EX-99.2 5 b40767liex99-2.txt AGREEMENT - CASTLE CREEK TECHNOLOGY PARTNERS LLC 1 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 2 (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 2 3 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. 8851 Trans-Canada Highway St. Laurent, Quebec H45 1Z6 Canada Attention: Gary Moskovitz Telecopy: (514) 331- 4721 3 4 with copies to: Davies Ward Phillips & Vineberg LLP 1501 McGill College Avenue, 26th Floor Montreal, Quebec H3A 3N9 Canada Attention: Janet Ferrier, Esq. Telecopy: (514) 841-6499 and: Hale and Dorr LLP 60 State Street Boston, MA 02109 Attention: John Burgess, Esq. Telecopy: (617) 526-5000 If to Castle Creek Technology Partners LLC: Castle Creek Technology Partners LLC 2000 Powell Street, Suite 1625 Emeryville, CA 94608 Attention: Michael Spolan 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 4 5 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. * * * * * * * 5 6 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/ Gary Moskovitz ---------------------------------------- Chief Executive Officer CASTLE CREEK TECHNOLOGY PARTNERS LLC By: /s/ Michael Spolan ---------------------------------------- Name: Michael Spolan -------------------------------- Title: Managing Director -------------------------------- Castle Creek Partners Investment Manager 6