1
EXHIBIT 99.3
AMENDMENT NO. 1 TO THE
SECURITIES PURCHASE AGREEMENT
This Amendment No. 1 to the Securities Purchase 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 Purchase Agreement (as defined below).
WHEREAS, the Company and the Investors are parties to the Securities
Purchase Agreement dated July 25, 2000 (the "Purchase Agreement"); and
WHEREAS, the Company and Investors believe it to be in their mutual
best interests to amend the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. All references to the "Notes" shall mean the Convertible Notes
dated the date hereof issued by the Company to the Investors. All references to
the "Registration Rights Agreement" shall mean the Registration Rights Agreement
dated as of July 25, 2000, among the Company and the Investors, as may be
amended from time to time.
2. Section 4.c. is hereby amended by deleting the section in its
entirety and inserting a lieu thereof the following:
"c. REPORTING STATUS. So long as any Purchaser
beneficially owns any of the Securities, the Company shall timely file
all reports required to be filed with the SEC pursuant to the Exchange
Act, and the Company shall not terminate its status as an issuer
required to file reports under the Exchange Act even if the Exchange
Act or the rules and regulations thereunder would permit such
termination. From and after such time as the Company meets the
"registrant eligibility" requirements set forth in the general
instructions to Form S-3 or any successor form, the Company will use
its commercially reasonable best efforts to continue to meet such
requirements."
3. Section 4.f. is hereby amended by deleting the section in its
entirety and inserting in lieu thereof the following:
"f. FINANCIAL INFORMATION. The Company shall, if such
documents are not available on the SEC's XXXXX document retrieval
system or the Company's website, send the following reports to each
Purchaser until such Purchaser transfers, assigns or sells all of its
Securities: (i) within ten (10) days after the filing with the SEC, a
copy of its Annual Report on Form 10-K, its Quarterly Reports on Form
10-Q, its proxy statements and any Current Reports on Form 8-K; and
(ii) within one (1) day after release, copies of all press releases
(other than trade releases) issued by the Company or any of its
subsidiaries."
2
4. Section 4.g. is hereby amended by deleting the section in its
entirety and inserting in lieu thereof the following:
"g. LISTING. The Company shall promptly secure the
listing of the Conversion Shares upon each national securities exchange
or automated quotation system, if any, upon which shares of Common
Stock are then listed (subject to official notice of issuance) and
shall maintain, so long as any other shares of Common Stock shall be so
listed, such listing of all Conversion Shares from time to time
issuable upon conversion of the Notes. The Company shall use its
commercially reasonable best efforts to continue the listing and
trading of its Common Stock on the NASDAQ, the New York Stock Exchange
("NYSE") or the American Stock Exchange ("AMEX"), as the case may be,
and will comply in all respects with the Company's reporting, filing
and other obligations under the bylaws or rules of the NASD and such
exchanges, as applicable. In the event the Common Stock is not eligible
to be traded on any of the NASDAQ, NYSE or AMEX and the Common Stock is
not eligible for listing on any such exchange or system, the Company
shall use commercially reasonable efforts to cause the Common Stock to
be eligible for trading on the over-the-counter bulletin board at the
earliest practicable date and remain eligible for trading while any
Conversion Shares are outstanding. The Company shall not reduce the
number of shares reserved for issuance upon conversion of the Notes
(except as a result of any such conversion) without the written consent
of the Purchaser."
5. Section 4.h. is hereby amended by deleting the section in its
entirety and inserting in lieu thereof the following:
"h. CORPORATE EXISTENCE. Except as provided in the
immediately succeeding sentence and for transactions that would permit
the Company to require conversion of the Notes in accordance with
Article III.C. thereof, so long as any Purchaser beneficially holds
Notes, the Company shall maintain its corporate existence.
Notwithstanding the foregoing, the Company shall, without the consent
of the Purchasers, be permitted to enter into a merger, consolidation
or sale or conveyance of all or substantially all of the assets of the
Company with a publicly-traded company or if the consideration for such
merger, consolidation, sale or conveyance consists solely of cash.
Within five (5) business days after receiving notice of the record date
for a meeting of stockholders of the Company with respect to an event
set forth in Article VII.B of the Notes (which notice shall be provided
by the Company to the Purchasers five (5) business dates prior to such
record date), each of the Purchasers shall elect to (i) redeem the
Notes, in full, for a redemption price, payable in cash, in an amount
equal to the outstanding principal amount of the Notes plus all accrued
and outstanding interest thereon, plus all other ancillary amounts
payable hereunder, together with all costs, including, without
limitation, legal fees and expenses or (ii) convert the outstanding
principal under the Notes, plus all accrued and outstanding interest
thereon, into such number of fully paid and nonassessable shares of
Common Stock at the Conversion Price in effect on the date of the
closing of such event. The terms of any conversion shall be governed by
Article III of the Notes and the terms of any redemption shall be
governed by Article VIII of the Notes.
