FIRST AMENDMENT TO 8% SENIOR SECURED CONVERTIBLE DEBENTURES DUE AUGUST 1, 2011
Exhibit 4.7
FIRST AMENDMENT TO
8% SENIOR SECURED CONVERTIBLE DEBENTURES DUE AUGUST 1, 2011
THIS FIRST AMENDMENT TO 8% SENIOR SECURED CONVERTIBLE DEBENTURES DUE AUGUST 1, 2011 (this “Agreement”) is made as of December 31, 2008 among Lightpath Technologies, Inc., a Delaware corporation (the “Company”), and the undersigned, being all of the Holders (as that term is defined in each Debenture), pursuant to and in accordance with Section 9(k) of each debenture identified on Exhibit A attached hereto (each, a “Debenture”).
WHEREAS, the Company desires to pay all accrued but unpaid interest to date on each Debenture (which amounts are set forth on Exhibit B attached hereto) (such payments being hereinafter referred to as the “Accrued Interest Payment”).
WHEREAS, the Holders desire to convert twenty-five percent (25%) of the principal amount of each Debenture into shares of Common Stock in accordance with the terms and procedures set forth in the Debentures (the “Partial Conversion”).
WHEREAS, subsequent to the Partial Conversion, the Company desires to prepay all interest that would accrue under each Debenture through the Maturity Date (as defined in each Debenture) as identified on Exhibit B attached hereto (such prepayment being hereinafter referred to as the “Debenture Interest Prepayment”).
WHEREAS, in connection with the Accrued Interest Payment, Partial Conversion and Debenture Interest Prepayment, the Company desires to issue each Holder a warrant to purchase the number of shares of Common Stock set forth opposite each Holder’s name on Exhibit C attached hereto in accordance with the terms and conditions set forth herein (the “Warrant Issuance” and together with the Accrued Interest Payment, the Partial Conversion, and the Debenture Interest Prepayment, the “Transactions”).
WHEREAS, the parties desire to amend each Debenture to authorize the Transactions.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Recitals. The above recitals, definitions, preamble and provisions are hereby made a part of this Agreement.
2. Capitalized Terms. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the applicable Debenture.
3. Amendments to Each Debenture.
(a) Section 1 shall be amended by deleting the definition of “Interest Conversion Rate” and replacing it with the following:
“Interest Conversion Rate” means the greater of (a) 100% of the closing bid price of the Common Stock on the Trading Day that is immediately prior to the applicable Interest Payment Date as reported by Bloomberg L.P. (or any successor entity) and (b) the VWAP for the 10 Trading Days ending on December 30, 2008.”
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(b) Section 1 shall be further amended by deleting the definition of “Interest Notice Period” and replacing it with the following:
“Interest Notice Period” means the 20 Trading Days immediately prior to the applicable Interest Payment Date.”
(c) Section 2(a) of each Debenture shall be deleted and replaced by the following:
“a) Payment of Interest. The Company shall pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Debenture at the rate of 8% per annum, payable on December 31, 2008 (the “Interest Payment Date”) for the period beginning October 1, 2008 through the Interest Payment Date. In addition, immediately following the Conversion by the Holder of 25% of the indebtedness evidenced by this Debenture, which Conversion shall take place effective December 31, 2008, the Company shall prepay interest to accrue under this Debenture for the period January 1, 2009 through the Maturity Date.”
(d) Section 2(b) of each Debenture shall be deleted and replaced by the following:
“b) Payment of Interest in Shares of Common Stock. All payments of interest shall be made in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock at the Interest Conversion Rate (the dollar amount to be paid in shares, the “Interest Share Amount” and the number of shares of Common Stock to be issued in payment of interest being hereinafter referred to as the “Interest Conversion Shares”).”
