Exhibit 10.1
AMENDED AND
RESTATED
REORGANIZATION AND STOCK PURCHASE
AGREEMENT
This REORGANIZATION AND STOCK
PURCHASE AGREEMENT dated as of September 23, 2009 (this
“Agreement”) amends and restates that certain
Reorganization and Stock Purchase Agreement originally entered into
March 11, 2008 (as subsequently amended), (collectively, the
“Original Agreement”), is by and between Stem Cell
Therapy International, Inc., a Nevada corporation
(“SCII”), and Histostem Co., Ltd., a Korean Company
(“Histostem,” and together with SCII, the
“Parties”).
WHEREAS, Histostem desires to
acquire a controlling interest of SCII; and
WHEREAS, the Board of Directors of
SCII desire to issue a controlling interest of SCII to Histostem;
and
WHEREAS, SCII desires to acquire a
majority controlling interest in Histostem; and
WHEREAS, the Board of Directors of
Histostem desire to issue a controlling interest of Histostem to
SCII; and
WHEREAS, the parties hereto intend
that the transaction contemplated here by shall be completed as a
tax-free exchange of stock.
NOW, THEREFORE, The respective
Boards of Directors of Histostem and SCII deem it advisable and in
the best interests of their corporations and the respective
shareholders of their corporations that Histostem acquire a 60%
controlling interest in the securities of SCII, and SCII acquire a
90% controlling interest in the securities of Histostem, in
accordance with the terms and conditions of this Reorganization and
Stock Purchase Agreement.
1. Conflict . In the event
there is a conflict between the terms of the Original Agreement
with amended and restated Agreement, the terms of this Agreement
shall control any interpretation. This Agreement supersedes and
restates the Original Agreement including without limitation all of
the amendments thereto.
2. Pre-Closing Actions of
SCII . Either prior to or immediately upon execution of this
Agreement and prior to any Closing as set forth herein, SCII shall
undertake the following actions:
(a) The Board of Directors of SCII
shall unanimously approve and deliver to Cutler Law Group
(“Escrow”) in escrow resolutions with respect to
(a) approving the Transactions set forth herein;
(b) increasing or directing the size of the Board of Directors
to be seven members; (c) electing five persons designated by
Histostem to the Board of Directors and electing two persons by the
current management of SCII, (d) approving an increase in the
authorized common stock to a total of 500,000,000 shares, and
(e) approving a name change of the corporation to AmStem
International Corp.
(b) SCII shall prepare and file
either a 14C Information Statement or a 14A proxy statement with
the US Securities and Exchange Commission to increase the
authorized common stock of SCII to 500,000,000 shares and to change
the name of the Company to AmStem International Corp.
(c) SCII shall issue and deliver to
Cutler Law Group as Escrow (the “Escrow Agent”) for a
total of at least 75,382,640 shares of common stock of SCII (which
at the time of Closing will reflect at least 60% of the fully
diluted issued and outstanding common stock of SCII) for
1
delivery to Histostem at Closing (the
“Escrowed SCII Shares”). In the event that SCII issues
any shares prior to Closing, SCII shall issue and deliver
additional shares to Histostem at Closing based on 60% of the fully
diluted and issued and outstanding common stock at the date of
Closing.
(d) SCII shall use its reasonable
best efforts to prepare and complete the documents necessary to be
filed with local, state and federal authorities to consummate the
transactions contemplated hereby.
(e) SCII shall have the right to
issue and deliver to Cutler Law Group as Escrow 1,000,000 shares
each to Brian Lee and Princeton Healthcare for services rendered to
Histostem, and 2,000,000 shares to Gerald Newman. Such shares may
be released and delivered at or prior to Closing subject to
completion of appropriate documents which are not a condition to
this Agreement.
(f) SCII shall prepare and file a
either a 14C information statement or a 14A proxy statement, file
same with the US Securities and Exchange Commission, mail it to its
shareholders, and subsequently amend the Articles of Incorporation
to increase the authorized common stock to 500,000,000 shares and
to change the company’s name to Amstem International
Corp.
