EX-99.2
5
ex99-2.htm
Exhibit 99.2
MAKE GOOD ESCROW
AGREEMENT
This
Agreement, dated as of November 2, 2009 (this “Agreement”), is
entered into by and among Biostar Pharmaceuticals, Inc., a Maryland corporation
(the “Company”), Xxxxxx
Partners LP, Xxxxxxxx Xxxxx Xxx, Xxxx Xxxxxxxxx, Xxxxxx Xxxxxx Xxxxxx, Xxxxxx
Xxxxx, Golden1177 LP, RossPlan LP, JBWA2 LP, XxxXxxxxxx0000 XX, XXXX0 XX,
Xxxxxxx0000 LP, SBMT2 LP, Tibero2 LP, and Kaufman2 LP (collectively, the “Purchasers” and
individually, the “Purchaser”), and
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP (the “Escrow
Agent”). The Company and the Purchasers shall collectively be
referred to as the “Escrowing Parties”.
The principal address of each party hereto is set forth on Exhibit
A.
WITNESSETH:
WHEREAS, Purchasers and the
Company have entered into that certain securities purchase agreement dated on
even date herewith (the “Purchase Agreement”)
whereby the Company has agreed to sell and Purchasers have agreed to purchase
) up to an aggregate of
2,060,000 shares of Series B Convertible Preferred Stock, par value $0.001 per
share (“Series B
Preferred Stock”), with each share of Series B Preferred Stock being
initially convertible into one (1) share of the common stock, par value $0.001
per share, of the Company (the “Common Stock”) and
(ii) attached common stock purchase warrants (the “Warrants”) to
purchase up to 500,000 shares of Common Stock at $3.00 per share (the
Series B Preferred Stock and the Warrants shall collectively be referred to as
the “Securities”) for a
total consideration of $3,605,000 (“Purchase
Price”);
WHEREAS, pursuant to Section
6.10 of the Purchase Agreement, Purchasers and the Company desire to deposit the
Make Good Documents (as defined below) with the Escrow Agent, to be held and
disbursed by the Escrow Agent pursuant to this Agreement and the Purchase
Agreement; and
WHEREAS, Escrow Agent is
willing to hold the Make Good Documents in escrow subject to the terms and
conditions of this Agreement.
NOW,
THEREFORE, in consideration of the mutual promises herein contained and
intending to be legally bound, the parties hereby agree as follows:
Unless
otherwise defined, all terms used herein shall bear the same meaning as set
forth in the Stock Purchase Agreement.
1. Appointment of Escrow
Agent. Each Purchaser and the Company hereby appoint Escrow
Agent as escrow agent in accordance with the terms and conditions set forth
herein and the Escrow Agent hereby accepts such appointment.
2. Terms of
Escrow
a. Upon the
execution of this Agreement, Company shall cause to be delivered to the Escrow
Agent of (i) resolutions executed by the Board of Directors of the Company,
substantially in the form attached hereto as Exhibit B and (ii)
irrevocable instructions to the transfer agent executed by the Company for the
issuance of up to an additional 2,000,000 shares of Common Stock and/or Series B
Preferred Stock to be issued at the option of the Buyer in accordance with this
Agreement, substantially in the form attached hereto as Exhibit
C. The said resolutions executed by the Board of Directors of
the Company and the irrevocable instructions to the transfer agent executed by
the Company shall collectively be referred to as “Make Good
Documents”.
b. For
purposes of this Section 2, the Company’s Income from Operations for the years
ended December 31, 2009 and/or 2010 is less than $15,900,000.00 (the “2009 Target Number”),
and $21,100,000.00 (the “2010 Target Number”),
respectively.
c. If the
percentage shortfall for the 2009 Target Number is between one percent (1%) and
ten percent (10%), then for every one percent (1%) of shortfall, the Company
shall instruct the Escrow Agent to deliver such number of Make Good Shares which
is equal to the percentage shortfall multiplied by the total number of Make Good
Shares in the ratio of their initial purchase of Securities.
