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EXHIBIT 99.2
AGREEMENT
This Agreement is entered into as of October 9, 2001 between Lumenon
Innovative Lightwave Technology, Inc., a Delaware corporation (the "Company")
and Castle Creek Technology Partners LLC ("Castle Creek" and together with
Capital Ventures International, the "Investors"). The Company and Castle Creek
are sometimes referred to herein collectively as the "Parties" and each
individually as a "Party."
WHEREAS, the Company and the Investors are parties to a Securities
Purchase Agreement dated July 25, 2000 (the "Purchase Agreement");
WHEREAS, the Company and the Investors are parties to a Registration
Rights Agreement dated July 25, 2000 (the "Registration Rights Agreement");
WHEREAS, the Company has issued to Castle Creek a Convertible Note
dated July 25, 2000 in the principal amount of $11,700,000 (as may have been
replaced from time to time pursuant to the terms of such Convertible Note, the
"Note");
WHEREAS, the Company has issued to Castle Creek a Stock Purchase
Warrant dated July 25, 2000 evidencing the right to purchase 1,671,696 shares of
common stock of the Company (the "Warrant");
WHEREAS, the Company and the Investors desire to amend and modify
certain provisions of the Purchase Agreement and the Registration Rights
Agreement;
WHEREAS, the Company and Castle Creek desire to amend and restate the
Note;
WHEREAS, the Company and the Investors desire to enter into a Deed of
Hypothec (as hereinafter defined) in connection with the issuance of the Amended
and Restated Note (as hereinafter defined); and
WHEREAS, the Company and Castle Creek desire to cancel the Warrant.
NOW THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is hereby
acknowledged, the Company and Castle Creek hereby agree as follows:
A. AGREEMENTS.
1. Contemporaneously with the execution of this Agreement, the
Parties shall enter into the following agreements:
(i) An Amendment to the Purchase Agreement in the form
appended hereto as EXHIBIT A; and
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(ii) An Amendment to the Registration Rights Agreement in
the form appended hereto as EXHIBIT B.
2. Within seven (7) business days of the date hereof, the Parties
shall negotiate in good faith and enter into the following
documents:
(i) A Deed of Hypothec (the "Deed of Hypothec")
substantially in the form attached hereto as
EXHIBIT C;
(ii) A Security Agreement (the "Security Agreement")
substantially in the form attached hereto as
EXHIBIT D; and
(iii) All other documents required in connection with (i)
and (ii) above.
3. Contemporaneously with the execution of this Agreement, the
Company shall amend and restate the Note and issue to Castle
Creek Amended and Restated Notes in the form appended hereto
as EXHIBIT E and in the aggregate principal amount of
$5,700,000.00.
4. Contemporaneously with the execution of this Agreement, Castle
Creek shall deliver to the Company the original Note and the
original Warrant.
5. Contemporaneously with the execution of this Agreement, the
Warrant shall be cancelled.
B. CURRENT REPORT.
Within two (2) business days of the date of this Agreement, the Company
shall file a Current Report on Form 8-K concerning this Agreement, the Purchase
Agreement, as amended, the Registration Rights Agreement, as amended, and the
Amended and Restated Note, attaching such documents as exhibits thereto.
C. RELEASES.
1. The Company and its Affiliates hereby release and discharge
Castle Creek and its Affiliates and each of their respective
directors, officers, employees, agents, and their respective
successors and assigns (collectively, the "Releasees") from
any and all claims, contentions, demands, causes of action at
law or in equity, debts, liens, agreements, notes,
obligations, or liabilities of any nature, character or
description whatsoever, whether known or unknown, contingent
or matured, which the Company or its Affiliates may now or
hereafter have against the Releasees by reason of any matter,
event, thing or state of facts. For purposes of this Section,
"Affiliate" and any variable thereof, means any person or
entity directly controlling or controlled by or under direct
or indirect common control with such person or entity.