2. Pre-Closing Actions of
Histostem . Immediately upon execution of this Agreement and
prior to the Closing as set forth herein, Histostem shall undertake
the following actions:
(a) The Board of Directors of
Histostem shall execute and deliver resolutions approving the
Transactions set forth herein.
(b) Histostem either has or shall
issue and deliver to Cutler Law Group as Escrow (the “Escrow
Agent”) for a total of 177,875,865 shares of common stock of
Histostem (representing not less than 90% of the fully diluted
equity of Histostem) for delivery to SCII at Closing (the
“Escrowed Histostem Shares”).
(c) Histostem shall cooperate with
its reasonable best efforts to assist SCII to prepare and complete
the documents necessary to be filed with local, state and federal
authorities to consummate the transactions contemplated
hereby.
3. Conditions to Closing .
The parties’ obligation to close the proposed Acquisition
will be subject to specified conditions precedent including, but
not limited to, the following:
(a) the representations and
warranties of Histostem as set forth in Section 6 herein shall
remain accurate as of the Closing Date and no material adverse
change in the business of Histostem shall have occurred;
(b) the representations and
warranties of SCII as set forth in Section 7 herein shall
remain accurate as of the Closing Date and no material adverse
change in the business of SCII shall have occurred;
(c) all the documents necessary to
be filed with local, state and federal authorities are
prepared
(d) SCII shall have provided the
board resolutions and any other approval required to complete the
board election and the name change.
2
(e) SCII shall retain its good
standing as a publicly traded company under the Securities Exchange
Act, trading on the over the counter bulletin board under the
symbol “SCII”.
4. At the Closing
.
(a) At the Closing, Cutler Law Group
shall release from escrow the SCII Board Resolutions effectuating
the election of five new members of the Board of Directors. The
members of the Board of Directors of SCII except for two members
prior to Closing shall submit resignations at Closing.
(b) At the Closing, Cutler Law Group
shall deliver the Escrowed SCII Shares to Histostem.
(c) At the Closing, Cutler Law Group
shall deliver the Escrowed Histostem Shares to SCII.
(d) At the Closing, the existing
officers of SCII shall resign and be replaced by those officers
appointed by the new Board of Directors.
5. Timing of Closing . The
Closing shall occur upon the satisfaction of the conditions set
forth in this Agreement and upon instructions from the parties
hereto to the Escrow Agent. The Closing Date shall occur as soon as
possible after the execution of this restated Agreement and upon
completion of the amendment to the Articles of Incorporation,
unless the Escrow Agent receives instructions otherwise from the
parties or notice from a party that the conditions set forth herein
have not occurred. In the event the Closing does not occur on or
before April 30, 2010, (i) the Escrow Agent shall return
the Escrowed Histostem Shares to Histostem and (ii) the Escrow
Agent shall return the Escrowed SCII Shares to SCII.
6. Post-Closing Actions
. SCII and Histostem acknowledge, understand and agree that
five days after the Closing that the combined entities shall issue
7.5% of its fully diluted common stock as settlement of litigation
between Histostem and Histostem, Incorporated (“Histostem
USA”).
7. Representations of
Histostem . Except as set forth in the Histostem
Financial Statements, Histostem represents and warrants as
follows:
(a) Ownership of Shares. As
of the Closing Date, SCII will become the record and beneficial
owner of the Escrowed Histostem Shares. The Escrowed Histostem
Shares will be free from claims, liens or other encumbrances,
except as provided under applicable federal and state securities
laws;
(b) Fully paid and
Nonassessable. The Escrowed Histostem Shares constitute duly
and validly issued shares of Histostem, and are fully paid and
nonassessable, and Histostem further represents that it has the
power and the authority to execute this Agreement and to perform
the obligations contemplated hereby;
(c) Organization of Histostem;
Authorization . Histostem is a corporation duly organized,
validly existing and in good standing under the laws of the
Republic of Korea with full corporate power and authority to
execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this
Agreement have been duly authorized by all necessary corporate
action of Histostem and this Agreement constitutes a valid and
binding obligation of Histostem; enforceable against it in
accordance with its terms. Histostem has no
subsidiaries.
