UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of
Report (Date of earliest event reported): October 6,
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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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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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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o
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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
October 6, 2008, OccuLogix, Inc. (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 Company’s common stock (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 consequence 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. A copy of
the Second Merger Agreement Amending Agreement is attached to this Current
Report on Form 8-K as Exhibit 10.1.
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 (the “Second SPA Amending Agreement”), amending the Securities
Purchase Agreement, for among other purposes, to revise the closing and funding
mechanics of the transactions contemplated thereunder. A copy of the
Second SPA Amending Agreement is attached to this Current Report on Form 8-K as
Exhibit 10.2.
ITEM
2.01 Completion of Acquisition or Disposition of Assets
On
October 6, 2008, pursuant to the Merger Agreement, as amended by the Second
Merger Agreement Amending Agreement, the Company completed the acquisition of
the minority ownership interest in OcuSense that it did not already
own. Prior to such acquisition, the Company had owned 50.1% of the
capital stock of OcuSense on a fully diluted basis and 57.62% on an issued and
outstanding basis. The acquisition was effected pursuant to a
statutory merger of Merger Sub with and into OcuSense, with the separate
corporate existence of Merger Sub ceasing and OcuSense continuing as the
surviving corporation.
As
consideration for the minority ownership interest in OcuSense, the Company
issued an aggregate of 79,248,175 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.$0.10 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.
Eric
Donsky, a past and current director of OcuSense, has been a director of the
Company since September 30, 2008 and the Company’s Chief Executive Officer as of
October 6, 2008. Mr. Donsky also was a minority stockholder of
OcuSense. He received, as his pro rata share of the merger
consideration, 45,104,892 shares of the Common Stock which, upon the Reverse
Split (defined below), was combined into 1,804,196 shares of the Common
Stock.
Richard
L. Lindstrom, a director of the Company since December 2004, was also a minority
stockholder of OcuSense. He received, as his pro rata share of the
merger consideration, 2,148,438 shares of the Common Stock which, upon the
Reverse Split (defined below), was combined into 85,938 shares of the Common
Stock. Dr. Lindstrom also held stock options of OcuSense, exercisable
into an aggregate of 6,290 shares of OcuSense’s common stock at an exercise
price of U.S.$4.80 per share of OcuSense’s common stock. Pursuant to
the Merger Agreement, these stock options were assumed by the Company, upon
which assumption they became exercisable into an aggregate of 361,183 shares of
the Common Stock with a per share exercise price of U.S.$0.09. Upon
the Reverse Split (defined below), these stock options were combined into stock
options exercisable into 14,448 shares of the Common Stock with a per share
exercise price of U.S.$2.25.
Donald
Rindell, a director of the Company since September 30, 2008 and a past and
current director of OcuSense, held stock options of OcuSense, exercisable into
an aggregate of 13,748 shares of OcuSense’s common stock at an exercise price of
U.S.$4.80 per share of OcuSense’s common stock. Pursuant to the
Merger Agreement, these stock options were assumed by the Company, upon which
assumption they became exercisable into an aggregate of 789,436 shares of the
Common Stock with a per share exercise price of U.S.$0.09. Upon the
Reverse Split (defined below), these stock options were combined into stock
options exercisable into 31,578 shares of the Common Stock with a per share
exercise price of U.S.$2.25.
ITEM
3.02 Unregistered Sales of Equity Securities
In
connection with the acquisition by the Company, pursuant to the Merger
Agreement, as amended by the Second Merger Agreement Amending Agreement, of the
minority ownership interest in OcuSense that it did not already, the Company
issued an aggregate of 79,248,175 shares of the Common Stock. (See
Items 1.01 and 2.01.) Pursuant to the Securities Purchase Agreement,
as amended by the Second SPA Amending Agreement, the Company sold an aggregate
of 21,730,000 shares of the Common Stock to the investors party thereto at a per
share price of U.S.$0.10, for gross aggregate proceeds of
U.S.$21,730,000. (See Item 1.01.)
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.$0.085. 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 82,611,413 shares of the Common
Stock.
On
October 6, 2008, the Company also paid U.S.$481,200 of the commission remaining
owing for placement agency services rendered by Marchant by issuing to it shares
of the Common Stock at a per share price of U.S.$0.10. In connection
with such payment, the Company issued to Marchant an aggregate of 4,812,000
shares of the Common Stock.
All of
these issuances of shares of the Common Stock were made in reliance upon the
exemption from registration afforded by Section 4(2) of the Securities Act of
1933, as amended (the “Securities Act”), Rule 506 of Regulation D, as
promulgated by the U.S. Securities and Exchange Commission (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. All of the parties to whom shares of the
Common Stock have been issued in the above-described transactions were either
“accredited investors” or, in the case of two minority stockholders of OcuSense,
represented by a “purchaser representative”, in each case as such term is
defined in Rule 501 of Regulation D, as promulgated by the SEC under the
Securities Act, and no form of general solicitation or general advertising was
used in connection with these transactions.
