EXHIBIT 4(c)
AMENDMENT dated as of August 16, 2001 (this "Amendment") to Securities
Purchase Agreement dated as of June 20, 2001 (the "Securities Purchase
Agreement") by and among LifePoint, Inc., a corporation organized under the laws
of the State of Delaware (the "Company"), and all of the purchasers (the
"Purchasers") set forth on the execution pages to the Securities Purchase
Agreement.
WHEREAS,
A. On June 20, 2001, pursuant to the Securities Purchase Agreement,
certain of the Purchasers (the "Original Purchasers") acquired an aggregate of
228.007 Units, each Unit consisting of 1,000 shares of the Company's Series C
Convertible Preferred Stock, $.001 par value (the "Preferred Shares"), and a
warrant (the "Warrant") to purchase 10,000 shares of the Company's Common Stock,
$.001 par value (the "Common Stock").
B. On June 29, 2001, pursuant to the Securities Purchase Agreement,
three of the Original Purchasers acquired an aggregate of 85.713 Units by
surrendering their shares of the Company's Series B 20% Cumulative Convertible
Preferred Stock, $.001 par value.
C. Pursuant to the Escrow Agreement dated as of June 20,2001 (the
"Escrow Agreement") by and among the Company, the Purchasers and Xxxxxxx &
Masyr, LLP, as Escrow Agent, the Company is obligated to sell, within 90 days of
June 20, 2001, at least 57 additional Units pursuant to the Securities Purchase
Agreement so that at least an aggregate of 371 Units have been sold.
D. On the date of this Amendment, the Company has sold at least an
additional 57 Units to additional Purchasers (the "Additional Purchasers") on
condition that the Securities Purchase Agreement be amended in certain respects
as provided in this Amendment.
E. The Securities Purchase Agreement provides that it may be amended by
a majority in interest of the Purchasers (as defined in the Securities Purchase
Agreement) and all of the Original Purchasers and the Additional Purchasers have
agreed to this Amendment.
NOW, THEREFORE, the Company and the Purchasers agree as follows:
1. All capitalized terms which are not otherwise defined in this
Amendment shall have the meanings ascribed to them in the Securities Purchase
Agreement.
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2. WHEREAS clause B of the Securities Purchase Agreement is hereby
amended so that (a) each share of the Preferred Shares shall be convertible into
11.67 shares of the Common Stock and not 10 shares (i.e., an effective
Conversion Price of $3.00 per share of the Common Stock), (b) the aggregate
amount shall become 11,670 shares and not 10,000 shares and (c) the shares of
the Common Stock issuable upon the exercise of the Warrants shall become 11,670
and not 10,000.
3. Section 1(d) (iii) of the Securities Purchase Agreement and Section
4 (a) of the Escrow Agreement are each hereby amended to change (a) the
reference to 314 Units to 313.720 Units, the latter being the Units actually
sold to the Original Purchasers as indicated in the WHEREAS clauses; (b) the
reference to 371 Units to 370.720 Units and Section 7 (m) of the Securities
Purchase Agreement is hereby amended to change the reference to 86 Units to
85.713 Units for the same reason; and (c) Section 8 (e) of the Securities
Purchase Agreement shall be amended to require unanimous consent for an
amendment to such Agreement.
4. The Certificate of Designation shall be amended to provide that in
Article III.E. the Conversion Price shall mean $3.00 and in Article XIV that the
consent of all of the then outstanding shares of the Series C Preferred Stock
shall be required. An officer of the Company is hereby authorized to execute and
cause to be filed in the State of Delaware an amendment to the Certificate of
Designation effecting such changes and to effect the change in Section 2 hereof
after obtaining the consent of the holders of a majority of the outstanding
shares of the Common Stock.
5. The Warrant shall be amended to provide that (a) the Exercise Price
is $3.00, (b) the number of shares of the Common Stock issuable upon exercise
shall be adjusted as provided in Section 2 hereof and (c) Section 2 (b) relating
to resets of the Exercise Price shall be deleted. The Company shall deliver
replacement Warrants to the Original Purchasers and the Escrow Agent for the
Original Purchasers within five (5) business days after the execution of this
Amendment. The Original Purchasers and the Escrow Agent shall, within five (5)
business days after execution of this Amendment, return the original Warrants to
the Company for cancellation, which in any event shall be deemed cancelled upon
issuance of the replacement Warrants.
6. The Registration Rights Agreement shall be amended to provide that
the Company may delay requesting acceleration in order to amend Registration
statement on Form S-3, File No. 333-65540, to include the New Participants and
to reflect the changes effected by this Amendment, as suggested in discussions
with the Staff of the Securities and Exchange Commission.
7. If the holders of a majority of the outstanding shares of the Common
Stock have not affirmatively consented to such amendment or if for any reason
such amendment has not been filed with the Secretary of State of Delaware on or
before October 10, 2001, then within five days thereafter the Company will offer
to each holder of the Series C Preferred Stock the right to exchange such
holder's shares of Series C Preferred Stock for a like number of shares of a new
series of the Company's preferred
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stock designated Series D Convertible Preferred Stock (the "Series D Preferred
Stock"). The terms of the Series D Preferred Stock will be the same as the
Series C Preferred Stock as amended in accordance with the terms of this
Agreement.
8. Except as amended above, the Securities Purchase Agreement, the
Certificate of Designation, the Warrant, the Escrow Agreement and the
Registration Rights Agreement shall remain in full force and effect.
9. This Amendment may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when counterparts have been signed by each party and delivered to the other
party. This Amendment once executed by a party, may be delivered to the other
parties hereto by facsimile transmission of a copy of this Amendment bearing the
signature of the party so delivering this Agreement.
IN WITNESS WHEREOF, the undersigned Purchasers and the Company have
caused this Amendment to the Securities Purchase Agreement to be executed as of
the date first above written.
LIFEPOINT, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Secretary
SIGNATURES OF PURCHASERS
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