3
(d) Capitalization . As of
the date of the original Agreement, Histostem had a total of
9,763,985 shares of common stock issued and outstanding. As of the
Closing Date, Histostem will have a total of no more than
19,763,985 shares of common stock issued and outstanding (not
including the Escrowed Histostem Shares) and no shares of preferred
stock issued and outstanding. No shares have otherwise been
registered under state or federal securities laws. As of the
Closing Date, all of the issued and outstanding shares of common
stock of Histostem are validly issued, fully paid and
non-assessable and there is not and as of the Closing Date there
will not be outstanding any warrants, options or other agreements
on the part of Histostem obligating Histostem to issue any
additional shares of common or preferred stock or any of its
securities of any kind. Histostem will not issue any shares of
capital stock from the date of this Agreement through the Closing
Date.
(e) No Conflict as to Histostem
and Subsidiaries . Neither the execution and delivery of this
Agreement nor the consummation of the exchange of the Histostem
Shares will (a) violate any provision of the certificate of
incorporation or by-laws (or other governing instrument) of
Histostem or (b) violate, or be in conflict with, or
constitute a default (or an event which, with notice or lapse of
time or both, would constitute a default) under, or result in the
termination of, or accelerate the performance required by, or
excuse performance by any Person of any of its obligations under,
or cause the acceleration of the maturity of any debt or obligation
pursuant to, or result in the creation or imposition of any
Encumbrance upon any property or assets of Histostem under, any
material agreement or commitment to which Histostem is a party or
by which its property or assets is bound, or to which any of the
property or assets of Histostem is subject, or (c) violate any
statute or law or any judgment, decree, order, regulation or rule
of any court or other Governmental Body applicable to Histostem
except, in the case of violations, conflicts, defaults,
terminations, accelerations or encumbrances described in clause
(b) of this Section for such matters which are not likely to
have a material adverse effect on the business or financial
condition of Histostem.
(f) Consents and Approvals of
Governmental Authorities . No consent, approval or
authorization of, or declaration, filing or registration with, any
Governmental Body is required to be made or obtained by Histostem
in connection with the execution, delivery and performance of this
Agreement by Histostem or the consummation of the sale of the
Escrowed Histostem Shares.
(g) Other Consents . No
consent of any Person is required to be obtained by Histostem to
the execution, delivery and performance of this Agreement or the
consummation of the sale of the Histostem Shares, including, but
not limited to, consents from parties to leases or other agreements
or commitments, except for any consent which the failure to obtain
would not be likely to have a material adverse effect on the
business and financial condition of Histostem.
(h) Litigation. There is no
action, suit, inquiry, proceeding or investigation by or before any
Court or Governmental body pending or threatened in writing against
or involving Histostem which is likely to have a material adverse
effect on the business or financial condition of Histostem, or
which questions or challenges the validity of this Agreement.
Histostem is not subject to any judgment, order or decree that is
likely to have a material adverse effect on the business or
financial condition of Histostem.
(i) Absence of Certain
Changes . Histostem has not:
1. suffered the damage or
destruction of any of its properties or assets (whether or not
covered by insurance) which is materially adverse to the business
or financial condition of Histostem, or made any disposition of any
of its material properties or assets other than in the ordinary
course of business;
4
2. made any change or amendment in
its certificate of incorporation or by-laws, or other governing
instruments;
3. other than the Histostem Escrowed
Shares , issued or sold any Equity Securities or other securities,
acquired, directly or indirectly, by redemption or otherwise, any
such Equity Securities, reclassified, split-up or otherwise changed
any such Equity Security, or granted or entered into any options,
warrants, calls or commitments of any kind with respect
thereto;
4. organized any new Subsidiary or
acquired any Equity Securities of any Person or any equity or
ownership interest in any business;
5. borrowed any funds or incurred,
or assumed or become subject to, whether directly or by way of
guarantee or otherwise, any obligation or liability with respect to
any such indebtedness for borrowed money;
6. paid, discharged or satisfied any
material claim, liability or obligation (absolute, accrued,
contingent or otherwise), other than in the ordinary course of
business;
7. prepaid any material obligation
having a maturity of more than 90 days from the date such
obligation was issued or incurred;
8. cancelled an