d. If the
percentage shortfall for the 2009 Target Number is between ten percent (10%) and
twenty-five percent (25%), then for every one percent (1%) of shortfall between
one percent (1%) and ten percent (10%), the Company shall deliver to the Buyers
or the Company shall instruct the Escrow Agent to deliver such number of Make
Good Shares to the Buyers which is equal to the percentage shortfall multiplied
by the total number of Make Good Shares in the ratio of their initial purchase
of Securities and for every one percent (1%) of shortfall between ten percent
(10%) and twenty-five percent (25%), the Company shall deliver to the Buyers or
the Company shall instruct the Escrow Agent to deliver such number of Make Good
Shares to the Buyers which is equal to the two times the percentage shortfall
multiplied by the total number of Make Good Shares in the ratio of their initial
purchase of Securities.
e. If the
percentage shortfall for the 2009 Target Number is equal to or greater than
twenty-five percent (25%), then the Escrow Agent shall deliver all of the Make
Good Shares then held by the Escrow Agent to the Buyers in the ratio of their
initial purchase of Securities.
f. If the
percentage shortfall for the 2010 Target Number is between one percent (1%) and
ten percent (10%), then for every one percent (1%) of shortfall, the Company
shall deliver to the Buyers or the Company shall instruct the Escrow Agent to
deliver such number of Make Good Shares to the Buyers which is equal to the
percentage shortfall multiplied by the total number of Make Good Shares in the
ratio of their initial purchase of Securities.
g. If the
percentage shortfall for the 2010 Target Number is between ten percent (10%) and
twenty-five percent (25%), then for every one percent (1%) of shortfall between
one percent (1%) and ten percent (10%), the Company shall deliver to the Buyers
or the Company shall instruct the Escrow Agent to deliver such number of Make
Good Shares to the Buyers which is equal to the percentage shortfall multiplied
by the total number of Make Good Shares in the ratio of their initial purchase
of Securities and for every one percent (1%) of shortfall between ten percent
(10%) and twenty-five percent (25%), the Company shall deliver to the Buyers or
the Company shall instruct the Escrow Agent to deliver such number of Make Good
Shares to the Buyers which is equal to the two times the percentage shortfall
multiplied by the total number of Make Good Shares in the ratio of their initial
purchase of Securities.
h. If the
percentage shortfall for the 2010 Target Number is equal to or greater than
twenty-five percent (25%), then the Escrow Agent shall deliver all of the Make
Good Shares then held by the Escrow Agent to the Buyers in the ratio of their
initial purchase of Securities.
i. The
distribution of any shares pursuant to this Section 2 shall be made within five
(5) business days after the Company files its Form 10-K with the SEC for the
applicable year. In the event that the Company does not file its Form
10-K for the year ended December 31, 2009 or 2010 with the SEC within thirty
(30) days after the date that filing was required, after giving effect to any
extension pursuant to Rule 12b-25 of the Exchange Act, all of the shares
issuable pursuant to this Section 2 shall be delivered to the
Buyers.
j. The
parties understand that, pursuant to the
Make Good Escrow Agreement, the Escrow
Agent will not make any deliveries of shares without the signed written
instructions from the Company.
k. Upon the
written instructions of the Company, the Escrow Agent shall complete the Make
Good Documents and deliver them to the Company’s transfer agent and shall be
held harmless from any claim, loss or expense regarding such delivery regardless
of whether the other provisions of this Make Good Securities Escrow Agreement
are complied with or met.
3. Exculpation and
Indemnification of Escrow Agent.
a. The
Escrow Agent shall have no duties or responsibilities other than those expressly
set forth herein. The Escrow Agent shall have no duty to enforce any
obligation of any person to make any payment or delivery, or to direct or cause
any payment or delivery to be made, or to enforce any obligation of any person
to perform any other act. The Escrow Agent shall be under no
liability to the other parties hereto or anyone else, by reason of any failure,
on the part of any party hereto or any maker, guarantor, endorser or other
signatory of a document or any other person, to perform such person’s
obligations under any such document. Except for amendments to this
Agreement referenced below, and except for written instructions given to the
Escrow Agent by the Company relating to the Escrowed Funds, the Escrow Agent
shall not be obligated to recognize any agreement between or among any of the
Escrowing Parties, notwithstanding that references hereto may be made herein and
whether or not it has knowledge thereof.
