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EXHIBIT 99.4
AMENDMENT NO. 1 TO THE
REGISTRATION RIGHTS AGREEMENT
This Amendment No. 1 to the Registration Rights Agreement (the
"Amendment") is dated as of this 9th day of October, 2001, among Lumenon
Innovative Lightwave Technology, Inc., a Delaware corporation (the "Company"),
and the entities listed on the signature pages hereto (the "Investors").
Capitalized terms used here and not otherwise defined shall have the meanings as
set forth in the Registration Rights Agreement (as defined below).
WHEREAS, the Company and the Investors are parties to a Registration
Rights Agreement dated July 25, 2000 (the "Registration Rights Agreement"); and
WHEREAS, the Company and Investors believe it to be in their mutual
best interests to amend the Registration Rights Agreement in order to provide
such Investors with certain rights with respect to the registration under the
Securities Act of 1933, as amended, of shares of Common Stock issuable upon the
conversion of the Notes.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. Section 1, DEFINITIONS, is hereby amended by deleting the
definition of "Registrable Securities" in its entirety and inserting in lieu
thereof the following:
"'REGISTRABLE SECURITIES' means (i) the Conversion Shares and
(ii) any shares of capital stock issued or issuable, from time to time
(with any adjustments), as a distribution on or in exchange for or
otherwise with respect to the foregoing, whether as default payments or
otherwise."
2. Section 1, DEFINITIONS, is hereby amended by adding the
following definitions:
"AMEX" means the American Stock Exchange.
"NYSE" means the New York Stock Exchange.
"POST-EFFECTIVE AMENDMENT" means a post-effective amendment to
the Registration Statement."
3. Section 2, subsection c "REGISTRATION DEADLINES" is hereby
deleted in its entirety.
4. Section 3, subsection b is hereby amended by deleting the
section in its entirety and inserting in lieu thereof the following:
"b. The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement as may be
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necessary to keep the Registration Statement effective at all times
during the Registration Period, and, during such period, comply with
the provisions of the Securities Act with respect to the disposition of
all Registrable Securities of the Company covered by the Registration
Statement until such time as all of such Registrable Securities have
been disposed of in accordance with the intended methods of disposition
by the seller or sellers thereof as set forth in the Registration
Statement. The Company shall, within 30 days of this Amendment, amend
the Registration Statement, or file a new Registration Statement (on
the short form available therefor, if applicable), or both, sufficient
to cover 100% of the Registrable Securities issued or issuable upon
conversion of the Notes. The Company shall use its reasonable best
efforts cause such amendment and/or new Registration Statement to
become effective as soon as practicable following the filing thereof."
5. Section 3, subsection f is hereby amended by deleting the
section in its entirety and inserting in lieu thereof the following:
"f. Within three (3) business days after becoming aware
of such event, the Company shall notify each Investor by telephone and
facsimile that the prospectus included in the Registration Statement,
as then in effect, includes an untrue statement of a material fact or
omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and use its
best efforts promptly to prepare a supplement or amendment to the
Registration Statement to correct such untrue statement or omission,
and deliver such number of copies of such supplement or amendment to
each Investor as such Investor may reasonably request. In the event
that, in the commercially reasonable, good faith judgment of the
executive officers of the Company, it is advisable to suspend use of a
Prospectus included in a Registration Statement due to pending material
developments or other events that have not yet been publicly disclosed
and as to which the Company believes public disclosure would be
detrimental to the Company, the Company shall promptly notify all
Investors to such effect, and, upon receipt of such notice, each such
Investor shall immediately discontinue any sales of Registrable
Securities pursuant to such Prospectus until such Investor has received
copies of a supplemented or amended Prospectus or until such Investor
is advised in writing by the Company that the then current Prospectus
may be used and has received copies of any additional or supplemental
filings that are incorporated or deemed incorporated by reference in
such Prospectus. Notwithstanding anything to the contrary herein, the
Company shall not exercise its rights under this Section to suspend
sales of Registrable Securities for a period in excess of 45 days in
any 365-day period."
6. Section 11, subsection b is hereby amended by deleting the
section in it entirety and inserting in lieu thereof the following:
"b. Any notices required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered
mail (return receipt requested) or delivered personally or by courier
or by confirmed telecopy, and shall be effective five days after being
placed in the mail, if mailed, or upon receipt or refusal of receipt,
if delivered personally or by courier or confirmed telecopy, in each
case addressed to a party. The addresses for such communications shall
be:
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If to the Corporation:
Lumenon Innovative Lightwave Technology, Inc.
0000 Xxxxx-Xxxxxx Xxxxxxx
Xx. Xxxxxxx, Xxxxxx X00 0X0
Xxxxxx
Attention: Xxxx Xxxxxxxxx
Telecopy: (514) 331- 4721
with copies to:
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
0000 XxXxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
and:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to an Investor, at such address as such Investor shall have provided
in writing to the Company or such other address as such Investor furnishes by
notice given in accordance with this Section 11(b)."
7. RATIFICATION. In all other respects, the Registration Rights
Agreement is hereby ratified and confirmed.
8. COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
9. EFFECTIVE DATE. This Amendment shall become effective upon
execution by the Company and each of the Investors.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 to the Registration Rights Agreement as of the date first above written.
LUMENON INNOVATIVE LIGHTWAVE
TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxxxxx
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Chief Executive Officer
CAPITAL VENTURES INTERNATIONAL
By: Heights Capital Management, Inc., Its
Authorized Agent
By: /s/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
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Title: Investment Manager
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CASTLE CREEK TECHNOLOGY PARTNERS LLC
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
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Title: Managing Director
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Castle Creek Partners
Investment Manager
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