WAIVER AND AMENDMENT TO
CONVERTIBLE SECURED PROMISSORY NOTE
This
Amendment to Convertible Secured Promissory Note (this
“
Amendment ”)
is entered into as of February 28, 2008 by and between Catcher
Holdings, Inc., a Delaware corporation (the “
Company ”),
and the Purchasers (as defined below). This Amendment amends the
Convertible Secured Promissory Notes (the
“Notes” )
issued pursuant to the each of the Note and Restricted Stock
Purchase Agreements, dated as of April 4, 2007 and June 20, 2007 by
and among the Company and the persons and entities listed on
Exhibit A thereto
(each a “
Purchaser ”
and collectively, the “
Purchasers ”)
(together the
“Agreements” ).
Capitalized terms not otherwise defined herein shall have the
meanings given in the Notes.
Recitals
Whereas, the
Company and the Purchasers are parties to the Notes;
Whereas, Section
11 of the Notes provide that all outstanding Notes may be amended
with the written consent of the Company and Purchasers holding more
than 50% of the aggregate Loan Amount outstanding under all Notes
issued pursuant to the Agreements; and
Whereas, the
Company and the holders of
a majority of the aggregate
Loan Amount outstanding under all Notes issued pursuant to the
Agreements
desire
to amend the Notes as set forth herein.
Now, Therefore, in
consideration of the foregoing and of the mutual promises and
covenants set forth herein, the parties agree as
follows:
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1. |
Amendment to Note.
Section
3 of each Note is hereby deleted and replaced by the
following:
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“Maturity .
Unless sooner paid or converted in accordance with the terms
hereof, the entire unpaid principal amount and all unpaid accrued
interest shall become fully due and payable on the earlier of
(a) unless extended pursuant to
Section 7(a)(i) below,
the date that is three hundred sixty (360) days after the date
hereof, (b) the closing of a Next Financing (as defined
below), or (c) the acceleration of the maturity of this Note by the
Holder upon the occurrence of an Event of Default (such earlier
date, the “
Maturity Date ”).”
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2. |
Amendment to Note.
Section
5(a) of each Note is hereby deleted and replaced by the
following:
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“(a)
Conversion upon sale of Next Securities .
In the event that the Company, at any time after the date of
issuance of this Note and prior to the payment in full of this
Note, shall issue and sell securities (the “
Next Securities ”)
to investors for aggregate proceeds of at least $3,000,000 to the
Company and at a price not less than $0.15 per share (a
“
$3M Financing ”),
then the outstanding face amount in excess of consideration paid
(“Premium Amount”) of this Note and all accrued but
unpaid interest thereon shall automatically be converted at the
closing of the Next Securities, into Common Stock at a conversion
price equal to the conversion price defined in
Section 6(a)(i) .
In the event that the Company, at any time after the date of
issuance of this Note and prior to the payment in full of this
Note, shall issue and sell securities
Next Securities to
investors for aggregate proceeds of at least $6,000,000 to the
Company and at a price not less than $0.15 per share (a
“
$6M Financing ”),
then the principal amount and all accrued but unpaid interest
thereon shall automatically be converted at the closing of the Next
Securities
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