AMENDMENT NO. 1 TO
STOCKHOLDER'S RIGHTS AGREEMENT
This Amendment No. 1 ("Amendment 1") is entered into as of
the 1 day of October, 2009 by and between DayStar
Technologies, Inc., a Delaware corporation (the " Company
"), and Computershare Trust Company, N.A., a federally chartered
trust company (the " Rights Agent "), and amends that
certain Stockholder Rights Agreement, dated as of May 6, 2008
entered into by the Company and the Rights Agent (the " Rights
Agreement ").
RECITALS
WHEREAS, pursuant to Section 27 of the Rights Agreement, prior
to the occurrence of a Section 11(a)(ii) Event (a "
Triggering Event "), the Company and the Rights Agent shall,
if the Board of Directors of the Company so directs, supplement or
amend any provision of this Agreement as the Board of Directors of
the Company may deem necessary or desirable without the approval of
any holders of certificates representing shares of Common Stock of
the Company; and
WHEREAS, the Board of Directors of the Company desires to
clarify certain provisions of the Rights Agreement that defines an
"Exempt Person" under Section 1(a); and
WHEREAS, on September 25, 2009 the Board of Directors of the
Company authorized and directed the Company and the Rights Agent
under the Rights Agreement to amend the first paragraph of Section
1(a) of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as
follows:
AGREEMENT
(1) Amendment to Section 1(a) . Section 1(a), first
paragraph, of the Rights Agreement is hereby deleted and replaced
it in its entirety as follows:
(a) " Acquiring Person " shall
mean any Person (as such term is hereinafter defined) who or which,
together with all Affiliates (as such term is hereinafter defined)
and Associates (as such term is hereinafter defined) of such
Person, shall be the Beneficial Owner (as such term is herei
