Exhibit
10.2
SEPARATION AND DISTRIBUTION
AGREEMENT
THIS SEPARATION AND DISTRIBUTION
AGREEMENT (this “Agreement”) is entered into as of
April 21, 2009, between Bio Matrix Scientific Group, Inc., a
Delaware corporation (“BMSN”), and Entest BioMedical,
Inc., a California corporation (“Biomed”).
RECITALS
WHEREAS, BMSN currently owns 100% of
the issued and outstanding stock of Biomed;
WHEREAS, Biomed is engaged in on
research and development in the areas of diabetes, regenerative
medicine and medical devices (the “Biomed
Business”);
WHEREAS, the Boards of Director of
BMSN has determined that it would be appropriate and desirable for
BMSN to distribute, pro rata, to the holders of its stock, all of
the shares of Biomed common stock owned by BMSN (the
“Distribution”);
WHEREAS, subsequent to the
Distribution, and as provided for in this Agreement, Biomed will be
an independent company (the “Separation”);
NOW, THEREFORE, in consideration of
the foregoing and the covenants and agreements set forth below, the
parties hereto agree as follows:
1. SEPARATION
1.1.
Distribution Date . Unless otherwise provided in this
Agreement, or in any agreement to be executed in connection with
this Agreement, the effective time and date of the Distribution,
and each undertaking or agreement in connection therewith shall be
such date as may be fixed by the Board of Directors of BMSN (the
“Distribution Date”).
2. THE
DISTRIBUTION
2.1.
Delivery of Shares for Distribution . On or prior to the
Distribution Date, BMSN will deliver to the distribution agent for
the Distribution (the “Distribution Agent”) and the
BMSN transfer agent, a single stock certificate, endorsed by BMSN,
representing all of the outstanding shares of stock of Biomed then
owned by BMSN. The shares of Biomed stock represented by said
certificate shall be the shares distributed to the stockholders of
BMSN pursuant to the Distribution. BMSN shall cause the
Distribution Agent to distribute on the Distribution Date the
appropriate number of such shares of common stock of Biomed to each
shareholder of BMSN as of the record date of the Distribution to be
set by BMSN (“Record Date”).
2.2.
Shares Received . Each holder of stock of BMSN on
the Record Date will be entitled to receive in the
Distribution a number of shares of stock of Biomed that
would be required to be distributed in order that the distribution
may be considered pro rata to all stockholders of BMSN on the
Record Date. The amount of shares issued and outstanding to any
individual shareholders of Biomed holding such shares prior to the
Distribution Date shall not be increased or reduced by the
Distribution.
2.3.
Obligation to Provide Information . Biomed and BMSN, as the
case may be, will provide to the Distribution Agent all share
certificates and any information required in order to complete the
Distribution on the basis specified above.
2.4.
Information Statement, Required Filings . Prior to the
Distribution Date, BMSN and Biomed shall prepare and mail to the
holders of stock of BMSN such information concerning Biomed and the
Distribution and such other matters as BMSN shall reasonably
determine are necessary and as may be required by law. BMSN and/or
Biomed will prepare, and Biomed will, to the extent required under
applicable law, file with the Securities and Exchange Commission
any such documentation that BMSN and/or Biomed determine is
necessary or desirable to effectuate the Distribution.
2.5. Securities
Laws. BMSN and Biomed shall take all such actions as may be
necessary or appropriate under applicable securities laws in
connection with the Distribution.
2.6.
Conditions . BMSN and Biomed shall take all reasonable steps
necessary and appropriate to cause the conditions set forth in
Section 2.8 to be satisfied and to effect the Distribution on the
Distribution Date.
2.7.
Sole Discretion of BMSN . BMSN agrees to use reasonable
efforts to complete the Distribution on or before July 31, 2009.
BMSN shall, in its sole and absolute discretion, determine the date
of the consummation of the Distribution, all terms of the
Distribution, and the timing of and conditions to the consummation
of the Distribution. In addition, BMSN may at any time and from
time to time unti
