Exhibit 10.38
AMENDMENT NO. 2
REORGANIZATION AND STOCK PURCHASE AGREEMENT
This
Amendment No. 2 (the
"Amendment No. 2") is dated as of June 17, 2008,
and amends
that certain Reorganization and Stock Purchase Agreement (the
"Original Agreement")
dated March 10, 2008, as amended by Amendment No. 1 dated
as of April 19, 2008, by and between Histostem Co., Ltd.
("Histostem"), and Stem
Cell Therapy
International,
Inc. ("SCII").
RECITALS:
WHEREAS, Histostem
and SCII propose to amend the certain
of the terms of
the Original
Agreement as set forth below; and
NOW,
THEREFORE, in
consideration of the promises and the mutual agreements
herein set
forth, the parties hereto agree as follows:
1.
CONFLICT. In the event
there is a conflict between the terms of the
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Original Agreement or Amendment No. 1 with this Amendment No. 2,
the terms of
this Amendment No. 2 shall control any interpretation. Unless this Amendment
No. 2 expressly amends or supplements the language of the Original
Agreement or
Amendment No. 1, the Original Agreement and/or Amendment No. 1
shall remain in
full force and effect.
Unless otherwise defined in this Amendment No. 2, terms
defined in the Original Agreement or Amendment No. 1 shall be
similarly defined
herein.
2.
AMENDMENT.
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(a)
Paragraph 1(c) of the
Original Agreement is hereby amended to read
as follows:
"SCII shall
issue and deliver to Cutler Law Group as
Escrow (the "Escrow
Agent") for a total of 24,172,685 shares of common stock of SCII
(reflecting a 1
for 3 reverse stock split of SCII common
shares prior to closing) for delivery
to Histostem
upon satisfaction of the Litigation
Condition (as defined below)
(the "Escrowed
SCII Shares")."
(b)
New
paragraph 1(f) is hereby added to the Agreement as a
"Pre-Closing Action
of SCII":
"SCII shall
prepare and file a 14C information
statement, mail it to its
shareholders, and
subsequently
complete a 1 for 3 reverse stock split of
its
common stock."
(c)
Paragraph 2(b) of the
Original Agreement is hereby amended to read
as follows:
"Histostem
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
for delivery
to SCII upon
satisfaction of the Litigation Condition (as defined
below) (the
"Escrowed Histostem Shares")."
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(d)
Condition to
Closing 3(g) of the Original Agreement is hereby
amended to
provide that: Both parties have agreed that there will be no
requirement for
immediate funding at the date of the actual
closing, with the
parties intention
to close the transaction immediately
upon execution of this
Amendment No.
2.
(e)
New
paragraph 3(g) is hereby added to the Agreement:
"(g)
Histostem
Litigation:
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(i)
Histostem acknowledges and represents that
it is a named defendant in
that certain
litigation
matter entitled "Histostem, Inc. v. Dr. Hoon Han,
Histostem Corporation
and does 1 through 100 inclusive", which
was initially
filed July
24, 2006 and remains unresolved (the "Histostem
USA Litigation).
Histostem acknowledges
that the Histostem USA Litigation and other
possible
claims against
Histostem were missed and not disclosed in the Original
Agreement.
(ii)
Histostem acknowledges and agrees that the resolution of the
Histostem USA
Litigation
and the other claims is a material
component to the
completion of
the transactions contemplated by the Original Agreement, and
consequently
acknowledges and agrees that the Escrowed Histostem Shares and
the
Escrowed SCII
Shares shall be retained by Escrow at Closing.
(iii) Satisfactory
resolution
of the Histostem USA Litigation and the
other claims
shall
