Exhibit 10.33
AMENDMENT NO. 1
TO
NON-NEGOTIABLE SECURED PROMISSORY NOTE
This Amendment No. 1 (the Amendment) to Non-Negotiable Secured Promissory Note, a copy of
which is attached as Exhibit A hereto (the Note) entered into effective as of November 7,
2006 by and between Oculus Innovative Sciences, Inc. (Payor) and R. C. Burlingame (the Holder,
and together with the Payor, the Parties) is made and entered into as of March 29, 2007, by and
among the Parties.
RECITALS
A. The Holder and Payor previously entered into that certain Loan and Security Agreement dated
November 7, 2006 (the Agreement), pursuant to which Payor issued to Holder the Note.
B. The Payor and Holder each wishes to modify certain terms of the Note on the terms and
subject to the conditions set forth in this Amendment.
C. The Payor and Venture Lending & Leasing III, Inc. previously entered into a Loan and
Security Agreement, and Payor and Venture Lending & Leasing IV, Inc. (together with Venture Lending
& Leasing III, LLC, as successor to Venture Lending & Leasing III, Inc. VLL) previously entered
into a Loan and Security Agreement (together with the schedules to, and documents referenced in,
such loan and security agreements, the VLL Agreements).
D. The Holder, Payor and VLL previously entered into a Subordination Agreement dated November
7, 2006 (the Subordination Agreement), pursuant to which the Holder agreed to subordinate
payments under the Note to obligations due and owing to VLL, and concurrently herewith, VLL has
granted its consent to and waiver of certain provisions in the Subordination Agreement.
NOW, THEREFORE, in consideration of the mutual covenants, agreements and representations
contained in this Amendment, the Note and the Agreement, the Parties agree as follows:
1. Definitions. Except as may be expressly provided in this Amendment, all capitalized
terms used in this Amendment which are defined in the Note shall have meanings in this Amendment as
in the Note.
2. Amendment to Second Lead-in Paragraph. The following clause is hereby inserted
after the first sentence of the second lead-in paragraph of the Note to read in its entirety as
follows:
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provided, however, that in the event that, prior to the Due Date, Payor
receives (i) net proceeds from the sale of equity, or (ii) unrestricted,
unsecured funds from the issuance of debt, in either case, in excess of
$500,000, the Payor shall promptly pay such amounts to Holder.
3. Additional Lead-in Paragraph. The following additional paragraph is hereby added
after the first lead-in paragraph of the Note to read in its entirety as follows:
Accrued interest shall be payable on the seventh (7th) day
of each month, commencing on April 7, 2007, and continuing thereafter until
and including November 7, 2007, when all accrued but unpaid interest and the
unpaid principal balance shall be paid in full. Interest shall be computed
on the basis of a year of 365 days for the actual number of days elapsed.
Interest not paid when due shall thereafter bear like interest as the
principal.
4. Additional Lead-in Paragraphs. The following additional paragraphs are hereby
added as the last lead-in paragraphs of the Note above Paragraph 1 of the Note to read in their
entirety as follows:
Promptly after the date hereof, Payor shall establish an account at
Comerica Bank (the Comerica Account) and shall deposit into such account
the amount of $2,000,000 (the Principal Amount). Payor agrees that Payor
shall not withdraw any of the Principal Amount from the Comerica Account
without the prior written consent of Holder except to pay to Holder a
portion of the principal of the Note on the Due Date. Notwithstanding the
foregoing, if Payor makes one or more payments to Holder (including one or
more payments pursuant to the second lead-in paragraph of this Note), Payor
may withdraw from the Comerica Account such amounts that are equal to
amounts paid to the Holder. In no event shall the funds in the Comerica
Account exceed the principal amount then outstanding under the Note. Payor
may, at any time, or from time to time, withdraw any interest accrued on the
Principal Amount and any amount in excess of the outstanding principal
amount then outstanding under the Note without the consent of Holder.
If at any time prior to the satisfaction of all obligations under the
Note, the cash and cash equivalents of the Payor, as shown on the Holders
balance sheet, should drop below $10,000,000 and remain below $10,000,000
for a period of fifteen (15) days, Payor shall promptly deposit into the
Comerica Account the additional amount of $2,000,000 (the Additional
Principal). Subject to the right of Payor to make withdrawals from the
Comerica Account without the consent of Holder as provided in the
immediately preceding paragraph of this Note, the Additional Principal shall
remain in the Comerica Account until the Due Date, at which time the
Additional Principal shall be paid to Holder. For
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purposes of calculating Payors cash and cash equivalents, all principal and
accrued interest in the Comerica Account shall be included.
5. Conditions Precedent. The effectiveness of this Note is conditioned on (i) the
prior compliance by Holder with the requirements of applicable securities law and regulations and
exchange regulations, including, without limitation, the prior informed authorization of Payors
Audit Committee, (ii) the consent to this Amendment by VLL and (iii) the waiver by VLL of certain
provisions in (A) the VLL Agreements, and (B) the Subordination Agreement.
6. Conflict. In the event of any conflict between the provisions of this Amendment
and the unamended provisions of the Note, the provisions of this Amendment shall prevail and the
provisions of the Note shall be deemed modified by this Amendment as necessary to resolve such
conflict.
7. Effect of Amendment. Except as expressly amended by this Amendment and/or by the
preceding sentence, the terms and provisions of the Note shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment as of the day and
year first above written.
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PAYOR: |
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HOLDER: |
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Oculus Innovative Sciences, Inc. |
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R. C. Burlingame |
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By:
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/s/ Jim Schutz
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By:
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/s/ R.C. Burlingame |
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Name: Jim Schutz |
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Title: VP & General Counsel |
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Exhibit A
Non-Negotiable Secured Promissory Note
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