SECOND AGREEMENT TO AMEND 12.5%
MARCH CASH SECURED
CONVERTIBLE NOTES DUE JULY 1, 2011
THIS SECOND
AGREEMENT TO AMEND 12.5% MARCH CASH 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 James I. Freeman (the “ Applicable
Noteholder ”). 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 $6,350,000 in principal amount of 12.5% March Cash
Secured Notes due July 1, 2011 on March 16, 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 Noteholder hereto constitutes 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 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
Market ” means the NASDAQ Capital Market, the NASDAQ
Global Select Market, the NASDAQ Global Market, th
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