-2-
3
6. Section 4.n. is hereby amended by deleting the section in its
entirety and inserting in lieu thereof the following:
"n. INFORMATION. The Company will furnish to each
Purchaser, so long as it holds Notes which are convertible into at
least 100,000 shares of Common Stock, in duplicate:
(i) promptly after a responsible officer of the
Company shall become aware of any of any Event of Default (as defined
in the Notes), a certificate of the President, a Vice President or a
senior financial officer of the Company specifying the nature and
period of existence thereof and what action the Company or any of its
subsidiaries, as the case may be, is taking or proposes to take with
respect thereof; and
(ii) the information the Company must deliver to
any holder or to any prospective transferee of a Note in order to
permit the sale or other transfer of such Note pursuant to Rule 144A of
the SEC or any similar rule then in effect.
The Company will keep at its principal executive office a true
copy of this Agreement (as at the time in effect), and cause the same
to be available for inspection at such office during normal business
hours by any holder of a Note or any prospective transferee of a Note
designated by a holder thereof."
7. Section 4.o. is hereby amended by deleting the section in its
entirety and inserting in lieu thereof the following:
"o. INSPECTION OF PROPERTIES AND BOOKS. So long as any of
the Purchasers or any other institutional investor shall hold Notes
convertible into at least 100,000 shares of Common Stock, such
Purchaser or other holder and their respective representatives and
agents (collectively, the "Inspectors") shall have the right, at any
Purchaser's or such holder's expense, to visit and inspect any of the
properties of the Company and of its subsidiaries, to examine the books
of account and records of the Company and of its subsidiaries, to make
or be provided with copies and extracts therefrom, to discuss the
affairs, finances and accounts of the Company and of its subsidiaries
with, and to be advised as to the same by, its and their officers,
employees and independent public accountants (and by this provision the
Company authorizes such accountants to discuss such affairs, finances
and accounts, whether or not a representative of the Company is
present) all at such reasonable times and intervals and to such
reasonable extent as such Purchaser or such other holder may desire;
provided, however, that each Inspector shall hold in confidence and
shall not make any disclosure (except to a Purchaser) of any such
information which the Company determines in good faith to be
confidential, and of which determination the Inspectors are so
notified, unless (a) the disclosure of such information is necessary to
avoid or correct a misstatement or omission in any Registration
Statement filed pursuant to the Registration Rights Agreement, (b) the
release of such information is ordered pursuant to a subpoena or other
order from a court or government body of
-3-
4
competent jurisdiction, or (c) such information has been made generally
available to the public other than by disclosure in violation of this
or any other agreement. The Company shall not be required to disclose
any confidential information to any Inspector until and unless such
Inspector shall have entered into confidentiality agreements (in form
and substance satisfactory to the Company) with the Company with
respect thereto, substantially in the form of this Section 4(o). Each
Purchaser agrees that it shall, upon learning that disclosure of such
information is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to
the Company and allow the Company, at it expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective
order for the information deemed confidential."
8. Section 4 is hereby amended by adding an additional section
which shall read as follows:
"p. INDEBTEDNESS. Except in the ordinary course of
business and in accordance with reasonable business judgment, the
Company shall not incur any indebtedness. Notwithstanding the
foregoing, the Company shall not be permitted to undertake bank or
commercial financing (other than Senior Indebtedness, as defined in the
Notes), subordinated debt or raise capital in any transaction which
includes debt as a component thereof."
9. Section 8.f. is hereby amended by deleting the section in its
entirety and inserting in lie thereof the following:
"f. NOTICES. 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 responsible overnight carrier, and shall be effective five days
after being placed in the mail, if mailed, upon receipt or refusal of
receipt, if delivered personally or by responsible overnight carrier,
or if delivered by facsimile upon confirmation of receipt if delivered
during a business day or, if not delivered during a business day, on
the next succeeding business day, in each case addressed to a party.
The addresses for such communications shall be:
If to the Lumenon Innovative Lightwave Technology, Inc.
Company: 0000 Xxxxx-Xxxxxx Xxxxxxx
Xx. Xxxxxxx, Xxxxxx X00 0X0
Xxxxxx
Attention: Xxxx Xxxxxxxxx
Telecopy: (000) 000-0000
with copies to: Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
0000 XxXxxx Xxxxxxx Xxxxxx,
00xx Xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxxxx
Attention: Xxxxx Xxxxxxx
Telecopy: (000) 000-0000
-4-
5
and Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Telecopy: (000) 000-0000
If to any Purchaser, to the address set forth under such
Purchaser's name on the execution page hereto executed by such
Purchaser.
Each party shall provide notice to the other parties of any
change in address."
10. RATIFICATION. In all other respects, the Purchase Agreement is
hereby ratified and confirmed.
11. 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.
12. EFFECTIVE DATE. This Amendment shall become effective
upon execution by the Company and each of the Investors.
[Rest of Page Intentionally Left Blank]
-5-
6
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
1 to the Purchase Agreement as of the date first above written.
LUMENON INNOVATIVE LIGHTWAVE
TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxxxxx
------------------------------------
Chief Executive Officer
CAPITAL VENTURES INTERNATIONAL
By: Heights Capital Management, Inc., Its
Authorized Agent
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxxx
--------------------------
Title: Investment Manager
--------------------------
CASTLE CREEK TECHNOLOGY PARTNERS LLC
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
-----------------------------
Title: Managing Director
-----------------------------
Castle Creek Partners
Investment Manager
-6-