ITEM
5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers
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. Mr. Donsky 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.
Mr.
Donsky, 43, has 15 years of experience in the development of early-stage
biotechnology and life science companies, as a founder and senior
manager. Mr. Donsky has been the Chairman and Chief Executive Officer
of OcuSense since January 2003. He is also a principal of Molecular
Biosciences, a life science incubator and consulting
practice. Previously, he was the founding Chief Executive Officer of
Zolaris Biosciences, Inc., an early-stage biotechnology company focused on the
discovery and development of therapeutics for the treatment of rheumatoid
arthritis, multiple sclerosis and infectious diseases. Prior to his
tenure at Zolaris Biosciences, Inc., Mr. Donsky was the founding Chief Executive
Officer of Applied CarboChemicals, Inc. (“ACC”), a biotechnology company focused
on the commercial development of novel fermentation processes capable of
manufacturing unique compounds that have application in the food, chemical and
pharmaceutical industries. ACC currently has manufacturing operations
and several products on the market. Mr. Donsky graduated from Boston
University in 1987 with a B.S. in Business Administration.
At the
present time, Mr. Donsky’s compensation consists of a base salary of
U.S.$260,000 per annum.
As of
October 6, 2008, Robert Walder became the Company’s Vice President,
Operations. He previously had been serving as OcuSense’s Vice
President, Operations and continues to hold that office.
As of
October 6, 2008, Robert Walder, 57, became the Company’s Vice President,
Operations. He joined OcuSense in July 2008 as a consultant and,
shortly thereafter, became OcuSense’s Vice President, Operations, and continues
to hold that office today. He is also a principal in The Samaritan
Group, a consulting group specializing in medical services.
Mr.
Walder has over 30 years of healthcare and management experience, both as a
caregiver and a senior manager. Previously, he was the Vice President
of Clinical Operations of Digirad, Corp. (“Digirad”) a developer of solid state
gamma cameras and the largest provider of in-office cardiology imaging
services. Prior to his tenure at Digirad, Mr. Walder was the Business
Unit Manager for Abbott Laboratories, a global organization that develops,
manufactures and distributes healthcare products and
pharmaceuticals. Mr. Walder graduated from California State College
with a Bachelors degree in Electrical Engineering, the University of Southern
California with a Baccalaureate in Medicine and the University of Phoenix with
degrees in Business Administration and Management.
At the
present time, Mr. Walder’s compensation consists of a base salary of
U.S.$145,000 per annum.
ITEM
5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
On
October 1, 2008, the Company filed, with the Secretary of State of the State of
Delaware (the “Delaware Secretary of State”) a Certificate of Amendment to its
Amended and Restated Certificate of Incorporation in order to increase the
number of authorized shares of the Common Stock, from 75,000,000 to
500,000,000. A copy of such Certificate of Amendment is attached to
this Current Report on Form 8-K as Exhibit 3.1.
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) provide for a recapitalization in
which the issued and outstanding shares of the Common Stock was reverse split in
a ratio of 1:25 (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. A copy of such Certificate of Amendment is
attached to this Current Report on Form 8-K as Exhibit 3.2.
On
October 7, 2008, following the filing of such Certificate of Amendment, the
Company filed, with the Delaware Secretary of State, a Restated Certificate of
Incorporation in order to restate the Company’s Amended and Restated Certificate
of Incorporation, as amended. A copy of such Restated Certificate of
Incorporation is attached to this Current Report on Form 8-K as Exhibit
3.3.
ITEM
9.01 Financial Statements and Exhibits
(a)
Financial statements of businesses acquired
The
required financial statements of OcuSense, Inc. will be filed by amendment to
this Current Report on Form 8-K on or prior to December 19, 2008.
(b) Pro
forma financial information
The
required pro forma financial information will be filed by amendment to this
Current Report on Form 8-K on or prior to December 19, 2008.
(d)
Exhibits
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Certificate
of Amendment of OccuLogix, Inc., filed with the Secretary of State of the
State of Delaware on October 1,
2008.
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Certificate
of Amendment of OccuLogix, Inc., filed with the Secretary of State of the
State of Delaware on October 7,
2008.
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Restated
Certificate of Incorporation of OccuLogix, Inc., filed with the Secretary
of State of the State of Delaware on October 7,
2008.
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Second
Amending Agreement, dated as of October 6, 2008, by and among OccuLogix,
Inc., OcuSense Acquireco, Inc. and OcuSense,
Inc.
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Second
Amending Agreement, dated as of October 1, 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 October 6,
2008.
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Press
Release of OccuLogix, Inc. dated October 7,
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: October
9, 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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