
Special Meeting of Stockholders, and the description of the Company’s capital
stock contained in its Registration Statement on Form 8-A, filed on November 17,
2004, all of which have been filed by the Company with the Commission, are
incorporated by reference in this Prospectus.
In
addition, all documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Common Stock hereunder shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents. Any statement contained in any
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as modified or superseded, to
constitute a part of this Prospectus.
The
Company hereby undertakes to provide without charge to each person to whom a
copy of this Prospectus is delivered, upon the written or oral request of any
such person, a copy of any of the above documents. Such requests should be
addressed to William G. Dumencu, 2600 Skymark Avenue, Unit 9, Suite 103,
Mississauga, Ontario L4W 5B2, Canada
(Telephone: 905-602-0887).
LEGAL
MATTERS
The
validity of the securities being offered hereby is being passed upon for the
Company by Torys LLP, 237 Park Avenue, New York, New York 10017.
EXPERTS
The
consolidated financial statements of OccuLogix appearing in OccuLogix’s Annual
Report (Form 10-K/A) for the year ended December 31, 2007 (including the
schedule appearing therein), and the effectiveness of OccuLogix’s internal
control over financial reporting as of December 31, 2007, have been audited by
Ernst & Young LLP, independent registered public accounting firm, as set
forth in their reports thereon, included therein and incorporated herein by
reference. Such reports conclude, among other things, that OccuLogix
did not maintain effective internal control over financial reporting as of
December 31, 2007, based on Internal Control—Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission, because of the
effects of the material weakness described therein. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
reports given on the authority of such firm as experts in accounting and
auditing.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14.
Other Expenses of Issuance
and Distribution
.
The
following are the estimated expenses in connection with the distribution of the
securities being registered hereunder.
|
S.E.C.
registration
fee*
|
|
$
|
735
|
|
|
Accounting
fees and expenses
|
|
|
5,000
|
|
|
Legal
fees and
expenses
|
|
|
6,000
|
|
|
Miscellaneous
expenses
|
|
|
-
|
|
|
Total
|
|
$
|
11,735
|
|
________________
* Actual
fee
Item
15.
Indemnification of
Directors and Officers
.
The
General Corporation Law of the State of Delaware (the “DGCL”) authorizes
corporations to limit or eliminate the personal liability of directors to
corporations and the stockholders for monetary damages for breaches of
directors’ fiduciary duties. The restated certificate of
incorporation of OccuLogix, Inc. (“we”, “OccuLogix”, the “Registrant” or the
“Company”) includes a provision that eliminates the personal liability of
directors for monetary damages for actions taken as a director, except for
liability for breach of the duty of loyalty; for acts or omissions not in good
faith or involving intentional misconduct or knowing violation of law; under
Section 174 of the DGCL (unlawful dividends and stock repurchases); or for
transactions from which the director derived improper personal
benefit.
Our
restated certificate of incorporation also provides that the Registrant has the
power to indemnify our directors and officers to the fullest extent authorized
by the DGCL and must also pay expenses incurred in defending any such proceeding
in advance of the final disposition of any proceeding, provided that, if the
DGCL requires, such advance payment will be made only if we receive an
undertaking to repay all amounts so advanced if it should ultimately be
determined that such director or officer is not entitled to be so
indemnified.
The
indemnification rights set forth above shall not be exclusive of any other right
which an indemnified person may have or hereafter acquire under any statute,
provision of our restated certificate of incorporation, our amended and restated
by-laws, agreement, vote of stockholders or disinterested directors or
otherwise.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933, as
amended (the “Securities Act of 1933”), may be permitted to directors, officers
or persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable.
Item
16.
Exhibits
.
The
Exhibits required to be filed as part of this Registration Statement are listed
in the attached Index to Exhibits.
Item
17.
Undertakings
.
The
undersigned Registrant hereby undertakes, except as otherwise specifically
provided in the rules of the Securities and Exchange Commission promulgated
under the Securities Act of 1933:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement;
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933;
(ii)
To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the most recent
post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this Registration
Statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; provided, however, that
paragraphs (1)(i) and (1)(ii) do not apply if this Registration Statement is on
Form S-3 or Form S-8 and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
Registration Statement;
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
The
undersigned Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the Registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The
undersigned Registrant hereby further undertakes that for the purpose of
determining liability under the Securities Act of 1933 to any
purchaser:
(i) If
the Registrant is relying on Rule 430B:
(A) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(B) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a) (1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the Securities Act of
1933 shall be deemed to be part of and included in the registration statement as
of the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter, such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Provided, however
, that no
statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated
by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale
prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date.
The
undersigned Registrant hereby further undertakes that, for the purpose of
determining liability of the Registrant under the Securities Act of 1933 to any
purchaser in the initial distribution of the securities: the undersigned
Registrant undertakes that in a primary offering of securities of the
undersigned Registrant pursuant to this Registration Statement, regardless of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(ii) any
preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(iii) any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned Registrant or used or referred to by the undersigned
Registrant;
(iv) the
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(v) any
other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the provisions of its Certificate of Incorporation or By-laws or the
laws of the State of Delaware, or otherwise, the Registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Mississauga, Province of Ontario, on the 17
th
day
of December, 2008.
|
|
OCCULOGIX,
INC.
|
|
|
|
|
|
|
|
|
|
|
|
|
By
|
/s/ William G. Dumencu
|
|
|
|
|
William
G. Dumencu
|
|
|
|
|
Chief
Financial Officer
|
|
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
/s/ Eric Donsky*
|
|
Chief
Executive Officer and
|
|
December
17
,
2008
|
|
Eric
Donsky
|
|
Director
|
|
|
|
|
|
|
|
|
|
/s/ William G. Dumencu
|
|
Chief
Financial Officer and
|
|
December 17
,
2008
|
|
William
G. Dumencu
|
|
Principal
Accounting Officer
|
|
|
|
|
|
|
|
|
|
/s/ Thomas N. Davidson*
|
|
Director
|
|
December 17
,
2008
|
|
Thomas
N. Davidson
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Adrienne L. Graves*
|
|
Director
|
|
December 17
,
2008
|
|
Adrienne
L. Graves
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Richard L. Lindstrom*
|
|
Director
|
|
December 17,
2008
|
|
Richard
L. Lindstrom
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Donald Rindell*
|
|
Director
|
|
December 17
,
2008
|
|
Donald
Rindell
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Elias Vamvakas*
|
|
Chairman
of the Board and
|
|
December 17
,
2008
|
|
Elias
Vamvakas
|
|
Director
|
|
|
|
*By
|
/s/ William G. Dumencu
|
|
|
William
G. Dumencu
|
|
|
Attorney-in-fact
|
INDEX
TO EXHIBITS
|
Exhibit
Number
|
Document Description
|
|
|
|
|
5
|
Opinion
of Torys LLP*
|
|
|
Consent
of Ernst & Young LLP
|
|
23.2
|
Consent
of Torys LLP (contained in Exhibit 5)*
|
|
24
|
Power
of Attorney (See the section preceding
“Signatures”.)*
|
____________________
* Previously
filed.
Occulogix (MM) (NASDAQ:OCCX)
Gráfica de Acción Histórica
De May 2024 a Jun 2024
Occulogix (MM) (NASDAQ:OCCX)
Gráfica de Acción Histórica
De Jun 2023 a Jun 2024