b. The Escrow
Agent shall not be liable to the Company or Purchasers or to anyone else for any
action taken or omitted by it, or any action suffered by it to be taken or
omitted, in good faith and acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report, or other paper or document (not only as to its
due execution and the validity and effectiveness of its provisions, but also as
to the truth and acceptability of any information therein contained), which is
believed by the Escrow Agent to be genuine and to be signed or presented by the
proper person or persons. The Escrow Agent shall not be
bound by any of the terms thereof, unless evidenced by written notice delivered
to the Escrow Agent signed by the proper party or parties and, if the duties or
rights of the Escrow Agent are affected, unless it shall give its prior written
consent thereto.
c. The
Escrow Agent shall not be responsible for the sufficiency or accuracy of the
form, or of the execution, validity, value or genuineness of, any document or
property received, held or delivered to it hereunder, or of any signature or
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Escrow Agent be responsible or liable to the
Company or Purchasers or to anyone else in any respect on account of the
identity, authority or rights, of the person executing or delivering or
purporting to execute or deliver any document or property or this Agreement. The
Escrow Agent shall have no responsibility with respect to the use or application
of the Escrowed Funds pursuant to the provisions hereof.
d. The
Escrow Agent shall have the right to assume, in the absence of written notice to
the contrary from the proper person or persons, that a fact or an event, by
reason of which an action would or might be taken by the Escrow Agent, does not
exist or has not occurred, without incurring liability to the Company or
Purchasers or to anyone else for any action taken or omitted to be taken or
omitted, in good faith and in the exercise of its own best judgment, in reliance
upon such assumption.
e. To the
extent that the Escrow Agent becomes liable for the payment of taxes, including
withholding taxes, in respect of income derived from the investment of the
Escrowed Funds, or any payment made hereunder, the Escrow Agent may pay such
taxes; and the Escrow Agent may withhold from any payment of the Escrowed Funds
such amount as the Escrow Agent estimates to be sufficient to provide for the
payment of such taxes not yet paid, and may use the sum withheld for that
purpose. The Escrow Agent shall be indemnified and held harmless
against any liability for taxes and for any penalties in respect of taxes, on
such investment income or payments in the manner provided in Section
4(f).
f. The
Escrow Agent will be indemnified and held harmless by the Escrowing Parties from
and against all expenses, including all counsel fees and disbursements, or loss
suffered by the Escrow Agent in connection with any action, suit or proceedings
involving any claim, or in connection with any claim or demand, which in any
way, directly or indirectly, arises out of or relates to this Agreement, the
services of the Escrow Agent hereunder, except for claims relating to gross
negligence by Escrow Agent or breach of this Agreement by the Escrow Agent, or
the monies or other property held by it hereunder. Promptly after the
receipt of the Escrow Agent of notice of any demand or claim or the commencement
of any action, suit or proceeding, the Escrow Agent shall, if a claim in respect
thereof is to be made against the Company or any of the Purchasers, notify each
of them thereof in writing, but the failure by the Escrow Agent to give such
notice shall not relieve any such party from any liability which such party may
have to the Escrow Agent hereunder. Notwithstanding any obligation to
make payments and deliveries hereunder, the Escrow Agent may retain and hold for
such time as it deems necessary such amount of monies or property as it shall,
from time to time, in its sole discretion, seem sufficient to indemnify itself
for any such loss or expense and for any amounts due it under Section
7.
g. For
purposes hereof, the term “expense or loss” shall include all amounts paid or
payable to satisfy any claim, demand or liability, or in settlement of any
claim, demand, action, suit or proceeding settled with the express written
consent of the Escrow Agent, and all costs and expenses, including, but not
limited to, counsel fees and disbursements, paid or incurred in investigating or
defending against any such claim, demand, action, suit or
proceeding.
