2
THIRD AMENDMENT TO SERIES A SUBORDINATED CONVERTIBLE NOTE
THIS THIRD AMENDMENT TO SERIES A SUBORDINATED CONVERTIBLE NOTE (this
"Amendment") is made by and among the undersigned Noteholder and SpaceDev, Inc.
(the "Corporation") as of the date the Corporation obtains consent from holders
representing 51% of the aggregate amount of the outstanding Series A
Subordinated Convertible Notes referenced and defined in the preamble to that
certain Note Purchase Agreement executed between the parties on October 28, 2002
(the "Note Purchase Agreement").
PREFACE
WHEREAS, the Corporation made an offering of up to $475,000 in Notes to
officers and directors of the Company pursuant to Section 4(2) of the Securities
Act of 1933, on the terms and conditions set forth in the Note Purchase
Agreement and the form of Note attached thereto as Exhibit "A"; and
WHEREAS, the Noteholder purchased a Note from the Corporation in the amount of
$75,000 pursuant to the Note Purchase Agreement (the "Note"); and
WHEREAS, Section 4 of the Note provides that it may only be amended by a vote of
noteholders representing 51% of the aggregate amount of the then outstanding
Subordinated Convertible Notes; and
WHEREAS, due to the cash position of the Company and in consideration of its
agreement to pay a portion of the Note in cash and the waiver its conversion
right to that portion of the amount due, it is the desire of the Noteholder and
the Corporation that the Note be amended as provided herein;
NOW THEREFORE, the Note is amended as provided in this Amendment.
ARTICLE I
The parties agree that, pursuant to its right of conversion under Section 2
of the Note, the Company shall convert 50% of the principal and interest due on
the Note into common stock of the Company on the terms of conversion provided in
the Note . In exchange for the cancellation of 50% of the warrant issued to the
Noteholder pursuant to the Note Purchase Agreement (the "Warrant"), the Company
shall pay the remaining principal and increase the interest rate due on the Note
to five percent (5%), payable to the Noteholder by check or wire transfer within
ten (10) days after the execution of this Amendment. To the extent that Warrants
issued to the Noteholder are for an uneven number of shares of common stock, the
Noteholder shall retain the Warrant as to the additional share.
Upon execution of this Amendment, the Noteholder shall surrender the Note
to the Company for cancellation, and shall surrender the Warrant to Company for
reissuance as to 50% of the shares of stock to which it pertains. Upon receipt
of the original Note and Warrant from the Noteholder, the Company shall deliver
a restricted stock certificate representing the number of shares of common stock
equal to 50% of the principal and interest due on the Note on the date hereof
divided by the Conversion Price set forth in the Note, and a new Warrant to
purchase shares equal to 50% of shares underlying the original Warrant (the
"Reissued Warrant"). The stock certificate and Reissued Warrant shall be
delivered to the Noteholder within ten (10) days after the surrender of the
original Note and Warrant to the Company.
ARTICLE II
Pursuant to this Amendment, upon payment of 50% of the principal and
interest due under the Note and delivery of a Reissued Warrant and stock
certificate as referenced in Article II hereof, the debt represented by the Note
shall be extinguished and the Noteholder waives any further claims for payment
under the Note.
ARTICLE II
This Amendment to the Note may be executed in any number of counterparts,
each of which, when taken together, shall be deemed the fully executed agreement
between the parties.
IN WITNESS WHEREOF, the parties have executed this Amendment effective September
5, 2003.
CORPORATION:
SPACEDEV, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxx, CFO
NOTEHOLDER(S):
By: /s/ Xxxxx X. Xxxxxx
-----------------------
Xxxxx X. Xxxxxx
