exv10w2









Exhibit 10.2




AMENDMENT TO SECURITIES PURCHASE AGREEMENT




          This Amendment (this “Amendment”) to that certain Securities Purchase Agreement, dated
as of April 1, 2010 (the “Securities Purchase Agreement”), is entered into as of April 20,
2010, between Xenonics Holdings, Inc., a Nevada corporation (the “Company”), and the
undersigned stockholders of the Company (each, a “Holder” and collectively, the
“Holders”). Capitalized terms used and not otherwise defined shall have the meanings given
such terms in the Securities Purchase Agreement.



RECITALS





	 	A.	 	In connection with the sale by the Company of shares of its common stock (“Common
Stock”) and common stock purchase warrants (“Warrants”), the Company, the
Holders and certain other investors entered into the Securities Purchase Agreement,
whereby, among other things: (a) pursuant to the terms of Section 4.11, the Purchasers were
granted certain preemptive right, except for issuances of “Exempt Securities” and (b) the
Company agreed pursuant to the terms set forth in Section 14.2 of the Securities Purchase
Agreement, not to issue, enter into any agreement to issue or announce the issuance or
proposed issuance of any shares of Common Stock or securities which would entitle the
holder thereof to acquire Common Stock, other than “Exempt Securities,” for a period of at
least 90 days after the closing of the transaction contemplated by the Securities Purchase
Agreement.
	 
	 	B.	 	The closing of the transactions contemplated by the Securities Purchase Agreement took
occurred on April 6, 2010;
	 
	 	C.	 	The Company contemplates the issuance and sale of up to an additional 1,100,000 shares
of Common Stock and 1,100,000 Warrants (collectively, the “Additional Securities”)
for a purchase price of $550,000, pursuant to a securities purchase agreement identical to
the Securities Purchase Agreement except as to date and certain adjustments to account for
issuances of Securities under the Securities Purchase Agreement;
	 
	 	D.	 	In accordance with Section 5.5 of the Securities Purchase Agreement, “No provision of
the Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Purchasers holding
at least 67% in interest of the Shares based on the initial Subscription Amounts
hereunder...”
	 
	 	E.	 	The Company and the Holders, who represent “Purchasers holding at least a 67% interest
of the Shares based on initial Subscription Amounts under the Securities Purchase
Agreement,” now wish to amend the Securities Purchase Agreement to include the Additional
Securities within the definition of Exempt Securities.





          NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Holder hereby agree as follows:





	 	1.	 	The definition of “Exempt Securities” as set forth in the Securities Purchase Agreement
shall be amended and restated in its entirety as follows:




 









 











          “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to
employees, officers or directors of the Company pursuant to any stock or option plan duly adopted
for such purpose, by a majority of the non-employee members of the Board of Directors or a majority
of the members of a committee of non-employee directors established for such purpose, (b)
securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or
other securities exercisable or exchangeable for or convertible into shares of Common Stock issued
and outstanding on the date of this Agreement, provided that such securities have not been amended
since the date of this Agreement to increase the number of such securities or to decrease the
exercise price, exchange price or conversion price of such securities, (c) securities issued
pursuant to acquisitions or strategic transactions approved by a majority of the disinterested
directors of the Company, provided that any such issuance shall only be to a Person (or to the
equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an
owner of an asset in a business synergistic with the business of the Company and shall provide to
the Company additional benefits in addition to the investment of funds, but shall not include a
transaction in which the Company is issuing securities primarily for the purpose of raising capital
or to an entity whose primary business is investing in securities and (d) Shares and Warrants
purchased on or before April 30, 2010 pursuant to a securities purchase agreement
substantially identical to this Agreement except as to date and certain adjustments to
account for issuances of Securities under this Agreement, in amount not to exceed the
difference between $2,000,000 and the aggregate of the Subscription Amounts received pursuant to
this Agreement.





	 	2.	 	Except as amended herein, the Securities Purchase Agreement shall remain in full force
and effect.
	 
	 	3.	 	This Amendment shall become effective upon its execution, which may occur in one or
more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Signatures of the parties may be evidenced by
facsimile transfers of the same and shall have the same force and effect as original
signatures. Other than the reference to the Agreement contained in the preamble of this
Amendment, each reference to the Agreement and any agreement contemplated thereby or
executed in connection therewith, whether or not accompanied by reference to this
Amendment, shall be deemed a reference to the Agreement as amended by this Amendment.





[Signature Pages Follows]



 









 





     IN WITNESS WHEREOF, the undersigned have each executed this Amendment as of the date set forth
above.



	 	 	 	 	 	 	 	 	 	 	 	 	 

	XENONICS HOLDINGS, INC.	 	 	 	STOCKHOLDER:	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:	 	/s/ Alan P. Magerman	 	 	 	Signature:	 	/s/ John C. Lipman	 	 
	 	 	 	 	 	 	 	 	 	 	 
	 	 	Name: Alan P. Magerman	 	 	 	 	 	Name: John C. Lipman	 	 
	 	 	Title:   Chairman and Chief Executive Officer	 	 	 	 	 	Its:      	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	STOCKHOLDER:	 	 	 	STOCKHOLDER:	 	 
	 	 	Brio Capital L.P.	 	 	 	Chestnut Ridge Partners, LP	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Signature:
	 	/s/ Shaye Hirsch
	 	 	 	Signature:
	 	/s/ Kenneth Holz	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Name: Shaye Hirsch
	 	 	 	 	 	Name: Kenneth Holz	 	 
	 

	 	 	 	Its:       Managing Partner
	 	 	 	 	 	Its:       CFO	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	STOCKHOLDER:	 	 	 	STOCKHOLDER:	 	 
	 	 	Octagon Capital Partners	 	 	 	Poseidon Capital, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Signature:
	 	/s/ Stephen Hart
	 	 	 	Signature:
	 	/s/ Yoel Altman	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Name: Stephen Hart
	 	 	 	 	 	Name: Yoel Altman	 	 
	 

	 	 	 	Its:       General Partner
	 	 	 	 	 	Its:       President	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	STOCKHOLDER:	 	 	 	STOCKHOLDER:	 	 
	 	 	Warrant Strategies Fund, LLC	 	 	 	Cranshire Capital LP	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Signature:
	 	/s/ J. Mitchell Hull
	 	 	 	Signature:
	 	/s/ Mitchell P. Kupin	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	Name: J. Mitchell Hull
	 	 	 	 	 	Name: Mitchell P. Kupin	 	 
	 

	 	 	 	Its:       Managing Member
	 	 	 	 	 	Its:       President	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	STOCKHOLDER:	 	 	 	STOCKHOLDER:	 	 
	 	 	Freestone Advantage Partners, LP	 	 	 	Southridge Partners II LP	 	 






	 	 	 	 	 	 	 	 	 	 	 

	Signature:

	 	/s/ Mitchell P. Kupin
 

Name: Mitchell P. Kupin
	 	 	 	Signature:
	 	/s/ Stephen M. Hicks
 

Name: Stephen M. Hicks
	 	 
	 

	 	Its:       Manager
	 	 	 	 	 	Its:       Managing Director of General Partner