4. Termination of Agreement and
Resignation of Escrow Agent
a. This
Agreement shall terminate upon disbursement of all of the Escrowed Funds,
provided that the rights of the Escrow Agent and the obligations of the Company
and the Purchasers under Section 4 shall survive the termination
hereof.
b. The
Escrow Agent may resign at any time and be discharged from its duties as Escrow
Agent hereunder by giving the Company and the Purchasers at least five (5)
business days written notice thereof (the “Notice
Period”). As soon as practicable after its resignation, the
Escrow Agent shall, if it receives notice from the Escrowing Parties within the
Notice Period, turn over to a successor escrow agent appointed by the Purchaser
all Escrowed Funds (less such amount as the Escrow Agent is entitled to retain
pursuant to Section 7) upon presentation of the document appointing the new
escrow agent and its acceptance thereof. If no new agent is so
appointed within the Notice Period, the Escrow Agent shall return the Escrowed
Funds to the parties from which they were received without interest or
deduction.
5. Form of Payments by Escrow
Agent
a. Any
payments of the Escrowed Funds by the Escrow Agent pursuant to the terms of this
Agreement shall be made by wire transfer unless directed to be made by check by
the Escrowing Parties.
b. All
amounts referred to herein are expressed in United States Dollars and all
payments by the Escrow Agent shall be made in such dollars.
6. Compensation. Escrow
Agent shall be entitled to the following compensation from the Escrowing
Parties:
a. Fees: The
Escrowing Parties shall pay a fee of $1,000 to the Escrow Agent at the Closing
for the any disbursement contemplated by this Escrow Agreement.
b. Interest: The
Escrowed Funds shall be held in a non-interest bearing escrow
account.
7. Notices. All
notices, demands, consents, requests, instructions and other communications to
be given or delivered or permitted under or by reason of the provisions of this
Agreement or in connection with the transactions contemplated hereby shall be in
writing and shall be deemed to be delivered and received by the intended
recipient as follows: (i) if personally delivered, on the business day of such
delivery (as evidenced by the receipt of the personal delivery service), (ii) if
mailed certified or registered mail return receipt requested, two (2) business
days after being mailed, (iii) if delivered by overnight courier (with all
charges having been prepaid), on the business day of such delivery (as evidenced
by the receipt of the overnight courier service of recognized standing), or (iv)
if delivered by facsimile transmission, on the business day of such delivery if
sent by 6:00 p.m. in the time zone of the recipient, or if sent after
that time, on the next succeeding business day (as evidenced by the printed
confirmation of delivery generated by the sending party’s telecopier
machine). If any notice, demand, consent, request, instruction or
other communication cannot be delivered because of a changed address of which no
notice was given (in accordance with this Section 8), or the refusal to accept
same, the notice, demand, consent, request, instruction or other communication
shall be deemed received on the second business day the notice is sent (as
evidenced by a sworn affidavit of the sender). All such notices,
demands, consents, requests, instructions and other communications will be sent
to addresses or facsimile numbers as applicable set forth on Exhibit A
hereto.
8. Further
Assurances. From time to time on and after the date hereof, the
Company and each of the Purchasers, if applicable, shall deliver or cause to be
delivered to the Escrow Agent such further documents and instruments and shall
do and cause to be done such further acts as the Escrow Agent shall reasonably
request (it being understood that the Escrow Agent shall have no obligation to
make any such request) to carry out more effectively the provisions and purposes
of this Agreement, to evidence compliance herewith or to assure itself that it
is protected in acting hereunder.
9. Consent to Service of
Process. The Company and each Purchaser hereby irrevocably
consents to the jurisdiction of the courts of the State of New York and of any
Federal court located in such state in connection with any action, suit or
proceedings arising out of or relating to this Agreement or any action taken or
omitted hereunder, and waives personal service of any summons, complaint or
other process and agrees that the service thereof may be made by certified or
registered mail directed to it at the address listed on Exhibit A
hereto.
