Exhibit 10.40
SECOND Amendment
to
Loan and security agreement
This Second Amendment to Loan and Security Agreement (this “Amendment”) is entered into this 6th day of December, 2022, by and among (a) SILICON VALLEY BANK (“Bank”) and (b) (i) EYEPOINT PHARMACEUTICALS, INC., a Delaware corporation (“Parent”), (ii) EYEPOINT PHARMACEUTICALS US, INC., a Delaware corporation (“EyePoint US”), and (iii) ICON BIOSCIENCE, INC., a Delaware corporation (“Icon”, together with Parent and EyePoint US, individually and collectively, jointly and severally, the “Borrower”) whose address is 480 Pleasant Street, Suite A210, Watertown, Massachusetts 02472.
Recitals
A. Bank and Borrower have entered into that certain Loan and Security Agreement dated as of March 9, 2022, as amended by that certain First Amendment to Loan and Security Agreement dated as of June 2, 2022 (as the same may from time to time be further amended, modified, supplemented or restated, the “Loan Agreement”).
B. Bank has extended credit to Borrower for the purposes permitted in the Loan Agreement.
C. Borrower has requested that Bank amend the Loan Agreement to make certain revisions to the Loan Agreement as more fully set forth herein.
D. Bank has agreed to so amend certain provisions of the Loan Agreement, but only to the extent, in accordance with the terms, subject to the conditions and in reliance upon the representations and warranties set forth below.
Agreement
Now, Therefore, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:
“ (n) Accounts owing from an Account Debtor where goods or services have not yet been rendered to the Account Debtor within three (3) Business Days of the invoice date (sometimes called memo billings or pre-billings);”
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[Signature page follows.]
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In Witness Whereof, the parties hereto have caused this Amendment as of the date first written above.
BANK | BORROWER |
SILICON VALLEY BANK
By: /s/ John Sansone Name: John Sansone Title: Vice President |
EYEPOINT PHARMACEUTICALS, INC.
By: /s/ George Elston Name: George Elston Title: Chief Financial Officer and Head of Corporate Development
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EYEPOINT PHARMACEUTICALS US, INC.
By: /s/ George Elston Name: George Elston Title: Chief Financial Officer
ICON BIOSCIENCE, INC.
By: /s/ Philip Hoffstein Name: Philip Hoffstein Title: President
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