4. One-Time Waiver of Restriction on Conversion. The parties acknowledge that the Beneficial Ownership Limitation contained in Section 4(c) of Debenture No. 6 (Xxxxxx Xxxx), No. 7 (Shadow Capital LLC), No. 11 (Crescent International Ltd), Xx. 00 (Xxxxx Xxxxxx) xxx Xx. 00 (Xxxx & Xxxx Enterprises, LLC) on Exhibit A attached hereto would prohibit the consummation of the Partial Conversion by such Holders. In order to permit the Partial Conversion by such Holders, the undersigned hereby consent to the Partial Conversion by each such Holder and waive the requirements and restrictions contained in Section 4(c) of each such Debenture such that the Partial Conversion shall be permitted notwithstanding Section 4(c) of each such Debenture.
5. Warrant Issuance. In connection with the Accrued Interest Payment, Partial Conversion and Debenture Interest Prepayment, pursuant to the delivery of a warrant in the form attached hereto as Exhibit D the Company shall issue to each Holder a warrant to purchase the number of shares of Common Stock set forth opposite each Holder’s name on Exhibit C attached hereto at an exercise price equal to the greater of (i) $0.87 per share and (ii) the closing bid price of the Common Stock on December 30, 2008 as reported by Bloomberg L.P. (or any successor entity).
6. Date of the Transactions. The Transactions will be effected as of December 31, 2008.
7. Counterparts. This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. Delivery of executed counterparts of this Amendment electronically (by email or telecopy) shall be effective as an original and shall constitute a representation that an original will be delivered.
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8. Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
9. Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
10. No Other Modification. Except to the extent specifically provided to the contrary in this Agreement, all terms and conditions of each Debenture shall remain in full force and effect, without modification or limitation. In the event of any conflict or inconsistency between any Debenture and the provisions of this Agreement, this Agreement will control and supersede to the extent of such conflict or inconsistency.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
| THE COMPANY: | ||||||
| LIGHTPATH TECHNOLOGIES, INC. | ||||||
| By: | /s/ J. Xxxxx Xxxxxx | |||||
| Name: | J. Xxxxx Xxxxxx | |||||
| Title: | Chief Executive Officer | |||||
| THE HOLDERS: | ||||||
| /s/ Xxxxx Xxxxxxx |
/s/ Xxxxxx X. Xxxxxxx | |||||
| Xxxxx Xxxxxxx | Xxxxxx X. Xxxxxxx | |||||
| /s/ Xxxxx Xxxxx |
/s/ Xxxxx X. Xxxxx | |||||
| Xxxxx Xxxxx | Xxxxx X. Xxxxx | |||||
| /s/ Xxxxxx X. X’Xxxxx |
/s/ Xxxxxx Xxxx | |||||
| Xxxxxx X. X’Xxxxx | Xxxxxx Xxxx | |||||
| SHADOW CAPITAL LLC | CRANSHIRE CAPITAL LP | |||||
| By: | /s/ B. Xxxx Xxxxxxxxxxxx |
By: | /s/ Miteleu X. Xxxxx | |||
| Name: | B. Xxxx Xxxxxxxxxxxx | Name: | Miteleu X. Xxxxx | |||
| Title: | Manager | Title: | President | |||
| /s/ Xxxx Xxxxxxxxx |
/s/ Xxxxxxx X. Xxxxxxxx | |||||
| Xxxx Xxxxxxxxx | Xxxxxxx X. Xxxxxxxx | |||||
| CRESCENT INTERNATIONAL, LTD. | XXXX & XXXX ENTERPRISES, LLC | |||||
| By: | /s/ Maxi Xxxxxx |
By: | /s/ Xxxx X. Xxxx | |||
| Name: | Maxi Xxxxxx | Name: | Xxxx X. Xxxx | |||
| Title: | Authorized Signatory | Title: | Member | |||
| /s/ Xxxxxx Xxxxx |
/s/ Xxxxxx. X. Xxxxxx | |||||
| Xxxxxx Xxxxx | Xxxxxx X. Xxxxxx Xx. | |||||
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| /s/ Xxxxxx Xxxxxx |