10. Miscellaneous.
a. This
Agreement shall be construed without regard to any presumption or other rule
requiring construction against the party causing such instrument to be
drafted. The terms “hereby,” “hereof,” “hereunder,” and any similar
terms, as used in this Agreement, refer to the Escrow Agreement in its entirety
and not only to the particular portion of this Agreement where the term is
used. The word “person” shall mean any natural person, partnership,
corporation, government and any other form of business of legal
entity. All words or terms used in this Agreement, regardless of the
number or gender in which they were used, shall be deemed to include any other
number and any other gender as the context may require. This
Agreement shall not be admissible in evidence to construe the provisions of any
prior agreement.
b. This
Agreement and the rights and obligations hereunder of the Company and Purchasers
may not be assigned. This Agreement and the rights and obligations
hereunder of the Escrow Agent may be assigned by the Escrow Agent, with the
prior consent of the Escrowing Parties. This Agreement shall be
binding upon and inure to the benefit of each party’s respective successors,
heirs and permitted assigns. No other person shall acquire or have any rights
under or by virtue of this Agreement. This Agreement may not be changed orally
or modified, amended or supplemented without an express written agreement
executed by the Escrow Agent, the Company, and the Purchasers. This Agreement is
intended to be for the sole benefit of the parties hereto and their respective
successors, heirs and permitted assigns, and none of the provisions of this
Agreement are intended to be, nor shall they be construed to be, for the benefit
of any third person.
c. This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York. The representations and warranties contained in
this Agreement shall survive the execution and delivery hereof and any
investigations made by any party. The headings in this Agreement are
for purposes of reference only and shall not limit or otherwise affect any of
the terms thereof.
11. Execution of
Counterparts. This Agreement may be executed in a
number of counterparts, by facsimile, each of which shall be deemed to be an
original as of those whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall
become binding when one or more of the counterparts hereof, individually or
taken together, are signed by all the parties.
[SIGNATURE
PAGE TO ESCROW AGREEMENT]
IN
WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement as of
date first written above.
BIOSTAR
PHARMACEUTICALS, INC.
By:/s/ Xxxxxxx
Xxxx
Name:
Xxxxxxx Xxxx
Title:
Chief Executive Officer
SICHENZIA
XXXX XXXXXXXX XXXXXXX LLP
By:/s/ Xxxx
Xxxx
Name:
Xxxx Xxxx
Title:
Partner
PURCHASERS:
Xxxxxx
Partners L.P.
By:
Xxxxxx Capital Advisors LLC, its General Partner
By: /s/ Xxxxxx Xxxxxx
Xxxxxx
Name: Xxxxxx
Xxxxxx Xxxxxx
Title:
Managing Member
/s/ Xxxxxxxx Xxxxx
Xxx
Xxxxxxxx
Xxxxx Xxx
/s/ Xxxx
Xxxxxxxxx
Xxxx
Xxxxxxxxx
/s/ Xxxxxx Xxxxxx
Xxxxxx
Xxxxxx
Xxxxxx Xxxxxx
/s/ Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
XWRT2
LP
By: /s/ Xxxxxx
Xxxxxx
Name: Xxxxxx
Xxxxxx
Title: General
Partner
SBMT2
LP
By:
Xxxxxxx Xxxx Family Trust FBO Xxxxxxx Xxxx, its General Partner
By: /s/ Xxxxxxx
Xxxx
Name: Xxxxxxx
Xxxx
Title:
Trustee
Godfrey2468
LP
By: /s/ Xxxxx
Xxxxxxx
Name: Xxxxx
Xxxxxxx
Title:
General Partner
LeeMadison9189
LP
BY: Xxxxxx
X. Xxxxx and Xxxxx X. Xxxxx Living Trust, its General Partner
By: /s/ Xxxxxx
Xxxxx
Name: Xxxxxx
Xxxxx
Title:
Manager
RossPlan
LP
By:
Santee River Pension Plan, its General Partner
By: /s/ Xxxx
Xxxxxxxx
Name: Xxxx
Xxxxxxxx
Title:
Manager
Golden1177
LP
By:
Golden Properties Ltd., its General Partner
By: /s/ Xxxx
Xxx
Name: Xxxx
Xxx
Title:
Manager
JBWA2
LP
By: /s/ C. Xxxxx
Xxxxxx
Name: C.
Xxxxx Xxxxxx
Title:
General Partner
TIBERO2
LP
By: /s/ Xxx
Xxxxxxxx
Name: Xxx
Xxxxxxxx
Title:
General Partner
KAUFMAN2
LP
By: /s/ Xxxxxx
Xxxxxxx
Name:
Xxxxxx Xxxxxxx
Title:
General Partner
EXHIBIT
A
PARTIES
TO AGREEMENT
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxx Xxxxxxxxx, Esq.
