WAIVER
April 12, 2001
To each of the Purchasers listed below:
Reference is made to Advanced Optics Electronics, Inc., Note Purchase
Agreement, dated as of September 15, 2000 (the "Purchase Agreement") between
each Purchaser therein defined and Advanced Optics Electronics, Inc., a Nevada
corporation (the "Company"). All terms defined in the Purchase Agreement shall
have the same meaning when used in this waiver unless otherwise defined herein.
Pursuant to Section 10.1(d) of the Purchase Agreement, the Company agreed
to file a registration statement on Form SB-2 under the Securities Act of 1933,
as amended (the "Registration Statement"), to register not less than 52,390,805
shares of Common Stock underlying the Registrable Securities consisting of:
(i) 2,298,851 shares of Common Stock issuable upon conversion of the
$500,000 Initial Closing Date Notes;
(ii) 6,896,552 shares of Common Stock issuable upon conversion of the
$1,500,000 Second Closing Date Notes;
(iii) 36,781,609 shares of Common Stock issuable upon conversion of the
$8,000,000 Obligation Notes;
(iv) Initial Warrants to purchase 2,000,000 shares of Common Stock issued
with respect to the Initial Offering (at the rate of one warrant share for such
dollar amount of Notes then purchased); and
(v) Obligation Warrants for 4,413,793 shares of Common Stock issued with
respect to the Obligations Notes (at the rate of 12% of the shares of Common
Stock to be issued upon conversion of the Obligation Notes).
Each Purchaser hereby waives the Company's obligation to comply with
Section 10.1(d) of the Purchase Agreement insofar as it relates to the filing of
the Registration Statement to register the Registrable Securities, other than
such Registrable Securities (the "Initial Securities") consisting of Common
Stock issuable upon conversion of the $500,000 Initial Closing Date Notes issued
on and dated as of September 15, 2000 and the 500,000 shares of Common Stock
underlying the Initial Warrants. (For the avoidance of doubt, the "Initial
Securities" do not include any other Notes or any Warrants issuable at any
time.) In addition, each Purchaser and the Company agrees that such section is
hereby amended to change the number of shares of Common Stock required to be
registered shall relate solely to the Initial Securities. Failure to file a
registration statement with respect to, or to register, Registrable Securities
other than the
Initial Securities shall not constitute a Non-Registration Event under the
Purchase Agreement or under any Warrants, or an Event of Default under the Notes
or Purchase Agreement. The Company shall continue to be required to reserve for
issuance the amount of Common Stock described in the Purchase Agreement as such
reservation relates only to the Initial Securities. The Company and Purchasers
agree that the Company may not exercise any Obligation Notice rights under the
Purchase Agreement with respect to the $8,000,000 of Obligation Notes and that
Company is not obligated to sell and Purchasers are not obligated to purchase
the $1,500,000 of Second Closing Date Notes.
Pursuant to Section 2.3 of the Purchase Agreement, the Company and the
Purchasers agreed that subject to certain conditions, a Purchaser could assign
to another party either before or after exercise of a Purchase Obligation by the
Company, the Purchase Obligation to pay all or some of the purchase price with
respect to the Purchase Obligation and receive the corresponding rights of the
Purchaser under the Purchase Agreement. The Company and the Purchasers do hereby
amend such section in order that it permit assignments between existing
Purchasers to the exclusion of any other parties.
The Purchasers do not waive any damages (liquidated or otherwise) or any
other rights available to them. Except as set forth in this waiver, the Purchase
Agreement remains in full force and effect. Please acknowledge your agreement
with the foregoing by signing in the space provided below.
Very truly yours,
ADVANCED OPTICS ELECTRONICS, INC.
By: /s/ LESLIE S. ROBINS
--------------------------------
Name: Leslie S. Robins
Title: Executive Vice President
Agreed and Accepted
PURCHASERS:
KESHET FUND L.P.
By: /s/ JOHN CLARKE
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KESHET L.P.
By: /s/ JOHN CLARKE
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NESHER LTD.
By: /s/ JOHN CLARKE
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TALBIYA B. INVESTMENTS LTD.
By: /s/ JOHN CLARKE
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