2. Castle Creek and its Affiliates hereby release and discharge
the Company and its Affiliates and each of their respective
directors, officers, employees, agents, and
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their respective successors and assigns (the "Company
Releasees") from any and all claims, contentions, demands,
causes of action at law or in equity, debts, liens,
agreements, notes, obligations, or liabilities of any nature,
character or description whatsoever, whether known or unknown,
contingent or matured, which Castle Creek or its Affiliates
may now or hereafter have against the Company Releasees by
reason of any matter, event, thing or state of facts of which
the releasing party has actual knowledge as of the date of
this Agreement occurring, arising, done, omitted or suffered
to be done in connection with or related to any breach by the
Company of its obligations (i) under subsections 4(f) or 4(n)
of the Securities Purchase Agreement, (ii) under Article IX
Section I of the Note or (iii) under the terms of the
Registration Rights Agreement regarding the registration of
securities of the Company, the use or suspension of use of the
Registration Statement or the Prospectus (each as defined in
the Registration Rights Agreement) or the ability of Castle
Creek to sell securities of the Company under such
Registration Statement and pursuant to such Prospectus, from
the beginning of the world to the date of this Agreement. For
the purposes of this Section, "Affiliate" and any variable
thereof, means any person or entity directly controlling,
controlled by or under direct or indirect common control with
such person or entity.
D. REPRESENTATIONS AND WARRANTIES.
The Company hereby represents and warrants to Castle Creek and Castle
Creek hereby represents and warrants to the Company: (i) that such Party has all
necessary power and authority under all applicable provisions of law to execute
and deliver this Agreement and the agreements and other documents contemplated
hereby and to carry out their provisions; (ii) that all action required on the
part of such Party for the lawful execution and delivery of this Agreement and
the agreements and other documents contemplated hereby has been effectively
taken prior to such execution and delivery; (iii) that upon their execution and
delivery, this Agreement and the agreements and other documents contemplated
hereby will be valid and binding obligations of such Party; and (iv) that as of
the date of this Agreement, no Event of Default, as such term is defined in the
Note, exists under the Note.
E. NOTICES.
All notices, instructions and other communications hereunder shall be
in writing. Any notice, instruction or other communication hereunder shall be
deemed duly delivered four business days after it is sent by registered or
certified mail, return receipt requested, postage prepaid, or one business day
after it is sent for next business day delivery via a reputable nationwide
overnight courier service, in each case to the intended recipient as set forth
below:
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
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with copies to:
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP
0000 XxXxxx Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxx X0X 0X0
Xxxxxx
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 Castle Creek Technology Partners LLC:
Castle Creek Technology Partners LLC
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telecopy:
Any party may give any notice, instruction or other communication hereunder
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, facsimile, telex, ordinary mail or electronic mail), but no
such notice, instruction or other communication shall be deemed to have been
duly given unless and until it actually is received by the party to whom it is
intended. Any party may change the address to which notices, instructions, or
other communications hereunder are to be delivered by giving the other parties
notice in the manner set forth in this Section.
F. SUCCESSION AND ASSIGNMENT.
This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective successors and permitted assigns.
G. ENTIRE AGREEMENT; AMENDMENTS.
This Agreement, all Exhibits hereto and all agreements and instruments
to be delivered by the Parties in connection herewith and therewith represent
the entire understanding and agreement between the Parties with respect to the
subject matter hereof and supersede all prior oral and written and all
contemporaneous oral negotiations, commitments and understanding
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between such Parties. The Parties may amend or modify this Agreement, in such
manner as may be agreed upon, by a written instrument executed by all of the
Parties.
H. EXPENSES.
Except as otherwise expressly provided in this Agreement, the Exhibits
hereto and the agreements and instruments to be delivered by the Parties in
connection herewith and therewith, each Party shall pay its own expenses,
including, without limitation, legal, and other professional fees, in connection
with this Agreement and the transactions contemplated hereby.
I. GOVERNING LAW; JURISDICTION.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to the conflict of laws
provisions thereof. The Company irrevocably consents to the jurisdiction of the
United States federal courts and the state courts located in the State of
Delaware in any suit or proceeding based on or arising under this Agreement and
irrevocably agrees that all claims in respect of such suit or proceeding may be
determined in such courts. The Company irrevocably waives the defense of an
inconvenient forum to the maintenance of such suit or proceeding. The Company
further agrees that service of process upon the Company mailed by first class
mail shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding. Nothing herein shall affect the right of
any Investor to serve process in any other manner permitted by law. The Company
agrees that a final non-appealable judgment in any such suit or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on such
judgment or in any other lawful manner.
J. SECTION HEADINGS.
The section headings used herein are for the convenience of the Parties
and in no way alter, modify, amend, limit, or restrict the contractual
obligations of the Parties under this Agreement.
K. SEVERABILITY.
The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
L. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which shall be one and the
same document.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
Parties as of the date set forth above.
LUMENON INNOVATIVE LIGHTWAVE
TECHNOLOGY, INC.
By: /s/ Xxxx Xxxxxxxxx
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Chief Executive Officer
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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