Tel No.:
(000) 000-0000
Fax No.:
(000) 000-0000
Company
Biostar
Pharmaceuticals, Inc.
Xx. 000
Xxxxx Xxxxxx, Xxxxxxxxx Xxxx,
Xxxxxxx
Xxxxxxxx, The People’s Republic of China
Tel. No.:
(00) 000-00000000
Purchasers
Name of Purchaser: Xxxxxx
Partners LP
Address:
000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxx Xxxxxx, Chairman & CEO
Tel:
(000) 000-0000
Email:
xxx@xxxxxxxxxxxxxx.xxx
Name
of Purchaser: Xxxxxx Xxxxxx Xxxxxx
Address:
00 Xxxxxxx Xxxx Xxxxx, Xxxx 00/00
Tel:
(000) 000-0000
Email:
xxx@xxxxxxxxxxxxxx.xxx
Name
of Purchaser: Xxxxxxxx Xxxxx Xxx
Address:
Xxxx 000, Xxxx 00, 000 Xxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxxx,
Xxxxx 000000
Tel:
000-000-000000
Email:
xxx@xxxxxxxxxxxxxx.xxx
Name
of Purchaser: Xxxx Xxxxxxxxx
Address:
0 Xxxxxxxx Xxxxxxx, Xxxxxx 0, Xxxxxxx
Tel: (000)-00000000
Email: xxx@xxxxxxxxxxxxxx.xxx
Name
of Purchaser: Xxxxxx Xxxxx
Address:
00 Xxxxxxxxx Xxxx #0000, Xxxxxxxx, XX 00000
Tel: (000)
000-0000
Email:
Xxxxxxxxxx@xxx.xxx
Name of Purchaser: XWRT2 LP
Address:
000 Xxxxxx Xxxxx Xxxxxx Xxxxxxxxx, XX 00000
Attention:
Xxxxxx Xxxxxx
Tel:
000-000-0000
Email:
xxxxxxx@xxxxxxxxx.xxx
Name
of Purchaser: SBMT2 LP
Address:
000 X. Xxxxx Xxxxxx Xxxxxxx, XX 00000
Attention:
Xxxxxxx Xxxx
Tel: 000-000-0000
Email:
xxxxxxxxxxx@xxxxx.xxx
Name of Purchaser: Godfrey2468
LP
Address:
000 Xxxxxxxxx Xxxxxx Xxxxxxxx, XX 00000
Attention:
Xxxxx Xxxxxxx
Tel: 000-000-0000
x 00
Email:
xxxxxxx000@xxxxxxx.xxx
Name of Purchaser:
LeeMadison9189 LP
Address:
0000 Xxxx Xxxxxxxx Xxxxxxxx Xxxxx Xxxxxxxx, XX 00000
Attention:
Xxxxxx Xxxxx
Tel: 000-000-0000
Email:
xxx@xxxxxxxxxxxx.xxx
Name of Purchaser: RossPlan
LP
Address:
000 X. 00xx Xxxxxx Xxx Xxxx, XX 00000
Attention:
Xxxx Xxxxxxxx
Tel: 000-000-0000
Email:
xxxxxxxx@xxx.xxx
Name
of Purchaser: Golden1177 LP
Address:
#000-0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX X0X 0X0
Attention:
Xxxx Xxxx
Tel:
(000) 000-0000
Email:
xxxx@xxxxxxxxxxxxxxxx.xx
Name
of Purchaser: JBWA2 LP
Address:
000 Xxxxxxxx Xxx XX, Xxxxx #0000, Xxxxxxxx, XX 00000
Attention:
C. Xxxxx Xxxxxx
Tel:
(000) 000-0000
Email:
xxxxxxxxxxx@xxx.xxx
Name
of Purchaser: TIBERO2 LP
Address:
00 Xxxxxxxxx Xxx, Xxxxxxxxx Xxxxxxxxx XX000XX Xxxxxxx
Attention:
Xxx Xxxxxxxx
Tel:000-000-0000
Email:
xxxxxxxxxxx00@xxxxxxxxxx.xxx
Name
of Purchaser: KAUFMAN2 LP
Address:
000 X. 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxx
Tel:
(000) 000-0000
Email:
Xxxxxx.x.xxxxxxx@xxxxx.xxx
EXHIBIT
B
UNANIMOUS
WRITTEN CONSENT
OF
THE DIRECTORS OF
BIOSTAR
PHARMACEUTICALS, INC.
