AMENDMENT AND WAIVER AGREEMENT
THIS AMENDMENT AND WAIVER AGREEMENT
(this “Amendment”) is made and entered into this as of the 31st day of March
2008, by and between Skystar Bio-Pharmaceutical Company, a Nevada corporation
(the “Company”) on the one hand, [Names of Buyers] (collectively the “Buyers”).
Capitalized terms used but not defined herein shall have the meanings set forth
in that certain Securities Purchase Agreement, the Registration Rights
Agreement, the Convertible Debentures, and the Transfer and Assignment Agreement
(defined in the Recitals below).
RECITALS:
WHEREAS, reference is made to that
certain Securities Purchase Agreement dated as of February 26, 2007 (the
“Securities Purchase Agreement”), by and among the Company and the Buyers, and
the Registration Rights Agreement (the “Registration Rights Agreement”) dated as
of February 26, 2007 by the same parties, and the 8% Convertible Debentures (the
“Convertible Debentures”) issued pursuant thereto (collectively the “Transaction
Documents”);
WHEREAS, further reference is made to
that certain Convertible Debenture Transfer and Assignment Agreement dated as of
March 31, 2008 (the “Transfer and Assignment Agreement”), pursuant to which (a)
[Name of First Buyer] purchased from [Name of First Seller] the Company’s 8%
Convertible Debenture Series 07-01, Class A, No. 07-01 A-5 (the [“First Note”])
for the purchase price of $304,713.50, and (b) [Name of Second Buyer] purchased
from [Name of Second Seller] the Company’s 8% Convertible Debenture Series
07-01, Class A, No. 07-01 A-1 (the [“Second Note”], and with the [First Note],
collectively the “Notes”) for the purchase price of $677,289.60;
NOW, THEREFORE, in consideration of the
foregoing recitals and the mutual agreements herein contained and for other good
and valuable consideration, the parties hereto agree as follows:
A. AMENDMENT;
WAIVER.
(1) (a) Company
and Buyers acknowledge and agree that the purchase prices paid by Buyers for the
[First Note] in the amount of $304,713.50 and for the [Second Note] in the
amount of $677,289.60 represent the total accrued and outstanding amount for
each such Note as of the Closing Date.
(b) With
respect to the total accrued and outstanding amount for each of the [First Note]
and the [Second Note] as described in Section A(1)(a) above, each Buyer waives
any claim for default under the terms of the Securities Purchase Agreement, the
Registration Rights Agreement and the Convertible Debentures.
(2) The
Company and Buyers hereby agree to amend the terms of the Notes as described in
Section (3) below (the “Amendments”). Buyers are not providing any other
consideration for the Amendments and no fees are payable to any broker in
connection with such
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Amendments. Buyers
further agree that the Amendments shall not constitute a New Transaction (as
that term is defined in the Securities Purchase Agreement).
(3) Each
of the Notes shall have the same terms as the outstanding Convertible Debenture,
except as set forth in this Agreement, including without limitation as
follows:
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(a) in
Section 4(A)(iii), the definition of “Fixed Conversion Price” shall read
in its entirety as follows:
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“Fixed
Conversion Price” means the amount equal to $0.80 (such amount is subject
to adjustment as provided herein).
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and
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(b) with
respect to Section 4(G), (i) each of Sections 4(G)(ii) through (iv) are
identified as “Intentionally omitted” and all references to those
subsections are deemed deleted; (ii) the Company will have the right to
issue a Mandatory Conversion Notice at any time, and (iii) if the Company
issues a Mandatory Conversion Notice, the Company may designate any date
on or after the date of such Mandatory Conversion Notice as the Mandatory
Conversion Date.
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(4) The
Company and Buyers hereby agree that this Amendment shall be deemed to be the
Company’s issuance of a Mandatory Conversion Notice with respect to all of the
outstanding principal, all accrued but unpaid interest and all other amounts
owed on each of the Notes, as represented by the purchase prices described in
Section A(1)(a) above. Such conversion shall be effected at the Fixed
Conversion Price as specified Section A(3)(a) above, such that the Company shall
issue to [Name of First Buyer] 380,891 shares of the Company’s common stock with
respect to the conversion of the [First Note], and issue to [Name of Second
Buyer] 846,612 shares of the Company’s common stock with respect to the
conversion of the [Second Note]. The date designated for such conversion shall
be the effective date of this Amendment.
(5) Except
as expressly set forth herein, this Amendment shall not be deemed to be a
waiver, amendment or modification of any provisions of the Transaction
Documents, or of any right, power or remedy of Buyers, or constitute a
waiver, amendment or modification of any provision of the Transaction
Documents (except to the extent herein set forth), or any other document,
instrument and/or agreement executed or delivered in connection therewith, in
each case whether arising before or after the date hereof or as a result of
performance hereunder or thereunder, all of which (except as specified herein)
remain in full force and effect. Except as set forth
herein, Buyers reserve all rights, remedies, powers, or
privileges.
B. CONFLICTS. Except
as expressly set forth in this Amendment, the terms and provisions of each of
the Transaction Documents shall continue unmodified and in full force and
effect. In the event of any conflict between this Amendment and any
one of the Transaction Documents, this Amendment shall control.
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C. GOVERNING LAW. This
Amendment shall be governed and construed under the laws of the State of New
York, and shall be binding on and shall inure to the benefit of the parties and
their respective successors and permitted assigns.
D. COUNTERPARTS. This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one instrument. A
facsimile or other electronic transmission of this signed
Amendment shall be legal and binding on all parties
hereto.
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of page left blank intentionally.]
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IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date
first set forth above.
COMPANY:
By: _____________________________
Name:
Title:
BUYERS:
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[BUYER
NAME]
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By: _____________________________
Name:
Title:
[BUYER
NAME]
By: _____________________________
Name:
Title:
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