EXHIBIT 4.16
MODIFICATION AGREEMENT
WHEREAS, pursuant to Amended and Restated Unit Subscription Agreement
made as of June 18, 2002 ("Subscription Agreement"), Amnis Systems, Inc.
("Company"), sold an aggregate of 187,500 units (the "Units") consisting of 21
shares of common stock of the Company and one warrant to purchase three shares
of common stock of the Company to Alpha Capital Aktiengessellschaft and
Xxxxxxxxxxx Limited Partnership (collectively referred to as the "Purchasers");
WHEREAS, the Subscription Agreement provides the Purchasers with a
reset option which allows the Purchasers at any time prior to June 18, 2005,
but only one time per Unit, to increase the number of shares of common stock
comprising such Unit (the "Reset Option"); and
WHEREAS, the Company and Purchasers have determined that it is in the
best interests of the Company to modify the terms of the Subscription
Agreement.
It is Now Therefore, agreed by the Company and the Purchasers, for
good and valuable consideration, receipt of which is acknowledged, that:
1. The Purchasers waive its right to increase the number of shares of
common stock comprising the remaining Units owned by Purchasers pursuant to the
Reset Option in exchange for the principal amount of secured convertible notes
(the "Notes") of the Company designated on Schedule A hereto.
2. The Notes and the related Securities Purchase Agreement described
above will be delivered to the Purchasers on the closing date, and will be
substantially in the same form as Exhibit "A" and Exhibit "B", respectively.
3. Except as modified herein, the Amended and Restated Unit Purchase
Agreement and documents delivered in connection therewith remain in full force
and effect.
4. This Modification Agreement constitutes the binding obligation of
the Company.
Dated: _______, 2003
AMNIS SYSTEMS, INC.
By:_____________________________
Alpha Capital Aktiengessellschaft
By:_____________________________
This Modification Agreement may be signed by telecopier signature and delivered
by confirmed telecopier transmission.
1
SCHEDULE A
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PRINCIPAL NOTE AMOUNT
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Alpha Capital Aktiengessellschaft $910,120
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