exv10w3






Exhibit
10.3




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, the
American Stock Exchange or the New York Stock Exchange, whichever is at
the time the principal trading exchange or market for the Common
Shares.”




is amended and restated in its entirety as follows:




“(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.”


2. The following is inserted as a new Section 3(e) immediately following Section 3(d) of the
Original Notes:





“(e) The Company shall not issue equity, convertible debt or any
securities convertible or exercisable into equity at an amount equal to
or less than $2.75 per Common Share (with such $2.75 amount to include
the fair value of any option, warrant or similar right offered by the
Company and to be adjusted in the manner identical to the adjustment of
the Conversion Price as provided in Section 9) until December 31, 2009.”


3. Effective Date. This Agreement and the amendments to the Original Notes contained
herein are deemed effective as of the date of issuance of the Original Notes.



4. Binding Effect. This Agreement shall amend and is incorporated into and made part of
the Original Notes. To the extent any term or provision of this Agreement may be deemed expressly
inconsistent with any term or provision in the Original Notes, the terms and provisions of this
Agreement shall control. Except as expressly amended by this Agreement, all of the terms,
conditions and provisions of the Original Notes are hereby ratified and continue unchanged and
remain in full force and effect. This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and assigns.



5. Governing Law; Venue; Waiver of Jury Trial. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF. EACH


 









 






PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT IN
THE UNITED STATES FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR WITH
ANY TRANSACTION CONTEMPLATED HEREBY OR DISCUSSED HEREIN (INCLUDING WITH RESPECT TO THE ENFORCEMENT
OF ANY OF THIS AGREEMENT), AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT,
ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH
COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING BY MAILING A COPY THEREOF VIA REGISTERED OR CERTIFIED MAIL OR OVERNIGHT DELIVERY (WITH
EVIDENCE OF DELIVERY) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AGREEMENT
AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE
THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS
IN ANY MANNER PERMITTED BY LAW. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.



6. Execution in Counterparts. This Agreement may be executed in counterparts (delivery of
which may occur by facsimile or as pdf or similar attachment to an electronic communication) which,
when taken together, shall constitute a complete, fully-executed instrument.




[Signature Page Follows]





 









 








COUNTERPART SIGNATURE PAGE




     IN WITNESS WHEREOF, the undersigned has caused this Second Agreement to Amend 12.5% March Cash
Secured Convertible Note due July 1, 2011 to be duly executed on the day and year first above
written.



	 	 	 	 	 	 	 
	 	 	BMP SUNSTONE CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:
	 	 

Fred M. Powell
	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 






[Signature Page to Second Agreement to Amend 12.5% March Cash Secured Convertible Notes due July 1, 2011]




 









 





COUNTERPART SIGNATURE PAGE




     IN WITNESS WHEREOF, the undersigned has caused this Second Agreement to Amend 12.5% March Cash
Secured Convertible Note due July 1, 2011 to be duly executed on the day and year first above
written.



	 	 	 	 	 
	 

	 	 

James I. Freeman
	 	 






[Signature Page to Second Agreement to Amend 12.5% March Cash Secured Convertible Notes due July 1, 2011]