/s/ Xxxx Xxxxxxxx | |||||
| Xxxxxx Xxxxxx | Xxxx Xxxxxxxx | |||||
| /s/ Xxx Houdiagui |
/s/ Xxxx X. Xxxxx | |||||
| Moe Houdiagui | Xxxx X. Xxxxx | |||||
| /s/ Xxxxx Xxxxxx |
/s/ Xxxxxx X. Xxxxxx | |||||
| Xxxxx Xxxxxx | Xxxxxx X. Xxxxxx | |||||
| THE XXXX XXXXX TRUST | XXXXXX X. X. XXXXXXX X. XXXXXX REVOCABLE TRUST UTA DTD 3/14/1991 | |||||
| By: | /s/ Xxxxxx X. Xxxxx |
By: | /s/ Xxxxxx X. X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxx | Name: | Xxxxxx X. X. Xxxxxx | |||
| Title: | Trustee | Title: | Trustee | |||
| /s/ Xxxxx Xxxxxxxxx |
/s/ Xxx Xxxxxxxxx | |||||
| Xxxxx Xxxxxxxxx | Xxx Xxxxxxxxx | |||||
| /s/ Xxxxx Xxxxxxxxx | ||||||
| Xxxxx Xxxxxxxxx | ||||||
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EXHIBIT A
Debentures
1. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $25,000 with an original issue date of August 1, 2008 issued by Lightpath Technologies, Inc. (“LPTH”) in favor of Xxxxx Xxxxxxx
2. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $50,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxxx X. Xxxxxxx
3. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $5,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxx Xxxxx
4. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $50,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxx X. Xxxxx
5. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $50,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxxx X. X’Xxxxx
6. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $250,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxxx Xxxx
7. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $250,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Shadow Capital LLC
8. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $100,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxx Xxxxxxxxx / Xxxxx Xxxxxxxxx
9. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $25,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxx Xxxxxxxxx
10. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $25,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxxxx X. Xxxxxxxx
11. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $300,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Crescent International Ltd.
12. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $40,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxxx Xxxxx
13. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $25,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxxx X. Xxxxxx Xx.
14. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $75,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxxx Xxxxxx
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15. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $50,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxx Xxxxxxxx
16. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $19,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Moe Houdiagui
17. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $50,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxx X. Xxxxx
18. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $265,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxx Xxxxxx
19. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $50,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxxx X. Xxxxxx
20. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $50,000 with an original issue date of August 1, 2008 issued by LPTH in favor of The Xxxx Xxxxx Trust
21. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $1,000,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxx & Xxxx Enterprises, LLC
22. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $50,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxx Xxxxxxxxx
23. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $25,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Xxxxxx X. X. Xxxxxxx X. Xxxxxx Revocable Trust UTA dtd. 3/14/1991
24. 8% Senior Secured Convertible Debenture Due August 1, 2011 in the original principal amount of $100,000 with an original issue date of August 1, 2008 issued by LPTH in favor of Cranshire Capital LP
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EXHIBIT B
Interest Pre-Payments
| Holder |
Interest Accrued for period 10.1.08 through 12.31.08 |
Interest to be Pre-Paid for period 1.1.09 through Maturity | ||||||
| 1. |
Xxxxx Xxxxxxx |
$ | 500.00 | $ | 3,875.00 | |||
| 2. |
Xxxxxx X. Xxxxxxx |
$ | 1,000.00 | $ | 7,750.00 | |||
| 3. |
Xxxxx Xxxxx |
$ | 100.00 | $ | 775.00 | |||
| 4. |
Xxxxx X. Xxxxx |
$ | 1,000.00 | $ | 7,750.00 | |||
| 5. |
Xxxxxx X. X’Xxxxx |
$ | 1,000.00 | $ | 7,750.00 | |||
| 6. |
Xxxxxx Xxxx |
$ | 5,000.00 | $ | 38,750.00 | |||
| 7. |
Shadow Capital LLC |
$ | 5,000.00 | $ | 38,750.00 | |||
| 8. |
Xxx Xxxxxxxxx / Xxxxx Xxxxxxxxx |
$ | 2,000.00 | $ | 15,500.00 | |||
| 9. |
Xxxx Xxxxxxxxx |
$ | 500.00 | $ | 3,875.00 | |||
| 10. |
Xxxxxxx X. Xxxxxxxx |
$ | 500.00 | $ | 3,875.00 | |||
| 11. |
Crescent International Ltd. |
$ | 6,000.00 | $ | 46,500.00 | |||
| 12. |
Xxxxxx Xxxxx |
$ | 800.00 | $ | 6,200.00 | |||
| 13. |
Xxxxxx X. Xxxxxx Xx. |
$ | 500.00 | $ | 3,875.00 | |||
| 14. |
Xxxxxx Xxxxxx |
$ | 1,500.00 | $ | 11,625.00 | |||
| 15. |
Xxxx Xxxxxxxx |
$ | 1,000.00 | $ | 7,750.00 | |||
| 16. |
Moe Houdiagui |
$ | 380.00 | $ | 2,945.00 | |||
| 17. |
Xxxx X. Xxxxx |
$ | 1,000.00 | $ | 7,750.00 | |||
| 18. |
Xxxxx Xxxxxx |
$ | 5,300.00 | $ | 41,075.00 | |||
| 19. |
Xxxxxx X. Xxxxxx |
$ | 1,000.00 | $ | 7,750.00 | |||
| 20. |
The Xxxx Xxxxx Trust |
$ | 1,000.00 | $ | 7,750.00 | |||
| 21. |
Xxxx & Xxxx Enterprises LLC |
$ | 20,000.00 | $ | 155,000.00 | |||
| 22. |
Xxxxx Xxxxxxxxx |
$ | 1,000.00 | $ | 7,750.00 | |||
| 23. |
Xxxxx X. X. Xxxxxxx X. Xxxxxx Revocable Trust UTA dtd 3/14/1991 |
$ | 500.00 | $ | 3,875.00 | |||
| 24. |
Cranshire Capital LP |
$ | 2,000.00 | $ | 15,500.00 | |||
| Total |
$ | 58,580.00 | $ | 453,995.00 | ||||
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EXHIBIT C
Warrant Issuance
| Holder |
No. of Warrants | |||
| 1. |
Xxxxx Xxxxxxx |
3,158 | ||
| 2. |
Xxxxxx X. Xxxxxxx |
6,316 | ||
| 3. |
Xxxxx Xxxxx |
632 | ||
| 4. |
Xxxxx X. Xxxxx |
6,316 | ||
| 5. |
Xxxxxx X. X’Xxxxx |
6,316 | ||
| 6. |
Xxxxxx Xxxx |
31,581 | ||
| 7. |
Shadow Capital LLC |
31,581 | ||
| 8. |
Xxx Xxxxxxxxx / Xxxxx Xxxxxxxxx |
12,632 | ||
| 9. |
Xxxx Xxxxxxxxx |
3,158 | ||
| 10. |
Xxxxxxx X. Xxxxxxxx |
3,158 | ||
| 11. |
Crescent International Ltd. |
37,897 | ||
| 12. |
Xxxxxx Xxxxx |
5,053 | ||
| 13. |
Xxxxxx X. Xxxxxx Xx. |
3,158 | ||
| 14. |
Xxxxxx Xxxxxx |
9,474 | ||
| 15. |
Xxxx Xxxxxxxx |
6,316 | ||
| 16. |
Moe Houdiagui |
2,400 | ||
| 17. |
Xxxx X. Xxxxx |
6,316 | ||
| 18. |
Xxxxx Xxxxxx |
33,476 | ||
| 19. |
Xxxxxx X. Xxxxxx |
6,316 | ||
| 20. |
The Xxxx Xxxxx Trust |
6,316 | ||
| 21. |
Xxxx & Xxxx Enterprises LLC |
126,323 | ||
| 22. |
Xxxxx Xxxxxxxxx |
6,316 | ||
| 23. |
Xxxxx X. X. Xxxxxxx X. Xxxxxx Revocable Trust UTA dtd 3/14/1991 |
3,158 | ||
| 24. |
Cranshire Capital LP |
12,632 | ||
| Total |
369,999 |
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