WAIVER AND AMENDMENT TO CONVERTIBLE SECURED PROMISSORY NOTE
WAIVER
AND AMENDMENT TO
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:
| 1. |
Amendment
to Note.
Section 3 of each Note is hereby deleted and replaced by the
following:
|
“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”).”
| 2. |
Amendment
to Note.
Section 5(a) of each Note is hereby deleted and replaced by the
following:
|
“(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, into Common
Stock at a conversion price equal to the conversion price defined in
Section
6(a)(i).
Each of
a $3M financing and a $6M financing is defined a “Next
Financing.” In
connection with such conversion, Holder agrees to execute and deliver to the
Company any documents reasonably requested by the Company. As soon as is
reasonably practicable after a conversion has been effected, the Company shall
deliver to Holder a certificate or certificates representing the number of
shares of Common Stock issuable by reason of such conversion pursuant to this
Section
5
in such
name or names and such denomination or denominations as Holder has
specified.”
| 3. |
Amendment
to Note.
Section 6(a)(i) of each Note is hereby deleted and replaced by the
following:
|
“(i) In
the
event that (i) the Company elects to prepay this Note pursuant to Section 4(c)
or (ii) the Holder elects to convert this Note, in each case, in whole or in
part, at any time prior to the closing of a Next Financing, notice of such
intention shall be delivered to the other party by registered mail at least
ten
(10) Business Days prior to such prepayment or conversion. Holder shall then
have the right to convert all or any portion of the then outstanding principal
amount of, and all accrued but unpaid interest on, this Note into shares of
Common Stock at a conversion price per share equal to $0.25 per share as
adjusted for any stock split, dividend or other distribution, recapitalization
or similar event., upon Holder’s surrender to the Company of this Note at the
principal office of the Company within three (3) Business Days of such notice.
In the event that only a portion of this Note is being converted, the Company
shall issue a replacement Note representing the remaining Principal Amount
of
the Note that has not been converted.”
| 4. |
Increase
in Principal. The
Company and the Purchasers acknowledge and agree that the extension
of the
Maturity Date pursuant to this Amendment shall be deemed an extension
granted pursuant to Section 7(a)(i) of the Note and therefore the
principal amount of each Note shall increase by
7.143%.
|
| 5. |
Waiver.
The
Purchasers hereby waive any and all Events of Default under any of
the
Note, the Agreements, or the certain Security, Collateral Agency
and
Collateral Sharing Agreement, dated as of August 21, 2007, by and
among
the Company and the Purchasers that may have occurred through the
date
hereof; provided, however, that that in no event shall such waiver
apply
to any future Events of Default.
|
| 6. |
No
Other Amendment.
Except as specifically amended by this Amendment, the Note shall
continue
in full force and effect. In the event of any conflict between the
terms
of this Amendment and the Note, the terms of this Amendment shall
govern
and control.
|
| 7. |
| 8. |
Counterparts.
This Amendment may be executed in any number of counterparts, each
of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
|
| 9. |
Severability.
If one or more provisions of this Amendment are held to be unenforceable
under applicable law, such provision shall be excluded from this
Amendment
and the balance of the Amendment shall be interpreted as if such
provision
were so excluded and shall be enforceable in accordance with its
terms.
|
| 10. |
Entire
Agreement.
This
Amendment, together with the Notes, the Agreements and the agreements
executed pursuant hereto and thereto, constitutes the full and entire
understanding and agreement between the parties with regard to the
subjects hereof and thereof.
|
[Signature
Page Follows]
In
Witness Whereof,
the
parties hereto have executed this Amendment as of the date first above
written.
| COMPANY: | ||||
| CATCHER HOLDINGS, INC. | ||||
| By: | ||||
|
Xxxxx XxXxxxxx |
||||
|
Chief
Financial Officer
|
||||
| PURCHASER: | ||||
| By: | ||||
|
|
||||
| Its: | ||||
|
|
||||
[Signature
Page to Amendment to Convertible Secured Promissory Note]
_______________________________________________
