AMENDMENT
THIS AMENDMENT (the "Amendment") is made and entered into as of
__________, 2007 by and between BIOSTAR PHARMACEUTICALS, INC., a Maryland
corporation (the "Company"), with headquarters located at Xxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxxxxxx xxxxxxxx, X.X. Xxxxx, 000000, and_____________________ ( the
"Purchaser").
RECITALS
WHEREAS, the Company and the Purchaser entered into a Preferred Stock
and Warrant Purchase Agreement as of _________, 2007 pursuant to which the
Purchaser purchases shares of the Company's Series A Convertible Stock and the
Common Stock Purchase Warrants (the "Agreement"); and
WHEREAS, the Company and the Purchaser wish to amend the Agreement as
set forth herein; and
NOW, THEREFORE, in consideration of the foregoing premises, and the
mutual covenants and obligations set forth herein, the Company and the Purchaser
hereby agree as follows:
ARTICLE I
AMENDMENT
1. Amendment to Section 1.1 of the Agreement. The reference to "the
Company" in the eighth line of Section 1.1 of the Agreement shall be deleted and
"the Purchaser" shall be substituted therefor.
2. Amendment to Section 4.2 of the Agreement. Section 4.2 of the
Agreement shall be deleted in its entirety and replaced with following:
"Securities Laws; Disclosure; Press Release. The Company agrees
to file a Form D with respect to the Securities with the SEC as required under
Regulation D."
3. Amendment to Section 4.6 of the Agreement. Section 4.6 of the
Agreement shall be deleted in its entirety and replaced with as the following:
" 4.6 Conversion.
(i) Each share of Series A Preferred Stock is convertible into
shares of Common Stock at the Conversion Price (as such term hereinafter
defined) for such share, determined as hereafter provided, immediately upon the
valuation of the Common Stock by the Valuation Firm (as defined below) (the
"Conversion Trigger Date"). Prior to the initial filing of a registration
statement under the Securities Act of 1933, the corporation shall obtain from a
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person, firm or entity engaged in the business of providing evaluations or
appraisals of the value of securities of companies which is selected in good
faith by the Board of Directors of the corporation and is independent of the
corporation (the "Valuation Firm") a valuation of the Common Stock on a per
share basis (the "Valuation Price"). For purposes hereof, the term "Conversion
Price" shall mean the price equal to the product obtained by multiplying (x)
1/3, times (y) 80% of the Valuation Price. The number of shares of Common Stock
issuable upon conversion of one share of Series A Preferred shall be the
quotient obtained by dividing (A) $10 by (B) the Conversion Price. The number of
Shares of Common Stock which may be issued upon converision of the Series A
Preferred shall be no more than 2 million shares. No fractional shares of Common
Stock may be issued upon the conversion of any share or shares of the Series A
Preferred Stock into Common Stock, and the number of shares of Common Stock to
be issued shall be rounded up to the nearest whole share. The Conversion Price
shall be appropriately adjusted in the event of a reorganization,
recapitalization, stock split, stock dividend, combination of shares, or similar
change in the corporation's Common Stock. In the event that no registration
statement is effective after the Conversion Trigger Date for the sale or re-sale
of the Common Stock issuable upon conversion, the corporation may deliver
restricted Common Stock upon conversion. Except as set forth herein, neither the
corporation nor any holder of Series A Preferred shall have the right to
convert, or require the conversion of, Series A Preferred into Common Stock or
any other security or property of the corporation or any other person.
(ii) Mechanics of Conversion. Beginning on the Conversion Trigger
Date, any holder of the Series A Preferred may deliver or cause to be delivered
a notice to the corporation (A) stating that such holder wishes to convert the
Series A Preferred ; (B) setting forth the number of full shares of Common Stock
to be issued due to such conversion as determined in accordance with this
Section (4.6)(i); (C) surrendering the Series A Preferred certificate in
exchange for a Common Stock certificate representing the number of shares into
which such holder's Series A Preferred will be converted. The person entitled to
receive the shares of Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder of such shares of Common Stock at
and after such time."
4. Amendment to Form of Warrant. The Form of Warrant shall be restated
as in Exhibit A. Upon presentation and surrender of the original Warrant to the
Company, a new Warrant will be issued to the Holder within five (5) business
days.
ARTICLE II
MISCELLANEOUS
1. Amendments. The terms and provisions set forth in this Amendment shall modify
and supersede all inconsistent terms and provisions set forth in the Agreement.
The parties agree that the Agreement, as amended hereby, shall continue to be
legal, valid, binding and enforceable in accordance with its terms.
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2. Survival of Representations and Warranties. All express, written
representations and warranties contained in the Agreement shall survive the
execution and delivery of this Amendment.
3. Headings. The section headings contained in this Amendment are for
purposes of convenience only, and shall in no way bear upon the construction or
interpretation of this Amendment.
4. Entire Agreement. This Agreement contains the entire agreement
between the Company and the Purchaser and shall be binding upon and inure to the
benefit of each party. Except as set forth in the Agreement, as amended hereby,
no representations, warranties or promises have been made or relied upon by the
Company or the Purchaser in entering into the Agreement or this Amendment. The
Agreement, as amended hereby, shall prevail over prior communications between
the Company and the Purchaser or their representatives regarding the matters
contained herein.
5. Modification and Waiver. This Amendment may not be modified or
amended except by an instrument or instruments in writing signed by the parties
hereto. No waiver of any of the provisions of this Amendment shall be deemed, or
shall constitute, a waiver of any other provisions, whether or not similar. No
waiver shall be binding unless executed in writing by the party making the
waiver.
6. Counterparts. This Amendment may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7. Severability. The provisions of this Amendment are severable, and
the invalidity of any provision shall not affect the validity of any other
provisions.
8. Binding Effect. This Amendment shall be binding upon, and shall
inure to the benefit of the parties hereto and their respective successors and
permitted
assigns.
9. Governing Law. This Amendment, its validity, interpretation and
performance shall be governed by and construed in accordance with the internal
laws of the State of New York without giving effect to the conflict of laws
provisions thereof.
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IN WITNESS WHEREOF, this Amendment has been executed and is effective
as of the date hereof.
COMPANY:
BIOSTAR PHARMACEUTICALS, INC.
By:
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Name: Xxxxxxx Xxxx
Title: President
PURCHASERS:
By:
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Name:
Title:
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