___________________
Pursuant to Section 2-408 of the Maryland
General Corporation Law, which provides that the Board of Directors of a
Maryland corporation may take any action which could be taken at a meeting by
means of a written consent signed by all of the directors describing the action
taken, the undersigned, constituting all the members of the Board of Directors
of Biostar Pharmaceuticals, Inc., a Maryland corporation (the “Corporation”) by
this Written Consent do hereby adopt the following resolutions as of date first
set forth above:
RESOLVED, that the Corporation
issue, pursuant to Section 4(2) of the Securities Act of 1933, as amended,
shares (the “Shares”) of the Corporation’s capital stock in the names and in the
amounts as set forth below, pursuant to the terms of Section 6.10 of that
certain securities purchase agreement, dated November 2, 2009, to the
following:
Name Class of
Securities Number of
Shares
RESOLVED, that the officers of
the Corporation be, and they hereby are, authorized and empowered to cause the
issuance and delivery of the certificates representing the Shares to be issued
and the Shares shall be, and hereby are declared to be, fully paid and
non-assessable securities of the Corporation in respect to which the holders
thereof shall not be liable for any further call, payment or
assessment.
RESOLVED, that the officers of
the Corporation are directed to cause the certificates
representing the Shares to be endorsed with the following
legend:
“THE
SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “1933 ACT”), AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED,
PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE 1933 ACT, OR
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE
SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH SALE, TRANSFER,
ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS OF THE 1933 ACT.”
RESOLVED, that the appropriate
corporate officers be, and each of them with full authority to act without the
others hereby is, authorized and directed for and on behalf of the Corporation
to take or cause to be taken any and all actions, to execute and deliver any and
all certificates, instructions, requests, or other instruments, and to do any
and all things which, in any such officer's judgment, may be necessary or
desirable to effect each of the foregoing resolutions and to carry out the
purposes thereof, the taking of any such actions, the execution and delivery of
any such certificates, instructions, requests, or instruments, or the doing of
any such things to be conclusive evidence of their necessity or
desirability.
RESOLVED that this consent may
be executed in one or more counterparts.
[SIGNATURE
PAGE TO FOLLOW]
IN WITNESS WHEREOF, the
undersigned, being all of the directors of the Corporation, consent
hereto in writing as of November 2, 2009, and direct that this instrument be
filed with the
minutes of proceedings of the Board of Directors of the
Corporation.
__________________________
Xxxxxxx
Xxxx
__________________________
Xxxxxxx
Xxx
__________________________
Xxxxxxx
Xxxxx
__________________________
Xxxxxxx
Xx
__________________________
Xifeng
Nie
EXHIBIT
C
Letter
to Transfer Agent
[COMPANY
LETTERHEAD]
November
2, 2009
VIA FEDERAL
EXPRESS
OTC
Corporate Transfer Service Co.
00 Xxxxx
Xxx Xxxxx
Xxxxxxx,
XX 00000
Attn:
Xxxx Xxxx
Re: Biostar Pharmaceuticals,
Inc.
Dear
Sir/Madam:
This
letter authorizes you to issue certificates representing an aggregate of
_________ shares of _____________ (the “Shares”) of BioStar Pharmaceuticals,
Inc., a Maryland corporation (the “Corporation”), to the persons and in the
amounts indicated on Schedule I annexed hereto.
The
Shares to be issued pursuant to Schedule I have been
duly authorized and validly issued and are fully paid and non-assessable. Please
note that the certificates should bear the standard 1933 Act
legend.
In addition, you are authorized to
accept the legal opinion of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP, as counsel with
respect to the issuance of these shares.
Please deliver the certificates via
_________ to ______________.
Please feel free to call us with any
questions.
Sincerely,
________________________
Schedule
I
| Name
and Address | SSN# | Number
of Shares |
| |
| |
|
|
|
|
|
TOTAL
|
|
|
