AMENDMENT NO. 2 to MDWERKS, INC., FIRST AMENDED AND RESTATED SENIOR SECURED CONVERTIBLE NOTE
Exhibit
99.1
AMENDMENT
NO. 2
to
FIRST
AMENDED AND RESTATED SENIOR SECURED
CONVERTIBLE
NOTE
This
AMENDMENT NO. 2 to the MDwerks, Inc., First Amended and Restated Senior Secured
Convertible Note, dated October 19, 2006 (this “Amendment”),
is
dated as of November 6, 2008, by and between MDWERKS, INC., a Delaware
corporation (the “Company”),
and
GOTTBETTER CAPITAL MASTER, LTD. (IN LIQUIDATION), a Cayman Islands company
(the
“Consenting
Holder”).
WITNESSETH
WHEREAS,
pursuant to a Securities Purchase Agreement, dated as of October 19, 2006
(as
amended, the “Securities
Purchase Agreement”),
the
Consenting Holder purchased a Senior Secured Convertible Note in the original
principal amount of $2,500,000 (the “Original Note”);
WHEREAS,
on September 28, 2007, the Original Note was cancelled, and the Company issued
to the Consenting Holder the First Amended and Restated Senior Secured
Convertible Note, which on March 1, 2008, was amended by Amendment No. 1
to the
MDwerks, Inc., First Amended and Restated Senior Secured Convertible Note
(as
heretofore amended or amended and restated, from time to time, the
“Note”);
WHEREAS,
the Company and the Consenting Holder desire to modify the Conversion Price
set
forth in the Note; and
WHEREAS,
defined terms used herein but not otherwise defined herein shall have the
respective meanings ascribed to such terms in the Note.
NOW,
THEREFORE, in consideration of the mutual promises of the parties hereto
and of
the mutual benefits to be gained by the performance thereof, and for other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledge, the parties hereto hereby agree as follows:
1. Section
3(b)(ii) of the Note is hereby deleted and is replaced in its entirety with
the
following:
“(ii) “Conversion
Price”
means,
as of November 6, 2008, (A) with respect to Four Hundred and Thirty-three
Thousand Three Hundred and Thirty-three Dollars and Thirty-three Cents
($433,333.33) of Conversion Amount, $0.303, but only if the Consenting Holder
actually converts such portion of Conversion Amount on November 6, 2008,
and (B)
with respect to any other Conversion Amount, $2.25. The Conversion Price
shall
be subject to adjustment from time to time in accordance with the terms set
forth herein (including Section 7 hereof). The Conversion Price shall be
appropriately adjusted for any stock split, stock dividend, stock combination
or
other similar transaction that proportionately decreases or increases the
Common
Stock.”
2. This
Amendment shall be construed and enforced in accordance with the laws of
the
State of New York.
3. This
Amendment may be executed in two or more counterparts, all of which shall
together constitute a single agreement. A facsimile of an executed counterpart
signature page shall be deemed to constitute an original executed counterpart
signature page.
[SIGNATURE
PAGE TO IMMEDIATELY FOLLOW THIS PAGE]
2
IN
WITNESS WHEREOF, the parties hereto have duly executed this Amendment No.
2 as
of the day and year first above written.
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By:
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/s/ Xxxxxx X. Xxxx
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Name:
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Xxxxxx X. Xxxx
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Title:
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Chief Executive Officer
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GOTTBETTER CAPITAL MASTER, LTD.
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(IN LIQUIDATION)
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By:
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/s/ Xxxxxx Xxxxxxxx
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Name:
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Xxxxxx Xxxxxxxx
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Title:
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Joint Liquidator
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