AGREEMENT TO AMEND 12.5% MARCH
EXCHANGE SECURED CONVERTIBLE
NOTES DUE JULY 1, 2011
THIS AGREEMENT TO
AMEND 12.5% MARCH EXCHANGE SECURED CONVERTIBLE NOTES DUE JULY 1,
2011, dated May 14, 2009 (this “ Agreement
”), is entered into by BMP Sunstone Corporation, a Delaware
corporation (the “ Company ”), and the other
signatories hereto (collectively, the “ Applicable
Noteholders ”). Unless otherwise defined herein,
capitalized terms shall have the meanings assigned to such terms in
the Original Notes (as defined below).
WHEREAS, the
Company issued $1,000,000 in principal amount of 12.5% March
Exchange Secured Notes due July 1, 2011 on March 13, 2009
(the “Original Notes”); and
WHEREAS, the
parties hereto desire to amend certain provisions of the Original
Notes relating to the conversion price and covenants of the Company
set forth therein; and
WHEREAS, the
Applicable Noteholders hereto constitute a Majority in Interest,
which, pursuant to Section 11(g) of the Original Notes, and
together with the Company, constitutes all of the parties required
to approve this Agreement.
NOW, THEREFORE, in
consideration of the covenants and agreements contained herein and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby agree
as follows:
1.
Section 8(a)(i) of the Original Notes that reads:
“(i)
Subject to Section 8(a)(ii), at any time after May 15,
2009, the Holder shall have the option to convert, as a whole or in
part, up to the entire amount outstanding under this Note
(including the accrued but unpaid interest) (the “
Conversion Amount ”) into fully paid and nonassessable
shares of common stock, par value $0.001 per share, of the Company
(the “ Common Shares ”) from time to time at a
conversion price (the “ Conversion Price ”),
subject to adjustments as set forth in Section 9, equal to
$3.00; provided that, if the Company issues Common Shares in one or
more offerings to investors (other than any offerings following the
closing of a Qualified Offering) on or prior to December 31, 2009
(any such issuance, an “ Offering ”), the
Conversion Price shall equal, at the time of any conversion of the
Note, the lesser of (i) $3.00, (ii) 115% of the lowest price
per Common Share (after deducting the value, as determined by the
Company, of any warrants or other securities issued in such
Offering) for which the Company sells Common Shares in any Offering
or (iii) 115% of the VWAP (as defined below) for the period
from and including October 15, 2009 through and including
December 15, 2009, provided that, notwithstanding anything to
the contrary, the Conversion Price shall not be less than $2.00.
“ VWAP ” means the volume weighted average price
(the aggregate sales price of all trades of Common Shares
during
each Trading
Day divided by the total number of shares of Common Shares traded
during such Trading Day) of the Common Shares during any Trading
Day as reported by Bloomberg, L.P. using the AQR function. “
Trading Day ” means any day other than a Saturday or a
Sunday on which the Principal Market is open for trading in equity
securities. “ Principal
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